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What does Virginia’s implied consent law mean?

Under Virginia law, licensed motorists are compelled to submit to a breath or blood test following a DUI arrest.

According to the National Highway Traffic Safety Administration, an average of 24 percent of drivers across 34 states arrested on suspicion of drunk driving in 2011 refused to take the breath test. In many states, including Virginia, there is an implied consent law that compels motorists to submit to such testing, or else they will face certain mandatory penalties.

Anyone who is on the road should know what this law states as well as what his or her rights may be. Failing to get all the information could result in more serious consequences.

Interpreting the law

Under Virginia law, all licensed drivers who are arrested on driving under the influence charges automatically consent to not just breath tests, but blood as well. This applies to people who hold Virginia licenses as well as out-of-state licenses. A blood test should only come into play in two situations: when the driver is unable to provide a breath test, or if the driver is suspected of using drugs and the drug must be determined.

Refusing the test

Technically, drivers can refuse to take these tests. In many cases, test results may not be accurate, either because law enforcement did not administer them properly or environmental factors affected the outcome. Unfortunately, these results may still be used in court as purported evidence of wrongdoing. However, the refusal of the test may also be used in court, and there are immediate consequences.

The penalties

Virginia law states that anyone who refuses to submit to a breath test will automatically face license suspension, the length of which is based on how many prior offenses the person had. For example, for a first offense, the license suspension period is one year. For second and subsequent offences that take place during a 10-year timeframe, the suspension is three years.

It should also be noted that the first time someone refuses a breath test, it is considered a civil offense, like a traffic infraction. However, second and subsequent offenses are considered criminal defense and are classified as misdemeanors. These charges can result in jail time. Further, the penalties for breath test refusal may be added on to any penalties associated with a DUI conviction.

Know your rights

Drivers should keep in mind that breath and blood tests are only mandatory following an arrest. It is possible for law enforcement officers to ask someone to take a preliminary breath test. These are often used to try to establish probable cause. A motorists may legally decline these tests without the fear of the refusal getting used in court or automatic penalties.

DUI laws can be difficult to navigate, and these arrests can have serious and lifelong consequences. People who have concerns should speak with a criminal defense attorney in Virginia.