Can I Refuse a Breath Test?

If you are pulled over for driving under the influence (DUI) in Virginia and the officer asks you to take a breath test, you can refuse, but there will be consequences for it. Virginia has what is known as an “implied consent” law. The day you receive your driver’s license, you have already consented to submitting to a breath or blood test to determine your blood alcohol content (BAC) if you are properly arrested on suspicion for a DUI.

Consequences for Refusing a Breath Test

You might be asked to take a preliminary breath test before an officer makes an arrest. This test is akin to a field sobriety test and refusing to submit to the preliminary test cannot be used against you in court. However, it will not prevent you from being arrested if an officer believes you are intoxicated. The officer will likely tell you the results of the roadside breath test is not admissible in court – in fact, the officer is supposed to tell you this – but this advice is not quite right: If you take the roadside breath test and are arrested, the results of that test are admissible if you challenge probable cause at trial.

After your arrest, the officer should inform you that if you choose to refuse a breath or chemical test, your refusal can be used against you. The severity of the consequences depend on whether or not you have refused to take a test before.

• First Offense: 1-year license suspension, without the possibility of restricted privileges
• Subsequent Offenses: 3-year license suspension (no restricted permit available) if prior refusal occurred within 10 years, and potential jail time

As soon as you refuse an officer’s request to take a breath or chemical test, your license is suspended, but this tacked onto your 1 or 3 year license suspension, and is known as administrative suspension. This additional suspension time can be as short as a week or as long as 2 months.

Should I Refuse to Take a Mandatory Breath Test?

Refusing to take a breath test will usually not do your case any favors. The Commonwealth is free to seek a search warrant for your blood if you refuse to take the breath test. Also, refusing to take a test does not mean you will not get convicted. You might still be found guilty of a DUI and your refusal will likely be used against you in court. A prosecutor could argue that you refused to take the test because you knew your BAC was over the legal limit. Instead of refusing to submit to the test, it is in your best interest to seek experienced and skilled legal counsel as soon as possible to help fight this charge and ensure your rights are not trampled over.

Subsequent refusal offenses are considered misdemeanors. You do not want to have this on your record.

DUI Defense Attorney in Fredericksburg: Protecting Drivers

A DUI can happen to anyone from all walks of life and is considered a serious criminal offense. Prosecutors and law enforcement officers often try their best to see that those they believe are offenders suffer conviction, and the harsh criminal consequences that the law allows. Even if you are a first-time offender, without any prior criminal history, you may face severe penalties. If you or someone you love has been charged with a DUI, it is critical to speak with an attorney.

Andrew J. Cornick, Attorney at Law has more than 12 years of experience in the practice of criminal law, defending clients accused of DUIs, DWIs, and more. As a former prosecutor, he understands the other side of the courtroom, offering a unique advantage to his defense approach. DUI cases can be incredibly complex, which is why experience matters when it comes to securing the best possible outcome for your situation.