Refusing Breath or Blood Alcohol Testing in Virginia

You are cruising along one of Virginia’s roads, highways or thoroughfares and you see flashing lights behind you. A police officer is signaling for you to pull over. As you hand over your driver’s license, the officer smells what he thinks is alcohol on your breath. You find yourself being accused of driving under the influence of drugs or alcohol (DUI) and being asked to step out of the car for field sobriety and breath testing. You think that maybe if you just refuse to take the tests the police won’t be able to prove that you were or were not driving while intoxicated. What should you do?

Why Should You Agree to Testing?

Virginia, like other states, has what is known as an “implied consent” law. This means that:

• If you operate a motor vehicle on a roadway in the state, you have, by default, agreed to submit to testing – whether by a Breathalyzer (or similar device), blood sample or both – to determine your blood alcohol concentration if you are suspected of driving under the influence

What Happens if I Refuse Breath or Blood Alcohol Testing?

Failing to submit to the required testing can, ironically enough, have more of an impact on your life than a DUI arrest. A first offense is a civil penalty of loss of the right to drive for one year with no restrictive license available. After a first such offense or after a prior DUI conviction, it is a crime in and of itself to refuse the testing, and Virginia law § 18.2-268.3 sets forth what will happen if you decline an analysis of your body’s alcohol level. You will be informed that:

• Virginia has an implied consent law.
• If you are found to have unreasonably refused testing, that information could be used against you in a court of law.
• Deciding against testing is grounds to revoke your driving privileges (even if you are not licensed in Virginia).
• If a refusal of testing occurs within 10 years of a prior DUI/DWI conviction, you will be charged with a Class 2 misdemeanor.
• If a refusal of testing occurs within 10 years of two prior DUI/DWI or “unreasonable refusal to consent” violation, you will be charged with a Class 1 misdemeanor.

In conjunction with a first offense refusal to submit to testing comes a one-year minimum mandatory license suspension. A second offense coming within 10 years of a prior one will result in a three-year sentence.

If you have been arrested for DUI, you need to carefully choose your course of action: whether to refuse or not. There are situations where refusal may be to your advantage if there is no questionable driving behavior, no positive preliminary breath test and good field sobriety test results. A skilled criminal defense attorney can advise you about the best way to proceed in order to both protect your rights and minimize the consequences you face.