What happens if I refuse to take a DUI breathalyzer test in Virginia?

The Commonwealth of Virginia has an implied consent law for all drivers. This means that if you are arrested for driving under the influence, you have already given the officer automatic consent to test your alcohol levels by breath or blood test. If you refuse to submit to one of these tests, you will be issued a fine and your license will be automatically suspended, and you will still be under arrest.

It Usually Does Not Help Your Case to Refuse a Chemical Test

You should know that refusing a blood or breath test does not significantly benefit your case in Virginia DUI court. It is far more effective to build a defense based on the officer’s actions during and after your arrest, such as:

  • Probable cause. Under the implied consent law, an officer must have probable cause to believe that you have been driving under the influence in order to arrest you. If the officer did not have a reasonable suspicion of criminal activity for pulling you over, then the results of your chemical test could be ruled inadmissible in court.
  • Roadside test. If an officer asks you to take a preliminary breath test, you can refuse the preliminary test without the refusal being used against you later. However, if the officer eventually arrests you, you will be compelled to take the test anyway—and your refusal (and the results) can be used against you at that point.
  • Time limit. All admissible evidence must be collected within three hours of driving. If you are given a breath test at the roadside, but the blood test at the station does not occur until three hours later, the evidence may be inadmissible.
  • Reading your rights. An officer has a duty to advise you of the consequences of your actions. If you are arrested, you must be read your rights immediately. If you have refused a chemical test, the officer should tell you that the refusal can be used against you in court and inform you that your license will be suspended.

If you have been charged with DUI, there are many ways to protect your rights and minimize the possible penalties you are facing. At the Daniel Law Firm, we examine the details of each case to determine the best traffic law defense, and we fight aggressively for our clients in court. Call our toll-free number to set up an appointment with us as soon as possible.