Refusing a breathalyzer in Virginia may have negative results

Many Virginia motorists may be surprised to discover that by merely driving on Virginia roadways they have already provided consent to have their blood and breath tested in certain situations. And while this may seem like a violation of privacy at first glance, drivers who opt to refuse a breathalyzer after being arrested for a DWI need to know that there may be consequences for such a refusal.

Virginia Implied Consent law

Under Virginia statutory law, anyone who operates a motor vehicle on a Virginia highway is deemed to have given consent to have his or her breath or blood tested for the presence of alcohol or drugs if ever arrested for driving while intoxicated - otherwise known as the implied consent law in Virginia.

If a driver "unreasonably refuses" to submit to such a test after an arrest, his or her driving privileges can be suspended for an entire year if found in violation of the refusal statute. In addition, even though an initial violation of this law is merely a civil offense, any subsequent violations are considered criminal offenses.

Further illustrating the severity of an unreasonable refusal, if a driver is found guilty of driving while intoxicated and within 10 years he or she violates the refusal statute, his or her driving privileges can be suspended for three years.

It is important to note that police often administer two types of breath tests: a preliminary breath test generally conducted in the field and an official evidentiary breath test usually done at the police station. In general, refusing the breath test at the police station is the type that carries with it the penalties.

Defenses to breath test refusals in Virginia

The laws in Virginia surrounding breath test refusal can be quite complex and tricky to navigate. In fact, even the slightest variation in circumstances may be the difference between a Virginia court deeming particular conduct a refusal or not.

For instance, the Virginia refusal statute merely states it is unlawful for a person arrested for driving while intoxicated to "unreasonably refuse" to have their breath or blood tested for alcohol or drugs - but it neglects to actually define what constitutes "unreasonable." Consequently, some attorneys believe that this makes the law unconstitutional as it is too vague and does not specify the grounds in which a driver would be permitted to refuse.

In addition, there is a set process that police need to follow when administering these tests, and if they deviate from this process, the arrested driver's actions may not be considered an actual refusal, and thus not in violation of the law.

These are just a few defenses that many motorists may have never thought about, but there are many more. Accordingly, it is always advisable to speak with an experienced DWI defense attorney to learn all possible defenses given your particular circumstances, especially if proper police procedures were not followed.