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2004 SESSION
041184820Be it enacted by the General Assembly of Virginia:
1. That §§ 18.2-268.3 and 18.2-268.4 of the Code of Virginia are amended and reenacted as follows:
§ 18.2-268.3. Refusal of tests; procedures.
A. If a person, after having been arrested for a violation of §§ 18.2-51.4,
18.2-266 or § 18.2-266.1 or of a similar ordinance and after having been
advised by the arresting officer that (i) a person who operates a motor vehicle upon
a public highway in thisthe Commonwealth is deemed thereby, as a condition of
such operation, to have consented to have samples of his blood and breath taken
for chemical tests to determine the alcohol or drug content of his blood, (ii)
a finding of unreasonable refusal to consent may be admitted as evidence at a
criminal trial, and (iii) that the unreasonable refusal to do so constitutes
grounds for the revocation of the privilege of operating a motor vehicle upon the highways
of thisthe Commonwealth, and (iv) the criminal penalty for unreasonable refusal
is a Class 1 misdemeanor, refuses to permit blood or breath or both blood and
breath samples to be taken for such tests, the arresting officer shall take the
person before a committing magistrate. If the person is unable to be taken
before a magistrate because the person is taken to a medical facility for
treatment or evaluation of his medical condition, the arresting officer at a
medical facility, in the presence of a witness other than a law-enforcement
officer, shall again advise the person, at the medical facility, of the law
requiring blood or breath samples to be taken and the penalty for refusal. If
he again so refuses after having been further advised by the magistrate or by
the arresting officer at a medical facility (i) of the law requiring blood or
breath samples to be taken, (ii) that a finding of unreasonable refusal to
consent may be admitted as evidence at a criminal trial, and (iii) the penalty
penalties for refusal, and so declares again his refusal in writing
upon a form provided by the Supreme Court, or refuses or fails to so declare in
writing and such fact is certified as prescribed below, then no blood or breath
samples shall be taken even though he may later request them.
B. The form shall contain a brief statement of the law requiring the taking of
blood or breath samples, that a finding of unreasonable refusal to consent may
be admitted as evidence at a criminal trial, and the penalty penalties for
refusal, a declaration of refusal, and lines for the signature of the person from whom the blood or
breath sample is sought, the date, and the signature of a witness to the
signing. If the person refuses or fails to execute the declaration, the
magistrate or arresting officer at a medical facility shall certify such fact
and that the magistrate or arresting officer at a medical facility advised the
person that a refusal to permit a blood or breath sample to be taken, if found
to be unreasonable, constitutes a Class 1 misdemeanor and is grounds for
revocation of the person's privilege to operate a motor vehicle on the highways of
thisthe Commonwealth. The magistrate shall promptly issue a warrant or
summons charging the person with a violation of subsection A. The warrant or
summons shall be executed in the same manner as criminal warrants or summonses.
If the person has been taken to a medical facility for treatment or evaluation of his
medical condition, the arresting officer at a medical facility may issue, on
the premises of the medical facility, a summons for a violation of subsection A
in lieu of securing a warrant.
C. Venue for the trial of the warrant or summons shall lie in the court of the county or city in which the offense of driving under the influence of intoxicants is to be tried. The executed declaration of refusal or the certificate of the magistrate or arresting officer at a medical facility, as the case may be, shall be attached to the warrant or summons from the arresting officer and shall be forwarded by the magistrate or by the arresting officer to the aforementioned court.
D. When the court receives the declaration or certificate and the warrant or summons charging refusal, the court shall fix a date for the trial of the warrant or summons, at such time as the court designates.
E. The declaration of refusal or certificate of the magistrate or arresting officer at a medical facility shall be prima facie evidence that the defendant refused to allow a blood or breath sample to be taken to determine the alcohol or drug content of his blood. However, this shall not prohibit the defendant from introducing on his behalf evidence of the basis for his refusal. The court shall determine the reasonableness of such refusal.
§ 18.2-268.4. Appeal and trial; penalties for refusal.
The procedure for appeal and trial shall be the same as provided by law for
misdemeanors; if requested by either party on appeal to the circuit court, trial by
jury shall be as provided in Article 4 (§ 19.2-260 et seq.) of Chapter 15 of
Title 19.2, and the Commonwealth shall be required to prove its case beyond a
reasonable doubt.
If the Any person whom the court or jury finds the defendant guilty as charged
in the warrant or summons issued pursuant to § 18.2-268.3, is guilty of a Class
1 misdemeanor. Upon conviction, the court shall suspend the defendant's
privilege to drive for a period of one year. Upon conviction of the offense of
refusal committed within 10 years of a prior offense of § 18.2-266, §
18.2-268.3 or any offense set forth in subsection E of § 18.2-270 arising out
of separate occurrences or incidents, as charged in the warrant or summons issued
pursuant to § 18.2-268.3, the court shall suspend the defendant's privilege to
drive for a period of three years. This suspension period is in addition to the
suspension period provided under § 46.2-391.2.
However, if the defendant pleads guilty to a violation of § 18.2-266 or § 18.2-266.1 or of a similar ordinance, the court may dismiss the warrant or summons.
The court shall forward the defendant's license to the Commissioner of the Department of Motor Vehicles of Virginia as in other cases of similar nature for suspension of license. However, if the defendant appeals his conviction, the court shall return the license to him upon his appeal being perfected; however, the defendant's license shall not be returned during any period of suspension imposed under § 46.2-391.2.
2. That the provisions of this act shall become effective on January 1, 2005.