What To Do When You Have Been Charged With A Refusal To Take A Breathalyzer

Have you been charged with a refusal to take a Breathalyzer test?

If so, it is important that you hire a DUI Defense Attorney for your case immediately!.

In Virginia, per Va. Code §18.2-268.3, if you are convicted for refusing to take a Breathalyzer, you can face various penalties including fines, driver’s’ license suspensions, and jail time.

For a first time refusal conviction, your driver’s’ license may be suspended for one year, and you will be ineligible to drive for any reason, at any time, during that year. That’s right. You will not be granted a “restricted license.” This means no driving to work, school, daycare for your child, doctor’s appointments, even religious services.

For a second refusal, if it occurred within ten years of your first refusal charge, you will face criminal charges.

A second refusal is deemed a Class 2 misdemeanor and punishable up to six months in jail and up to a $1,000.00 fine.

A Class 1 misdemeanor is the result of a “third-time refusal to blow” conviction. This is punishable by up to one year in jail and/or by being required to pay a fine of up to $2,500.00.

For either the second or third time refusal, you driver’s’ license may be suspended for up to three years. Again, without any driving whatsoever!

It cannot be stressed enough that if you if you are convicted of a Refusal to take a Breathalyzer, you will NOT be eligible for a restricted driver’s’ license during the suspension period.

Related Reading : How Accurate Are Breathalyzers?

The Surrounding Law

In Virginia, per Virginia Code Annotated 18.2-268.2, you are required to blow into a Breathalyzer if you are arrested for driving under the influence (DUI). Basically, the law holds that driving is a privilege, not a right. In exchange for that privilege, you have implicitly agreed to certain terms. One of those terms is that if an officer feels he has probable cause to arrest you for a DUI, then it is implied that you consented to a breath test at the police station to determine your blood alcohol content (BAC). THIS IS DIFFERENT THAN THE TEST OFFERED BY THE OFFICER AT THE SCENE, WHICH YOU CAN (AND SHOULD) ALWAYS REFUSE!

Note that you are only required to blow when the arresting officer has probable cause that you are driving under the influence. When the cop concludes that, in his opinion, probable cause exists, the breath test must be taken within three hours of your arrest.

Well, what if, at the time of your traffic stop, the officer does not have probable cause that you are driving under the influence? In other words, what if the officer does not have probable cause, yet, to arrest you?

This is why the officer will ask you to take a preliminary breath test. Preliminary breath tests are like field sobriety tests. The results will be used to establish probable cause that you were in fact driving under the influence.

In Virginia, you do not have to take these preliminary breath tests. And you shouldn’t!

If you refuse to take it, any evidence of your refusal may not be used against you in a court of law.

Nevertheless, if the officer has other evidence that you are driving under the influence (such as your performance on the physical tests he administers, any admission of drinking on your part, and/or your driving behavior), your refusal may still be enough to give the officer probable cause to arrest you. At this point, and per the above law, you can then be required to blow into the machine at the police station.

The point is that the hand-held test result can only hurt you. Even if the result is under the legal limit (.08 BAC), the officer can still use any result in combination with his observations of your physical performance on the other field sobriety tests to justify his “probable cause.” Why give him the ammunition?

Contact A DUI Defense Attorney

If you are charged with a refusal to take a Breathalyzer, it is imperative that you retain an experienced attorney.

With over 15 years of experience, Eric E. Clingan is a zealous DUI Defense Attorney in Fairfax, Virginia who will thoroughly investigate the charges against you to determine which options will give you the best chance at success.

Contact The Nova Law Firm today for a Free Consultation to discuss your legal needs and learn more about how to pursue the complete dismissal of your charges.

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About the Author: Eric Clingan

About the Author: Eric Clingan

Eric Clingan is an experienced Criminal Defense attorney and the founder of the NoVA Law firm. He focuses his practice on defending residents of Northern Virginia charged with DUIs, reckless driving, drug charges, and other criminal accusations

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