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What happens after refusing a Virginia DUI breath test?

Embattled former Virginia governor Bob McDonnell and his family were recently dealt another blow when his son was arrested for DUI. The 23-year-old was also reportedly cited for refusing a breath test.

He was taken into custody a little more than 100 miles south of Loudoun County, in Glen Allen.

The younger McDonnell apparently failed a field sobriety test and then declined to take a breath test. According to a TV station report, he was cooperative with police.

What happens to him next? As you know, Virginia has implied consent laws, which means that licensed drivers automatically consent to DUI tests. So if this was the 23-year-old’s first refusal of a breath or blood test, he can expect a one-year driver’s license suspension and a fine of $250.

Though a first refusal is not treated as a crime, a second or subsequent refusal within a decade will result in a misdemeanor charge with a punishment of a three-year license suspension.

A breath test refusal does not mean you can’t also be charged with DUI. It also doesn’t mean that you can’t be found guilty of drunken driving, even though the state will not have breath or blood test results as evidence.

The court can still consider a failed field sobriety test, the officer’s account of your driving and your behavior, speech and appearance after being pulled over, and it can use those factors to find you guilty.

For those facing those many serious consequences, their first impulse before speaking with an experienced defense attorney might be to plead guilty. Afterwards, they might well appreciate that there are other possible legal options to consider and pursue.  

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