Imagine you're back in high school. You're taking a very important test when all of a sudden your pencil breaks. You try to get the teacher's attention to ask for a new one, but she tells you that were unprepared. You did not get to finish your test and an incomplete test results in failure even though you could have passed it had she assisted you. Well if you are charged with DUI in Virginia, a similar situation may have happened to you - only this time the stakes are much higher than an 'F' on a test. The stakes are expensive fines, loss of your driver's license, or even jail time. All because you were charged with unreasonable refusal on your breath test.
Now you are charged with DUI and an unreasonable refusal to submit to a breath test. However, you remember blowing into the device several times when asked, but it kept giving the officer an error message. How can that be legal? It's not. In fact, its your defense if this happened to you.
In Virginia, as in any other state, there is an Implied Consent law in place. When you operate a motor vehicle on any highway in the Commonwealth, you are agreeing to submit to a breath or blood test if properly requested by a Virginia police officer. The penalties for refusal are severe, which is why you don't want to be charged with refusing a breath test, especially when you didn't!
If the judge or jury finds that you unreasonably refused a chemical test, your driver’s license will be suspended for an additional year without the possibility of receiving a restricted driver’s permit for going to work. If you have been convicted of a second or subsequent refusal the penalties include a THREE year loss of your driver’s license and a possibility of jail time. Note that you do not need to have been convicted of refusal previously for a conviction to be considered a subsequent offense. If you have ever been convicted of a DUI in Virginia or elsewhere and are charged with refusal now, it is likely that it will be considered a second offense. While you think you may not have a good defense, your DUI attorney may find otherwise! When you work with the Boone Beale Law Firm, we’ll ask you questions about the breath test procedure. Did you in fact try to give a breath test sample? Was the officer not properly trained on how to use the machine? Was the machine working correctly that day? Were you told it is illegal to refuse? We will address all of these issues to build your defense.