[VIDEO] Virginia DUI Refusal Without Refusing

If you’re charged with refusal in Virginia, or DUI, you definitely need to contact me so we can see what defenses you may have for your charge.

Video Transcription

How can you be charged with refusing the breath test in Virginia if you actually tried to take the test? Let’s look at that. I’m Andrew Flusche, your Virginia DUI attorney, and this happens a lot of times where you’re arrested for a DUI and the officer sits you down in front of the breath machine and you try and you try, and you keep blowing, and you blow, and you do the test 2, 3, 4 times maybe, and the test keeps coming out Deficient Sample is what the result says. How can you be charged with refusal if you actually tried to do the test?

The answer is what Virginia refers to as constructive refusal. Basically, the argument is that you’re playing games with the machine or something else is going on and you’re not actually doing what you’re supposed to do. The problem is that this is a valid charge. The Commonwealth, if they can prove that you were properly instructed on the machine and what to do, that the machine was working properly, and if they can prove that you basically were playing games with it or were not giving it a full blow and that you were otherwise physically able to, that can be enough to find you guilty of refusal in Virginia.

Be clear, if you’re charged with DUI in Virginia or arrested for DUI, you do have to take the test at the station, the big breath machine that you sit down in front of. That test, if you don’t take it, you can be charged with refusal, which is a separate charge apart from the DUI. That’s where this constructive refusal idea comes in. Basically, the Commonwealth is claiming that you simply were playing games with it.

Now what we do is we can get records from the Department of Forensic Science, so we can see how much air you were actually blowing into the machine, and we can see if you were really close to the line. For the Intoxilyzer EC/IR II that we use in Virginia, you have to blow 1500 ccs of air into the machine for it to get enough sample, and so if you were blowing 1400 and 1300 and really close, repeatedly, we could possibly argue that simply your lung capacity is not enough to get enough air into the machine.

The problem is if you were blowing a couple hundred ccs, and then an 800 cc, and then maybe a 1400, if your blows are all over the map, it’s harder to argue that. It’s more likely that the Commonwealth’s argument will win that you were playing games and not giving it a full blow like the officer instructed you, but if you’re charged with refusal in Virginia, or DUI, you definitely need to contact me so we can look at these issues, get those records, and see what defenses you may have for your charge.