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What Happens If You Refuse To Take A Breathalyzer Test In Virginia?

What Happens If You Refuse to Take a Breathalyzer Test in Virginia?

What Happens If You Refuse to Take a Breathalyzer Test in Virginia?

Drunk driving is a serious criminal offense in Virginia. Under Virginia Code § 18.2-266, it is unlawful to operate a car/motor vehicle with a blood alcohol concentration (BAC) that is at or above 0.08 percent. One of the most common methods of measuring a driver’s BAC level is through a breathalyzer test.

In Virginia, motorists are legally required to take breath tests — but only after an arrest has already been made. Here, our top-rated Richmond VA, DUI defense lawyer explains the most important things that you need to know about Virginia’s breathalyzer test requirements.

Virginia Has an Implied Consent Law

Under Virginia Code § 18.2-268.2, all drivers in the Commonwealth have already given their consent to submit to a post-DUI arrest breathalyzer or post-arrest blood test. Indeed, your compliance with this law is a condition of motor vehicle operation in Virginia— you do not have to have a Virginia driver’s license to be bound by the implied consent law.

If you refuse to take a breath test after a DUI arrest, you can be charged with an additional criminal offense. To be clear, this is a post-arrest obligation. You are not required to take a breath test before an arrest has occurred. In other words, a preliminary breath test (pre-arrest) can be refused. In contrast, a post-arrest breathalyzer cannot be refused. 

The Penalties for a DUI Refusal in Virginia 

A first-time DUI refusal in Virginia is a civil offense. It comes with a mandatory one-year suspension of your driving privileges. Though, a second-time DUI refusal can be charged as a misdemeanor criminal offense. This charge carries a maximum penalty of one year in prison.

Beyond that, it should be made clear that refusing to take a post-arrest breath test will not prevent prosecutors from filing DUI charges. You can still be charged with drunk driving even if you never actually blew into a breathalyzer.

There is No Duty to Take Field Sobriety Tests in Virginia

It is worth noting that drivers are not required to take field sobriety tests in Virginia. At a traffic stop, you may be asked to submit to one of several field sobriety tests. The three most common being:

  • One-leg stand;
  • Walk and turn; and
  • Horizontal gaze nystagmus test.

For a wide range of different reasons, these tests are not considered to be all that reliable. In fact, the National Highway Traffic Safety Administration (NHTSA) has conducted multiple studies which have found that all three of these tests produce high error rates. 

Contact Our Richmond Drunk Driving Defense Attorney Today

At Ali J. Amirshahi Attorney at Law, PLLC, our Virginia DUI defense lawyer has the skills, experience, and training to handle the complete range of breathalyzer refusal cases. If you were charged with a DUI refusal or any related offense, Mr. Amirshahi is standing by, ready to help. To request a free, strictly confidential initial consultation, please contact our law firm right away. With an office in Richmond, we serve communities throughout Central Virginia.


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