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Refusing Sobriety Tests at Fairfax DUI Stops

There are no penalties for simply refusing to complete a standardized field sobriety test. However, in Virginia under implied consent laws, if an officer finds there is probable cause to arrest you for Driving Under the Influence you are required by law to perform a blood or breath alcohol test. Refusing to do one can result in a refusal charge which is separate from the actual DUI charge. A first-time refusal is a civil charge as opposed to a criminal offense. Second or subsequent refusal charges are misdemeanor offenses. However, even a first-time refusal charge could result in a one-year hard loss of your driver’s license. As such, it is important to understand the difference between the charge of a refusal of a breath or blood test and driving under the influence and what the individual consequences may be.  By hiring an experienced DUI attorney, you can ensure that you are informed of the consequences of any tests you may have refused.

Refusing a Preliminary Breath Test

Refusing to do the preliminary breath test (PBT) during an officer’s initial investigation is different than refusing to do the chemical breath test at the police station. The breath test at the scene of the stop can only be used for a probable cause determination, meaning whether or not the officer has probable cause to arrest the driver for operating a motor vehicle while intoxicated. Refusing to take that test could potentially be used as probable cause to believe a person is intoxicated, but the law is clear that refusal of the PBT cannot be used as an indicator of guilt. In order to prove someone guilty of operating a motor vehicle under the influence in court, they have to be able to prove all the elements of DUI beyond a reasonable doubt. Simply refusing to cooperate with the police officer is not an element of the offense, but it could lead to an arrest for the offense.  Speak with a lawyer to make sure you are up-to-date on all of your citizens’ rights in Fairfax County.

How Breath Samples Are Obtained

If someone is arrested for DUI, they will then be taken back to the police station where they could be asked to provide a breath or blood sample.  Typically the breath sample is obtained with an Intoxilyzer machine. The breath or blood sample can be used against the person in a court of law as part of the evidence against them in the DUI case. They test for the blood alcohol content of an individual because 0.08 percent is the legal limit to drive and there are elevated punishments for having a BAC of 0.15 percent or above in Virginia. That is why their breath or blood may be tested and can be used against them in court.

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