Breathalyzer Refusal

breathalyzer refusal in VirginiaOne of the easiest ways the Commonwealth can prove a DUI in Virginia is through introduction of the driver’s Blood Alcohol Content (BAC).  BAC is measured by a Breathalyzer Test performed at the police station after a driver is arrested for a DUI.  Virginia drivers are required to take this Breathalyzer Test pursuant to the implied consent law.  Unreasonably refusing to take the test will result in a charge of Breathalyzer Refusal in Virginia under Va. Code §18.2-268.3.

Implied Consent in Virginia

Va. Code §18.2-268.2(A) contains Virginia’s implied consent law.  It states that anyone operating a motor vehicle in Virginia impliedly consents (by driving on Virginia’s roads) to submit to a breath or blood test after being arrested for a DUI.  The Breathalyzer Test is required after an arrest for DUI (Va. Code §18.2-266), Underage DUI (Va. Code §18.2-266.1) or Driving on a Revoked License (Va. Code §18.2-272(B)).  The Breathalyzer Test measures the driver’s Blood Alcohol Content (BAC).  If the BAC is at certain levels, the court infers that the driver was under the influence of alcohol at the time of the offense (Va. Code §18.2-269).

For more information on the implied consent law in Virginia, click here.  For more information on Blood Alcohol Content and DUI arrests in Virginia, click here.

Breath Tests in Virginia

There are two types of breath tests used in Virginia: the Preliminary Breath Test (PBT) and the Breathalyzer Test at the police station.  The PBT is a breath test performed on the road as part of field sobriety tests before arresting a driver for a DUI.  The PBT is voluntary.  The results do not come in as evidence against the driver at a DUI trial, and a driver’s refusal to take the PBT cannot be used against him.  The PBT results can only come in if the driver is challenging probable cause for the DUI arrest.  For more information on Preliminary Breath Tests in Virginia, click here.

However, if the driver unreasonably refuses to take the Breathalyzer Test at the police station after he has been arrested, he can be charged with Breathalyzer Refusal in Virginia (Va. Code §18.2-268.3).  Unlike refusing a PBT, evidence of Breathalyzer Refusal in Virginia CAN be used against a driver in court.

For more information on the Breathalyzer Test in Virginia, click here.  For more information on the difference between the PBT and the Breathalyzer Test in Virginia, click here.

Blood Tests

The implied consent law also requires drivers to take a blood test if the officer suspects that the driver is under the influence of drugs, if a breath test is unavailable, or if the person is physically unable to take a breath test.  The suspect can be charged for refusing to submit to this test as well (Va. Code §18.2-268.3).  If the refusal of a blood test would result in a criminal charge (second or subsequent offense refusal within 10 years), the police are required to obtain a search warrant for the blood test.

For more information on when a driver may be required to take a blood test after a DUI arrest in Virginia, click here.

Breathalyzer Refusal in Virginia

If the driver declines to take the Breathalyzer Test, the police officer must read a form to the driver explaining the implied consent law and the penalties for Breathalyzer Refusal in Virginia.  If the driver still refuses to take the test after being advised of the implied consent law, he will be charged with Breathalyzer Refusal in Virginia under Va. Code §18.2-268.3(A).

A driver can also be charged with Breathalyzer Refusal if the machine prints error messages and the machine operator thinks the driver is trying to avoid producing a breath test result.

Penalties for Breathalyzer Refusal in Virginiabreathalyzer refusal in Virginia

Jail: A first offense Breathalyzer Refusal in Virginia is a civil offense.  However, second and third offense refusal convictions within 10 years are crimes and are punished with jail.

Fines: In addition to jail time, convictions for second and third offense Breathalyzer Refusal within 10 years in Virginia can be punished with fines.  The driver could pay a fine as high as $1000 for a second offense refusal in 10 years.  The fine for a third offense in 10 years could be as high as $2500.

Administrative Driver’s License Suspension: A driver’s license will be administratively suspended if the driver is charged with Breathalyzer Refusal in Virginia under Va. Code §18.2-268.3.  This period of administrative suspension lasts seven days for a first offense.  For second and subsequent charges, it could last 60 days or until the day of trial.  The serious suspension, however, comes after conviction.

For more information on administrative license suspension in Virginia after a DUI or Breathalyzer Refusal charge, click here.

Driver’s License Suspension After Conviction: A driver convicted of a Virginia Breathalyzer Refusal will have his driver’s license suspended automatically.  He cannot have a restricted license AT ALL during this suspension.  A first offense Breathalyzer Refusal results in 12 months of license suspension.  Second and subsequent offenses are punished with 3 years of driver’s license suspension without the possibility of a restricted license.

DMV Points: The Virginia DMV will add 6 demerit points to the offender’s driving record if convicted of Breathalyzer Refusal in Virginia.

Increased Penalties for Multiple Breathalyzer Refusal Convictions

A driver can be charged with a second or third offense Breathalyzer Refusal in Virginia even if he has never been convicted of Breathalyzer Refusal before.  Va. Code §18.2-268.3(D) states that a driver can be convicted of a second or third Breathalyzer Refusal in Virginia if he has any combination of Refusal OR DUI convictions within 10 years.  Therefore, the driver will be charged with a second offense Breathalyzer Refusal in Virginia if he has had a prior DUI conviction and no refusal conviction.  He can be charged with a third offense refusal if he has 1 DUI and 1 refusal conviction or 2 DUI convictions and no refusal convictions.

  • First Offense Breathalyzer Refusal in Virginia
    • A first offense Breathalyzer Refusal in Virginia results only in a civil penalty.  It is punished with 12 months of driver’s license suspension and the driver CANNOT apply for a restricted license at all during this period.  For more information on the penalties for a first offense Breathalyzer Refusal in Virginia, click here.
  • Second Offense Breathalyzer Refusal in Virginia in 10 Years
    • A second offense Breathalyzer Refusal in Virginia in 10 years is a Class 2 misdemeanor, punished with up to 6 months in jail and a fine up to $1000.  Additionally, the driver’s license will be automatically suspended for 3 years.  The offender cannot apply for a restricted license at all during this period.  For more information on the penalties for a second offense Breathalyzer Refusal in Virginia, click here.
  • Third or Subsequent Breathalyzer Refusal in Virginia in 10 years
    • A third or subsequent Breathalyzer Refusal in Virginia in 10 years is a Class 1 misdemeanor.  It is punished with up to 12 months in jail, a fine up to $2500, and automatic driver’s license suspension for 3 years with no restricted license.  For more information on the penalties for a third offense Breathalyzer Refusal in Virginia, click here.