What Constitutes an Unreasonable Refusal?

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Virginia Code § 18.2-268.3 makes it unlawful to unreasonably refuse to have samples of your breath taken for chemical tests to determine the blood alcohol content after operating your vehicle on a highway as defined in Virginia Code § 46.2-100.  A highway is defined as “the entire width between the boundary lines of every way or place open to the use of the public for purposes of vehicular travel in the Commonwealth, including the streets and alleys, and, for law-enforcement purposes, (i) the entire width between the boundary lines of all private roads or private streets that have been specifically designated “highways” by an ordinance adopted by the governing body of the county, city, or town in which such private roads or streets are located and (ii) the entire width between the boundary lines of every way or place used for purposes of vehicular travel on any property owned, leased, or controlled by the United States government and located in the Commonwealth.

A person’s refusal to submit to a blood or breath test after operating a vehicle on a highway must be unreasonable to constitute a violation of Virginia Code § 18.2-268.3.  

Virginia cases have held that a person’s failure to submit to testing until afforded an opportunity to speak with an attorney constitutes an unreasonable refusal. However, a refusal may be deemed reasonable, for example, where a “person’s health would be endangered by the withdrawal of blood.” 

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