Change to Penalty for Refusal of BAC Test in Virginia

On July 1, 2020, a major change was implemented concerning the penalty for refusing to cooperate with a blood or breath test following arrest for a DUI charge.

Virginia has an “implied consent” law.  This means that under the law every Virginia driver has previously consented to be tested for alcohol when they are arrested for suspicion of DUI in Virginia.  Drivers consent to this when they receive their driver’s license from the VA Department of Motor Vehicles.

Refusal to submit to this testing after being arrested for a violation of either 18.2-266 (DUI) or 18.2-266.1 (DUI under 21) will result in an additional charge of Refusal under statute 18.2-268.3.

A first violation of this statute is considered a civil penalty.  However, the first offense penalty is a suspension of the Defendant’s privilege to drive for a period of one year.  Up until recently, no restricted license could be granted during the suspension period.

That all changed on July 1, 2020, when a section was added to the statute allowing the petition for a restricted license after 30 days.  Below is a summary of the Bill that passed:

“Refusal of tests; restricted license. Allows a person convicted of a first offense of unreasonable refusal to have samples of his breath or blood taken for chemical tests to determine the alcohol content of his blood to petition the court 30 days after conviction for a restricted driver’s license. The court may, for good cause shown, grant such restricted license for the same purposes as allowed for restricted licenses granted after conviction of driving under the influence if the person installs an ignition interlock system on each motor vehicle owned by or registered to the person and enters into and successfully completes an alcohol safety action program. The bill provides that such restricted license shall not permit any person to operate a commercial motor vehicle.”

The restricted license petition would still need to be approved by a Judge.  But if approved, it would grant the freedom to drive on a specific limited basis during the remainder of the suspension period.

If you have questions about a DUI charge in Richmond, Henrico, Chesterfield, Powhatan, Hanover or the surrounding counties, please contact the attorneys of Winslow & McCurry, PLLC at (804)423-1382 or email us at