Can I Refuse a Breath Test in Virginia?

Chemical blood and breath tests are some of the most common ways Virginia police find evidence to arrest someone for drunk driving. With that in mind, it makes sense to refuse a breath test if the police ask you to take one. But can you legally refuse a breath test in Virginia? The short answer is yes, but there could be stiff consequences for refusing to take one.

At Whitestone Young, PC, our Fairfax DUI defense lawyers know how stressful these charges are and want to help you keep your freedom and driving privileges. This blog explains Virginia’s laws regarding mandatory breath tests and the potential consequences of refusing a test. Armed with this knowledge and help from a capable attorney, you have a much stronger chance of beating a DUI charge and keeping your freedom.

Virginia’s Implied Consent Laws

The Code of Virginia says any person who operates a motor vehicle on Commonwealth roads has, by the act of driving, automatically consented to provide samples of their breath or blood for chemical tests if the police have arrested them for driving under the influence. Laws like this are called implied consent laws. The key phrase here is “lawfully arrested” – the officer must have probable cause to believe you’re intoxicated while driving.

There are crucial stipulations in this law to be aware of. First, the 3-hour rule means police must arrest you within 3 hours of when you allegedly drove while drunk for any resulting chemical test to be valid. It’s also important to know that Virginia’s implied consent laws apply to anyone driving within the state, whether they hold a Virginia driver’s license or a license from somewhere else.

Preliminary Breath Tests vs. Evidentiary Tests

In Virginia, an officer might administer two types of breath tests if they suspect you’ve been drinking and driving: A preliminary breath test at the roadside and a more formal one at the police station after you’ve been arrested.

The preliminary breath test, also known as a field breathalyzer test, can help an officer establish probable cause for a DUI arrest. This test, however, is not as accurate as an evidentiary breath test conducted at a police station, and its results generally aren’t admissible in court to prove intoxication.

Now, here’s the critical distinction: You have the right to refuse a preliminary breath test without penalty. This is different from the post-arrest evidentiary breath test, which falls under Virginia’s implied consent law. Refusing the latter can result in severe consequences, including an immediate license suspension.

However, an officer could use your refusal of a preliminary breath test with other evidence (like erratic driving or slurred speech) to establish probable cause for an arrest. So, while you can refuse, it might not always be to your advantage to do so. It’s a complex area of law, and if you’re unsure of your best steps, it’s best to consult a legal professional.

Penalties for Refusing a DUI Breath Test in Virginia

If you refuse a formal breath test, you could be charged with a separate offense under Virginia law: Violation of the Implied Consent law. This charge carries a civil penalty for a first offense, leading to an immediate one-year suspension of your driver’s license. This is a hard suspension, meaning there’s no opportunity for a restricted license allowing you to drive to work, school, or other necessary locations during this period.

For second and subsequent offenses within ten years, refusing a formal breath test escalates to a Class 1 misdemeanor. This can result in an additional three-year license suspension on top of any suspension for a DUI conviction and, potentially, jail time as well. Remember, these penalties are separate from any consequences of a DUI charge itself, which could include further license suspension, hefty fines, mandatory alcohol education programs, ignition interlock requirements, and even imprisonment.

Call a Lawyer Today

The gravity of these consequences underscores the need for informed legal counsel when facing a DUI charge. Call Whitestone Young, PC, today at 703-591-0200 or complete our contact form for a confidential case evaluation.