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Should you take a breath test at a DUI stop?

With the holidays coming up, more police officers are likely to be out at night looking for drunk drivers or setting up DUI checkpoints throughout Virginia. You may find yourself in the unfortunate situation of having to pull over and speak to an officer on suspicions of driving under the influence of alcohol or drugs.

If the police have reason to believe you are intoxicated, they may request that you take a breath or blood test. What should you do? Is it better to take it or refuse?

State law

Virginia, like every other state in America, has an implied consent law. This means that by operating a vehicle (including moped and boats), you agree in advance to take a breath or blood test if the situation arises. You have the right to refuse, but the penalty is automatically losing your license for a year and not being eligible to apply for a restricted license. If you refuse a second time, you face Class 1 misdemeanor charges.

Pros and cons

The only positive to saying no is that the police will not have your exact BAC at the time of the arrest to use as evidence against you. A con is that a DUI conviction also comes with at least a one-year license suspension, which runs consecutively (not simultaneously) as the one-year license suspension for the test refusal. 

Complying with the test, however, gives you more options for retaining your driving privileges. If you receive a conviction, you may still apply for a restricted license to use for getting to work and/or school. You also regain your license sooner.

You may have concerns about the results of the test hurting your case. On the contrary, there are many defenses against breath and blood alcohol tests. The person administrating the test may not have had sufficient training, and the Breathalyzer may not have undergone proper calibration. Lab technicians may have mishandled blood samples or misinterpreted the results. Perhaps the police did not have sufficient cause to pull you over in the first place.

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Ronald E. Smith, P.C.

criminal defense & Social security disability law

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