Every state has its own laws designed to prevent intoxicated drivers from endangering not only themselves but the general public. While Virginia law enforcement has the option to administer field sobriety tests to ascertain a suspected drunk driver’s sobriety—or lack thereof—they are afforded additional powers after initiating an arrest.
Implied Consent in Virginia
Under Virginia state law, anyone who operates a motor vehicle on public roads provides their implied consent to have samples of their blood, breath, or both blood and breath taken to determine their blood-alcohol content if they are arrested on suspicion of any of the following offenses:
- Virginia Code § 18.2-266, which prohibits the operation of a motor vehicle while intoxicated
- Virginia Code § 18.2-266.1, which prohibits persons under the age of 21 from driving a motor vehicle while intoxicated
- Virginia Code § 18.2-272, which prohibits anyone who has forfeited or lost their license from driving
Refusing to Take a Breathalyzer or Blood Test
Virginia’s implied consent law requires that drivers comply with any post-arrest law enforcement request to take a breathalyzer or blood test. However, not all tests are the same, and not all tests are mandatory.
In general, Virginia police officers can request motorists consent to:
- Preliminary breath tests. A preliminary breath test is a breath test conducted on the side of the road after a traffic stop. While a police officer could ask a suspect to take a preliminary breath test before or after arrest, the results of these tests are unreliable, not admissible in court, and intended to help officers determine whether a motorist is intoxicated. As such, suspects are not actually required to consent to preliminary breath tests.
- Breathalyzer tests. A breathalyzer test could be administered after a suspect is taken to the police station. Breathalyzer tests are more accurate than roadside tests, and their results are admissible in court. Virginia’s implied consent law requires that detained motorists consent to breathalyzer tests after they have been arrested for driving under the influence of drugs or alcohol.
- Blood tests. Similar to breathalyzer tests, a blood test could be administered after a suspect is taken to the police station. These tests are highly accurate; their results are also admissible in court. Virginia’s implied consent law requires that detained motorists consent to blood tests after they have been arrested for driving under the influence of drugs or alcohol.
If an arrested motorist refuses to take a breathalyzer or blood test, they could be subject to criminal penalties:
- First offense. The first time a suspect is arrested for drunk driving and refuses a breathalyzer or blood test, they could be charged with a civil offense. The penalties for refusal could include a one-year license forfeiture.
- Second offense. The second time a suspect is arrested for drunk driving and refuses a breathalyzer or blood test, they could be charged with a first-degree misdemeanor, punishable by up to 1 year in jail, a fine of up to $2,500, and a three-year license suspension.
How an Attorney Can Help
Police officers can use Virginia’s implied consent law to compel a breathalyzer or blood test. However, state law still requires that the investigating officer have probable cause to initiate an arrest. A drunk driving arrest is only legal if:
- The police officer can demonstrate that they had reasonable cause to believe that you may have been intoxicated.
- The police officer had probable cause to believe that you were intoxicated.
If the investigating officer cannot demonstrate either of the above two elements, your attorney could file a motion to suppress the results of your preliminary breath test, breathalyzer test, or blood test.
Contact James E. Short, PLC, Today
A drunk driving arrest can blight an individual’s record, ruining their reputation, destroying their career prospects, and making it more difficult to find safe accommodation. If you, or a loved one, have been arrested for driving under the influence of drugs or alcohol, you deserve aggressive representation and a vigorous defense. James E. Short, recognized as a Top DUI Lawyer, has the experience needed to construct a compelling, evidence-based case for acquittal. Please send James E. Short, PLC, a message online, or call us at 757-410-5042 to schedule your initial consultation and discuss your options for rapid legal relief.
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