Implied Consent & Refusal
Va. Code §§ 18.2-268.2 and 18.2-268.3 — the other half of a DUI case, where BREATH and BLOOD refusals part company
1. What the Driver Has Already Consented To — § 18.2-268.2
"Any person, WHETHER LICENSED BY VIRGINIA OR NOT, who operates a motor vehicle upon a HIGHWAY, as defined in § 46.2-100, in the Commonwealth shall be deemed thereby, AS A CONDITION OF SUCH OPERATION, to have consented to have samples of his blood, breath, or both … taken for a chemical test … if he is ARRESTED for violation of § 18.2-266, § 18.2-266.1, or subsection B of § 18.2-272 or of a similar ordinance WITHIN THREE HOURS of the alleged offense."
Four conditions on the consent itself
- Operation on a HIGHWAY as defined in § 46.2-100 Not merely anywhere. This is narrower than the DUI offence in some settings — check where the driving occurred.
- The person need NOT be licensed by Virginia
- There must be an ARREST for one of the named offences, or a similar ordinance
- The arrest must be WITHIN THREE HOURS of the alleged offence A condition of the implied consent, not merely a procedural step. Its consequences when missed are NOT analysed on this sheet.
§ 18.2-268.2(B), (C) — which sample, and when
| Arrest is for… | The person… |
|---|---|
| § 18.2-266 clause (i) or (ii) or both, § 18.2-266.1, or § 18.2-272(B) — the ALCOHOL clauses | SHALL SUBMIT TO A BREATH TEST. If the breath test is UNAVAILABLE, or the person is PHYSICALLY UNABLE to submit to it, a BLOOD test shall be given |
| § 18.2-266 clause (iii), (iv) or (v), § 18.2-266.1, or § 18.2-272(B) — the DRUG clauses | MAY BE REQUIRED to submit to a BLOOD test to determine drug, or drug and alcohol, content |
| § 18.2-266(i) or (ii), where the person has taken, refused, or was incapable of taking a breath test | MAY BE REQUIRED to submit to blood testing IF the officer has REASONABLE CAUSE to believe the person was driving under the influence of drugs, or the combined influence |
Breath is mandatory on the alcohol clauses; blood is permissive and requires either a drug-clause arrest or reasonable cause. The distinction matters, because what the person refused determines whether the refusal is criminal.
2. Refusal — and Why Breath and Blood Differ — § 18.2-268.3
§ 18.2-268.3(A) — BREATH refusal
| Circumstance | Nature | Consequence |
|---|---|---|
| First violation | CIVIL OFFENSE | Court SHALL suspend the privilege to drive for ONE YEAR |
| Found to have violated (A) and, WITHIN 10 YEARS PRIOR to the date of the refusal, found guilty of a violation of this section, of § 18.2-266, or of any offence listed in § 18.2-270(E), arising out of SEPARATE OCCURRENCES OR INCIDENTS | CLASS 1 MISDEMEANOR | Conviction OF ITSELF operates to deprive the person of the privilege to drive for THREE YEARS from the date of the judgment of conviction |
Both periods are expressly "IN ADDITION TO the suspension period provided under § 46.2-391.2" — the administrative suspension runs alongside, not instead.
§ 18.2-268.3(B) — BLOOD refusal
| Circumstance | Nature | Consequence |
|---|---|---|
| First offence | CIVIL OFFENSE | Court SHALL suspend the privilege to drive for ONE YEAR |
| The same 10-year qualifying-prior test as in (A) | STILL A CIVIL OFFENSE | The violation OF ITSELF operates to deprive the person of the privilege to drive for THREE YEARS from the date of the judgment |
Subsection (B) opens by saying the violation "IS A CIVIL OFFENSE" — full stop, for both tiers. The prior conviction lengthens the revocation from one year to three; it does not make the refusal criminal.
Reading the qualifying-prior test
- The window runs 10 YEARS PRIOR TO THE DATE OF THE REFUSAL Not the date of conviction, and not the date of the underlying offence.
- Three categories of prior count A violation of § 18.2-268.3 itself, a violation of § 18.2-266, or any offence listed in § 18.2-270(E) — set out in the alert below.
- The priors must arise out of SEPARATE OCCURRENCES OR INCIDENTS A prior arising from the same incident does not qualify.
Refusal and out-of-state priors
Brothers v. Commonwealth Record No. 2281-06-4 (Va. Ct. App. Oct. 9, 2007), Court of Appeals of Virginia (published), 2007
binding
Upheld two jury instructions as correct statements of law: "The consent to submit to a breath test is not a qualified consent and it is not a conditional consent. There can be no qualified refusal or conditional refusal." And: "A person's unwillingness to take the test without counsel present, or without prior consultation with counsel, does not constitute a reasonable basis for the refusal." Reading the statute otherwise would "frustrate the intent and object of the [implied consent] law and perpetuate the evil it seeks to correct" (Deaner, 210 Va. at 293) — and that reasoning applies whether the refusal is charged as civil or criminal.
THE ANSWER TO "HE JUST WANTED HIS LAWYER FIRST". Also forecloses the conditional refusal — "I'll blow if you let me call someone" is a refusal.
Beckham v. Commonwealth Record No. 1146-16-2 (Va. Ct. App. May 26, 2017), Court of Appeals of Virginia (published), 2017
binding
On out-of-state priors under § 18.2-270(E): two things are "substantially similar" if they have "common core characteristics or are largely alike in substance or essentials" (quoting Mason, 64 Va. App. at 608, and Johnson v. Commonwealth, 53 Va. App. 608, 613 (2009)). The Commonwealth bears the burden of proving the out-of-state conviction was obtained under substantially similar laws; if it does, the burden shifts to the defendant.
⚠️ PARTLY SUPERSEDED. Beckham quotes the recidivist provision as subsection (D) requiring "any TWO" priors. The section has since been restructured and now requires ONE, in A.2/B.2. Cite Beckham for the substantially-similar burden, NEVER for the number of priors.
3. The Advisement and the Certification — § 18.2-268.3(C), (D)
§ 18.2-268.3(C) — what the form must tell the person
- (i) That a person who operates a motor vehicle upon a highway in the Commonwealth is deemed, as a condition of such operation, to have CONSENTED to blood and breath samples
- (ii) That a FINDING OF UNREASONABLE REFUSAL MAY BE ADMITTED AS EVIDENCE AT A CRIMINAL TRIAL The refusal is evidence in the DUI case itself, not only the basis of a separate charge.
- (iii) That unreasonable refusal constitutes GROUNDS FOR REVOCATION of the privilege of operating a motor vehicle
- (iv) Of the CIVIL PENALTIES for unreasonable refusal to have blood or breath or both taken
- (v) Of the CRIMINAL PENALTY for unreasonable refusal to have BREATH samples taken within 10 years of a prior conviction for driving while intoxicated or unreasonable refusal — which is a Class 1 misdemeanor
Item (v) tracks the breath/blood divergence exactly: the form warns of a criminal penalty for a BREATH refusal only.
§ 18.2-268.3(D) — the sworn certification before the magistrate
- (i) That the defendant HAS REFUSED to permit blood or breath or both samples to be taken for testing
- (ii) That the officer HAS READ the portion of the form described in subsection C to the arrested person
- (iii) That the arrested person, AFTER having had that portion read to him, HAS REFUSED to permit the sample or samples to be taken
- (iv) HOW MANY, IF ANY, violations of this section, of § 18.2-266, or of any offence described in § 18.2-270(E) the arrested person has been convicted of WITHIN THE LAST 10 YEARS
"Such sworn certification shall constitute PROBABLE CAUSE for the magistrate to issue a warrant or summons." Note the sequence in (ii) and (iii): the form must be read FIRST and the refusal must follow it. A refusal recorded before the advisement does not satisfy the certification.
4. Defence Attacks & Responses
| Defense attack | Prosecution response |
|---|---|
| He didn't refuse, he just couldn't give a sample. | The statute requires an UNREASONABLE refusal, and § 18.2-268.2(B) itself contemplates a person PHYSICALLY UNABLE to submit to a breath test — in which case a blood test is given instead. Establish which it was. NO AUTHORITY IS CITED ON THIS SHEET on what makes a refusal unreasonable. |
| This is his second refusal, so it's a misdemeanor. | Only if it was a BREATH refusal. Under subsection (B) a blood refusal is a CIVIL OFFENSE however many priors there are — the priors lengthen the revocation to three years, nothing more. |
| The prior is more than ten years old. | The window runs ten years back from the DATE OF THE REFUSAL. Recompute from that date, and check each prior against § 18.2-270(E). |
| The prior arose from the same night. | Then it may not qualify — the statute requires priors "ARISING OUT OF SEPARATE OCCURRENCES OR INCIDENTS." |
| He was never told what would happen. | Subsection (C) requires advisement FROM THE PRESCRIBED FORM, and subsection (D)(ii)-(iii) requires the officer to certify that the form was read and that the refusal FOLLOWED it. Produce the form and the certification. |
| He wasn't on a highway. | Implied consent under § 18.2-268.2(A) attaches to operation upon a HIGHWAY as defined in § 46.2-100. Establish the location — the consent depends on it. |
| He was arrested more than three hours later. | The three-hour window is a condition of the implied consent itself. This sheet does not analyse the consequences of missing it; read the section and the case law before conceding or proceeding. |
| The refusal shouldn't come before the jury. | The form itself warns that a finding of unreasonable refusal MAY BE ADMITTED AS EVIDENCE AT A CRIMINAL TRIAL — § 18.2-268.3(C)(ii). |
5. Before You Charge
- WHICH SAMPLE was refused — breath or blood. It decides civil against criminal
- Arrest within THREE HOURS of the alleged offence
- Operation on a HIGHWAY as defined in § 46.2-100
- Which clause of § 18.2-266 the arrest was for — it decides whether breath was mandatory or blood was permissive
- For a blood test on an alcohol-clause arrest: the officer's REASONABLE CAUSE to believe drugs were involved, documented
- Pre-test advisement given: right to observe, right to see the reading, printout supplied
- The § 18.2-268.3(C) FORM read, and the reading certified before the refusal
- Ten-year record pulled from the DATE OF THE REFUSAL, each prior tested against § 18.2-270(E)
- Priors confirmed to arise from SEPARATE occurrences
- The magistrate certification's prior count verified independently
- § 46.2-391.2 administrative suspension noted as running IN ADDITION
6. Annotated Authority
Annotated authority — research layer, not printed on the PDF
Brothers v. Commonwealth Rec. No. 2281-06-4 (Va. Ct. App. Oct. 9, 2007), Va. Ct. App., 2007
AFFIRMED. Two Commonwealth jury instructions, granted over objection, are correct statements of law. INSTRUCTION 7: "The consent to submit to a breath test IS NOT A QUALIFIED CONSENT AND IT IS NOT A CONDITIONAL CONSENT. THERE CAN BE NO QUALIFIED REFUSAL OR CONDITIONAL REFUSAL." INSTRUCTION 8: "A person's UNWILLINGNESS TO TAKE THE TEST WITHOUT COUNSEL PRESENT, or without prior consultation with counsel, DOES NOT CONSTITUTE A REASONABLE BASIS FOR THE REFUSAL."
Practical value: These are the two instructions to proffer, in these words — they were upheld as given. The defence theory Brothers ran is the common one: that refusing until a lawyer arrived was reasonable. It is not. Note the posture: the instructions were granted OVER OBJECTION and survived, so this is authority for giving them, not merely for the underlying rule.
Beckham v. Commonwealth Rec. No. 1146-16-2 (Va. Ct. App. May 30, 2017) (published), Va. Ct. App., 2017
AFFIRMED. Florida's DUI statute, Fla. Stat. § 316.193(1), is SUBSTANTIALLY SIMILAR to Code § 18.2-266, so the Florida convictions were admissible to enhance under § 18.2-270(E). The reasoning is that both statutes "define A SINGLE OFFENSE that the government can establish through proof of AT LEAST ONE OF THE SUBSECTIONS", so "[a]ppellant's conduct that was sufficient to sustain two Florida DUI convictions WOULD HAVE SUPPORTED CONVICTIONS UNDER VIRGINIA'S DUI LAWS, REGARDLESS OF WHETHER the prosecution used AN IMPAIRMENT OR PER SE THEORY."
Practical value: ⚠️ THE DATE ON THIS ONE MATTERS. Beckham compares the two statutes AS THEY STOOD IN 2017. Substantial similarity is a comparison of TEXTS, so an amendment to either § 18.2-266 or Fla. Stat. § 316.193 can unsettle it. Read both current statutes before relying on Beckham for a Florida prior, and do not extend the result to a third state without doing the comparison yourself. ⚠️ NAME COLLISION: Beckham relies on MASON, 64 Va. App. 599 (2015). That is NOT the "Mason (Va. App. 2006)" entry on the indecent-liberties sheet, which remains unverified.
Mason v. Commonwealth 64 Va. App. 599, 605, 608, 770 S.E.2d 224, 227-28, Va. Ct. App., 2015
THE TEST: "two things are 'SUBSTANTIALLY SIMILAR' if they have COMMON CORE CHARACTERISTICS OR ARE LARGELY ALIKE IN SUBSTANCE OR ESSENTIALS." And the standard of review: where admissibility "rests upon the interpretation of a statute, that interpretation is A QUESTION OF LAW SUBJECT TO DE NOVO REVIEW."
Practical value: De novo review cuts both ways — a favourable ruling below earns no deference on appeal, so brief the comparison properly at trial rather than relying on the judge's discretion. ⚠️ NAME COLLISION: not the unverified "Mason (Va. App. 2006)" on indecent-liberties.
Dean v. Commonwealth 61 Va. App. 209, 213-14, 734 S.E.2d 673, 675-76, Va. Ct. App., 2012
THE BURDEN, AND IT SHIFTS. "[T]he Commonwealth BEARS THE BURDEN of proving the out of state conviction was obtained under laws substantially similar to those of the Commonwealth. IF THE COMMONWEALTH SHOWS SUBSTANTIAL SIMILARITY, THE BURDEN SHIFTS TO THE DEFENDANT to produce 'EVIDENCE OF DISSIMILARITY.'"
Practical value: The most useful thing on this sheet for an enhancement hearing. Put on the comparison first and the burden moves; a defendant who merely asserts the statutes differ has not met it. "Dissimilarity exists, for instance, if a person may be convicted of an offence" under the foreign statute that would not be an offence here — so the search is for conduct criminal there and lawful in Virginia.
Johnson v. Commonwealth 53 Va. App. 608, 613, 674 S.E.2d 541, 543, Va. Ct. App., 2009
The origin of the "common core characteristics or . . . largely alike in substance or essentials" formulation that Mason and Beckham apply.
Practical value: Cite it with Mason when the defence argues that any textual difference defeats similarity. The test is core characteristics, not identity.
Dillsworth v. Commonwealth 62 Va. App. 93, 96, 741 S.E.2d 818, 820, Va. Ct. App., 2013
"[T]he determination regarding whether appellant's [out-of-state] conviction[s] [are] 'substantially similar' to the offense proscribed by Code § [18.2-266] is A QUESTION OF LAW" reviewed DE NOVO.
Practical value: Pair with Mason. Because the question is one of law, the record you need is the two statutes, not testimony about foreign practice.
Porter v. Commonwealth 276 Va. 203, 260, 661 S.E.2d 415, 445, Va., 2008
A circuit court "by definition ABUSES ITS DISCRETION WHEN IT MAKES AN ERROR OF LAW. . . . The abuse-of-discretion standard includes review to determine that the discretion WAS NOT GUIDED BY ERRONEOUS LEGAL CONCLUSIONS."
Practical value: The bridge between "discretion" and de novo review, and the reason an evidentiary ruling resting on a misreading of § 18.2-270(E) gets no deference. ⚠️ Porter is a CAPITAL MURDER case; it is here for the standard of review, which is general.
Cardenas v. State 867 So. 2d 384, 391 (Fla. 2004), Fla., 2004
The Florida authority Beckham relies on for the structure of Fla. Stat. § 316.193 — the legislature revised the DUI statute so that impairment and driving with an unlawful blood-alcohol level are alternative means of proving a single offence.
Practical value: ⚠️ FLORIDA LAW, on a Virginia sheet, and that is the point: a substantial similarity argument requires reading the FOREIGN statute as the foreign courts read it. Beckham did not compare the two texts in the abstract; it took Florida's own construction of its statute first.