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Refusing to Take a Breath or Blood Test


Under Virginia law, every driver by voluntarily operating their vehicle on the highways of Virginia has given an implied consent to have a sample of their breath or blood taken if they are arrested under the suspicion of driving under the influence (DUI). This consent only applies to the official breath test administered after being arrested. There is no implied consent to submitting to a preliminary breath test (PBT) offered by an officer at the scene of the stop.

When a person is arrested for DUI in Virginia or anywhere else, they should be advised of their Miranda Rights. However, you do not have the right to advice from a DUI attorney when it comes to making the decision whether or not to take a blood or breath test after being arrested for a DUI. Please note, you should know that the test results will be offered as evidence against you, even if the blood alcohol content (BAC) level does not exceed the statutory limit. The breath or blood test is the only method to determine the level of alcohol in your system.

What is the Punishment for Refusing a Blood or Breath Test?

The refusal charge is a civl penalty that results in a license suspension of one year. Under Virginia law, there is no provision allowing the judge to grant any restricted license to a person found guilty of a refusal charge.

If the refusal charge is in conjunction with a second offense DUI or a felony DUI (third, or subsequent offense), the refusal is elevated to a Class 1 misdemeanor offense. Like all Class 1 Misdemeanors, the charge is punishable by up to a year in jail an/or up to a $2500 fine.

Any penalties or punishments for a refusal charge are in addition to any conviction for DUI. For example, a person convicted of both a first offense DUI and first offense Refusal will incur 24 months of a suspended driver’s license (12 months on each charge) with no possibility of a restricted license.

If the DUI is Dismissed, Does the Refusal Get Dismissed?

The charges are distinct matters having different elements to each offense. A refusal charge is based on not submitting to a blood or breath sample after being lawfully arrested.

It is possible for someone to be found not guilty of a DUI, but found guilty of the refusal. Since a first time refusal charge is only a civil and not a criminal charge, many people consider the loss of license for a year a favorable outcome.

For over 20 years, The Law Office of James J. McCoart, III, has vigorously represented those accused of Driving Under the Influence. If you, or your family member, are interested in a no-cost consultation regarding a DUI charge in Virginia, then contact The Law Office of James J. McCoart, III, by phone (703) 369-2734, or email.