Can you say “no” to breath tests or field sobriety tests in Virginia?

On Behalf of | Jun 11, 2024 | DUI |

Driving under the influence (DUI) is a serious crime in Virginia, and police officers are always on the lookout to catch and charge those suspected of DUI. If police stop you because they think you might be driving under the influence, they will likely ask you to take breath tests and field sobriety tests. What should you know about these tests?

Breath tests vs. field sobriety tests: What is the difference?

During a traffic stop, police might use two types of tests:

  • Breath tests – These tests measure the alcohol level in your breath to estimate how much alcohol is in your blood. The Breathalyzer is the most common breath test used in Virginia.
  • Field sobriety tests (FSTs) – These tests include physical and mental tasks like standing on one leg, walking and turning or following a light with the eyes that help officers judge if a driver is impaired.

While these tests both help officers assess whether a driver is impaired, your rights depend on the specific situation.

Can you refuse a test?

You do not have to take field sobriety tests in Virginia. You can politely say no to these tests without facing legal consequences.

However, choosing not to take a breath test after an arrest has consequences.

Virginia law states that by driving on Virginia roads, you have given your “implied consent” to a chemical test after a drunk driving arrest. If an officer legally arrests you with good reason to believe you were DUI, you must allow them to take samples of your blood or breath for testing. If you refuse:

  • For a first offense, refusing a breath test is a civil offense and can lead to a one-year license suspension.
  • For further offenses, if you have previous DUI convictions or have refused tests before, the penalties get tougher. These penalties include longer license suspensions and jail time.

Your refusal could also impact your legal case. Refusing a breath test limits the evidence against you in a DUI case, but the court might still learn that you refused the test. This could make the jury think you knew you were impaired.

If the authorities have asked you to take a breath or field sobriety test, you should fully understand your legal rights and what could happen because of refusal. A knowledgeable criminal defense attorney can guide you through the complex DUI laws in Virginia and help you create a strong legal strategy for your case.

Every situation is different, and you should make decisions about refusing tests only when you fully understand the legal consequences. Knowing your rights during a DUI stop can help you make informed decisions and protect your rights.