What Happens if I Don't Take a Breathalyzer?

What Happens if I Don't Take a Breathalyzer?

The Code of Virginia §18.2-268.3 establishes penalties for failure to submit to a breathalyzer after a DUI arrest. Operating a motor vehicle on a "highway" (which includes any public road), constitutes consent to have samples of breath, blood, or both taken from a suspect arrested for DUI. Therefore, a driver lawfully arrested for DUI in Virginia must submit to a breathalyzer, or he or she is in violation of §18.2-268.3.

The penalties for such violation vary depending upon the individual's DUI history. A first violation is a civil offense, resulting in a one year driver's license suspension. Unlike a DUI conviction, anyone convicted of improper refusal to submit to a breathalyzer is not eligible for a restricted driver's license. This means no driving, for any purpose for the next year; whereas someone convicted of DUI may be eligible for a restricted license that allows them to drive to work, school, and medical appointments.

Anyone convicted of improper refusal who has been convicted of DUI or improper refusal within the previous 10 years is subject to a 3-year license suspension, again with no restricted license. This second offense also carries the possibility of jail time.


In addition, the fact that you do not submit to a breathalyzer does not mean that you will not be charged with, and perhaps convicted of, DUI. The court will consider other evidence presented by the Commonwealth's Attorney for this purpose. For example, the officer will testify about how you were driving, how you did on the field sobriety tests (assuming that you consented to perform them), and his observations of your general demeanor and motor skills. So it is possible to be convicted of both improper refusal and DUI.


If you have been charged with DUI or with improper refusal, call us right now! We can help you navigate this complex area of law. We aggressively attack DUI charges, and are ready to defend yours!

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