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Developed and maintained by the Division of Legislative Automated Systems.
2005 SESSION
054385408Be 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. When a person is arrested for a violation of §§
18.2-51.4, 18.2-266, 18.2-266.1 or § 18.2-272
or of a similar ordinance, 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 the 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, (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 the Commonwealth,
(iv) the criminal penalty for unreasonable refusal within 10 years of a prior
conviction for driving while intoxicated or unreasonable refusal is a Class 2
misdemeanor, and (v) the criminal penalty for unreasonable refusal within 10
years of any two prior convictions for driving while intoxicated or
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.
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 penalties for refusal, a
declaration of refusal, and space for the
arresting officer to indicate whether the defendant has consented or refused to
provide a sample of his blood or breath, 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, if the defendant has refused, the
arresting officer shall acknowledge before the magistrate that the form was
read to the person arrested and that the
person arrested refused to provide samples of his blood or breath.
The magistrate or arresting officer shall also
certify, if applicable, that the refusal came within 10 years of any prior
conviction for unreasonable refusal or driving while intoxicated, so that the
punishment upon conviction would be a Class 2 misdemeanor, or that the refusal
came within 10 years of any two prior convictions for unreasonable refusal or
driving while intoxicated so that the punishment upon conviction would be a
Class 1 misdemeanor. The magistrate shall promptly issue a warrant
or summons charging the person with a violation of
subsection A unreasonable refusal and, if applicable, with
having refused within 10 years of a prior conviction or convictions for
unreasonable refusal or driving while intoxicated, 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 for a
first offense under this section 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. Unreasonable refusal to allow a blood
or breath sample to be taken to determine the alcohol or drug content of the
defendant's blood is a violation of this section and shall be an
offense punishable as set forth in §§ 18.2-268.3 and §
18.2-268.4. 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.