In Virginia, when you get pulled over for driving under the influence (DUI) the arresting officer asks you to take a breath or blood test. What if you say yes? What if you refuse? Do you have to take one right there by law? What happens next?
Know About Virginia Driving and Implied Consent
Virginia law requires you to take a blood or breath test if you are arrested for a DUI in Chesterfield. Virginia’s “implied consent” law says that if you are lawfully arrested by an officer who has probable cause to believe that you are driving under the influence, then you automatically consent to taking a chemical test of your blood, breath, or both, to determine your blood alcohol content (BAC) or the presence of drugs. The tests must be taken within three hours of driving. Usually the officer offers a breath test first. If one is unavailable, or you can’t complete it, then the officer will ask for a blood test.
You could be asked to take a preliminary breath test before your arrest. The officer uses test results to establish probable cause. If you refuse to take a preliminary test it cannot be used against you in the Chesterfield courts. The officer can still arrest you and then you will be required to take the test under the Virginia law (Virginia Code Annotated 18.2-268.2).
Refusal to Take a DUI Breath or Blood Test
Once you are taken under arrest an officer should let you know that if you refuse to take a chemical test, evidence of your refusal can be used against you in court, and your license is immediately suspended. Refusal to take a Breath or Blood Test is a separate charge from the primary DUI offense. After your first refusal, your driver’s license is suspended for one year. Although a first refusal is not a crime, Virginia law considers a second or subsequent refusal within 10 years as a criminal misdemeanor carrying a license suspension of three years. This is a crime that remains on your record.
The officer will suspend your license, called an administrative suspension, as soon as you refuse. Suspension length depends on prior DUI convictions or refusals. It does not count toward the one-year or three-year suspensions mentioned above. The administrative suspension period could be anywhere from seven to 60 days. It will be served in addition to the one or three-year penalty imposed by the Chesterfield DUI court for your refusal. The consequences of refusal are stated in the Virginia Code Annotated 18.2-268.3.
Refusing the Virginia DUI Test Does Not Protect Your Innocence
When you refuse to take a blood or breath test at your arrest for a first-time DUI in Chesterfield, Virginia, you will pay a $250 fine. You go to jail if your BAC is .15% or higher, which is almost twice the .08% legal limit. Assuming your BAC is less than .15%, this is a milder penalty than a year-long suspension for refusal. Still, refusing the test does nothing to guarantee you won’t be convicted. Even if your refusal means the state has no proof your BAC was over .08%, the over 21 legal limit, you could be found guilty of a DUI. In fact, the prosecution can use your refusal against you by presenting the argument that you refused the test because you knew you were intoxicated and driving – guilty of DUI. Regardless of whether you are licensed by the state of Virginia, if you refuse to submit to DUI testing you can face serious consequences such as license suspensions, fines and jail time. The Court can prove DUI with other evidence presented, such as driving behavior, appearance, speech, field sobriety tests, witness statements, and admissions by the client.
Hire an Experienced DUI Attorney for Your Best Chesterfield DUI Defense
If you are arrested for DUI in Chesterfield, VA contact a local criminal defense attorney with experience building a solid defense record against DUI charges as quickly as possible. Only then can you begin building an adequate defense. A DUI conviction has serious consequences that can trigger greater severity when determining sentencing after secondary or subsequent offenses. Your best decision is to hire a criminal defense attorney who has first-hand experience with local Chesterfield courts and Virginia DUI laws who understands what needs to be done to win your best DUI outcome.
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