Virginia Code

Va. Code Ann. § 18.2-268.4 (2026)

Trial and appeal for refusal

✓ current as of May 2026

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A. 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 or other offense listed in subsection A or B of § 18.2-268.3 is to be tried.

B. The procedure for appeal and trial of any civil offense of § 18.2-268.3 shall be the same as provided by law for misdemeanors; if requested by either party on appeal to the circuit court, trial by jury shall be as provided in Article 4 (§ 19.2-260 et seq.) of Chapter 15 of Title 19.2, and the Commonwealth shall be required to prove its case beyond a reasonable doubt.

C. If the defendant pleads guilty to a violation of § 18.2-266 or 18.2-266.1 or subsection B of § 18.2-272 or of a similar ordinance, the court may dismiss the warrant or summons.

The court shall dispose of the defendant's license in accordance with the provisions of § 46.2-398; however, the defendant's license shall not be returned during any period of suspension imposed under § 46.2-391.2.

1992, c. 830; 1994, cc. 151, 359, 363; 2004, cc. 985, 1013; 2005, cc. 757, 840, 943; 2017, c. 623.

Notes of Decisions

Cited in 15 cases (1 in the last 5 years), 1994–2024 · leading case: Kozmina v. Com., 706 S.E.2d 860 (Va. 2011).

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Kozmina v. Com., 706 S.E.2d 860 (Va. 2011). · cites it 8× “Significantly, Code § 18.2-268.4(B) provides that "[t]he procedure for appeal and trial of a first offense of § 18.”

Kim v. Commonwealth, 797 S.E.2d 766 (Va. 2017). · cites it 2× “2012) (listing public accessibility as creating "a rebuttable presumption that streets are highways" in criminal cases and noting that this presumption is "in reality nothing more than [a] permissible inference[ ]"). Although this framework creates a rebuttable presumption for a…”

City of Virginia Beach v. Siebert, 483 S.E.2d 214 (Va. 1997). · cites it 8× “The City also contends that Code § 18.2-268.4, which guarantees the right to a jury trial in a refusal case “if requested by either party on appeal to the circuit court,” implicitly acknowledges that either party has a right of appeal from a general district court judgment in a…”

Cash v. Commonwealth, 466 S.E.2d 736 (Va. 1996). · cites it 2× “The consent to submit to a blood or breath test, granted when a person operates a motor vehicle upon the highways, “is not a qualified consent and it is not a conditional consent, and therefore there can be no qualified refusal or conditional refusal to take the test.”

Simmons v. Commonwealth, 475 S.E.2d 806 (Va. 1996). · cites it 2× “Section 18.2-268.4 provides that if a person is found guilty of violating § 18.”

Brame v. Commonwealth, 476 S.E.2d 177 (Va. 1996). · cites it 2× “Code § 18.2-268.4 provides that if a person is found guilty of violating Code § 18.”

Settle v. Commonwealth, 685 S.E.2d 182 (Va. Ct. App. 2009). · cites it 2× “The Virginia Supreme Court considered the meaning of almost identical language in another statute-added by the General Assembly to the predecessor of Code § 18.2-268.4, which addresses the procedure to be followed when a person arrested for driving while intoxicated refuses to…”

Commonwealth v. Gray, 449 S.E.2d 807 (Va. 1994). · cites it 2× “Code § 18.2-268.4. Code § 18.2-268.2 establishes the breath test and the blood test as alternative means for determining the alcohol content of blood.”

Frouz v. Commonwealth, 821 S.E.2d 324 (Va. 2018). · cites it 2× “2d 17 (first alteration in original) (citation omitted); see also Code § 18.2-268.4(B). Addressing the import of that language, in Rafferty we held that unlawful refusal charges were "administrative and civil in nature.”

Stephen Raymond Saal v. Commonwealth of Virginia (Va. Ct. App. 2020). · cites it 2× “when an officer knocked on the door to his home rendered the officer’s conduct 1 After accepting Saal’s guilty plea to the charge of driving under the influence, the trial court dismissed the refusal charge pursuant to Code § 18.2-268.4(C). unreasonable for the purposes of the…”

Breon Latham v. Commonwealth of Virginia (Va. Ct. App. 2024). · cites it 2× “3(D); Code § 18.2-268.4. - 14 - trial.13 Unreasonable refusal to submit to chemical testing may not be considered evidence of the accused’s guilt.”

Dolores Davis v. Cnty. of Fairfax (Va. Ct. App. 2010). · cites it 2× “115(C) providing that “[t]he procedure for appeal and trial shall be the same as provided by law for misdemeanors” and requiring application of the traditionally criminal standard of proof “beyond a reasonable doubt” does not support a different result. The Virginia Supreme…”

Show all 15 citing cases →

— Va. Code Ann. § 18.2-268.4(B) — 2 cases

Kozmina v. Com., 706 S.E.2d 860 (Va. 2011). “Significantly, Code § 18.2-268.4(B) provides that "[t]he procedure for appeal and trial of a first offense of § 18.”

Frouz v. Commonwealth, 821 S.E.2d 324 (Va. 2018). “2d 17 (first alteration in original) (citation omitted); see also Code § 18.2-268.4(B). Addressing the import of that language, in Rafferty we held that unlawful refusal charges were "administrative and civil in nature.”

— Va. Code Ann. § 18.2-268.4(C) — 1 case

Stephen Raymond Saal v. Commonwealth of Virginia (Va. Ct. App. 2020). “when an officer knocked on the door to his home rendered the officer’s conduct 1 After accepting Saal’s guilty plea to the charge of driving under the influence, the trial court dismissed the refusal charge pursuant to Code § 18.2-268.4(C). unreasonable for the purposes of the…”

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