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Breath Test Refusal

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Refusal to Take a Breath or Blood Test in Virginia

Get Immediate Help from a Lawyer – (757) 267-4949

If you have been arrested for a DUI in Virginia, obtaining legal representation from a lawyer is your best bet to either get your charges reduced or have your case dismissed entirely. If you have been arrested for a DUI in Virginia, obtaining legal representation from a criminal defense lawyer is your best bet to either get your charges reduced or have your case dismissed entirely.

With 25 years of combined experience, our attorneys at The Law Offices of Daniel J. Miller understand what it takes to obtain the most favorable outcome possible for their clients. Find out how we can help!


Contact us online or call (757) 267-4949 today to schedule an initial consultation!


What Happens if You Refuse a Breathalyzer 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.

What Is Implied Consent?

Virginia law makes it mandatory for individuals to take a blood or breath test if he or she is arrested for a DUI. This law is known as the “implied consent” law, and requires that anyone arrested by an officer who has probable cause to believe you have been driving under the influence of alcohol or drugs, must consent to a chemical blood test or breath test. The test will determine your blood alcohol content (BAC) or the presence of controlled substances.

You could also be required to participate in a preliminary breath test before you have been arrested. However, you do not have to take a preliminary test and your refusal cannot be used against you in court.

Once you are arrested, the police officer should tell you that if you refuse to take a chemical test, then the evidence of your refusal can be used against you in court and your license will automatically be suspended. A first-time refusal results in a license suspension of one year, while a second or subsequent offense results in a three-year license suspension.

Let Us Protect Your Rights Today – (757) 267-4949

We understand how difficult it can be to conduct daily activities without the ability to drive your vehicle. Our lawyer can help you get your driving rights back, as well as determine whether or not police used proper testing protocol. Have an experienced and trustworthy attorney on your side immediately.


Contact us and request a consultation. Call (757) 267-4949 today!


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