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Your Guide to Virginia’s DUI Refusal Laws

by | Feb 20, 2020 | DUI

Every driver on the road in Virginia has, by the mere fact of operating a vehicle, already given their consent to provide a breath sample or a blood sample upon being arrested for a DUI. If you are arrested for a DUI and you refuse to do so, your license will be subject to an immediate suspension.

We want to make sure that every driver understands their rights and responsibilities. Here, our Richmond drunk driving defense lawyer explains four of the most important things you need to know about Virginia’s DUI refusal laws.

  1. Virginia has an Implied Consent Law

Our Commonwealth has an implied consent law on its books. Under Virginia law (Code of Virginia § 18.2-268.3), drivers who have been arrested on suspicion of intoxicated driving have a legal duty to provide a breath sample or a blood sample when requested to do so.

As a condition of operation of a motor vehicle Virginia, all drivers (commercial and non-commercial) have agreed to take these tests. Most often, state and local police officers in Virginia will request a breathalyzer sample after a DUI arrest. Though, if a breath test is not effective, the officer can require the defendant to take a blood test.

To be clear, it does not matter if you possess an out-of-state license. Every driver on Virginia’s roads has already consented to take a post-DUI arrest chemical test.

  1. Pre-Arrest Field Sobriety Tests are Not Required

It is important to clear up a misconception: Pre-arrest field sobriety tests are not mandatory in Virginia. The Commonwealth’s DUI refusal law applies to post-arrest chemical testing, not to field sobriety tests. Unfortunately, field sobriety tests do not have a very good track record. A study published in the Journal of Forensic Sciences found that these types of subjective tests are far less reliable than was previously believed.

If a police officer asks you to perform a field sobriety test—such as the walk-and-turn, one-legged-stand test, or horizontal gaze nystagmus—you are entirely within your rights to decline to do so. Your refusal to perform a pre-arrest field sobriety cannot be used as evidence against you in any future DUI trial.

Of course, refusing to take part in a field sobriety test is also not a shield against being arrested for drunk driving. An officer may still believe that they have probable cause for a DUI arrest. Still, refusing to participate in a subjective pre-arrest sobriety test will not, by itself, lead to your license being suspended.

  1. Consequences of a DUI Refusal: Administrative Suspension of Your Driver’s License

Virginia takes DUI refusal very seriously. As described by the Virginia Department of Motor Vehicles, the consequences associated with an administrative suspension depend, in large part, on the driver’s previous history of DUI refusals/arrests, or lack thereof. More specifically, the maximum penalties are as follows:

  • First Refusal: One year suspension of your driver’s license.
  • Second Refusal/Prior DUI Conviction: Charged with a second degree misdemeanor, three year driver’s license suspension, a large fine, and up to six months in jail.
  • Third Refusal/Multiple Prior DUI Convictions: Charged with a third degree misdemeanor, three year driver’s license suspension, a large fine, and up to one year in jail.
  1. Take Action to Protect Your Rights

Did you refuse to take a breath test or a blood test after being arrested on intoxicated driving charges in Virginia? If so, all hope is not lost—you can still take action to protect your rights. In some cases, you may be able to successfully challenge the administrative suspension of your license, particularly if the arresting officer lacked probable cause.

Beyond that, it is important to remember that the administrative penalties associated with a DUI refusal are wholly separate from any criminal case. You can still be charged with and convicted of a DUI even if you never took a blood test or a breath test. Prosecutors may decide to pursue the case using other evidence to support a DUI conviction.

Call Our Richmond, VA DUI Defense Attorney for Immediate Assistance

At Del Rio Law PLLC, our Virginia drunk driving defense attorney is committed to providing top quality, client-focused legal representation. If you or your loved one was arrested and refused a breath test or blood test, we are ready to help. To schedule a free phone consultation, please contact our law firm today. With a law office in Glen Allen, we represent clients throughout the region, including in Richmond, Mechanicsville, Ashland, Short Pump, Wyndham, Laurel, and Lakeside.