Punishment is possible even if you refuse a DUI breath test in Virginia

Under the law in Virginia, drivers are already "deemed" to have given consent to have their breath or blood tested for the presence of alcohol should they ever be arrested for driving under the influence (DUI). Otherwise known as Virginia's implied consent statute, this particular law not only creates presumed consent based merely upon the operation of a motor vehicle upon a Commonwealth highway but it also establishes the grounds for punishing drivers who refuse chemical testing following a Virginia DUI arrest.

However, it is important to remember that Virginia's implied consent law - and the related penalties - only apply to breath tests conducted after a DUI arrest and not to the preliminary breath tests that are often done on the side of the road to establish probable cause before an arrest. Indeed, when it comes to preliminary breath tests, drivers are free under the law to refuse such testing and their refusals cannot be used as evidence against them in a DUI trial.

Although, it should be noted that even if drivers refuse preliminary breath tests they may still be arrested on DUI charges based upon other evidence, such as erratic driving and the smell of alcohol. If arrested, they will still be asked to submit to the testing outlined under the implied consent law.

Penalties for refusing a breathalyzer in Virginia

Virginia's implied consent statute dictates that a driver arrested on DUI charges must first be given the opportunity to submit to a breath test - such as a breathalyzer - but if a breath test is unavailable, or if the driver is physically unable to complete a breath test, a blood test can be given.

If a driver wrongfully refuses this testing following a DUI arrest, he or she can face penalties even if it is only his or her first refusal charge. For instance, while a first-time refusal is only a civil offense under Virginia law, it will result in an immediate administrative license suspension, followed by an additional one-year license suspension.

Moreover, any subsequent wrongful refusal conviction within 10 years will increase the offense to a misdemeanor - meaning possible fines and jail time, in addition to a three-year license revocation. Keep in mind, these penalties do not include the possible punishment that a driver may still face if convicted of the underlying DUI, which is still possible even if a driver refuses the breathalyzer test.

Proposed changes to Virginia's implied consent law

While police officers are currently required under Virginia law to notify drivers arrested on DUI charges of the state's implied consent law and the penalties for an unreasonable refusal, a recently introduced Virginia bill seeks to require officers to give drivers a second opportunity to submit to chemical testing after being given this notification. Essentially, this bill, if passed, would help ensure that anyone arrested for a DUI would actually know what he or she may be sacrificing before electing to refuse chemical testing.

Given that this particular bill is so new, it is too soon to tell if it will gain much traction. However, it does illustrate how much can still be done to make Virginia's DUI-related laws fairer and easier to understand. Consequently, if you are currently facing DUI or breath-test refusal charges, it is often best to seek the counsel of an experienced criminal defense attorney in order to help navigate the confusing laws.