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Implied consent laws make refusing a test a potential crime

On Behalf of | Mar 20, 2018 | Blog

A police officer pulls you over or you get caught up in a roadblock enforcement effort. After briefly interacting with you, the officer says he or she believes you are under the influence and asks you to exit the vehicle. From there, you know you’ll face a field sobriety test and likely a chemical breath test as well.

If you’re worried about a potential alcohol charge, you might consider refusing to take the chemical test when asked by law enforcement. You may refuse the preliminary breath test requested prior to an arrest. However, you cannot refuse chemical testing if an officer has probable cause to suspect impaired driving.

Refusing a preliminary test shouldn’t help or hurt you

In theory, if you refuse a preliminary breath test requested during a traffic stop, that is not against the law. The law enforcement officer involved in your stop cannot attempt to use that refusal as evidence against you in court, either.

However, unless you got stopped as part of a roadblock enforcement effort, the officer likely already has some degree of reasonable suspicion. If there is any kind of probable cause for your intoxication, the officer can simply arrest you and perform a blood test while you are under arrest.

Implied consent affects everyone on Virginia roads

If you drive a vehicle on public roads in Virginia, you must follow all applicable traffic laws. That includes the state law on implied consent. Once you are under arrest in Virginia for suspected driving under the influence, the law mandates that you submit for breath or blood chemical testing. Driving in Virginia implies consent to chemical drug and alcohol testing.

Refusing a chemical test after your arrest is a violation of the implied consent law, and it carries its own consequences. Typically, the result is loss of your license to drive for a specific period of time. Your first refusal of a chemical sobriety test is not a crime. Second and subsequent refusals become misdemeanors. A first refusal can result in the suspension of your license for a year, in addition to any penalties involved with an impaired driving charge. Subsequent refusals result in a three year suspension.

Refusing the test won’t necessarily help you in court

You may believe that refusing a chemical test will reduce the potential of a guilty verdict in an impaired driving case. However, that simply isn’t the case.

Unlike an initial, optional test on the road, a chemical test refused while in custody can impact your criminal trial. The arresting officer or the prosecutor could use that refusal against you in court, increasing the chance of a conviction.


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