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What happens if you refuse a breath test in Virginia at a traffic stop?

On Behalf of | Oct 29, 2020 | Criminal Defense

It’s never pleasant to look up and see blue and red lights flashing in your rearview mirror. A traffic stop can turn serious, however, if the officer suspects that you may be intoxicated. The next thing you know, you may be asked to submit to a breath test to try to determine your blood alcohol content (BAC).

What are your rights in this situation? Can you refuse? Here’s what you need to know:

Two different types of tests, two different rules

Virginia actually has two different types of breath tests used by police to detect drunk drivers. The first, known as a Preliminary Breath Test (PBT), is used only as an investigative tool. Officers may ask a driver to take one to determine if they’re possibly intoxicated, but the results of a PBT cannot be used as evidence in court.

You’re under no legal obligation to submit to a PBT, and there’s no criminal or civil penalty for your refusal. In addition, your refusal to submit to a PBT cannot be seen as an indication that you know you would fail it.

Breathalyzer tests, however, are not treated the same way. A Breathalyzer test is generally administered at the police station after an officer has already made a DUI arrest. If you refuse to take this test, you’re actually committing a specific offense and can face charges for your refusal in addition to the drunk driving charges.

The penalties for refusing a post-arrest Breathalyzer test can include the loss of your driver’s license, points on your license, jail time and fines. Also, nothing bars a prosecutor from pointing to your refusal to comply as evidence of your guilt.

An arrest doesn’t have to mean a conviction

Will refusing a preliminary breath test prevent an arrest for drunk driving? Probably not. The odds are high that an officer will look for subjective signs that confirm their suspicions and make an arrest anyhow. That doesn’t mean, however, that you’re automatically going to be convicted.

An experienced attorney can help protect your rights and look for avenues of defense. It may be possible to challenge the validity of the traffic stop, the accuracy of the PBT or Breathalyzer and more. If you’re facing DUI charges here in Newport News, find out more about your legal options.


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