Refusing to Submit to a DWI/DUI Breath Test in Virginia

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by | September 13, 2013

Can you, or a “friend,” avoid a DWI or DUI charge by simply refusing to take a breath test?  Can you delay the test by demanding to speak to an attorney first?  Virginia’s statutes and courts say, “No.”

Virginia Code § 18.2-268.2 contains Virginia’s implied consent law:

A. Any person, whether licensed by Virginia or not, who operates a motor vehicle upon a highway … in the Commonwealth shall be deemed thereby, as a condition of such operation, 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, if he is arrested … within three hours of the alleged offense.
B. Any person so arrested … shall submit to a breath test. If the breath test is unavailable or the person is physically unable to submit to the breath test, a blood test shall be given.

By driving on Virginia’s roadways, an individual implicitly consents to a breath or blood test if an officer suspects the driver of driving under the influence.  The statute extends this implicit consent to up to three hours after driving; therefore, you aren’t in the clear just because you make it to your destination and turn the car off.

Not only can a driver be charged for unreasonably refusing to provide a breath or blood sample, but a court may consider the driver’s refusal to perform field sobriety tests when “determining whether a police officer had probable cause to arrest a defendant for driving under the influence of alcohol ….”  Jones v. Com., 279 Va. 52, 59 (2010).  

Nonetheless, the penalties are comparatively lighter for unreasonably refusing to submit to a breath or blood test relative to the penalties for DWI or DUI.  The first offense is a civil infraction, a second offense is a Class 2 misdemeanor, and a third offense is a Class 1 misdemeanor.  Virginia Code § 18.2-268.3.  The first offense results in a suspended license for 12 months, and the suspension increases with each subsequent offense.  But remember, you could be charged with both–just because you refuse, doesn’t mean the Commonwealth can’t also charge you with a DWI or DUI. 

Finally, though there has been some debate following the 2004 changes to the law, which added criminal penalties after the first conviction, Virginia courts have held that the driver does not have a right to counsel prior to submitting to testing.  Bros. v. Com., 50 Va. App. 468, 475 (2007) (“Consequently, appellant could not condition or qualify his implied consent to take the breath test upon his having access to counsel.”). 

Police officers are required to follow strict standards when invoking the implied consent rule and there are various legal limitations and caveats to many of the issues discussed above.  Contact an experienced counsel to discuss your specific situation.