Refusing a DWI Blood or Breath Alcohol Test in Virginia

Virginia’s Implied Consent law and the consequences of a refusal.

Along with other standardized roadside tests, an officer will often request a suspected intoxicated driver to submit to a breath or blood test. Prosecutors use the results in court—which show blood alcohol concentration (BAC) or the amount of drugs in the driver’s blood—to prove DWI charges. This article gives an overview of when Virginia law requires submission to DWI chemical testing and the consequences of an unlawful refusal.

Implied Consent

Virginia’s implied consent statute requires all persons who operate a vehicle in the state to consent to a breath or blood tests if requested to do so by an officer. The officer must have lawfully arrested the driver for DWI prior to testing and the officer is supposed to request a breath test—rather than blood test—if available. Drivers who refuse a test in violation of the law face license penalties and possible fines.

Consequences of Refusal

Breath Tests. Refusal of a lawfully requested breath test is a civil offense and carries a one-year license suspension. A driver who has a prior test refusal or DWI conviction in the last ten years will be guilty of a misdemeanor. A second-offense refusal carries up to one year in jail, up to $2,500 in fines, and a three-year license suspension.

Blood tests. Refusal to submit to a lawfully requested blood test is a civil offense and carries one-year license suspension. A driver with prior DWIs or refusals will not be jailed for refusing a blood test but faces a three-year suspension.

The suspension related to a test refusal will run consecutively with any other DWI-related license penalty (a DWI conviction results in suspension also). Additionally, drivers are not eligible for restricted license privileges during a refusal-related suspension.

Appeal

A driver can request that a test refusal suspension be reviewed by the local court to determine if the officer complied with all requirements. These requirements include the reading of rights and the presence of a lawful arrest.

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