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.

Refusing a Breathalyzer Test

Many states have adopted the system of implied consent. Essentially, if you are arrested under suspicion of a DUI, the authorities assume that you’ve agreed to a blood alcohol test. Police can’t force you to take the test, but they can charge you for refusing.

Breathalyzer tests should not be administered on the road. Police give these tests at the police station after they make an arrest.

Penalties for Refusing a Breath Test in Virginia

First Offense

Your first refusal is considered a “civil offense.” It normally results in an extra year added to a license suspension. Police could also use it to hit you with other DUI-related punishments.

Two or More Offenses

If you have two or more breath test refusals within a 10 years, you can be formally charged with a crime. Multiple refusals result in a first-degree misdemeanor charge. Penalties include up to 1 year in jail and fines as high as $2,500. Since this is a DUI-related offense, you could also face a 3-year license suspension, even if you were driving sober.

Preliminary Breath Test (PBT)

You should also know that there is another test police can give, the preliminary breath test. This can be administered on the side of the road. Police use a breathalyzer device for these tests, but the results are not admissible in court. They are used to help build probable cause against you.

Refusing a PBT is legal. Police, however, can be tricky with a PBT. You can’t be directly arrested for refusing it, but your refusal could give them more “probable cause” to believe you are drunk driving. They’ll scrutinize you more closely, looking for any reason to believe you are intoxicated.

If you refuse a PBT and wind up arrested, consult an attorney right away. They can closely investigate your arrest, and if they find an abuse of power, they may be able to have your case thrown out.

Defenses Against Implied Consent

If you’ve refused to take a chemical test and been charged for doing so, here are some defense strategies you can discuss with your attorney.

Lack of Probable Cause

Remember, there’s a reason why the police wanted to test you in the first place. You were already arrested for drunk driving, and the breathalyzer test is just a part of that arrest. To get at the heart of your refusal, you can challenge the motivations behind your arrest.

For instance, there may have been no good reason to assume you were drunk. You may have been speeding or even driving recklessly, but those behaviors do not automatically indicate inebriation. Perhaps the police claim they smelled alcohol on your breath, but they didn’t take your medical history into account. Some conditions like diabetes can create smells that mirror alcohol.

Your attorney should take a close look at the details of your arrest. If there was flimsy probable cause for an arrest and subsequent chemical test, these facts can be challenged in court.

Abuse of Power

Police often use trickery to secure their arrests. They can lie about the evidence, for example. A close examination of exactly what they said during your arrest is important. They may have made promises that mislead you into believing you could refuse the test. Perhaps your arrest included threats or even a degree of entrapment. If the police abused their power during your arrest, your refusal of a chemical test may have been justified.

No Refusal

Misunderstandings happen, especially between the authorities and the accused. It’s possible that you consented and were ready to take the test, only to find yourself suddenly charged with a refusal. Once again, make sure your attorney thoroughly investigates every detail of your arrest. You should not be charged on a miscommunication or a technicality, and your lawyer should expose these inconsistencies in court.

Ultimately, it is up to you whether you want to take or refuse a chemical test in a DUI case. Just be aware that refusal comes with consequences. Refusal also does not shield you from a DUI charge. Chemical testing is just one piece of evidence police can use, so consider all the potential outcomes before refusing testing.

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.