Drinking, Driving, Breath Tests and Refusals; When is a Refusal not a Refusal?

January 01, 2011

When you are stopped by law enforcement in Virginia on suspicion of driving drunk, in most cases, you will be asked to perform some field sobriety tests and then asked to take a breath test. The breath test allows an officer to quickly confirm whether you are in violation of the .08 blood alcohol content limit.

Implied Consent

In Virginia, if you drive a vehicle on a highway, you have "consented" to be tested for alcohol in your blood. If you refuse to take the test, you are deemed by law to have "unreasonably refused" the test.

The Virginia Statues require the officer read some form of the following information to you when you have been stopped:

"The Code of Virginia provides that if you, whether licensed by Virginia or not, operate a motor vehicle upon a highway in the Commonwealth and are arrested for a drug or alcohol-related driving offense in violation of Sections 18.2-51.4, 18.2-266, 18.2-266.1 or 18.2-272 (B) or of a similar ordinance if arrested within three hours of the alleged offense, you shall be deemed to have agreed, as a condition of such operation, to consent to have a sample of breath, blood, or both breath and blood taken for chemical testing to determine the alcohol and/or drug content of your blood. You shall submit to a breath test. If the breath test is unavailable or you are physically unable to submit to the breath test, a blood test shall be given. If the arresting officer has reasonable cause to believe that you were driving under the influence of drugs or a combination of drugs and alcohol, you may be required to allow the taking of a blood sample for chemical testing to determine the drug content of your blood, even if a breath sample was previously provided.

If you refuse to permit the taking of a required sample of breath, blood, or both breath and blood, and your refusal is unreasonable, your refusal constitutes a separate offense. A first violation of this section is a civil offense and subsequent violations are criminal offenses."

But that is not all; the officer then reads additional information concerning the penalty for the unreasonable refusal.

"If you refuse to permit the taking of a required sample of breath, blood, or both breath and blood, and your refusal is unreasonable, your refusal constitutes a separate offense. A first violation of this section is a civil offense and subsequent violations are criminal offenses.

A finding of a first offense of unreasonable refusal shall result in the revocation of your privilege of operating a motor vehicle upon the highways of the Commonwealth for a period of one year. This suspension period is in addition to the suspension period provided under Section 46.2-391.2"

Got that? There are enhanced penalties if the refusal is the second or third one within a 10-year period.

It is important to note that the first offense carries a civil penalty; that of a license suspension. The second or third offenses are misdemeanors and bring with them criminal penalties, meaning possible jail time and fines.

When is a Refusal not a Refusal?

How exactly may a driver "refuse" a test?

The most obvious case is where the driver simply refuses outright. The driver fully understands the officer's question and decides they are not going to take the test.

"Deficient sample"

The breath test machines require both a sufficient pressure of air blown in, and a sufficient duration. If it is too weak or too short, the machine will indicate "deficient sample." In these situations, when a person fails to blow long enough or hard enough, the machine will not be able to obtain a useful reading.

While some officers may be understanding, and explain to the drivers what has happened, others may be less so. An officer should offer a blood test in place of the breath test if the driver is unable to successfully perform a breath test. If the machine displays a "Deficient sample" reading and if the officer feels the driver being tested is intentionally trying to fail the test, they may write the ticket as a refusal.

Do You Understand?

The other problem with refusals may be related to language. As you may have noticed, what the officer reads sounds like it was written by a lawyer. If the driver does not understand English well enough to follow what the officer is telling them, or instructing them to do, they may misunderstand. This misunderstanding may lead the officer to think they are refusing when they simply lack the English proficiency to respond appropriately.

Penalties

The penalties for a refusal are severe:
- A finding of a first offense of unreasonable refusal shall result in the revocation of your privilege of operating a motor vehicle upon the highways of the Commonwealth for a period of one year. This suspension period is in addition to the suspension period provided under Section 46.2-391.2.

- A conviction of unreasonable refusal within 10 years of a prior conviction of driving while intoxicated or unreasonable refusal will result in finding you guilty of a Class 2 misdemeanor, which is punishable by confinement in jail for not more than six months and a fine of not more than $1,000, either or both, and will also result in the court suspending your privilege to drive for a period of three years.

- A conviction of unreasonable refusal within 10 years of any two prior convictions of driving while intoxicated or unreasonable refusal will result in finding you guilty of a Class 1 misdemeanor, which is punishable by confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both, and will also result in the court suspending your privilege to drive for a period of three years.

Because of the severe penalties for a refusal, penalties that become increasing severe at the second and third occurrence, you want to speak to an attorney experienced with handling the refusal charges associated with a DUI charge. If the test was performed inappropriately, or you were unable to adequately take the test, and an experienced DUI attorney can use that information when developing a defense to the charges.

Article provided by MacDowell & Associates, P.C.
Visit us at www.duimacdowelllaw.com