In Virginia, police officers carry a piece of equipment called a breathalyzer to assist them in their investigation of drivers whom they suspect to be operating a motor vehicle under the influence of alcohol. If a member of law enforcement pulls you over and asks you to submit to a breathalyzer test, you may be wondering if you legally have to comply or, if you can refuse.
Virginia is an implied consent state, which impacts your options for refusing a breathalyzer. However, it is important that you understand your rights and the potential consequences of saying no when an officer asks you to undergo a breathalyzer test.
What Does A Breathalyzer Do?
A breathalyzer is a (typically handheld) tool that can analyze a person’s blood alcohol level based upon the information gathered from their breath. A PBT, or Preliminary Breath Test, is the machine that an officer carries with him in the field to conduct this analysis. However, there is a different machine at the police station, or magistrate’s office, that is used on individuals who have been arrested for DUI: the breathalyzer.
While both devices are commonly referred to as breathalyzers, the one at the police station tends to be more accurate because it is not a portable, handheld device. Most breath tests are conducted using an Intoxilyzer 5000, though a blood test may be done if a breath test is not an available option.
Virginia’s Implied Consent Law
The state of Virginia operates under the principle of implied consent. This means when you drive on a roadway in Virginia, you are giving your consent to submit to alcohol testing after being arrested for a DUI. You do not need to sign a paper in order to agree to implied consent, such as when you get your driver’s license.
By using the roads and operating a motorized vehicle, you agree to this requirement. It is important to note that implied consent requires that you submit to a breath or blood test after you have been arrested for a DUI; this nuance plays an important role in your rights to refuse a breathalyzer at other points.
Pre- And Post-Arrest Breathalyzers
When a law enforcement officer suspects a DUI, they will likely ask you to perform tasks such as a series of field sobriety tests or submit to the preliminary breath test, or both. You can be pulled over for suspicion of driving under the influence of alcohol for many reasons, from driving erratically, swerving or being unable to stay in the center of your lane.
The officer requires some indication or evidence that your driving is being impacted by alcohol, and will likely ask you to assist in gathering this evidence. In a field sobriety test, you may be asked to walk in a straight line, touch your finger to your nose or perform other motor functions that may become difficult if you are intoxicated. You are not required to submit to a field sobriety test.
If the officer asks you to submit to a breathalyzer test after you have been pulled over, you are also free to say no; you are never required by Virginia law to undergo a breath or blood test for alcohol before you have been arrested for a DUI. However, failure to submit will likely result in a DUI arrest.
When you are brought before a magistrate, after the arrest, you will be asked again to perform a breath test. At this point, you are now impacted by implied consent, and failure to comply could result in penalties such as losing your license for a year without the opportunity to secure a restricted license.
You may also have six points added to your DMV record. If you refuse the breathalyzer, you will also likely be charged with a violation of implied consent and refusal of a breathalyzer, which is a separate conviction from the DUI that not only carries its own penalties but can also be used against you in court.
Reach Out To A Defense Attorney For Assistance With A DUI Charge
If you have been charged with a DUI and refused a breathalyzer test, or if you are unsure about your rights regarding submitting to a breathalyzer or blood examination, an attorney experienced in DUIs and Refusals will be able to provide guidance.
The attorneys at The Law Offices of Kermit A. Monge would be happy to help you explore your options and understand your rights. If you have been charged with DUI or Refusal, contact the The Law Offices of Kermit Monge to schedule a consultation to discuss what options you may have for possibly reducing penalties.