Are There Penalties for Refusing to Take a Breathalyzer Test in Virginia?

Penalties for a First-Time DUIRefusing a breathalyzer test can be a crime in Virginia.

If you refuse a breathalyzer test under certain circumstances, you will probably violate Virginia Code section 18.2-268.3.

The bad news is that Virginia can convict you of refusing a breathalyzer test even if you are acquitted of DUI.

Virginia DUI Laws

In Virginia, you are legally intoxicated if a breathalyzer test reveals your blood alcohol concentration (BAC) to be at least 0.08%.

DUI is a misdemeanor in most cases. Moreover, Virginia’s DUI penaltiesare among the harshest in the nation.

Even for a first offense, Virginia can sentence you to:

  • Up to a year in jail;
  • A fine of up to $2,500 ($250 minimum); and
  • Suspension of your driver’s license for up to 12 months.

Penalties increase if your BAC was 0.15% or higher or if you have a previous DUI on your record. In fact, a third offense within 10 years is a felony.

Virginia can also charge you with DUI for driving under the influence of drugs such as marijuana.

Why Virginia Enacted the Breathalyzer Requirement

Virginia enacted the requirement to consent to a breathalyzer because people could evade DUI convictions by refusing the breath or blood test.

The implied consent law changes this dynamic in at least two ways:

  • Virginia can now suspend your driving privileges even if you are never convicted of DUI; and
  • The law allows the judge to dismiss the refusal if you plead guilty to DUI.

As a consequence, the state has been able to secure more DUI convictions among drivers who refuse breathalyzer tests.

Additionally, the state has suspended a greater number of driver’s licenses among people who refuse breathalyzer tests, even without a DUI conviction.

Arrest, Refusal, and “Reading You Your Rights”

Refusing to take a breathalyzer is not always against the law. In fact, you are not required to take any tests until the police actually arrest you for DUI.

After arresting you, the officer usually asks if you are willing to submit to a breath test at the police station.

If you refuse, the officer is required to read a long form that explains the consequences of your refusal. At that point, if you still will not submit to the test, you can be charged with refusal.

The breathalyzer that Virginia law requires you to submit to takes place at the police station or the jail after your arrest.

The officer is not required to read you your Miranda rights during this process.

Field Sobriety Tests and the Preliminary Breath Test: What You Need to Know

In many cases an officer will seek to administer a “field” breathalyzer test, also known as a preliminary breath test, before arresting you.

The purpose of these tests is to decide whether to arrest you. Virginia cannot charge you with refusal for refusing to take a preliminary breath test.

You also have no obligation to submit to a field sobriety test, such as walking in a straight line.

Most Virginia drivers do not realize this.

Can You Refuse a Breathalyzer?

Can you refuse a breathalyzer? Refusal to submit to an alcohol test can result in suspension of your driver’s license for a year, at least for a first offense. The state will add this penalty to any penalties it might impose for DUI.

If Virginia convicts you of both DUI and refusal, you could lose your driver’s license for two years. It is possible, however, to apply for a “restricted license” for you to drive to and from work or perform other necessary tasks.

A restricted license is only allowed for a refusal conviction after 30 days of not driving at all.

Refusing a breath test is not a criminal offense unless it is your second offense of either refusal or DUI within 10 years.

If you do commit a second offense within 10 years, however, Virginia will suspend your license for up to three years (mandatory), jail you for up to six months, and fine you up to $1,000.

When To Refuse a Breathalyzer & When You Can’t

Virginia DUI Defenses

DUI is a very complicated area of law, and law enforcement officials must follow certain procedures. If they fail to follow these procedures, you can have evidence excluded.

If you exclude enough evidence, Virginia might lack the evidence to convict you of the offense. Following is a description of some common defenses:

  • You could not complete a breathalyzer test for legitimate medical reasons, such as severe asthma.
  • English is not your native language and you did not understand what the police officer was asking you to do.
  • The officer pulled you over without reasonable articulable suspicion.
  • The officer insisted that you submit to a blood test before attempting to administer a breathalyzer test. This is a legal gray area that a good lawyer can exploit.

Depending on the specific facts of your case, you might employ any one of the foregoing defenses, or some other defense.

Recent Case Result: DWI Won by Suppressing the Field Sobriety Tests

(All cases depend upon their unique facts. Past cases do not guarantee future results.)

THE STORY: I represented a client on a DWI charge. The police badgered my client into doing the field sobriety tests (FSTs) to the point of tears. She was literally trying to walk the line and stand on one leg while crying.

When trial came, I objected to the prosecutor using the field sobriety tests against my client. I argued that they were only admissible if they were voluntary. Since the police had threatened my client with arrest unless she did them, and she only did them while crying, they were not voluntary in this case.

The judge reluctantly agreed with my reasoning and granted the motion to NOT hear evidence about the field sobriety tests.

We had another separate argument to keep the actual breath alcohol certificate out of evidence: there was no proof that the client had received her copy as required by law.

Without proof of impairment via the field sobriety tests or even the breath certificate, the judge was forced to find the client NOT guilty.

CASE OUTCOME: NOT Guilty. The judge dismissed the DWI charge against my client, saving her from having her license suspended, doing an alcohol class, paying fines, and having a misdemeanor conviction on her record.

If You Hold an Out-of-State Driver’s License

Suppose you are arrested for DUI and charged with refusal but you are driving on a Maryland license. How does that affect your case? Well, Virginia can only suspend your right to drive in Virginia.

It cannot suspend your Maryland driver’s license. Instead, Virginia will notify Maryland (or whatever state issued your driver’s license), and Maryland will decide if they should penalize you based on their laws.

Virginia can still jail you and fine you for DUI; it just cannot suspend an out-of-state driver’s license.

Virginia can also punish you if you drive on Virginia roads with an out-of-state license that is valid in your home state but invalid in Virginia.

Contact Our Virginia DUI Defense Lawyers Today

I am Andrew Flusche, and I am here to help you. If you have been charged with DUI or refusing to take a breath test, I can promise you that I will not pass off your case to someone else.

I handle all my cases myself, and I maintain good working relationships with local prosecutors and judges. You can see how my former clients have rated me here.

Call me at 540-318-5824, schedule an appointment to meet me at my office in Spotsylvania, VA, email me at, or contact me online for a free consultation, so we can discuss your options.


Andrew Flusche

My name is Andrew Flusche. I am a traffic and misdemeanor defense lawyer in Virginia. I limit my practice to traffic tickets and misdemeanor defense, so I know the ins and outs of these offenses. I literally wrote the book on reckless driving in Virginia which you can get on Amazon here or download for free here. I opened my practice in 2008 after earning my Juris Doctor degree from the University of Virginia School of Law. Since then, I have earned over 600 5-star reviews from happy clients on Google, Yelp, and Facebook. If you’ve been charged with a misdemeanor offense in Virginia, please don’t hesitate to contact me. Your initial consultation is always free, and you'll talk directly with me about the details of your case.

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