cop with breathalyzer

Should I Refuse a DUI Breath Test

If you are pulled over under suspicion of drinking and driving, the best way to protect yourself is by understanding your rights. Regardless of whether or not you have actually done something wrong, you should know what Virginia’s laws on field sobriety tests are.

What You Can Do if You are Pulled Over

When you get pulled over on suspicion of driving while intoxicated, the officer may ask you to perform a field sobriety test. Only if you are completely sure you will pass, should you proceed. These tests are voluntary; however, you have the right to refuse them. In fact, refusal is almost always in your best interest. Remember, the court cannot use your refusal as evidence against you.

One type of field sobriety test is the preliminary breath test (PBT). During a PBT, an officer will ask you to breathe into a breathalyzer that measures our blood alcohol concentration (BAC). The problem with breathalyzers is that they are not always accurate and can give false readings. With that being said, an officer can still use that as evidence to determine whether they have probable cause to arrest you for a DUI.

What You Can do if You are Arrested

The only time you are required to take a breath test is if you have already been arrested for DUI. Due to Virginia’s “implied consent” laws, you automatically consent to a drug test or a measuring of your BAC when you are arrested. This must be done within three hours of driving either through a breath test, blood test, or both.

If you refuse this mandatory test after being arrested for a DUI, you face serious consequences. First, your license will be suspended for one year, and second, your refusal can be used against you in court. At this time, the arresting officer must give you this information right away.

If you repeatedly refuse a breath test, your charges will be more severe each time. For those with a refusal violation within the last ten years, they face a three-year license suspension and a misdemeanor charge.


If you are arrested for suspicion of DUI, contact The Law Offices of Daniel J. Miller immediately at (757) 267-4949. We are here to protect your rights.