The best way to protect yourself against DUI penalties is to understand your legal rights. If you’re pulled over on suspicion of driving while intoxicated, even if you’ve done nothing wrong, you must know where you stand with regards to sobriety tests. Are they mandatory or voluntary, and what consequences will you face if you refuse either way? When it comes to your rights as a driver in the Commonwealth of Virginia, it’s important to distinguish between the preliminary field tests and the tests conducted at the police station following a DUI arrest.
Before Arrest: Refusing Field Sobriety Tests
Common field sobriety tests include the eye-jerking test, the walk-and-turn, and the one-leg stand. Officers administering these tests typically look for physical cues of intoxication. While roadside tests assume that drunk or impaired people have poor balance, attention span, and physical coordination, the results can also be thrown off by factors like age, weight, and disability.
The field sobriety tests are voluntary, and many attorneys recommend that you exercise your right to refuse them. Because they are scientifically inaccurate, the test results can make a bad impression on both the officer and the courts. Besides, your refusal cannot be used as evidence against you in a court of law. The only possible consequence is that the officer may assume you have something to hide, although this alone does not provide enough probable cause to arrest you. Only perform these tests if you are 100% comfortable doing so.
Before Arrest: Refusing the PBT
The preliminary breath test (PBT) is another type of field sobriety test. The officer will ask you to breathe into a device that will measure your blood alcohol content (BAC). As the device can give false readings for various reasons, it’s not considered to be very accurate. Still, an officer may use it to determine whether he or she has probable cause to arrest you on a suspicion of DUI.
In the Commonwealth of Virginia, you have an absolute right to refuse a roadside breath test. It’s completely voluntary unless you’ve actually been arrested for DUI. If you take the roadside breath test, the results cannot be used to determine your guilt or innocence in a court of law. This evidence can be used in your eventual hearing, however. The officer can cite the test to prove that he or she had probable cause to arrest you.
Arrested for DUI: Refusing the Tests
As soon as you have been lawfully arrested for DUI, you are subject to Virginia’s “implied consent” law. According to the rule, the moment you are arrested, you automatically consent to a test for the purpose of detecting drugs or measuring your BAC. You must take a breath test, a blood test, or both within three hours of driving. If you can’t complete the breath test because of a medical condition, you’ll be asked to do the blood test instead.
The police cannot physically compel you to take the tests, but they are still mandatory. If you refuse to take a chemical test following a DUI arrest, your license will be suspended for one year and your refusal can be used against you in court. The arresting officer should give you this information right away.
It’s not advisable to refuse the mandatory DUI test. For one, you can still be convicted of a DUI if you refuse the test. Second, your refusal can be used against you in court. If you cooperate with the chemical tests following arrest, it may be easier to fight your charges—and you may not have to deal with an automatic license suspension.
First-time refusal: 1 year license suspension
Second offense within 10 years: 3 year license suspension
Third offense within 10 years: 3 year license suspension
If you’ve been arrested for a DUI, you must have adequate legal representation. The right lawyer can help you take lighter penalties or avoid a conviction altogether. Contact my office and I will do everything I can to protect your rights and advocate for the best possible outcome.