Whether you can legally refuse a breath test during a traffic stop in Virginia depends on if the officer has already formally arrested you for a DUI.
Here’s what that entails:
Implied Consent Law
Virginia’s “Implied Consent Law” states you must take a breathalyzer test after you have been arrested for a DUI. However, if you haven’t been formally arrested for a DUI, you can refuse a roadside preliminary breath test (PBT) without risking a penalty. The officer may instead conduct a field sobriety test and eventually arrest you if they believe you’re overly intoxicated.
Field sobriety tests
A field sobriety test can include the walk-and-turn test, the one-legged standing test and others. Be aware the officer may have already deemed you too intoxicated to drive and is just conducting these tests to gather more evidence prior to an arrest.
An important thing to remember is that both the PBT and field sobriety tests are considered unreliable when not performed “under ideal conditions.” This is a high bar, legally speaking, because it’s possible to fail these tests while sober for a variety of reasons.
Regardless of what happens during the roadside tests, if they even happen at all, if they have reason to believe you are intoxicated, they will arrest you and administer the mandatory breathalyzer test.
These are more accurate tests, administered after an arrest has been made. If you refuse to take this test, you face one or more penalties.
If this is your first offense, refusing to take a breathalyzer, even if you’re ultimately judged to be sober enough to drive, will result in an automatic one-year suspension of your driver’s license. This is in addition to any eventual penalties of a DUI conviction.
If this is your second breathalyzer refusal within a period of 10 years, or you’ve been convicted of a DUI in that same period, the penalties increase dramatically. In addition to a possible DUI charge, you will be automatically charged with a first-degree misdemeanor, punishable with up to one year in jail and a fine of up to $2,500, plus a three-year suspension of your driver’s license.
Refusing the breathalyzer will be considered circumstantial evidence
Finally, if you refuse a breathalyzer, in addition to the automatic first- or second-offense penalties, your refusal will be used as circumstantial evidence in the effort to convict you of a DUI.
If you have any concerns about your rights when pulled over, speak to a local DUI attorney for more information.