Virginia’s implied consent law requires anyone arrested for Driving Under the Influence (DUI) to submit to a Breathalyzer Test. An unreasonable refusal of this test results in a charge of Breathalyzer Refusal under Va. Code §18.2-268.3. This is the first post in a three part series discussing the penalties for Breathalyzer Refusal in Virginia. This post specifically focuses on the penalties for a first offense Breathalyzer Refusal in Virginia.
For more information on the implied consent law in Virginia, click here. For more information on Breathalyzer Refusal charges in Virginia, click here. For more information on the penalties for second and third offense Breathalyzer Refusal convictions in Virginia, see post 2 and post 3 in this series.
What Are the Penalties for A First Offense Breathalyzer Refusal in Virginia?
The penalties for a first offense Breathalyzer Refusal in Virginia under Va. Code §18.2-268.3 are not criminal, but include substantial driver’s license suspension. Additionally, if the driver is charged with Breathalyzer Refusal again within the next 10 years, the charges are crimes and the offender faces jail.
Pre-Trial Driver’s License Suspension: The offender’s driver’s license will be administratively suspended upon being charged with a first offense Breathalyzer Refusal in Virginia (Va. Code §46.2-391.2). This administrative license suspension lasts for 7 days for a first offense. The period of administrative suspension is longer for second and subsequent Breathalyzer Refusal charges. For more information on administrative license suspension after a DUI or Breathalyzer Refusal charge in Virginia, click here.
Post-Trial Driver’s License Suspension: Even though the penalties for a first offense Breathalyzer Refusal in Virginia are not criminal, they are quite burdensome. After being convicted of a first offense Breathalyzer Refusal in Virginia under Va. Code §18.2-268.3, the offender’s driver’s license will be suspended for 12 months. This suspension is automatic, and the driver CANNOT have a restricted license at any time during this suspension period. This 12 month license suspension is in addition to any other suspension resulting from the DUI and will run consecutive to any other DUI-related suspension.
DMV Points: The DMV will add 6 demerit points to the offender’s Virginia driving record if convicted of a first offense Breathalyzer Refusal in Virginia.
Effect on Later Convictions: Even though the penalties for a first offense Breathalyzer Refusal in Virginia are not criminal, a conviction means that any future refusal charge within 10 years will be a crime. A second breathalyzer refusal in Virginia within 10 years is a Class 2 misdemeanor, and a third charge in 10 years is a Class 1 misdemeanor. These crimes are punished with jail time, high fines, and even longer periods of driver’s license suspension (Va. Code §18.2-268.3(B)).
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