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Virginia Beach DUI Attorney – Chesapeake DUI Lawyer : § 18.2-268.2. Implied consent to post-arrest testing to determine drug or alcohol content of blood.

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.

LIMITATION ON BLOOD TEST AVAILABILITY. –Only when a breath test is unavailable or the accused is physically unable to take one, is a blood test to be given. Lamay v. Commonwealth, 29 Va. App. 461, 513 S.E.2d 411 (1999).

THIS SECTION PROTECTS ONE WHO HAS THE ODOR OF ALCOHOL ON HIS BREATH BUT HAS NOT BEEN DRINKING TO EXCESS, and one whose conduct may create the appearance of intoxication when he is suffering from some physical condition over which he has no control. Thurston v. City of Lynchburg, 15 Va. App. 475, 424 S.E.2d 701 (1992).

LAWFUL ARREST REQUIRED TO IMPLY CONSENT. –For an arrestee to be deemed to have given implied consent under this section, the arrest must have been lawful; if the arrest was not lawful, consent for blood alcohol testing is not implied, and the results of any such test are not admissible for the purpose of providing a rebuttable presumption of intoxication. Smith v. Commonwealth, 32 Va. App. 228, 527 S.E.2d 456, 2000 Va. App. LEXIS 281 (2000).