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Understanding the Ramifications of Refusing a Breathalyzer Test

While it is not considered a crime for refusing a breathalyzer test, in doing so, you have violated the Virginia implied consent law. There are typically two potential consequences for refusal. You may be tried for a refusal conviction which may result in your license being suspended for a year. On the other hand, the judge may also find you guilty of a driving under the influence. In either case, David Cardon, a criminal defense attorney, can help you build a strong defense to help you achieve the best outcome possible. In the last 20 years, he has helped many clients in Virginia Beach, VA, fight for their rights. 

Understanding the Virginia Implied Consent Law

In Virginia, having a license to drive is a privilege, not a right. When you choose to drive on the roads of Virginia (even if you are from somewhere else),  you automatically agree to take a breathalyzer test if you are asked by a police officer to take one. This is called the Virginia implied consent law. A breathalyzer test measures the amount of alcohol in your body by sampling your breath. To get a sample, you must blow your breath into a plastic tube connected to the breathalyzer machine. If a driver refuses to take a breathalyzer test, the driver is violating the implied consent law.

Photo of a woman in car taking breathalyzer test

What is the Penalty for Refusing the Test?

The punishment for refusal is civil, and not criminal, in nature. That means that a person who refuses to take the breath test, who has never been convicted of Driving under the Influence ("DUI") before, can not be sent to jail for refusal. The worst that can happen for a refusal conviction is an automatic loss of your ability to drive in Virginia for one year. The loss of license for one year is not discretionary. If you are found guilty of refusal, you will lose your license for one year and the judge can not give you a restricted license.

However, just because you will not go to jail for the refusal, you can still go to jail if the police officer charges you and the judge finds you guilty of DUI. A DUI first offense is a class one misdemeanor. The punishment for first offense DUI is loss of license for one year, up to a $2500 fine, court costs, and up to one year in jail.

Determining Guilt Without a Breath Test

Some people believe that if they refuse to take the breathalyzer test, the court will not have a reason to find them guilty of DUI because the court will not have the results showing the amount of alcohol in their blood. (In Virginia, if you have .08% or greater alcohol content in your blood, it is presumed you are intoxicated.) Under Virginia law, however, a judge can still find you guilty of DUI based on the police officer's testimony about your appearance, whether you had an odor of alcohol on your breath or about your body, how well you performed the field sobriety tests, etc. Based on those factors, a judge can rule that there is enough evidence to prove beyond a reasonable doubt, and without the need of a breathalyzer test result, that you were driving intoxicated.

Hiring a criminal defense attorney who is well-versed in Virginia DUI and implied consent laws can help defend you if you are brought to trial. 

Is Taking a Breathalyzer Test Recommended?

Should you take the breathalyzer test or not? It really depends on the situation. If you refuse, you face an automatic one year loss of your driver's license. If you take the test, and the result is low (under 0.08 percent), the police officer might decide not give you a ticket for DUI since he will have a difficult time proving to the judge you were intoxicated. On the other hand, if your test results are high, the judge might feel you need to spend some time in jail as a wake-up call.

The best way to avoid having to decide whether to blow or not is to avoid the situation altogether. Get a friend to drive you home or take a cab whenever you drink.

Contact a Knowledgeable DUI Attorney

Hiring a criminal defense attorney who is well-versed in Virginia DUI and implied consent laws can help defend you if you are brought to trial. David Cardon has extensive courtroom experience and a fierce dedication to his clients. If you have been pulled over for driving under the influence, contact us online or by phone at (757) 306-9060. 

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At the heart of this practice, we are improving people's lives everyday. My clients often have their job, their assets, and their quality of life residing on these cases, which is why success is not just important, but absolutely crucial.

David A. Cardon PC


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Virginia Beach, VA 23452

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