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What happens if you refuse the breathalyser test in Virginia?

On Behalf of | Mar 19, 2023 | DUI

Even if you are certain you are doing nothing wrong, being pulled over by the police can still be stressful. The experience becomes even more terrifying if you have had a couple of drinks. If the police have reason to believe that you are intoxicated behind the wheel, they will pull you over for investigation. 

And if you are stopped for a possible DUI, the officer will among other things most likely ask you to take a breathalyser test. This chemical test is meant to establish your blood alcohol content (BAC) level. But can you refuse this test?

Virginia is an implied consent state

Law enforcement cannot physically force you to take a breathalyser test during a DUI stop. A refusal, however, comes with consequences thanks to a doctrine known as “Implied Consent.”

Under Virginia’s implied consent law, every motorist implicitly agrees to submit to a chemical test when law enforcement suspects that they might be intoxicated. 

The consequences of refusing a breathalyser test in Virginia

To better understand Virginia’s implied consent doctrine, you need to start by knowing the difference between the two types of alcohol tests. The first test is known as the preliminary breath test (PBT) and is administered by police during the stop. The results of this test cannot be used in court. It is meant to determine if you have traces of alcohol in your system. 

The second test is the breathalyser test. This test is administered at the police station and refusing it can lead to the following civil and criminal consequences:

  • First refusal – this is treated as a civil offence. For this, your driver’s licence will be suspended for up to one year
  • Subsequent refusals – a subsequent refusal within 10 years can lead to a misdemeanour charge. For this, your driver’s licence will be suspended for up to three years. Additionally, you could go to jail for one year and pay up to $2,500 in fines. 

It is important to understand that just because you have refused a chemical test does not mean that you may not be charged with DUI. 

Protecting your rights

Being pulled over for a DUI investigation in Virginia is no laughing matter. Learning about your legal options can help you protect your rights both during and after the stop.