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Implied Consent Law in Virginia

In order to be convicted of DUI/DWI there must be a reliable chemical test proving a BAC above a 0.08. However, when simply stopped by an officer there is no requirement to submit to a breath test and this refusal cannot be used as evidence in a court proceeding. This is not so when the person is under arrest rather than simply stopped by an officer. By driving on the roads and highways in Virginia you are impliedly consenting to a chemical test if placed under arrest. If a chemical test is refused an officer must inform the accused that anyone who operates a motor vehicle on the state is deemed to have consented to a chemical test for alcohol and drug content, that if the accused is found to have unreasonably refused this may be admitted into evidence in a criminal trial, that the unreasonable refusal of chemical tests is grounds to have the accused’s privilege to operate a motor vehicle within the state revoked, that if there is a finding of unreasonable refusal within ten years of a previous DUI/DWI or unreasonable refusal that is a Class 2 misdemeanor, and that the if there is a finding of unreasonable refusal within ten years of any two previous DUI/DWI or unreasonable refusal is a Class 1 misdemeanor. This information is provided on a form by the Office of the Executive Secretary of the Supreme Court and is to be available to the public.

When the accused has unreasonably refused a chemical test the officer must go in front of the magistrate and, under oath, proclaim that the accused did unreasonably refuse to give a sample of blood, breath or both, that the officer read the accused the form provided, that even after this reading the accused has still refused to give a sample, and finally, the officer must recount the number of violations of this statute and the DUI/DWI statute. At this time the magistrate may issue a warrant or summons on the accused. The first time someone violates this statute it is simply a civil offense; however any further violations is a criminal offense. Anyone found to have unreasonably refused will have their license suspended for a year in addition to any other license suspension for any reason. If someone has violated this statute by unreasonably refusing a chemical test and within ten year is in violation of this statute, the DUI/DWI statute within ten years, they have committed a Class 2 misdemeanor. In this case the person’s license will be suspended for a period of three years in addition to any other suspensions. And, if someone has violated this unreasonable refusal statute and are subsequently in violation of the above statutes, also within ten years, two more times they have committed a Class 1 misdemeanor and they will have their license suspended for three years in addition to any other suspensions.


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