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What is the penalty for declining a breath test?

On Behalf of | Jan 20, 2025 | DUI |

If police officers suspect a driver of being under the influence of alcohol, they may conduct a traffic stop. If they become suspicious while already interacting with the driver, they may ask the driver about their prior activities and may request that they perform a field sobriety test.

If a driver fails a field sobriety test or if a police officer feels that they already have probable cause to arrest the driver for intoxication, they may ask for a chemical breath test. Drivers sometimes decide they do not want to submit to tests. Breath tests are notoriously unreliable, and drivers generally do not want to implicate themselves if they can avoid doing so.

However, Virginia has an implied consent law. Drivers have already given permission in advance to police officers to conduct chemical testing after an impaired driving arrest. What happens if people violate the state’s implied consent law by refusing to submit to a breath test after a drunk driving arrest?

Test refusal can cost a driver their license

The standard penalty for declining a post-arrest breath test is a driver’s license suspension. The record of the accused motorist determines the duration of that suspension. The first time a driver refuses a chemical test after arrest, the state can suspend their license for one year. The offense counts as a civil offense, not a crime.

Subsequent test refusals within 10 years of a prior refusal may result in misdemeanor charges. The driver is at risk of losing their license for three years. Implied consent penalties are separate from the penalties the courts may impose if prosecutors also secure a guilty plea or conviction for an impaired driving offense.

Losing driving privileges for a year or longer can be a major inconvenience for professionals and those with families to support. It can be very expensive to rely on on-demand ride services, like taxis and rideshare companies. People could also be at risk of losing their jobs or facing other personal challenges because they cannot drive.

Drivers may need help responding to allegations of chemical test refusal or impaired driving to minimize the penalties they face, and that’s okay. Learning more about the law in Virginia can help people when they interact with the police or when they must choose how to respond to a pending charge.