Being pulled over on suspicion of driving while intoxicated or under the influence can be a stressful experience, but being asked to perform a breath test (sometimes referred to as a breathalyzer) can create more stress. You may be unsure of whether or not you are required to perform a breath test or if you can refusing a breathalyzer.
You may believe that a refusal could improve your case outcome, by possibly not providing a number to associate with your intoxication. However, depending on the context, you may face penalties for refusing a breath test, and these penalties are separate from any potential consequences for a DUI. Be sure to understand when you have the right to refuse a breath test and when it is mandatory.
Understanding The Contexts For Refusal
When you are pulled over on suspicion of driving while under the influence, an officer has numerous options at his or her disposal to determine whether you are intoxicated and, if so, to what degree. You may be asked to comply with some field sobriety tests, which will include examining your motor skills by checking your ability to complete basic tasks such as walking in a straight line.
They may check for involuntary eye movement (nystagmus) by following a light with your eyes. In addition, the officer may request that you undergo a breath test administered on the side of the road called a PBT, or preliminary breath test. You are not required to comply with a PBT, and you may freely decline to participate. However, doing so is likely to increase the chance that you are arrested for a DUI based on other, circumstantial evidence.
Once you have been arrested and taken to the magistrates office or other station, you will be asked again to take a breath test to calculate your alcohol level. This test after arrest, called a breathalyzer test, is mandatory due to Virginia’s implied consent law. This law states that by operating a motor vehicle on a public roadway, you are consenting to a breathalyzer. Thus, refusing this second breath test at the station constitutes refusal, which is a charge separate from the DUI charge.
Refusing A Breathalyzer Does Not Protect From A DUI
Some people may elect to refuse one or both breath tests because they believe that if the officer does not have a number to ascribe to their alcohol level, they cannot be charged with a DUI. However, this is not true. An officer will, instead, use circumstantial evidence to build a case for a DUI, including the fact that the suspect refused a breath test. Those who refuse the breathalyzer can expect additional penalties based entirely on that refusal, which can make the overall outcome of the case worse than it would have been with compliance.
Potential Penalties For Refusing A Breathalyzer Test
Refusing a breath test is its own act and carries its own set of penalties. The consequences of a DUI conviction will depend upon a variety of factors such as whether you have been charged with another DUI in the past, how recently that charge occurred and whether there were minors in the vehicle. However, refusal of a breath test can constitute both a civil and criminal infraction separate from the DUI.
If this is your first offense refusal, it is only a civil offense and will result in your driver’s license being suspended for one year, typically with no option to acquire a restricted license in that time. If you have refused a breathalyzer test before and this is your second or later offense within the last 10 years, the charge increases to a first degree misdemeanor.
License suspension also occurs in this category, typically for 3 years, a requirement to serve up to 1 year in jail and pay a fine not to exceed $2500. All three of these punishments may be issued together, alone or any combination of the three.
Reach Out to an Attorney to Understand Your Options
If you have been charged with driving while under the influence of alcohol and you were confused about your rights to refuse a breath test, or if you refused a breathalyzer test, it is best to contact a legal professional as soon as possible after the incident.
The penalties associated with refusing a breathalyzer test during DUI processing can be severe, but a skilled criminal defense attorney, such as those at The Law Offices of Kermit A. Monge can help you to mitigate the consequences as much as possible. Contact The Law Offices of kermit A Monge to schedule a consultation to discuss your options and understand your rights.