When a driver is arrested in Virginia on suspicion of driving under the influence, they are asked to provide a breath or blood sample at the jail, police station, or in the case of a blood sample, at a hospital. The purpose of this DUI chemical test is to be used as evidence against the individual in his or her criminal case. The chemical test results will be shown to the judge or jury as evidence that the driver had a blood alcohol content (BAC) over the legal limit or the driver had drugs in their system.

Some drivers refuse to provide a breath or blood sample after a Virginia DUI arrest. Some believe that without this evidence, the prosecutor won't be able to show the driver was impaired. However, you can still be prosecuted and convicted of a DUI even if you never gave a chemical test sample. In fact, a finding of unreasonable refusal to consent may be admitted as evidence at a criminal trial in certain circumstances.

In many cases, the consequences of a chemical test are worse for drivers than the consequences of a DUI conviction. Refusing a chemical test in Virginia can mean the loss of your driver's license for a full year. If you refused a chemical test and are facing DUI charges, talk to your Virginia DUI defense attorney about your rights.

Implied Consent Laws in Virginia

Under Virginia Code § 18.2-268.2, any person who operates a vehicle upon a highway in the Commonwealth of Virginia has given their “implied consent” to have breath or blood samples taken for chemical tests if they are arrested for a DUI.

Even if drivers don't remember agreeing to this, it is implied that by driving a motor vehicle on a public road or "highway" in Virginia, drivers agree to give a chemical test sample after a DUI arrest. Refusing to give a breath or blood sample will result in penalties, even if the driver is totally sober.

This law applies to all drivers operating a vehicle in Virginia, including drivers with a Virginia driver's license and out-of-state drivers.

Breath or Blood Tests After a DUI

Chemical tests after a DUI may involve testing the driver's breath or blood. Breath testing is the most common type of chemical test used in Virginia after a drunk driving arrest. However, breath tests are generally not used to detect drugs or other chemical substances that may impair a driver.

Blood tests can be used to test for drugs or alcohol. When the police suspect a driver may be under the influence of drugs or other controlled substance, the officer will generally take a blood sample.

Blood samples can also be used to test for alcohol. When a driver is physically unable to give a breath sample or the breath test is unavailable, the police may take a blood sample instead.

Chemical tests are only mandatory after a DUI arrest, provided the implied consent requirements are met. This does not apply to a roadside breath test or preliminary breath testing devices. Preliminary breath tests use a smaller and less accurate device to measure the driver's approximate BAC. These results are used to give the police probable cause to make an arrest and are not used as evidence in the case. These tests can be refused, and it may be a good idea to refuse these tests, which are in some cases inaccurate.

Penalties for Chemical Test Refusal

Refusing to give a breath or blood sample after a DUI arrest in Virginia will result in penalties including a suspension of the driver's license. A first offense is a civil offense (not a crime) and will result in a suspended license for one year, without the possibility of a restricted license.

A second refusal or subsequent refusal within a 10-year period is a Class 1 misdemeanor. This could result in fines and possible jail time. In addition, a driver will lose his or her license for a period of three years.

Chemical Tests for Commercial Drivers

Refusing a chemical test is even more serious for commercial driver's license (CDL) holders. It is considered a “major violation” for commercial drivers arrested for a DUI to refuse a chemical test.

Under Virginia Code § 46.2-341.18:1, refusal to submit to a chemical test to determine the alcohol or drug content of blood or breath of the operator of a commercial motor vehicle will also result in a one-year disqualification. A second offense will result in a lifetime disqualification.

Driving on a Revoked or Suspended License

It is unlawful for a person who is arrested for a driving after forfeiture of his or her license to unreasonably refuse to have samples of breath or blood taken for a chemical test to determine the alcohol content of the driver's blood.

A first violation is a civil offense and will result in a suspended license for one year. A second offense within 10 years is a misdemeanor and will result in losing the driver's license for a period of three years (in addition to the suspension period).

Getting Your License Back After a Chemical Test Refusal Suspension

Drivers who have their license suspended for a DUI conviction may be able to get a restricted license. A restricted license allows for limited driving privileges during the suspension period. However, drivers with a suspended license for refusing a chemical test are not able to get a restricted license.

Persons whose license has been suspended for a chemical test refusal have to wait until the suspension period is over before they can have their driving privileges reinstated. For a first offense chemical test refusal, drivers will have to wait one year before getting their driving privileges returned. A second offense is a three-year suspension.

This is one of the reasons why it may be better for drivers to submit to a chemical test. Even if convicted of a DUI, drivers can generally get a restricted license once they enroll in a VASAP “DUI school” program, the first six months of which will have to be with an ignition interlock device installed (IID) for a first offenses DUI.

Charlottesville DUI Defense Attorney

When the police place you under arrest and ask for a breath or blood sample, you don't have time to consult your lawyer before making a decision that could impact your right to drive. If you refused a chemical test after a Virginia DUI or gave a sample, your attorney can help you deal with the criminal case to fight the charges against you. Talk to an experienced Virginia DUI defense attorney about your case and how to keep your record clear. Contact me today for a free consultation.