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Can you refuse a Breathalyzer test in Virginia?

On Behalf of | Jun 2, 2022 | DUI

A Breathalyzer test is used by law enforcement to ascertain your blood alcohol level (BAC). If the reading goes beyond 0.08%, the police will likely arrest you for drunk driving.

So, what happens if you think you are over the BAC limit and decline a roadside Breathalyzer test? Here is what you need to know.

It is not illegal to decline a roadside Breathalyzer test

You can refuse to take a roadside Breathalyzer test in Virginia if you have not yet been arrested on suspicion of drunk driving. It is well within your rights not to provide self-incriminating evidence.

However, it is against the law to decline a Breathalyzer test at the police station once you have been placed under arrest. Under Virginia’s implied consent laws, licensed drivers arrested for driving under the influence automatically consent to chemical tests to determine their sobriety within three hours of their arrest. 

Should you violate the implied consent laws, you may face civil and criminal penalties upon conviction of your DUI. They include:

  • The suspension of your driving license for one year if it is your first offense. The suspension is separate from others that may arise from your DUI conviction.
  • A second refusal within ten years is considered a Class 1 misdemeanor in Virginia punishable by a one-year jail term or a fine of $2500.

Remember, refusing a roadside breath test does not mean that you cannot face DUI charges. The prosecution can still rely on circumstantial evidence to prove its case.

Protecting your rights after a DUI stop

Drivers should know that breath tests are not mandatory following a DUI stop. These are only used to establish probable cause for your arrest and you can refuse to submit to them. Once you are under arrest, and it is advisable to seek assistance on how you should proceed.