A. 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 blood and breath taken for a chemical test to determine the alcohol, drug, or both alcohol and drug content of his blood, 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.
B. Any person so arrested for a violation of clause (i) or (ii) of § 18.2-266 or both, § 18.2-266.1 or subsection B of § 18.2-272 or of a similar ordinance shall submit to a breath test. If the breath test is unavailable or the person is physically unable to submit to the breath test, a blood test shall be given. The accused shall, prior to administration of the test, be advised by the person administering the test that he has the right to observe the process of analysis and to see the blood-alcohol reading on the equipment used to perform the breath test. If the equipment automatically produces a written printout of the breath test result, the printout, or a copy, shall be given to the accused.
C. A person, after having been arrested for a violation of clause (iii), (iv), or (v) of § 18.2-266 or § 18.2-266.1 or subsection B of § 18.2-272 or of a similar ordinance, may be required to submit to a blood test to determine the drug or both drug and alcohol content of his blood. When a person, after having been arrested for a violation of § 18.2-266 (i) or (ii) or both, submits to a breath test in accordance with subsection B or refuses to take or is incapable of taking such a breath test, he may be required to submit to tests to determine the drug or both drug and alcohol content of his blood if the law-enforcement officer has reasonable cause to believe the person was driving under the influence of any drug or combination of drugs, or the combined influence of alcohol and drugs.
1992, c. 830; 1993, c. 746; 1994, cc. 359, 363; 1995, c. 23; 2002, c. 748; 2004, c. 1013; 2005, cc. 616, 757, 840.
Notes of Decisions
Cited in
165
cases (
15 in the last 5 years), 1992–2026 · leading case:
Roseborough v. Commonwealth, 688 S.E.2d 882 (Va. Ct. App. 2010).
Roseborough v. Commonwealth, 688 S.E.2d 882 (Va. Ct. App. 2010).
· cites it 132× “Code § 18.2-268.2 Our analysis of this case begins with the uncontested fact that Officer Weinstein never read the implied consent law to appellant and did not obtain appellant's consent to blow into the Intoxilyzer by informing him of the implied consent law.”
Stevens v. Commonwealth, 616 S.E.2d 754 (Va. Ct. App. 2005).
· cites it 28× “The trial court based its ruling on a finding that the Commonwealth had failed to arrest appellant within the statutorily mandated period after the incident as required by Code § 18.2-268.2. [2] The court also ruled that appellant had not properly been provided the form…”
Bristol v. Commonwealth, 636 S.E.2d 460 (Va. 2006).
· cites it 28× “, Doyle told Bristol he was under arrest and informed him of the implied consent provisions of Code § 18.2-268.2. Bristol indicated that he understood those provisions and, at 3:05 a.”
Bennett v. Commonwealth, 533 S.E.2d 22 (Va. Ct. App. 2000).
· cites it 45× “He contends the trial court erred (1) in refusing to decide whether the Commonwealth complied with Code § 18.2-268.2, pertaining to the administration of a breath test to determine his blood alcohol content, and in ruling that this issue was a jury question; and (2) in refusing…”
Jacob Lynn Patterson v. Commonwealth of Virginia, 749 S.E.2d 538 (Va. Ct. App. 2013).
· cites it 42× “Appellant argued that the taking of the blood test was impermissible under Code § 18.2-268.2 because the equipment necessary for performing a breath test was available and there was no indication that appellant was physically unable to take the breath test.”
Stevens v. Commonwealth, 603 S.E.2d 642 (Va. Ct. App. 2004).
· cites it 34× “2-269. The trial court based its ruling on a finding that the Commonwealth had failed to arrest appellant within the statutorily mandated period after the incident as required by Code § 18.”
Jones v. Commonwealth, 660 S.E.2d 343 (Va. Ct. App. 2008).
· cites it 8× “A jury convicted the appellant, Ronald Lee Jones, of unreasonable refusal to provide a breath sample following an arrest for driving under the influence, in violation of Code §§ 18.2-268.2 and 18.2-268.3. Jones challenges his conviction on appeal, arguing that the trial court…”
Oliver v. Commonwealth, 577 S.E.2d 514 (Va. Ct. App. 2003).
· cites it 20× “Code § 18.2-268.2. The refusal statute provided: If a person, after having been arrested .”
Hudson v. Commonwealth, 585 S.E.2d 583 (Va. 2003).
· cites it 18× “In its 1995 revision to Code § 18.2-268.2, the General Assembly eliminated the statutory provision which gave a person arrested for driving while intoxicated a choice of either a blood or breath test.”
Lamay v. Commonwealth, 513 S.E.2d 411 (Va. Ct. App. 1999).
· cites it 31× “Defense counsel argued that Code § 18.2-268.2 requires that a “ ‘blood test shall be given’ ” if “ ‘the breath test is unavailable or the person is physically unable to submit to a breath test.”
Kim v. Commonwealth, 797 S.E.2d 766 (Va. 2017).
· cites it 10× “As pertinent here, Code § 18.2-268.3(A) states: "It shall be unlawful for a person who is arrested" for driving under the influence "to unreasonably refuse to have samples" of his breath "taken for chemical tests to determine the alcohol or drug content of his blood as required…”
— Va. Code Ann. § 18.2-268.2(0) — 1 case
Jacob Lynn Patterson v. Commonwealth of Virginia, 749 S.E.2d 538 (Va. Ct. App. 2013).
“Appellant argued that the taking of the blood test was impermissible under Code § 18.2-268.2 because the equipment necessary for performing a breath test was available and there was no indication that appellant was physically unable to take the breath test.”
— Va. Code Ann. § 18.2-268.2(A) — 49 cases
Roseborough v. Commonwealth, 688 S.E.2d 882 (Va. Ct. App. 2010).
“Code § 18.2-268.2 Our analysis of this case begins with the uncontested fact that Officer Weinstein never read the implied consent law to appellant and did not obtain appellant's consent to blow into the Intoxilyzer by informing him of the implied consent law.”
Bristol v. Commonwealth, 636 S.E.2d 460 (Va. 2006).
“, Doyle told Bristol he was under arrest and informed him of the implied consent provisions of Code § 18.2-268.2. Bristol indicated that he understood those provisions and, at 3:05 a.”
Kim v. Commonwealth, 797 S.E.2d 766 (Va. 2017).
“As pertinent here, Code § 18.2-268.3(A) states: "It shall be unlawful for a person who is arrested" for driving under the influence "to unreasonably refuse to have samples" of his breath "taken for chemical tests to determine the alcohol or drug content of his blood as required…”
— Va. Code Ann. § 18.2-268.2(B) — 32 cases
Hudson v. Commonwealth, 585 S.E.2d 583 (Va. 2003).
“In its 1995 revision to Code § 18.2-268.2, the General Assembly eliminated the statutory provision which gave a person arrested for driving while intoxicated a choice of either a blood or breath test.”
Jacob Lynn Patterson v. Commonwealth of Virginia, 749 S.E.2d 538 (Va. Ct. App. 2013).
“Appellant argued that the taking of the blood test was impermissible under Code § 18.2-268.2 because the equipment necessary for performing a breath test was available and there was no indication that appellant was physically unable to take the breath test.”
Lamay v. Commonwealth, 513 S.E.2d 411 (Va. Ct. App. 1999).
“Defense counsel argued that Code § 18.2-268.2 requires that a “ ‘blood test shall be given’ ” if “ ‘the breath test is unavailable or the person is physically unable to submit to a breath test.”
— Va. Code Ann. § 18.2-268.2(C) — 5 cases
Jacob Lynn Patterson v. Commonwealth of Virginia, 749 S.E.2d 538 (Va. Ct. App. 2013).
“Appellant argued that the taking of the blood test was impermissible under Code § 18.2-268.2 because the equipment necessary for performing a breath test was available and there was no indication that appellant was physically unable to take the breath test.”
— Va. Code Ann. § 18.2-268.2(i) — 2 cases
Bennett v. Commonwealth, 533 S.E.2d 22 (Va. Ct. App. 2000).
“He contends the trial court erred (1) in refusing to decide whether the Commonwealth complied with Code § 18.2-268.2, pertaining to the administration of a breath test to determine his blood alcohol content, and in ruling that this issue was a jury question; and (2) in refusing…”
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