Can You Refuse a Breathalyzer in Virginia?

If a police officer pulls you over for suspicion of drunk driving in Virginia, they may request you to take a breathalyzer test to measure your blood alcohol content (BAC). While this is routine, you wonder if you can refuse a breathalyzer test in VA.

If you decline to submit to a breathalyzer test, you’ll be arrested and charged with violating the implied consent law. Usually, this is a separate charge from a DUI. So, when you’re convicted, you’ll receive implied law penalties, including a one-year license suspension without the option of getting a restricted license.

While this is true, there are some specifics you should understand about breathalyzer tests in Virginia to protect your rights without violating the law.

Refusing breathalyzer in VA

When you are registered as a driver in Virginia, you implicitly agree to submit to a chemical test according to the implied consent law. Refusal to submit to a blood test violates this law and is charged separately from the DUI violation. Usually, the consequences of refusal and DUI conviction run consecutively.

How many types of breathalyzer tests does Virginia have?

Virginia has two types of breathalyzer tests: the preliminary breath test taken by the roadside and the official breathalyzer test (the EC/IR II) taken in jail or at the police station.

Preliminary breath tests

Police officers administer preliminary or roadside breath tests during a stop to show probable cause for a DUI arrest. Like field sobriety tests, you can refuse a roadside breath test without facing penalties or consequences of a breathalyzer refusal.

While you cannot be punished for refusal, the police officer might still arrest you for chemical testing at the station. This is often true even when you submit to the test and pass.

When a police officer stops you for a suspected DUI, they should advise you on your rights according to the law. Unfortunately, many law enforcement officers fail to clarify that you can refuse to take the breath test. Instead, they trick you into taking a test by saying, ‘If you’re not under the influence of alcohol, prove it.’

It might be tempting to prove them wrong, but the small handheld device isn’t always accurate. It might give BAC levels above the legal level (0.08%) while it’s lower. While a good DUI lawyer can point out the device’s faults and disprove the Blood alcohol concentration results, it’s better to refuse the test and avoid the embarrassment and hassle of an arrest, license suspension, and bail.

Note: Voluntarily taking the PBT allows the police to submit the BAC results (faulty or not) as probable cause for their arrest. It’s best to refuse to take roadside breath tests.


The EC/IR II breathalyzer test (BAC test) is conducted at the police station on a machine about the size of a desk printer. Unlike PBT, it’s mandatory under implied consent law to determine your blood alcohol level.

The machine requires at least 2 breath samples to confirm the results. The breathalyzer test results can be presented as evidence during your DUI trial. Before you blow into the tester, the police should observe you for 20 minutes and read you a letter stating that the test is mandatory; you can observe the BAC results on a digital screen and get a printed copy.

The EC/ER-II functions like the PBT but with two differences. First, it uses electrochemical and infrared light analysis to give BAC levels, while PBT relies on electrochemical processes only. Also, EC/ER-II can detect some errors, like the concentration of alcohol vapor inside it or in the air around it and run self-diagnosis to correct these errors. Although they are more accurate, they still have some flaws, including:

They don’t take into account body temperature. When you’re too warm, it can give false positives. Also, they assume alcohol levels tested are from the lungs. If you burped or vomited, the BAC results will be higher.

Note: If you vomited or burped 20 minutes before the test, inform your DUI attorney immediately.

What factors affect preliminary breath test accuracy?

Factors affecting PBT accuracy include other compounds in your breath (like chewing a mint or gum), your health, temperature, and human error. The volume of air you blow into the handheld device also affects result accuracy.

Inaccurate results can also result from improper maintenance and device damage, not properly cleaning the breathalyzer, and failure to calibrate.

What is the Implied Consent Law?

The 50 US states have the implied consent law that states every driver operating a motor vehicle on a public highway has automatically consented to submit to a chemical test to determine their BAC levels if suspected of a DUI.

The provision for the implied consent law requires the police officer to adhere to the three-hour rule. According to the three-hour rule, the driver should be arrested within 3 hours of driving or operating a vehicle. If the arresting officer adheres to this timeline, it doesn’t matter when the driver is finally tested. In Virginia, this rule does not pose legal issues because law enforcement will often arrest drivers within 20 minutes of a traffic stop.

Aside from this, there’s a 20-minute observation period we alluded to above. During this period, the administering officer should ensure the defendant does not belch, burp, regurgitate or put anything in their mouth that could affect the test results. If any of the above actions occur, an extra 20-minute observation period should be performed.

If the police officer fails to adhere to the Implied consent law rules, the BAC readings may be inadmissible in court.

What is considered breathalyzer refusal?

A driver’s refusal to comply with the chemical testing can be interpreted from their conduct or words. Sometimes, a driver can verbally agree to the test but pretends to blow into the machine or intentionally blows insufficient air. In such cases, the driver should be requested to take a blood test.

In other cases, the driver might be legitimately unable to provide enough blood samples due to asthma. Your DUI lawyer can fight this ‘breathalyzer refusal’ in court.

Police officers also watch out for attempts to stall the testing. This is often the case with drivers who consumed alcohol a while back and are delaying the test to let their BAC levels drop. Usually, police allow drivers enough time to decide to take the test or change their minds and take a different test. But at some point, they can interpret the reluctance as a refusal to test and file it as such.

What are reasonable reasons for breathalyzer refusal in Virginia?

While it is not advisable to refuse an EC/ER-II test, there may be some limited circumstances in which a refusal could be considered reasonable. Some potential reasons for refusing a breathalyzer test might include:

  • Medical conditions: If you have a medical condition that prevents you from providing an adequate sample of breath, such as a respiratory condition, you may have a valid reason for refusing the breathalyzer test. However, it’s important to note that you may be asked to provide a blood test as an alternative.
  • Faulty equipment or calibration concerns: If you genuinely believe that the breathalyzer device is malfunctioning, improperly calibrated, or the operator is not following proper procedures, you may refuse the test. If so, you should document any irregularities or issues you observe.
  • Legal advice: If you have consulted with an attorney and they advise you not to take the breathalyzer test, it is reasonable to follow their guidance. An attorney can provide personalized advice based on the specific circumstances of your case.

It’s important to note that while these reasons may be considered reasonable in certain situations, specific circumstances can heavily influence how they are interpreted. Additionally, refusal to take a breathalyzer test may still result in legal consequences, such as administrative penalties or the suspension of your driver’s license, even if you have a valid reason for refusal.

What are the consequences of breathalyzer refusal in VA?

According to the Implied Consent Virginia law, a first-time breathalyzer refusal to take a breathalyzer test is a civil offense that attracts severe penalties:

  • Administrative license suspension for seven days without the option of acquiring a restricted license.
  • You can pick up your license from the clerk’s office at the court on the 7th day or wait for it to be returned in the mail. Following this automatic penalty is your court date, where you could receive additional license suspension if you are convicted of any of the refusal charges levied against you.
  • A breath test refusal conviction carries a one-year license suspension and six demerit points added to your record.

Subsequent refusals within ten years are treated as criminal charges (class one misdemeanors), which carry the penalty of a three-year suspension of your license and a fine of up to $2,500 and one year in jail.

Note: You can only drive during the suspension period after installing an Ignition Interlock Device in your vehicle. This device administers breathalyzer tests to ascertain an acceptable level of alcohol in your system before you start your car.

Consequences of commercial drivers for breathalyzer refusal in VA

According to Under Virginia Code § 46.2-341.18:1, if a commercial driver refuses to take an evidential breath test, they’ll get a one-year disqualification on their first offense and a lifetime disqualification on their second breathalyzer refusal.

Does breathalyzer refusal make you guilty?

Refusing to take a breath test doesn’t automatically make you guilty of DUI. There are several defenses a DUI attorney can employ even if you refuse to test. For instance, they can prove the police didn’t have reasonable suspicion or probable cause to stop you.

The attorney can also argue there wasn’t a legal DUI checkpoint or that the breath test machine wasn’t properly calibrated. Every case is unique, and defenses are created based on the circumstances of the arrest and testing.

Can you call your criminal defense attorney before taking the breathalyzer test in VA?

In Virginia, DUI suspects don’t have the right to call an attorney before taking the test. The police officer isn’t bound by law to let you call a DUI defense law firm during or after the arrest. However, once in jail, you can contact your lawyer, but it will be after you take or refuse the breath test.

Charged with refusal to take a breathalyzer test?

Evidential breath tests are an important piece of evidence in DUI cases. At the Criminal defense firm of Battlefield Law Group, PLLC, our DUI defense lawyers have extensive experience and can evaluate and challenge DUI breath test evidence. Contact us today to schedule a consultation at our offices or over the phone.