Vermont DUI: Refusal to Take a Blood or Breath Test

In Vermont, if you get pulled over for a DUI (driving under the influence) and the officer asks you to take a blood or breath test, do you have to take one? What happens if you refuse?

Implied Consent

Vermont law requires you to take a blood or breath test if you are arrested for a DUI. Vermont’s “implied consent” law says that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving under the influence, then you consent to taking a chemical test of your blood or breath for the purpose of determining your blood alcohol content (BAC).  The test must be taken as soon as possible to when you were last driving, but the officer should give you time to speak to an attorney before you decide to take a test. The maximum amount of time to both contact your attorney and make your decision is thirty minutes. 

You could be arrested for a DUI even if you are not driving. If you merely attempt to operate a vehicle or have actual, physical control of one while under the influence, then that can be enough for an officer to arrest you. Generally, actual, physical control means that the driver is in the vehicle and could make it move. For example, a driver realizes he has had too much to drink so he pulls over to sleep it off. When the officer finds him, the engine is off but the keys are in the ignition and the driver is slumped over the steering wheel. Even though the driver does not intend to move the car while he sleeps, he has the potential to wake up and drive while still drunk. In Vermont, that is all a court needs to convict this driver of DUI. (To read more about this, see the case State v. Curavoo 156 Vt 72 (1991)).

You can read Vermont’s implied consent law in the Vermont Statutes Annotated 23-1202.

Refusing to Take the Test

 

1st Offense

2d Offense

3rd Offense

Refusal to take test

6 month license suspension

18 month license suspension

Lifetime license suspension

Once you are arrested, the officer should tell you that if you refuse to take a test, your license will be suspended for six months and evidence of your refusal can be used against you in court. One the other hand, if you choose to take a test but your BAC is above the legal limit, then your license will be suspended for 90 days, among other penalties. Additionally, you should know that if you submit to a breath test, then you can have the officer give you a second breath test. You also have the right to additional tests taken by a medical professional of your choice after you submit to the officer’s tests.

Usually, the officer will offer you a breath test first. If the equipment for taking a breath test is unavailable, then the officer will offer a blood test. If you refuse a test, then the officer cannot make you take it unless you were involved in an accident where someone else was seriously injured or killed, or if you have a prior DUI conviction, or if the accident has left you unconscious or dead. In that last situation, the officer will order a blood test and it does not matter that you have no ability to consent or refuse it.  

The penalty for refusal starts with a six-month driving suspension for your first refusal. For your second refusal the suspension lasts for 18 months, but after 90 days, you may be able to drive with an ignition interlock device on your car. For your third or any subsequent refusal, the suspension will be for life, but you may be able to drive with an ignition interlock device after you have served one year of your suspension.

The penalties for refusal are found in the Vermont Statutes Annotated 23-1205.

Should You Refuse to Take a Mandatory DUI Test in Vermont?

It usually does not help you to refuse to take a blood or breath test when you are arrested. For a first DUI in Vermont, your license will be suspended for at least 90 days, you will have to pay a fine up to $750, and you could go to jail for up to two years. This is significantly more severe than a six-month suspension of your license for refusal. Still, refusing the test does not guarantee that you won’t be convicted – you could be found guilty of a DUI even if your refusal means that the state does not have proof that your BAC was over.08%, the legal limit for those over 21. In fact, the prosecution can use your refusal against you by arguing that you refused the test because you knew that you were intoxicated and guilty of DUI.

Get Help With Your DUI

If you have been arrested on a DUI charge in Vermont or any other state, get help from an experienced DUI attorney. Unlike other traffic related charges, which might be worth fighting without a lawyer, conviction for a DUI has serious consequences – especially if the incident involved injury to people or property, or if it’s your second or subsequent DUI. To avoid or reduce the consequences, your best bet is to find an attorney who is knowledgeable about your state’s laws and about how the system works in your county’s court.

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