Refusing a Breath Test in Virginia Carries Significant Consequences

When stopped by police, some Virginia drivers, concerned about possible DUI/DWI charges, may consider refusing to take a Breathalyzer test; however, the decision to refuse a breath test can come with severe penalties.

As a condition of driving in the state, Virginia law declares that drivers must consent to drug or alcohol testing when suspected of impaired driving. Under the law of implied consent, every driver must submit to a blood or breath test, or both, within three hours of arrest for DUI. This is true regardless of whether the driver is licensed by the state of Virginia. People who refuse to submit to such testing face serious consequences such as license suspensions, fines and jail time.

What happens if you refuse a breath or blood test?

  1. Immediately upon refusal to take a breath test for the first time, a driver's license is automatically suspended for seven days.
  2. For a second refusal, or for a refusal following a prior DUI conviction, a driver's license is automatically suspended for 60 days or until trial.
  3. In the event that an individual refuses a third breath test, or refuses such a test following two DUI convictions, that driver's license is suspended until trial.

License suspension is just the initial penalty, though, imposed automatically for refusing to submit to a blood or breath test. A person actually convicted of failing to submit to a test with no prior record of drunk driving or refusal will lose his or her license for one year. With a prior offense, the penalty is increased to a 3-year suspension. During this suspension period the driver is not eligible for a restricted driver's license.

These penalties are in addition to any separate penalties that may be imposed for a DUI conviction. The refusal to submit to a breath test does not preclude a conviction for drunk driving.

Anyone arrested for DUI should contact a Virginia Beach criminal defense attorney as quickly as possible to discuss the potential consequences and begin building a defense to the charges.