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What happens if you refuse a breath test?  There are two kinds of breath tests associated with DUI cases in Virginia.

How Do They Test for DUIs in Virginia?

If you are pulled over for a possible DUI, the officer will probably ask you take a portable, roadside breathalyzer test to measure your BAC (blood alcohol content). This is referred to as a preliminary breath test (PBT).  So, what happens if you refuse the PBT?

How Does a Preliminary Breath Test (PBT) Work?

The PBT is administered with a small hand-held device. This test is used in the field and its purpose is to assist a police officer in deciding whether there is enough evidence to arrest someone for DUI.  In Virginia, you are not required to take a PBT before being arrested for DUI.  Additionally, the results of the PBT cannot be used against you in a DUI trial.  However, the results of a PBT can be used against you in court if you seek to challenge whether the officer had probable cause to arrest you.

When the prosecution seeks to use the PBT result in court when you challenge the arrest, they must comply with certain requirements.  They must show that you were sufficiently advised by the officer regarding your rights with a PBT, and they must show that the PBT device was functioning properly.

What Happens if You Are Arrested for DUI?

Once you are arrested for DUI, a second breath test comes into play.  This is known as the legal breath test, or the implied consent breath test.  It is administered on a larger machine, usually at a jail or a police station.  If you refuse to take the implied consent breath test, there can be penalties and you can be charged with an additional offense.

Can You Refuse a Breath Test?

For a first offence refusal to submit to an implied consent breath test, your driver’s license will be suspended for one year, with no possibility of a restricted license for at least 30 days. This is in addition to any suspension if you are convicted of DUI.

For a second or third violation of refusal to submit to an implied consent breath test, you can be charged with a criminal offense, and if convicted your driver’s license will be suspended for three years, and you face the potential of a fine and jail time.

Can You Be Convicted of a DUI in Virginia without a Breath Test?

You can still be convicted of DUI without the results of an implied consent breath test if the prosecution can prove that you were observably under the influence of alcohol at the time you were driving.

DUI Lawyers in Alexandria and Leesburg Virginia

If you have been arrested for a DUI, you need an experienced attorney to help you build a strong defense. Even if you refused to a breath test, our attorneys can help. To convict you of refusing an implied consent breath test in court the prosecution must prove that you were lawfully arrested for DUI within 3 hours of driving on a public highway, and that your refusal was unreasonable.  Our attorneys have experience attacking these aspects of the prosecution’s case both during negotiations and at trial.  To learn more about your options for defense, please contact King, Campbell, Poretz & Mitchell.