What Are the Consequences of Refusing a Breath Test in Virginia?

If you are stopped on suspicion of driving under the influence in Virginia, the officer may ask you to submit to a breath test to determine your blood alcohol content (BAC). While it is not illegal to refuse this test, Virginia’s “implied consent” law allows the state to levy severe punishment for those who do not agree to it.

The Richmond DUI defense lawyers of Bain Sheldon represent those who’ve been arrested and accused of driving under the influence in our community. We are ready to stand up and fight for you. Here, we’ll discuss the types of breath tests administered in Virginia and what consequences you might face if you refuse to submit to a test.

Types of Breath Tests Administered in Virginia

A breathalyzer device tests a person’s blood-alcohol content level. Virginia police use two different breathalyzer tests when they suspect motorists of driving drunk. The tests and the rules surrounding them are easy to confuse, but the differences are important — especially if you face charges.

The first is called a preliminary breath test. This test is given roadside when you are first suspected of impaired driving. The police want to know if there is probable cause to arrest you for DUI.

Preliminary breath test results are not reliable, and they cannot be used against you to prove a DUI charge. The preliminary breathalyzer is not a pass/fail test. If you test below the legal limit, it is not guaranteed that you will not be arrested.  Other evidence — including failing other field sobriety tests that track your eye movements or your ability to balance on one leg, may give police enough “reasonable suspicion” to arrest you.

You can refuse a preliminary breath test. And, generally, your refusal cannot be used against you. But if you refuse, you are more likely to be arrested.

The second is called an official breath test.

Official breath tests are given after you are arrested. These are administered at the police station. They may involve breath or blood samples — and they may test for alcohol and drugs.

Official tests use a larger and more reliable breathalyzer device to get your exact blood alcohol content. You will take the test multiple times to confirm your results. Official breathalyzer test results can be used as evidence against you in a criminal case.

Unlike preliminary breath test requests, you cannot refuse an official breathalyzer without consequence.

What Is “Implied Consent” in Virginia?

Virginia has an “implied consent” law (VA Code § 18.2-268.2).

. If you are arrested for DUI, then under Virginia law, you have “agreed” to take an official breathalyzer test.

Your “consent” is not express. Rather, it is like a tradeoff: when you sign up for a Virginia driver’s license or drive on Virginia’s public roads, you agree to official DUI testing if you are arrested on DUI suspicion.

What Are the Consequences of Refusing a Breath Test in Virginia?

There are no legal consequences for refusing a preliminary breathalyzer. However, doing so may make your arrest more likely.

If you refuse an official breath test after you are arrested, the consequences may include:

• For a first offense, a civil infraction with up to a one-year license suspension plus any suspension resulting from the DUI charges.
• For any additional refusals within ten years, a Class 1 misdemeanor (VA Code 18.2-11) with a fine up to $2,500, a jail sentence up to one year, and a three-year license suspension.

Arrested on Suspicion of DUI? Bain Sheldon Can Help You

Breathalyzer test results are often the most important evidence in your DUI case. At Bain Sheldon, our Virginia criminal defense attorneys have extensive experience evaluating breathalyzer evidence and fighting back on behalf of our clients. We’ll be ready to put our skills and experience to work for you. Call us at 804-282-8625 or fill out a contact form to schedule a 100% confidential case evaluation.