If a police officer pulls you over for suspicion of drunk driving in Virginia, they will often request you submit to a breathalyzer test at the scene to measure your blood alcohol concentration (BAC). But can you refuse a Virginia breathalyzer?
The breathalyzer test, also known as the preliminary breath test, is not mandatory. Most DUI lawyers advise against taking it as it could hurt your case if any alcohol is detected on the machine.
Let’s dig deeper to unearth situations when it’s mandatory to take breathalyzer tests and the penalties associated with refusal in those situations.
How Many Types of Breath Tests Does Virginia Have?
Law enforcement officers in Virginia use two types of breath tests to determine a driver’s BAC level. These breath tests include:
- The preliminary breath test (roadside test)
- EC/IR II breath test (dubbed the official breathalyzer test giving your BAC)
The officer administers the roadside test to show probable cause for a DUI arrest. This test is done using a small hand-held device. These tests are often unreliable and cannot be presented as evidence in court against you during the prosecutor’s case-in-chief. However, it can be used to show that the officer had probable cause to arrest you.
Additionally, “passing” the roadside test doesn’t guarantee you’ll not get arrested. Other field sobriety tests, including the one-leg stand test and the horizontal gaze nystagmus test, can provide the arresting officer with probable cause for an arrest.
While refusing the roadside breath test isn’t illegal, the police will likely pressure you to take this test because it the clearest test to give them support for the warrantless arrest. Chances are, whether you choose to take this test or not, the police are likely to arrest you. Therefore, it’s best to refuse to give the police more evidence against you.
On the other hand, the EC/IR II breathalyzer test (BAC test) is conducted at the police station on a machine about the size of a desk printer, is mandatory under implied consent law to determine your blood alcohol level. The machine requires at least 2 breath samples to confirm the results. The breathalyzer test results can be presented as evidence during your DUI trial. Other tests, including blood tests, can be administered to test for alcohol and other drugs.
The EC/IR II breath test is mandatory, unlike the roadside breath test. If applicable, refusing to take the test bears strict consequences under the implied consent law in Virginia.
What is the Implied Consent Law?
According to Virginia’s Implied consent law code § 18.2-268.2, licensed drivers by the state of Virginia, or another state, and who operates a vehicle on a highway is deemed to have consented to submit to a urine, blood, or breath tests to determine their drug or blood alcohol content if arrested for suspicion of DUI.
The three-hour rule should be followed for the Implied consent law to apply. According to the three-hour rule, the driver should be arrested within 3 hours of driving or operation of a vehicle. If the arresting officer adheres to this timeline, it doesn’t matter when the driver is finally tested. Usually, this rule does not pose legal issues because law enforcement often arrest drivers within 20 minutes of a traffic stop.
Aside from this, there’s a 20-minute observation period the arresting officer should adhere to. During this period, the administering officer should ensure the defendant does not belch, burp, regurgitate or put anything in their mouth that could affect the test results. If any of the above actions occur, an extra 20-minute observation period should be performed.
What Constitutes Breath Test Refusal?
Breath test refusal can be a verbal rejection or refusal to follow instructions without speaking. Moreover, fake or short blows can be interpreted as a breathalyzer refusal.
What are Reasonable Reasons to Refuse Evidential Breath Tests in Virginia?
What Virginia courts consider reasonable reason to refuse breath test requests is limited but includes physical inability to provide a full sample. However, some evidence you can provide to defend your refusal includes showing you weren’t operating a motor vehicle, or you weren’t on a highway. Aside from this, your defense lawyer might need to prove the arresting officer’s misconduct or that they did not follow testing protocols.
What are the Consequences of the Refusal of a Breath or Blood Test in VA?
According to the Implied Consent law, a first-time refusal to take a breathalyzer test is a civil offense under Virginia law that attracts severe penalties.
When you are arrested for a DUI 1st and you refuse to provide a blood or breath sample, your privilege to drive is administratively suspended for seven days without the option of acquiring a restricted license. You can pick up your license from the clerk’s office at the court on the 7th day or wait for it to be returned in the mail. Following this automatic penalty, is your court date in which you could receive additional license suspension should you be convicted of any of the charges levied against you.
A refusal conviction carries a one-year license suspension, and six demerit points that are added to your record.
Subsequent offenses of refusal within ten years are treated as class one misdemeanors, which carry the penalty of a three-year license suspension, in addition to a fine of up to $2,500 and jail sentence.
If a commercial driver refuses to take an evidential breath test, they’ll get a one-year disqualification on their first offense and a lifetime disqualification on their second refusal.
Does Refusing a Breathalyzer Make you Guilty?
Refusing a breathalyzer test can be viewed as an admission of guilt, and it can be used as evidence against you in court. However, refusing a roadside preliminary breathalyzer does not necessarily infer your guilt.
Is it Better to Take or Refuse a Breathalyzer Test in Virginia?
It’s better to refuse the preliminary breath test because officers use these tests to collect sufficient evidence to support the stop and DUI arrest. You are not obligated to assist Virginia police by self-incrimination.
Refusing to take the test and additional field sobriety tests, such as the walk and turn test, limits the officer’s information to justify the arrest making it easier for your Virginia DUI lawyer to challenge the validity of your drunk driving charges.
With the EC/IR II breath test, it’s not lawful to refuse because of implied consent law.
Can you Call your Criminal Defense Attorney Before Taking the Breathalyzer Test in VA?
In Virginia, DUI suspects don’t have the right to call an attorney before deciding to take the test. The police officer isn’t bound by law to let you call a DUI defense law firm during or after the arrest. However, once in jail, you can contact your lawyer, but it will be after you take or refuse the breath test.
Charged with Refusal to Take a Breathalyzer Test?
Evidential breath tests are an important piece of evidence in DUI cases. At the Criminal defense firm of Naum Estevez, our DUI attorneys have extensive experience and can evaluate and challenge DUI breath test evidence. Contact us today to schedule a consultation at our offices or over the phone.