Can I Be Convicted of DUI in Virginia if I Refused the Breathalyzer?

Under Virginia’s implied consent law, drivers are required to submit to a breath test after being arrested for driving under the influence (DUI). However, the police generally cannot physically force drivers to take a breathalyzer test, and just as drivers can violate the Commonwealth’s DUI law, they can also violate the Commonwealth’s implied consent law. So, what happens if you refuse? An experienced Prince William County DUI attorney explains.

Prosecutors Do Not Need a Blood Alcohol Concentration (BAC) Reading to Secure a DUI Conviction in Virginia

In Virginia, prosecutors do not need a blood alcohol concentration (BAC) reading to secure a DUI conviction. While presenting evidence of a high BAC is one way prosecutors can prove a defendant’s guilt, they also have other options.

This means that you can be convicted of DUI in Virginia if you refused the breathalyzer. To see why, we can simply look at the language of Virginia’s DUI law. Under Section 18.2-266 of the Code of Virginia, it is illegal to “drive or operate” a motor vehicle under any of the following circumstances:

• “[W]hile [a] person has a blood alcohol concentration of 0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath;”
• “[W]hile [a] person is under the influence of alcohol;”
• “[W]hile [a] person is under the influence of any narcotic drug or any other self-administered intoxicant or drug . . . to a degree which impairs his ability to drive or operate any motor vehicle . . . safely;”
• “[W]hile [a] person is under the combined influence of alcohol and any drug or drugs to a degree which impairs his ability to drive or operate any motor vehicle . . . safely;” or,
• “[W]hile [a] person has a blood concentration of any of the following substances at a level that is equal to or greater than: (a) 0.02 milligrams of cocaine per liter of blood, (b) 0.1 milligrams of methamphetamine per liter of blood, (c) 0.01 milligrams of phencyclidine per liter of blood, or (d) 0.1 milligrams of 3,4-methylenedioxymethamphetamine per liter of blood.”

Evidence of any one of these is sufficient to justify a DUI conviction under Virginia law. While having a BAC of 0.08 percent or above is one form of DUI, DUI charges can take several other forms as well. In cases involving alcohol consumption, if a driver is “under the influence of alcohol,” this is sufficient to justify a conviction regardless of the driver’s BAC.

Prosecutors in Virginia can use several forms of evidence to prove that a driver was “under the influence of alcohol” at the time of his or her arrest. Some examples of types of evidence that prosecutors commonly use in these cases include:

• Field sobriety test (FST) results
• Dash camera and traffic camera footage
• The driver’s statements to the arresting officer
• The arresting officer’s testimony
• Witness testimony

Notably, just like the breathalyzer, all of these forms of evidence can be challenged on various grounds. For example, while the police and prosecutors routinely rely on the field sobriety tests, FST results are notoriously unreliable as evidence of driver impairment. There can be issues with the reliability of police officers’ and witnesses’ testimony, and all forms of evidence in DUI cases may be subject to exclusion on constitutional grounds (i.e., a violation of a driver’s Fourth or Fifth Amendment rights).

With that said, avoiding a DUI conviction when you refused the breathalyzer requires an informed and strategic defense. Even if the prosecution’s evidence is clearly unreliable, it is still up to drivers (and their defense attorneys) to prove it. If you are facing a DUI based on any type of evidence, you will need to defend yourself effectively in order to avoid unnecessary consequences.

Violating Virginia’s Implied Consent Law Can Have Consequences With or Without a DUI Conviction

Refusing to take the breathalyzer after a DUI arrest constitutes a violation of Virginia’s implied consent law in most cases. If you violated Virginia’s implied consent law, you can face consequences regardless of whether you are ultimately found guilty of DUI.

This is because the obligation to submit to the breathalyzer is unrelated to a driver’s guilt in his or her DUI case. Under Virginia law, drivers are required to submit to the breathalyzer regardless of whether they have been driving under the influence. As a result, if you refuse the breathalyzer—whether you were driving under the influence or not—you can be penalized for violating Section 18.2-268.2 of the Code of Virginia.

For first-time offenders, violating Virginia’s implied consent law carries a one-year driver’s license suspension. However, if you have a DUI conviction or implied consent violation within the prior 10 years, illegally refusing a breath test is a Class 1 misdemeanor. The law also calls for a three-year driver’s license suspension for repeat offenders.

In All Cases, Avoiding Unnecessary Consequences Requires a Proactive and Strategic Defense

Regardless of the circumstances of your case, if you are facing a DUI in Virginia, avoiding unnecessary consequences will require a proactive and strategic defense. You will need to fight the allegations against you to avoid losing your driver’s license, facing steep fines and possible jail time, and facing other serious penalties. Defending yourself effectively starts with putting an experienced DUI attorney on your side.

Once you hire an experienced DUI attorney to represent you, your attorney will be able to examine the evidence in your case to determine what defenses you have available. Then, based on this assessment, your attorney will be able to help you make informed decisions about whether to seek pre-trial diversion, target a plea deal or fight your case in court.

Schedule a Free Consultation with a Prince William County DUI Attorney Today

Are you facing a DUI after refusing the breathalyzer in Virginia? If so, we encourage you to contact us promptly for more information. To speak with an experienced Prince William County DUI attorney in confidence as soon as possible, call 703-897-1777 or request a free consultation online today.