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Refusing a Blood Test in Virginia

An officer can request for blood to be drawn when a breathalyzer machine is not reasonably available or if there is probable cause for an arrest but it does not appear that alcohol is the intoxicant which is present. If all of these factors are met, then the police can transport the defendant to a hospital for the purposes of having their blood drawn.

Accepting the blood test is not mandatory in Virginia, but there are benefits and drawbacks to refusing to take it. With this in mind, it is important you consult with an attorney to discuss the various repercussions of refusal, and whether it is best for your case.

Blood Test Refusal

Just like a breath test, a blood test in Virginia can be refused. However, if the court finds there was probable cause for arrest for the DUI, a refusal to take the blood test can result a person being charged with refusal, which results in an administrative suspension of a person’s license for one year without the possibility of getting a restricted license. A person can be convicted of the offense of refusal even when the DUI ultimately gets dismissed, because a refusal has intentionally been made very easy to prove.

Why Might Someone Refuse a Blood Test?

There are a number of reasons a person may wish to refuse a blood test. For example, if they have not been placed under arrest and they are asked to give a blood test at the hospital, that is actually an illegal test, which a person may justifiably refuse, or if there is not probable cause for an arrest that has happened, this is also a justifiable reason for not performing the test.

Test Accuracy

Blood tests can be accurate for showing whether there are certain levels of illegal drugs in an individual’s system. Whether that level of drugs is sufficient to impair an individual or whether a combination of drugs is sufficient to impair an individual is something that the government will have to use an expert witness to establish.

The drug tests themselves do not establish impairment. They simply establish the level of a particular drug or combination of drugs that was in the defendant’s system at the time of their arrest.

Defending Against Blood Tests

Blood tests are quite accurate in determining blood alcohol content when the proper procedures are followed and when the test is administered correctly. However there are a number of steps in the process where if they are not followed, the result can be skewed or inaccurate.

It is important for the attorney in a blood case to look at all of the procedures that were followed and make sure that they were done correctly. Otherwise, the blood test will be subject to challenge and may be kept out of evidence at trial.


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