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When a vehicle is stopped by law enforcement in Virginia and an investigation into a possible incident of driving under the influence commences, many drivers are not aware of the law when it comes to breath test refusal. A misunderstanding of their rights could lead them to refuse to take the breath test when they are required to do so. It can lead to charges, a conviction, and punishment even in the event that they were not driving under the influence or if their blood alcohol content level fell below the amount required to facilitate an arrest. Knowing how the law views this issue can help to avoid it or formulate a defense in the event that it occurs.

It is a mistake to believe that constitutional rights can be applied when asked to take a blood or breath test by a law enforcement officer. If the request is made, there must be compliance. Those who have been convicted of a DUI offense previously or have been convicted of breath test refusal will face a Class 2 misdemeanor charge. Those who have been convicted twice of DUI or of refusing a breath test in the prior ten years will be charged with a Class 1 misdemeanor. A conviction on the new charge will result in a driver's license suspension for a period of three years.

On an initial charge of breath test refusal, the driver's license will be suspended for one year. This is independent of the DUI charge. If the driver was also found to have been under the influence at the time of the breath test refusal, the suspension of driving privileges will be assessed consecutively with the punishments for refusing a breath test. While this is in effect, a driver will not be able to receive a restricted driver's license to drive under certain parameters.

Drivers who are confronted with a DUI charge or a traffic stop investigating a possible DUI will have enough to worry about without adding a breath test refusal to the mix. Those who make the mistake of refusing a breath test and are facing a conviction due to that need to understand how to craft a defense to the charges. Discussing the case with a legal professional is imperative when trying to avoid a license suspension and other problems.

Source:, "Breath Test Refusal," accessed on Aug. 10, 2015

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