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2004 SESSION
041173808Be 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 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 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, 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.