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Can you refuse to take a breathalyzer test?

In Virginia, the consequences for driving under the influence of drugs are the same as driving under the influence of alcohol (DUI), and both offenses implicate harsh consequences.

For starters, the scope of an officer’s DUI arrest power is broad. If there is probable cause to suspect drunk driving after a motor vehicle accident, an officer can arrest a driver for DUI up to three hours after the crash, without a warrant, and at any location.

Although procedural protections do apply to a drunk driving traffic stop, there are important distinctions. Specifically, although a driver may refuse to take a breath test, that refusal may result in both civil and criminal penalties.

On the civil side, a first time breath test refusal results in an automatic license suspension for seven days. For repeat offenders, the suspension for breath test refusal increases: 60 days or until trial for a second offense, and any amount time until trial for third and subsequent offenses. The option of requesting a blood test instead of a breath test is also no longer available.

On the criminal side, a conviction of breath test refusal may result in license suspension for one year. For a second offense, that suspension may increase to three years and be accompanied by a Class 2 misdemeanor. For third or subsequent refusals, the penalty is license suspension for three years and a Class 1 misdemeanor.

Although refusing to take a breath test may not be a good idea, consulting with a criminal defense attorney is. Our law firm has defended the rights of many DUI defendants. From a review of the arrest record to an analysis of the accuracy of purported breath test results, we know how to build a strong legal defense to DUI charges.

Source: “Virginia is tough on drunk and drugged drivers,” copyright 2017, Virginia Department of Motor Vehicles

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