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Developed and maintained by the Division of Legislative Automated Systems.
2004 SESSION
Be it enacted by the General Assembly of Virginia:
1. That § 18.2-268.3 of the Code of Virginia is amended and reenacted as follows:
§ 18.2-268.3. Refusal of tests; procedures.
A. If When a person, after having been is 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 shall advise the person, from a form
described in subsection B, that (i) a person who operates a motor vehicle upon
a public highway in this 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 this Commonwealth, 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 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 from which the arresting officer shall advise the person arrested
shall be provided by the Office of the Executive Secretary of the Supreme Court and
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 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 grounds for revocation of the person's
privilege to operate a motor vehicle on the highways of this Commonwealth and
an acknowledgement of the arresting officer that he has read the form to the defendant and
a line for the signature of the arresting officer. The form shall be signed by
the arresting officer and the arresting officer shall acknowledge before the magistrate
that the form was read to the person arrested. The magistrate shall promptly
issue a warrant or summons charging the person with a violation of subsection A
and shall attach the executed advisement form to the warrant or summons. The
magistrate or arresting officer, as the case may be, shall forward the executed advisement and
warrant or summons to the appropriate court. 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.