Do I Have to Submit to a DUI Breathalyzer Test in Virginia?

Breathalyzers have only been around for a handful of decades, but they are now so ubiquitous that law enforcement agencies everywhere regularly use them and breathalyzer results can almost seem like an integral part of any DUI prosecution (note: they are not). Which has raised several issues, including whether it is constitutional to require a driver to submit to a breathalyzer test and whether refusing to submit to a test harms or benefits a driver facing a DUI arrest. Below we take a look at how of these issues play out in Virginia, and why speaking with a DUI attorney soon after an arrest is key.

Virginia’s Implied Consent Law for Breathalyzer Tests

Virginia enforces an “implied consent” law, which says that drivers give their implied consent to submitting to breathalyzer tests (as well as blood and urine tests) for the presence of alcohol when they take advantage of driving on state roads. While an officer cannot physically force you to breathe into a breathalyzer during a traffic stop, refusing to do so means you can receive a civil citation for violating the implied consent law. The penalty for refusing to submit to a breathalyzer test is a one year license suspension for the first violation.


Some civil rights advocates have argued that laws requiring drivers to submit to a breathalyzer test violates those drivers’ Fourth Amendment right against unreasonable searches and Fifth Amendment right against self-incrimination. The Supreme Court has indeed taken up these questions in recent years, and it is quite possible the court will return to the question, but in the meantime states like Virginia can continue to enforce civil penalties such as license suspension against drivers who refuse to submit to a breathalyzer test.

What Happens When a Driver Refuses a Breathalyzer Test

A logical next question for a driver is whether the consequences of refusing to submit to a breathalyzer test outweigh the consequences of actually submitting to it. If the driver does submit to the test, and the breathalyzer indicates the driver’s blood alcohol level (BAC) is 0.08% or higher, the readout will likely be used as evidence supporting a criminal conviction for DUI (note that drivers in Virginia are permitted to observe the breathalyzer process and see the readout for themselves during a traffic stop).


At the same time, however, refusing to submit to a breathalyzer test does not necessarily mean that the officer will not be able to provide sufficient evidence to a prosecutor to support a DUI charge. A breathalyzer test is only type of evidence that can come into play, and a driver’s refusal to take the test can actually be used as evidence against the driver in supporting a DUI charge. Ultimately, whether refusing to submit to a breathalyzer charge is beneficial or harmful in avoiding a DUI conviction is going to depend on the specifics of a situation, and drivers are encouraged to speak with a Virginia DUI attorney as soon as possible after an arrest regarding their options.

Experienced Virginia DUI Attorneys On Your Side

Facing DUI/DWI charges in Virginia can feel deeply stressful, but you don’t have to go it alone. The criminal defense attorneys at Kurylo Gold & Josey, PLC in Fredericksburg understand what you are going through and the stress and anxiety you are facing, and we will work with you to do whatever it takes to protect your reputation and your future by pursuing all available defense strategies. Contact us today to schedule a consultation regarding your situation.

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Bennett Brasfield

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