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Refusal to Blow: DUIs and Implied Consent in Virginia

If you’re ever pulled over by law enforcement after you’ve been drinking, it may be tempting to say “no” when you’re asked to submit to a breathalyzer test. It would seem that, if there’s no chemical proof that you have alcohol in your system, you can’t be charged with driving under the influence. However, there are severe consequences for refusing to blow, but it depends on when you decline and how “implied consent” impacts a Virginia DUI.

What does “implied consent” mean?

Under Virginia law, any person traveling on the roadways of the Commonwealth automatically agrees to taking a chemical test to determine his or her blood alcohol concentration (BAC). The test must be administered within three hours of operating a vehicle and being detained. If your breath or blood test reveals a BAC of .08 percent or higher, you may be charged with driving under the influence (DUI). Lower BAC limits apply if you are under the age of 21 or carry a commercial driver’s license; the percentages are .02 and .04, respectively.

You can refuse to take the chemical test, but the implied consent law does subject you to consequences for doing so.

What happens if I refuse to take a breath or chemical test?

Upon your statement that you will not submit to testing, an officer will let you know the implications.

  • The evidence of your refusal can be used in court against you, which can raise red flags for the judge;
  • Your driver’s license will be suspended immediately; and,
  • The refusal to take the test is a separate charge from the underlying DUI.

A first refusal will result in a license suspension for one year, while subsequent refusals rise to the level of a misdemeanor. Criminal penalties may apply and your license can be suspended up to three years.

How does a preliminary breath test work?

Before you are actually arrested, an officer may try to establish probable cause to give you an official chemical test by asking you to take a preliminary breath test. Unlike the chemical tests that a police officer would give you after establishing probable cause, refusal to take the preliminary breath test cannot be used as evidence against you in court.

Consult with a Virginia DUI Lawyer

Virginia law on preliminary breath tests and implied consent can be complex, and there are harsh penalties for refusal to blow or submit to other chemical tests. A knowledgeable attorney can help you navigate the criminal process involved with a DUI and represent your interests in court to get the best result. The lawyer at Shannon & Bedois, P.C. have extensive experience in DUI cases, so please contact or call us at (757) 228-5529 for more information.

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