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What Happens if you Refuse a Breathalyzer Test in VA?


You are pulled over and the officer asks you to take a breathalyzer test. He suspects you may have been drinking and a breathalyzer will confirm that. Any test that shows a blood alcohol concentration (BAC) above 0.08 percent indicates intoxication.   

But you don’t want to take the test and feel it’s a violation of your rights, whether you’ve been drinking or not.

What are your options?

Implied Consent

Virginia has an implied consent law (Va. Code §18.2-268.2).  That means as a driver in the state of Virginia, you agree to submit to a test if an officer has reasonable cause to suspect you are driving while intoxicated (DWI) or driving under the influence (DUI).

It wasn’t always that way.

Originally, a blood or breath test was voluntary in Virginia. Then a number of citizens decided they did not want to submit themselves to such scrutiny. That’s when the state took it upon itself to make it mandatory as part of the condition to operating a motor vehicle upon state highways.

It is hidden in the small print when you apply for your driver’s license.

Note – You have not actually consented to being tested. You have not signed any paperwork that specifically gives away your rights and allows you to be charged for DUI, the consent is “implied,” and a condition of using the roadways.

Reasonable suspicion can mean anything that the officer can justify. For example, the car was weaving, stopping and starting, or going too fast or slow. Any valid reason an officer may have to pull you over for DUI could be considered reasonable suspicion.  

Once that happens, the officer needs to have lawfully arrested the driver for DUI prior to administering the tests. 

The first request is supposed to be for a breathalyzer, or breath test that shows the level of alcohol in one’s system, usually using the Intoxilyzer 5000. The blood test should only be conducted if the breath test is not available.

Refusing a Breathalyzer

  • Refusing a breath test can bring serious consequences such as a one-year license suspension. If this has happened before, within the last ten years, the driver will be guilty of a Class 2 misdemeanor.

  • The second offense refusal can land someone in jail for up to one year, along with a three-year license suspension and $2,500 in fines.

  • A third refusal is also a Class 1 misdemeanor and can bring you up to one year in jail and a suspended license for three years and a $2,500 fine.

The same thing can happen with a blood test. Refusal to submit can bring a one-year license suspension, and if this has happened before, that can be extended to a three-year license suspension.

A Virginia DUI Attorney – Know Your Rights

The Pack Law Group urges you to call a personal injury attorney right after you have been charged.

Sometimes, there are errors in the arrest, and we will determine if the officer followed the proper protocol in requiring you take the test.

For example, a urine test is not part of the Virginia Implied Consent Law. And in order to take a blood sample, the officer must first obtain a search warrant.

Your arrest must occur within three hours of the alleged drinking offense. Understand that three conditions require the breath or blood testing- DUI; underage DUI; or driving on a revoked license with a BAC higher than .02 percent. 

And there are only three sobriety field tests that are admissible in court. You can even be arrested and charged for DUI if your breath test shows an intoxication level below 0.08 percent.

Virginia DUI testing laws are complicated and at this time, you need a serious representative who can fight for your rights before they are taken away. The lawyers at Pack Law Group will be by your side to work within the system to secure the best outcome for your DUI case. Contact us right away for a personalized consultation.

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