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Refusing a breath test after a DUI arrest in Virginia is illegal

On Behalf of | Aug 16, 2018 | Uncategorized

Getting pulled over by law enforcement is typically a frightening experience. This is particularly true if you have recently had a drink. You may believe that you are not impaired while still feeling nervous about the outcome of the interaction with police. Many times, a traffic stop will result in a roadside sobriety test, followed by a request for the driver to perform a chemical breath test.

You may think that refusing the test is in your best interest. After all, if law enforcement can’t collect chemical information, they will have less evidence against you when building a criminal case. However, refusing a chemical test requested for probable cause is against the law in Virginia. More importantly, it can impact your ability to defend against a potential driving under the influence (DUI) charge.

Virginia expects all drivers to submit to testing after arrest

During a traffic stop, you may feel nervous and act differently than you usually would. Many factors, including medical conditions, could lead to the officers involved assuming you’re impaired when you actually are not. Once officers place you under arrest, they will likely request to perform a chemical test.

While law enforcement cannot physically compel you to perform a test, your refusal is actually a crime. Virginia law for drivers includes implied consent. In other words, any time you operate a motor vehicle on Virginia roads, you have already given consent to chemical testing. Refusing a test violates the law and can result in legal consequences.

The first time you refuse a chemical test after arrest, the potential penalty will be suspension of your license for a year, in addition to any penalties for the potential DUI charge. A second or third chemical test refusal within 10 years will mean a three year suspension.

Refusing a test after an arrest can also impact your chances in court

Refusing a chemical test after your arrest does mean that law enforcement won’t have chemical evidence to use against you. However, that could actually hurt your case in court. Breath tests are often unreliable, and you may have the chance to contest a positive result in court. You can’t really contest the officer’s testimony about your refusal, however.

The courts can consider your refusal as evidence of the fact that you knew you were impaired. This can make it more likely for you to wind up convicted of a DUI offense. Then, you’ll have to deal with the penalties of the DUI charge, as well as the additional license suspension for refusing the chemical test.

Understanding the potential fallout of a chemical test refusal is important, as it can help you make better choices in the future during roadside traffic stops.


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