Fairfax DUI/DWI Lawyer Explains The Law Of DUI Breath Test Refusal In Virginia
Refusal of a Breath Alcohol Test in Virginia
If you are facing DUI charges in Virginia, it is important to understand the state's refusal of breath test law. In Virginia, if a police officer suspects you of driving under the influence, they may request that you submit to a breath test to determine your blood alcohol concentration (BAC). However, under Virginia law, you have the right to refuse to take the breath test.
While the right to refuse the breath test may seem like a good idea at the time, it can have serious consequences. When you refuse to take the breath test, you will be subject to an automatic administrative license suspension. Additionally, if you are found guilty of the separate charge of refusal your driver's license will be suspended for a period of one year, even if you are ultimately found not guilty of DUI.
That's the key point to remember. Refusal to take a breath test is a separate charge from DUI/DWI. Often times both are charged together and the Commonwealth uses the threat of a refusal charge to secure a plea of guilty to the DUI/DWI. Additionally, if you are found guilty of refusal, you will lose your license for a full year and be denied a restricted license for 30 days. Meaning, you will have to walk or get rides to work/school for a month before you can get a restricted license.
The judge can deny your request for a restricted license as well. And, if you are convicted of a DUI/DWI at the same time, the suspension will stack. Meaning you could lose your license for 2 years in a first-time dui charge combined with a refusal. A Fairfax DUI/DWI attorney can help you navigate the restricted license process so you aren't walking for up to years.
Can refusal be used to prove a DUI/DWI?
It is important to note that the refusal of breath test law in Virginia is different from other states. In some states, the refusal to take a breath test can be used against you as evidence of guilt in court. However, in Virginia, the prosecution cannot use your refusal to take a breath test as evidence of guilt in court. This means that the prosecution must rely on other evidence to prove their case against you. They have to prove the two charges separately.
What does the Commonwealth have to prove in a refusal case?
Refusal of tests is governed by Va. Code § 18.2-268.3
There are four key elements in any refusal case:
- You drove on a public highway
- You were arrested for DUI/DWI within three hours of the test being offered
- They had probable cause to stop you for DUI
- You must unreasonable refuse to provide a breath sample
If you are unable to provide a breath sample due to an injury or medical condition, the law requires you are offered a blood test instead. If you are not offered this, your case can be dismiss by the court
Can I go to jail for refusing a breath test?
In most cases you cannot. The basic charge of refusal is considered a civil matter that's processed by criminal courts. But, if you have previously been convicted of DUI/DWI or refusal, a second or subsequent offense can be punished with jail time.
How do I defend myself from refusal of test charges?
If you are facing DUI charges in Virginia and you have refused to take a breath test, it is important to speak with an experienced Fairfax DUI/DWI defense attorney as soon as possible. Your attorney can help you understand your rights and options and can work to protect your rights throughout the legal process.
In some cases, it may be possible to challenge the administrative license suspension and have your driving privileges restored. Additionally, an experienced attorney can work to challenge the evidence against you and may be able to negotiate a plea deal or secure a not guilty verdict. A skilled DUI/DWI attorney may find defenses available if the police didn't follow protocol as well, leading to dismissal.
In conclusion, the refusal of breath test law in Virginia is an important issue for anyone facing DUI charges in the state. While you have the right to refuse to take the breath test, it is important to understand the consequences of doing so. If you are facing DUI charges, it is crucial to speak with an experienced Fairfax DUI/DWI defense attorney who can help you navigate the legal system and protect your rights.