## Refusing the breath test in Virginia One of the most consequential decisions in a DUI stop happens BEFORE you've been charged: whether to take the breath / blood test. Virginia, like all states, has an "implied consent" law — by getting a driver's license, you've consented to chemical testing if lawfully arrested for DUI. ### Virginia implied-consent framework - **Implied consent law:** Yes - **Refusal license suspension:** 1 year (1st refusal — civil; 3 years if 2nd offense) - **Criminal refusal:** Refusal IS a separate Class 1 misdemeanor on 2nd offense ## What "implied consent" actually means Implied consent doesn't mean you can't refuse — you CAN refuse. But refusal triggers automatic civil consequences: - **License suspension** (administrative — by DMV, separate from criminal case) - **Refusal admissible at criminal trial** in most states (jury can hear about it and infer guilt) - **Sentencing enhancement** — convicted DUI defendants who refused often face longer mandatory jail and license periods - **In some states**, refusal is itself a separate crime ## Birchfield v. North Dakota (2016) **Birchfield v. North Dakota (2016)** — Supreme Court held that: - **Breath tests** can be conducted incident to arrest WITHOUT a warrant — no Fourth Amendment problem; criminal penalties for refusal are constitutional - **Blood tests** generally REQUIRE a warrant — Fourth Amendment protected; criminal penalties for refusal are UNCONSTITUTIONAL After Birchfield, many states stopped criminalizing blood-test refusal but kept criminal penalties for breath-test refusal. License consequences for either remain valid. ## Two types of breath tests **1. Preliminary Breath Test (PBT) at the roadside.** Often a small handheld device. In most states: - Result is NOT admissible at trial - Used for probable cause to arrest only - Refusal of PBT typically has no consequences (or minor ones) **2. Evidentiary breath test at station.** Larger machine (Intoxilyzer, Datamaster, etc.). After arrest: - Result IS admissible at trial - Refusal triggers implied-consent consequences - This is the test that matters Don't confuse the two. Refusing the roadside PBT is generally fine; refusing the station-house evidentiary test is the one with consequences. ## To take or refuse — strategic considerations **Taking the test:** - ✓ Avoids automatic refusal license suspension - ✓ Avoids refusal admission at trial - ✓ Avoids being designated a refuser for sentencing - ✗ Provides direct evidence of BAC if you're over the limit - ✗ High BAC supports DUI charge **Refusing the test:** - ✓ Eliminates direct BAC evidence - ✓ Forces prosecution to prove impairment by other evidence (FSTs, observations, driving) - ✗ Automatic license suspension regardless of DUI outcome - ✗ Refusal can be argued as consciousness of guilt - ✗ Sentencing enhancement if convicted - ✗ Possible separate criminal charge Generally: - **If you're sober** — take the test (it'll prove sobriety) - **If you're moderately drunk** — refusing may help if state's penalties for refusal are less than enhanced DUI penalties - **If you're very drunk** — refusing often makes sense BUT this is hard to gauge in the moment, often after a few drinks. Pre-decisions matter — many DUI attorneys recommend that their clients always take the breath test (better than no evidence at all to fight). ## Blood vs breath **Blood tests:** - More accurate than breath - Require warrant (post-Birchfield) or true consent - Can detect drugs, not just alcohol - Can be retested by defense - Take days/weeks to get results **Breath tests:** - Less accurate; subject to calibration / interference challenges - Result available immediately - Cannot detect drugs - Can't be retested by defense If officers use a warrant for blood after refusal of breath, you can't refuse — refusal of the warrant is contempt or worse. ## Administrative license suspension hearings Most states have a **separate administrative process** for license suspension after refusal: - **Tight deadline** to request hearing (often 7-30 days from arrest) - **Lower burden of proof** than criminal trial (preponderance of evidence) - **Limited issues** — typically just whether the stop, arrest, and refusal warning were proper - **Result independent of criminal outcome** — you can win the criminal case and lose your license, or vice versa Missing the hearing deadline = automatic license suspension by default. ## What you should do If you've been arrested for DUI in Virginia — whether you took the test or refused — call a DUI defense attorney IMMEDIATELY. The deadlines for license-hearing requests are short (sometimes just 7-15 days). Most Virginia DUI attorneys offer free initial consultations and can quickly assess both the criminal case and the administrative case. --- *This guide is general information about Virginia law as of early 2026 and is not legal advice. Implied-consent law has many edge cases (medical conditions, language barriers, equipment failures, warrant procedures). Talk to a licensed Virginia criminal-defense attorney about your specific case.*