Can Silence or Refusal in a DUI Case Be Used Against Me?

cop administering breathalyzer

Whenever you are pulled over by an officer under suspicion of DUI, it is important to remember that everything the officer asks you is with the singular purpose of building a case against you. Everything you say or do not say can be used as evidence, so it is crucial that you be prepared to protect yourself in the event of a possible DUI arrest. While you want to exercise your rights and protect yourself against wrongful conviction, it’s also important to abide by state laws and avoid serious repercussions.

Not only is it illegal to drive under the influence of drugs or alcohol, but in the state of Virginia the implied consent laws also make it unlawful to refuse a breath or blood test. Find out precisely what can be used against you in a DUI case and how you should respond when asked to take a blood or breath test in Virginia if you wish to protect yourself during a stop.

Keeping Silent

Speaking freely to an officer at a possible DUI stop could severely hurt your case. Even if you are not intoxicated, nervous or babbling speech can look incriminating and may give the officer evidence to use against you in court. Instead, stay as quiet as possible. The officer will ask questions about where you’ve been, where you are going, or what is in your back seat, among other questions. Remember, their primary goal is to get you talking and to catch you in a condemning situation. They may ask if you’ve been drinking, and how much you have had to drink, and although remaining silent may look suspicions, it could be far less condemning than providing an unfavorable answer, or slurring your speech in reply.

What you lawfully must do in a DUI stop is show the officer your driver’s license and registration. If you are given a direct order from the officer, it would be in your best interest to do as told in silence.

Refusing a Test in Virginia

As previously mentioned, Virginia abides by implied consent laws under Virginia Code Section 18.2-268.2. When a person accepts a driver’s license, he or she agrees to take a breath or blood test if arrested for driving under the influence of drugs or alcohol. Blood or breath samples must be taken no more than 3 hours after the initial arrest, and the officer must inform the driver of the implied consent law detailing the legal consequences of refusal.

The penalties for refusing to take a test in Virginia vary depending on the number of offenses. For an initial civil offense the driver could face a driver’s license suspension for up to 1 year. Any subsequent offenses, or a refusal with a DUI conviction, could result in misdemeanor charges and license suspension for up to 3 years.

It is important to note that officers in Virginia will sometimes ask to take a preliminary breath test before the driver is arrested. This test is used like a field sobriety tests, to help the officer determine whether or not probable cause for a DUI arrest exists. A driver is perfectly within his or her rights to refuse this test, and evidence of refusal cannot be used in court. However, if the arresting officer already has evidence to be used against you for driving under the influence of drugs or alcohol, performing a preliminary breath test will not make much of a difference.

If you were arrested for DUI in Virginia, contact The Law Offices of Daniel J Miller to begin building your defense.

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