Explaining Virginia Refusal Statute – § 18.2-268.3

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Explaining Virginia Refusal Statute – § 18.2-268.3

DUI Laws in Virginia

Virginia statute § 18.2-266 prohibits residents and visitors to the state from operating a motor vehicle while under the influence of alcohol or drugs, both illicit drugs and those legally prescribed by a doctor. You are guilty of driving while intoxicated if your blood alcohol concentration measures at .08 percent or greater. These statutes also make it illegal for any person under age 21 to drive with a blood alcohol concentration greater than .02 or for a commercial driver to have a blood alcohol concentration greater than .04 percent.

Virginia is an implied consent state when it comes to sobriety and chemical tests. That means you explicitly give your consent to such testing when you pass your driver’s test and apply for a license. Because of this, you may face additional penalties for driving under the influence if you refuse to submit to such a test at the request of a police officer. Obtaining a driver’s license in Virginia means that you consent to a blood test, breath test, or both.

Penalties for Refusing to Take a Blood or Breath Test When Stopped for Suspicion of DUI

The first time you refuse to submit to a blood or breath test and you’re physically able to comply, you’re guilty of a civil offense. If you’re unable to successfully fight the charge, it results in the loss of your driving privileges for a period of one year from the date of your arrest. This is in addition to the penalties imposed for your original charge of driving with a blood alcohol concentration greater than .08 percent.

The penalties get steeper if you have a second DUI arrest or refusal in a set amount of time. For example, anyone charged in Virginia with a second or third offense that occurs 10 years or less from the first offense is guilty of a Class 1 misdemeanor. Conviction of a Class 1 misdemeanor includes the suspension of your driver’s license for a period of three years from the date of your conviction. As with a civil offense, you may receive fines and jail time on top of the long-term suspension of driving privileges.

The arresting officer will suspend your driver’s license immediately, but this does not count towards the one-year or three-year suspension you would receive if convicted. The administrative suspension imposed by the police officer can last between one week and two months, depending on whether you have previous convictions for DUI or refusal to submit to a breath or blood test.

Important Things to Know About Sobriety and Chemical Tests

The same classifications of penalties apply whether the police officer ordered you to take a breathalyzer test or a blood test. Breathalyzer tests are much more common in Virginia. Typically, the officer who stops you will offer the breath test first. If it is unavailable or you are not physically able to complete it, he or she will attempt to perform a blood test instead. You must take one of the two tests within three hours of a Virginia police officer pulling you over for suspected drunk or drugged driving.

An officer can require you to take a preliminary breath test before placing you under arrest if he or she suspects you of driving impaired. You do not legally have to submit to a preliminary breath test. If you refuse, the prosecuting attorney cannot use evidence of this refusal against you in court. However, it is usually in your best interest to submit to a request for a breath test whether it is preliminary or not.

Get Help from an Experienced DUI Attorney

Matthew Pack, the Senior Attorney at Pack Law Group, has several years of experience representing clients accused of DUI and refusal to submit to breath or blood testing. You may have a valid defense for refusing the test, such as knowing that you hadn’t been drinking at all when the officer stopped you. Mr. Pack will aggressively defend your actions and your right to continue driving in Virginia. To schedule a free legal review of your case, please contact his office in Bedford, Virginia at 540-586-7225. He serves clients in Bedford, Lynchburg, and Roanoke counties.

You’ve Been Arrested for DUI in Lynchburg – What’s Next?

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You see the lights from the police squad car in your rearview mirror and realize that the officer is pulling you over. Even worse, he or she suspects you of driving under the influence of alcohol or drugs. Whether you feel impaired or not, cooperating with the police officer is always in your best interest. It can prevent the situation from escalating even further out of control. At the same time, keep in mind that an arrest for driving with a blood alcohol concentration above .08 percent does not mean you are guilty of it. A judge, prosecuting attorney, and defense attorney like Matthew Pack help to decide your guilt or innocence at a trial later.

What to Expect During and Immediately After a DUI Arrest In this scenario the police officer who pulls you over will order you to take a breath or blood test to determine the amount of alcohol present in your body. Virginia’s implied consent law means that you give the police permission to do this when you apply for a driver’s license. Refusal to take the test could result in suspension of your driver’s license for one to three years, depending on whether you have previous DUI arrests or refusals on record. The arresting officer must also read you the Miranda warning. This outlines your rights as a person under arrest, including the right not to say anything to incriminate yourself. Next, the officer will likely place you in handcuffs, put you in the back of the squad car, and drive you to the police station in the city or county that employs him or her. If you were alone when the officer pulled you over, the officer will arrange to have your car towed to the police impound lot. If another licensed driver is with you, the officer may allow him or her to drive the car home if that person is not also impaired. Keep in mind that you are under constant surveillance from the moment of your arrest until you finally leave the police station. An officer can and probably will record anything you do or say in a police report, which the prosecution can use against you in court. You should not say anything to admit guilt or deny guilt at this time. It is best to wait until you have secured a defense attorney. However, you should pay close attention to how the officer performed the breath or blood test, whether he or she informed you of your rights, and if you felt the officer engaged in abusive behavior such as issuing threats, coercing you into a confession, or even physical violence.

Securing Your Release from Jail After a DUI Arrest After the arresting officer has processed your paperwork at the police station, he or she will contact a judge to determine when to release you. Depending on the time of your arrest, this could occur within a few hours or you may need to stay in jail overnight. The judge will decide to release you with or without bail or establish a bail amount you must pay prior to your release. It’s most common to receive conditional release on your own recognizance, which means that you promise to come back for your DUI trial.

Time is of the Essence You can expect the trial date for your DUI to occur within two months of your arrest. That means you must act fast to hire an attorney to defend you against the charge. Additionally, you have just five days to hire a criminal defense attorney if you want to get your driver’s license back. The longer you wait to seek legal help, the more time the prosecution has to build a case against you. Virginia is serious about punishing drivers convicted of DUI offenses. You face jail time, loss of driving privileges, insurance cancellation or rate increase, fines, loss of professional licenses, and other significant penalties if convicted. You can’t afford to wait or to hire an inexperienced DUI defense attorney. Matthew Pack, Senior Attorney at Pack Law Group, understands exactly what you have at stake. He will challenge every piece of evidence the prosecution presents to attempt to reduce the penalties or eliminate the charges altogether. Please contact Pack Law Group at 540-586-7225 to request your free case review as soon as possible.