The Consequences of Refusing a Breathalyzer Test in Virginia

A breathalyzer test is often the most powerful evidence that a prosecutor has in a Virginia DUI case. The breath test helps determine your blood alcohol concentration (BAC). There are two breathalyzer tests, one conducted at the roadside traffic stop and an official one back at the police station. 

Virginia law requires drivers to take the breathalyzer test under its implied consent law. You can refuse to take the breath test, but there are legal consequences for doing so. 

Our Manassas criminal defense lawyers at Battlefield Law Group PLLC help you understand the consequences of refusing a breathalyzer test in Virginia. 

The Virginia Implied Consent Law

Va. Code §18.2-268.2(A) is Virginia’s implied consent law. It states that any person operating a motor vehicle within the Commonwealth of Virginia impliedly consents to taking a breath or blood test after an arrest for DUI. This test determines the concentration of alcohol in your blood to determine if you are intoxicated.

A breath test result of 0.08% or higher is considered per se intoxication for most adults. A lower BAC may provide a per se basis from underage drivers. This means the court can infer that you were intoxicated, even without other evidence. Prosecutors may use the breath test and other observations as part of their DUI case against you.

What If I Refuse To Take the Breath Test in Virginia?

To answer this, you need to understand there are two types of breath tests. The first is the Preliminary Breath Test.  This occurs on the road alongside field sobriety tests before you are arrested. This test is completely voluntary. Refusal is perfectly legal and cannot be used against in court. You do not impliedly consent to the roadside breath test, so you are free to refuse it.

The second test is the Breathalyzer test, which occurs at the police station after you are arrested. If you refuse this test, you may be charged with Breathalyzer Refusal under Va. Code §18.2-268.3).  Refusing this breath test can be used against you in court as well.

Blood Tests in Manassas DUI Arrests

The implied consent statute also requires you to consent to a blood test if the officer believes you are intoxicated due to drugs, if a breath test is not available, or if you are physically incapable of doing the breath test. Refusal to permit the blood test could result in penalties and be used against you in court, depending on the circumstances.

Penalties for Breathalyzer Refusal in Virginia

If a person refuses to take a breathalyzer test, the officer is first required to read a form that outlines what the implied consent law is and the penalties for continued refusal. After that, if the person still refuses to take the breath test, they can be charged with a criminal offense.

A first-time refusal to submit to a breath test is considered a civil offense. Your driver’s license will be suspended for one year and points will be added to your license.

A second or third refusal within ten years is a criminal offense. Your driver’s license will be suspended for three years. There is also the possibility of jail time and a large fine of between $1,000 and $2,500 depending on the number of prior refusals.

A driver will also face administrative driver’s license suspension, which can last from as little as seven days or the entire time you are being charged with the offense.

Understand the Consequences of a Virginia Breathalyzer Refusal

A breathalyzer refusal can have a significant impact on your life, but may also impact your underlying DUI case. Knowing the consequences you face and the right defensive strategies can make a major difference in your situation.

At Battlefield Law Group PLLC, our DUI/DWI attorneys defend your case and your other rights.  Contact us today for a free consultation of your case.