Implied Consent Law in Virginia
May 24, 2016 by Jean Humbrecht
The Implied Consent law in Virginia (Va. Code §18.2-268.2) requires any driver in the Commonwealth to provide a breath or blood sample after a DUI arrest. The Implied Consent law in Virginia states that any Virginia driver, regardless of which state he is licensed in, impliedly consents to a Breathalyzer or blood test just by driving on a Virginia highway.
The Implied Consent law in Virginia applies after a driver has been arrested for operating a motor vehicle under the influence of alcohol or drugs on a public highway. The arrest must occur within 3 hours of the alleged offense (the operation). Additionally, only 3 crimes trigger the Implied Consent law in Virginia and require a breath or blood test after arrest: Driving Under the Influence (Va. Code §18.2-266), Underage DUI (Va. Code §18.2-266.1), or Driving on a Revoked License with a BAC higher than .02% (Va. Code §18.2-272(B)).
What is Considered a Highway for the Implied Consent Law in Virginia to Apply?
The word “highway” is actually a very broad term for purposes of the Implied Consent law. It is defined in Va. Code §46.2-100 as “the entire width between the boundary lines of every way or place open to the use of the public for purposes of vehicular travel in the Commonwealth, including the streets and alleys, and, for law-enforcement purposes, (i) the entire width between the boundary lines of all private roads or private streets that have been specifically designated “highways” by an ordinance adopted by the governing body of the county, city, or town in which such private roads or streets are located and (ii) the entire width between the boundary lines of every way or place used for purposes of vehicular travel on any property owned, leased, or controlled by the United States government and located in the Commonwealth.”
Implied Consent Law in Virginia Requires Breathalyzer Test-Not PBT
The Implied Consent law in Virginia requires drivers to submit to a Breathalyzer Test AFTER arrest. The purpose of the Breathalyzer Test is to determine the Blood Alcohol Content (BAC) of the driver for proof of intoxication. For more information on the Breathalyzer Test in Virginia, click here.
Va. Code §18.2-269 presumes that the BAC result from the Breathalyzer Test was the BAC at the time of the offense (operating under the influence.) BAC readings over .08% create a presumption that the driver was under the influence of alcohol (Va. Code §18.2-269(3)). Results from a breathalyzer test WILL come into evidence against the accused. Click here for more information on BAC and DUI arrests in Virginia.
The Breathalyzer Test should not be confused with the Preliminary Breath Test (PBT), which is a voluntary test performed on the roadside before a suspect is arrested. A driver can refuse the PBT without penalty. For more information on the PBT in Virginia, click here.
Implied Consent Law in Virginia Also Requires Blood Test
The driver can also be required to take a blood test under the Implied Consent law in Virginia if there is no breathalyzer test available, he is unable to take a breathalyzer, or the police officer suspects the driver is under the influence of drugs (or a combination of drugs and alcohol) (Va. Code §18.2-268.2). However, if the consequences for refusing the blood test result in a criminal charge, the police must obtain a search warrant before taking the driver’s blood. For more information on when blood tests can be required after a DUI arrest in Virginia, click here.
Penalty for Refusing Breathalyzer Test If Implied Consent Applies
Unreasonable refusal of the Breathalyzer Test will result in a charge of Breathalyzer Refusal under Va. Code §18.2-268.3. Refusal is punished with automatic driver’s license revocation without the possibility of a restricted license, high fines, and jail time. Anyone caught driving after being revoked due to Breathalyzer refusal can receive an additional criminal charge, punished with an ADDITIONAL 12 months of driver’s license revocation without a restricted license (Va. Code §18.2-272(A)(i)). Click here for more information on Breathalyzer refusal in Virginia.
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