Virginia’s Implied Consent Law

As a driver in Virginia, you are subject to the state’s implied consent law. Under Virginia’s implied consent law, you agree to consent to give a breath or blood sample to law enforcement so they can determine whether you are under the influence of drugs or alcohol. However, the implied consent law is complex and widely misunderstood to mean that drivers cannot refuse to submit to a blood or breath test when asked by police. At Robinson Law, PLLC, we want you to know that is not the case and, in certain situations, refusing a breath test or blood test is not only your right but may actually make it harder for the prosecution to prove a DUI case against you.

Under Code of Virginia § 18.2-268.2, anyone who operates a motor vehicle on a Virginia highway consents “to have samples of his blood, breath, or both blood and breath taken for a chemical test to determine the alcohol, drug, or both alcohol and drug content of his blood, if he is arrested” for a DUI offense.

However, while this is legally accurate, fully understanding Virginia’s implied consent laws requires a more nuanced understanding. Additionally, there are somewhat different rules for breath and blood tests.

When you picture someone getting pulled over for a DUI, you probably imagine a police officer asking a driver to blow into a handheld breathalyzer on the side of the road. However, these roadside breathalyzers, while convenient, are far less accurate than their larger counterparts, which are located at the police station. In fact, police officers only use roadside breath tests to develop probable cause that a driver was under the influence. And the results of a roadside breath test are not admissible in court. However, if these results indicate the presence of alcohol in your system, the officer will arrest you and take you to the station to perform a test on the more accurate breath test machine.

Under Virginia’s implied consent law, it is only considered a breath test refusal to refuse to take the second of these tests. To be clear, you will not face criminal or administrative penalties for refusing a breathalyzer test unless you’re arrested for a DUI.

Drugs, unlike alcohol, don’t show up on your breath. Thus, a breath test is useless for drug DUIs. Instead, if a police officer suspects you were under the influence of drugs, they will arrest you and take you to the station for a blood draw. Unlike breath tests, there is no blood test that you can refuse without receiving at least an administrative license suspension. However, there are still ways of keeping blood-test evidence out of trial, for example, by challenging the chain of custody or lab procedures. Your criminal defense attorney may also be able to successfully challenge the manner in which the test was administered.

Notably, under § 18.2-268.2, unless a breath test is unavailable, officers must administer a breath test rather than a blood test. This is because courts have rightfully determined that a blood test is far more invasive than a breath test. Thus, generally, police officers should administer blood tests only when there is some evidence that the driver was under the influence of drugs or a combination of drugs and alcohol.

While the law presumes that you will consent to chemical testing upon a DUI arrest, without a warrant police officers cannot force you to provide a sample. Thus, refusing a blood or breath test is always an option. And in some cases, depriving the prosecution of chemical test evidence can work in your favor because it forces them to rely on circumstantial evidence that you were intoxicated. However, refusing a chemical test in violation of Virginia’s implied consent laws will come with an administrative license suspension.

If it is your first time refusing a breath test, it’s considered a civil offense, which will result in your license being suspended for one year. A second offense breath test refusal within ten years is a Class 1 misdemeanor, which carries a three-year license revocation. These suspensions/revocations are in addition to any suspension or revocation that may result from a DUI conviction stemming from the same incident.

If you’ve recently been arrested for a drug or alcohol DUI in Northern Virginia, the Fairfax DUI defense lawyers at Robinson Law, PLLC, are here to help. With a successful track record defending clients over more than a decade, we have the skill, experience and practical know-how needed to help you reach the best result possible in your case. We offer free consultations, during which we will answer your questions, outline the process, and explain how we can help. 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.