Breath Test Refusals

Getting pulled over is always a pretty scary experience. However, if you’ve had a few drinks or think that you might have drugs in your system, a traffic stop can quickly turn into a complete nightmare. In part, this is because, if you’re like most people, you haven’t been through the process before, and you may not know what rights you have. The good news is that even if you refused a breath test and still got charged with a DUI, you still have options. At Robinson Law, PLLC, our Fairfax County DUI defense attorneys are here to help. We have over a decade of experience fighting DUIs involving breath test refusals—and helping our clients keep their licenses.

Yes and no. There are two different types of breath tests, and it is important to understand which is which. The roadside breathalyzers, or “preliminary breath tests,” are not required. While you have a right to demand a breath test if you are under suspicion of driving under the influence, you can also legally refuse to take a roadside breath test without fear of penalty.

Of course, the police officer may determine your refusal to take the breath test as evidence of guilt, but if they can’t identify other signs of impaired driving, that could be the end of the traffic stop. And, even if you consent to a preliminary breath test, evidence of the results is inadmissible at trial. However, if you failed the preliminary test, officers would likely arrest you and take you to the station for the second type of breath test.

The other type of breath test is administered at the police station. The machines used to conduct these tests are much more accurate, and under Virginia’s implied consent law, all drivers operating a motor vehicle on a public road are assumed to consent to this type of test if they are arrested for a DUI offense. Of course, although you’ve already consented to provide a breath sample by driving on a public road in Virginia, law enforcement cannot physically force you to take a breathalyzer. If a police officer asks you to take a breath test and you decline, it’s called a refusal.

Under Virginia’s implied consent law, it is unlawful to “unreasonably refuse” a breath test. However, a first-time breath test refusal is considered a civil offense, punishable by a one-year driver’s license suspension. This is an administrative suspension and is in addition to any other suspension you receive as a result of a DUI criminal case.

A second DUI breath test refusal within ten years is a Class 1 misdemeanor, punishable by a three-year license revocation. Again, this is in addition to any suspension or revocation resulting from a DUI conviction.

No. If you have not been arrested for DUI, the police officer can ask—but cannot demand—that you take a breath test. Under Code of Virginia § 18.2-267, anyone stopped on suspicion of driving under the influence has “the right to refuse to permit his breath to be so analyzed, and his failure to permit such analysis shall not be evidence in any prosecution.”

If you recently had your driver’s license suspended and now face DUI charges due to your refusal to consent to a breath test, you may have a defense to both the administrative suspension as well as the DUI criminal charges. At Robinson Law, PLLC, our Fairfax criminal defense lawyers have a long history of helping keep our clients on the road and out of jail by aggressively advocating on their behalf. We understand Virginia’s complex implied consent rules and know how to tell when police officers may have overstepped their bounds. To learn more and to schedule a free consultation today, call (703) 844-3746. You can also connect with us through our online contact form. We proudly represent clients in Fairfax, Loudon, Stafford, and Suffolk counties, as well as throughout Northern Virginia.