Virginia DUI: Refusal to Take a Blood or Breath Test

In Virginia, 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?

Virginia law requires you to take a blood or breath test if you are arrested for a DUI. Virginia’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, breath, or both for the purpose of determining your blood alcohol content (BAC) or the presence of drugs. The test or tests must be taken within three hours of driving and in most cases, the officer will offer you the breath test first. If the breath test is unavailable or if you can’t complete a breath test, then the officer will ask for a blood test.

You could be asked to take a preliminary breath test even before you have been arrested. This works like a field sobriety test. The officer will use the results to establish probable cause that you were driving under the influence. You do not have to take this preliminary test and if you refuse it, evidence of this refusal cannot be used against you later in court. Refusing it, however, probably won’t work in your favor if the officer has some other reason to think you had been drinking. Based on that other reason, the officer could still arrest you and then you will be required to take a test under the law described in the paragraph above.

You can read Virginia’s implied consent law in the Virginia Code Annotated 18.2-268.2.

Refusing to Take the Test

1st Offense

2nd offense

3rd Offense

Refusal to take test

1 year license suspension

3 year license suspension (if prior refusal occurred within 10 years)

3 year license suspension (if prior refusals occurred within 10 years)

Once you are arrested, the officer should tell you that if you refuse to take a chemical test, then evidence of your refusal can be used against you in court and your license will be suspended. For your first refusal, your license will be suspended for one year. Also, this first refusal is not considered a crime. However, Virginia law classifies a second or any subsequent refusal as a misdemeanor, which is a crime that would stay on your record. For your second or any subsequent refusal within ten years, your suspension will last for three years.

The officer will suspend your license as soon as you refuse, but that does not start the clock on the one-year or three-year suspension periods explained above. This suspension begun by the officer is called an administrative suspension and its length depends on whether you have had any prior DUI convictions or refusals. The suspension period could be as short as seven days or as long as 60 days, but it will be in addition to the one or three-year penalties for your refusal.

The consequences of refusal are found in the Virginia Code Annotated 18.2-268.3.

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

It usually does not help you to refuse to take a blood or breath test when you are arrested. For a first DUI in Virginia, you will have to pay a fine of $250. You will also have to go to jail if your BAC is .15%, which is almost twice the legal limit of .08%. Assuming your BAC is less than .15%, this is a milder penalty than a year-long suspension 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 Virginia 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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