Virginia Breath-Test Refusal: How Does Implied Consent Work?
In Virginia, it is unlawful for a person "to unreasonably refuse" to submit blood or breath samples for chemical testing to determine if illegal levels of alcohol or drugs are present.

August 11, 2011 /24-7PressRelease/ -- Individuals pulled over for drunk driving in Northern Virginia can expect to be subjected to testing by law enforcement officers who suspect intoxication. Field sobriety tests, breath testing and blood testing results can all become part of the police report of a DUI/DWI arrest.

Many Virginia drivers are aware that the law imposes penalties for refusal to consent to DUI testing, and every Virginia driver should understand the legal basis behind the state's ability to require a breath or blood sample. Virginia's implied consent law applies to every driver, even those who had nothing to drink and are absolutely certain that they not intoxicated.

Virginia law provides that any person who operates a motor vehicle on streets and highways in the Commonwealth "shall be deemed ... to have consented to have samples of his blood, breath, or both blood and breath taken for a chemical test to determine the alcohol, drug, or both alcohol and drug content of his blood." By virtue of driving, you are presumed to have provided your consent to testing.

The implied consent statute provides that any driver pulled over on suspicion of driving while intoxicated, underage DUI or driving after forfeiture of license (and also suspected of intoxication) "shall submit to a breath test." If the breath test is unavailable, or if the driver cannot submit to the breath test due to injury or other reasons, a blood test must be administered. Blood tests are also required if the officer has reasonable cause to suspect driving under the influence of drugs, combinations of drugs, or the combined influence of drugs and alcohol.

Refusing to Submit to a Breath Test Has Consequences

Virginia drunk driving laws make it unlawful for a person "to unreasonably refuse" to submit blood or breath samples for chemical testing to determine if illegal levels of alcohol or drugs are present. Law enforcement must advise any driver required to take a blood or breath test about the implied content statute and the consequences of refusal.

A first offense is considered a civil offense: refusal constitutes grounds for immediate revocation of driving privileges for one year (plus any suspension imposed for actual intoxication). There is no opportunity for a restricted license.

A second offense refusal within 10 years of a previous refusal or DUI conviction is a a Class 2 misdemeanor with a suspension penalty of three years, in addition to any suspension that may be imposed as a criminal penalty for the DUI charge. There is also a $1,000 fine and a possibility of jail time of up to 6 months as a consequence of your refusal.

Three refusals or convictions within 10 years is a Class 1 misdemeanor with a suspension penalty of 3 years as well, in addition to any suspension that may be imposed as a criminal penalty for the DUI charge. Class 1 misdemeanors carry a $2,500 fine and a possibility of jail time up to 1 year.

Every driver has the right to request court review of an implied consent license suspension. If law enforcement did not have probable cause for the arrest or the magistrate did not have probable cause to issue a warrant for suspension, it will be rescinded. The driver needs to prove by a preponderance of the evidence that probable cause was lacking.

DUI/DWI Criminal Defense in Virginia

Because so many factors can influence the outcome of a particular case, drivers who are charged with DUI or unreasonable refusal should consult with a Northern Virginia drunk driving defense lawyer to discuss the details of the arrest. A clear understanding of the circumstances of the police stop, roadside testing and chemical testing allows a DUI attorney to assess your legal options.

Blood and breath tests are susceptible to error, and faulty administration of testing procedures can lead to faulty results. Prior to administration of testing, accused drivers must be advised that they have the right to observe the process, review the blood-alcohol reading, and receive a written printout of the roadside breath test results, if available.

If the test indicates blood-alcohol content (BAC) of over .08 percent, a thorough review of the arrest report and other information can point out factors that might have inflated that value. Whether a driver has been accused of intoxication or he or she refused an officer's demand for chemical testing, a Virginia criminal defense lawyer can explain your legal rights.

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