Can I Refuse the Breath or Blood Test if I am Charged With DUI in Virginia?
The short answer to this question is “No.” You cannot refuse the breathalyzer. You cannot delay the test by burping repeatedly or taken other steps to prolong the process. You cannot demand an attorney first. The only breath test that you can refuse is the Preliminary Breath Test (PBT) which is the handheld test used on the side of the road.
Virginia Code § 18.2-268.2 contains Virginia’s implied consent law, which says that any driver:
A. Any person, whether licensed by Virginia or not, who operates a motor vehicle upon a highway … in the Commonwealth shall be deemed thereby, as a condition of such operation, to have consented to have samples of his blood, breath, or both blood and breath taken for a chemical test to determine the alcohol, drug, or both alcohol and drug content of his blood, if he is arrested … within three hours of the alleged offense. B. Any person so arrested … shall submit to a breath test. If the breath test is unavailable or the person is physically unable to submit to the breath test, a blood test shall be given.
While this statute applies on the “highways” of the Commonwealth, this is very liberally construed, and includes even many private roads. The statute extends this implicit consent to up to three hours after the underlying alleged DUI; therefore, you aren’t in the clear just because you make it to your destination and turn the car off. Your refusal to take the test cannot be used as direct evidence at trial to prove that you were, in fact, intoxicated. However, the fact that you refused can used to explain why there the Commonwealth does not have BAC (Blood Alcohol Content) evidence at trial.
While Refusal is a lesser offense than DUI itself, you can actually be charged with both. The first offense for Refusal is a civil infraction, a second offense is a Class 2 misdemeanor, and a third offense is a Class 1 misdemeanor. The first offense results in a suspended license for 12 months, and the suspension increases with each subsequent offense. But remember, you could be charged with both Refusal and DUI–just because you refuse, doesn’t mean the Commonwealth can’t also charge you with a DWI or DUI.
Defense of DUI in Virginia, and the related offense of Refusal, is highly technical and fact specific. Your attorney should take the time to learn all the details of your alleged offense, and to understand your priorities. Our Client-Focused Criminal Defense Team is prepared to defend you for DUI or Refusal in Alexandria, Arlington, Fairfax, Prince William, Loudoun, and other Northern Virginia Courts.
