Refusing a breathalyzer after getting pulled over can lead to criminal penalties under specific circumstances.
The implied consent law means anyone operating a vehicle consents to a chemical test if arrested for driving while intoxicated (DWI) to determine the level of alcohol or drugs in their blood. That includes minor drivers.
A driver with a blood alcohol concentration (BAC) of 0.08% or higher is under the influence of alcohol. However, drivers under 21 face harsher restrictions. A person under 21 violates Virginia law if they operate a motor vehicle after the illegal consumption of alcohol and the concentration of alcohol in their blood is at least 0.02%.
Types of Breath Tests in Virginia
Law enforcement can conduct two types of breath tests – a preliminary breath test (PBT) and a breathalyzer test.
During a field sobriety test, an officer can perform a PBT after pulling someone over. However, a PBT is voluntary. Refusing the test isn’t a criminal offense, and the courts can’t use the driver’s refusal against them.
Challenging probable cause for an arrest allows the court to enter the results of the PBT as evidence. The driver might claim the officer didn’t have reasonable cause to arrest them. To establish reasonable cause, presenting the results at trial can prove a BAC above the legal limit.
The requirements for a breathalyzer test differ from a PBT. Law enforcement administers a breathalyzer at the police station after an arrest. Refusing the breathalyzer can lead to civil or criminal penalties, and the refusal can be used as evidence against the driver in court.
Penalties for Refusing a Breath or Blood Test
The penalties for refusing a breath test depend on the number of prior offenses and other circumstances.
It is only a civil offense if it is the first time the driver has refused to submit to a breathalyzer test following a DWI arrest. The offender can face an immediate administrative license suspension for seven days. The court can also suspend driving privileges for one year.
It is a class 2 misdemeanor to refuse a breathalyzer for a second time within ten years of the first offense. The penalties can include:
- Administrative suspension for 60 days and a suspended driver’s license for three years
- Up to a $1,000 fine
- Maximum of six months in jail
A third or subsequent breathalyzer refusal within ten years is a class 1 misdemeanor. Sentencing can include:
- A maximum of a $2,500 fine
- No more than one year in jail
- Administrative suspension until the trial date and a suspended driver’s license for three year
Refusing a breathalyzer test is a class 1 misdemeanor if criminal records show a conviction for any of these offenses within ten years of the date of the refusal:
- Driving while intoxicated
- Involuntary manslaughter for unintentionally causing another person’s death while driving under the influence of alcohol
- Refusing a breath or blood test
- Driving a commercial motor vehicle while intoxicated
- Unintentionally causing someone’s serious bodily injury by driving while intoxicated in a wanton and gross manner, showing a reckless disregard for human life
Contact a Trusted Criminal Defense Lawyer
The law office of Bain Sheldon has defended clients in Richmond since 2006. We understand how terrifying it can be to find out your child was arrested. The punishment can be severe for refusing a breathalyzer test, even for a minor.
When you hire us, we will fight to try to get the charges dropped or reduced. Let us help you protect their rights and fight for their freedom.
Call us now at 804-282-8625 for a free consultation with an experienced criminal defense lawyer if your child was arrested or charged with DWI and refused to take a breathalyzer test.