There really aren’t any clear answers on the issue of whether to submit to breath testing after a DUI stop in Virginia. The only specifically defined line out there is the .08 limit. With a blood alcohol content at .08 or above, there’s a legal presumption that you’re under the influence. You have the burden of rebutting that presumption. How that limit might be determined when a person was operating a motor vehicle is subject to argument, particularly when a blood alcohol breath test is taken an hour or two or even longer after a traffic stop.

Implied Consent

Like all other states, Virginia has an implied consent law. By the mere act of operating a motor in Virginia, the driver gives their consent for breath and/or blood testing within three hours of a traffic stop if they’re suspected of driving while intoxicated.

Refusing Breath Testing

Contrary to what many people believe, you’re not required to submit to blood alcohol breath testing after a DUI stop. The officer that stops you might try to make you feel that you have to, but you have a right to refuse breath testing. The problem with that is even if you haven’t been drinking, there’s a very high likelihood you’ll be taken into custody for a DUI because you refused the test, particularly if you didn’t perform satisfactorily on any field sobriety tests. By the way, you don’t have to take those either. The officer will tell you with a very authoritative voice that they want you to take tests. Those are mere requests. You don’t have to take any field sobriety or portable breath tests.

Penalties For Refusal

There are no penalties for refusing to perform field sobriety tests, but there are penalties for refusing to perform breath testing at the police station or other facility. Don’t confuse portable breath testing at the scene with breath testing at the station. There are no consequences for refusing portable breath testing. At the station, if you are asked to perform a blood alcohol breath test and you unreasonably refuse, you can be convicted of a civil violation if it’s your first offense. Just about every refusal is deemed unreasonable by the courts. If convicted, the fine is $500 and your driver’s license will be suspended for a year. Upon a conviction, a restricted license will not be permitted. A second conviction for an unreasonable refusal within 10 years is considered a criminal offense. It’s punishable by a three year suspension.

Blow Or No Blow

The decision on whether to submit to breath testing depends on the facts and circumstances surrounding every suspected DUI stop. The first rule of submitting to breath testing is that if you’ve been drinking, and you consent to breath testing, you’re probably giving the prosecution precisely the evidence that they need to convict you. You can even be convicted of DUI with a blood alcohol content less than .08. If you’ve been drinking and you’re in an accident, even if it’s not your fault, you probably don’t want to perform any field sobriety or breath tests.

Next, if you have a prior record of an alcohol related driving offense, you probably want to exercise the no field tests and no blow option. It’s highly likely that a prior alcohol related driving offense will come up to bite you again in charging and/or sentencing. A third DUI in Virginia is ordinarily charged as a felony with mandatory incarceration upon conviction. Other than a client who has been arrested for DUI that hasn’t been drinking, the DUI lawyer’s favorite client is the client who performed no field sobriety tests and no breath tests. In those cases, unless there’s damaging video, it’s the police officer’s word against the driver’s word. That’s not enough evidence to convict a person beyond a reasonable doubt.

Have You Been Arrested For Drunk Driving In Virginia, Maryland or Washington D.C.?

If you've been arrested for DUI or DWI you need to speak with an experienced drunk driving defense attorney as soon as possible. Please contact us online or call our Vienna, Virgnia office directly at 703.991.7978 or our Rockville, Maryland office at 301.637.5392 to schedule your case consultation.

Lawrence Tucker
Providing foreclosure & bankruptcy defense in Virginia, Maryland and Washington D.C. for over 20 years.