Understanding What Implied Consent Means for a Breathalyzer Test Under Virginia DUI Laws

Refusing to take a breath test can subject you to punishment under state law

Virginia law provides that by operating a motor vehicle on roadways you consent, if arrested for DUI or driving with a forfeited license, to have samples of your breath, blood or both taken for chemical testing to determine the alcohol and drug content of your blood. This is commonly referred to as implied consent. Your implied consent covers samples taken up to three hours after the alleged offense. If administering a breath test is difficult based on a medical condition, such as asthma, or injury to the mouth area, law enforcement uses a blood test. A blood test is also used if drug use is suspected. Woodbridge, Coleman & Stevens, P.C. Attorneys at Law can protect your rights regarding this process.

If your vehicle is stopped because you are suspected of driving under the influence of alcohol or drugs, a law enforcement officer may ask you to perform a field sobriety test. Unlike breath or blood tests, there is no implied consent to field sobriety tests. However, if you refuse to participate you may be arrested.

But field sobriety tests can be unreliable. The Standardized Field Sobriety Testing developed by the National Highway Traffic Safety Administration (NHTSA) includes three tests: the walk-and-turn, one-leg stand, and horizontal gaze nystagmus. The NHTSA reports that these tests properly classify suspects 80 percent to 90 percent of the time as having a blood alcohol level (BAC) of 0.08 percent or higher. This means that approximately 10 percent to 20 percent of those tested fail, even though they do not have a BAC of 0.08 percent.

In Virginia it’s against the law to operate a vehicle with a blood alcohol (BAC) level of 0.08 percent or higher, or if you are under the age of 21, a BAC of 0.02 percent or higher. You can also be arrested for DUI with a lower BAC if your ability to operate a car, boat or watercraft is impaired. If you are driving on a suspended or restricted license, you can be found guilty of DUI if your BAC is 0.02 percent or higher, regardless of age.

If your level of intoxication, as indicated by your BAC, is high, the mandatory minimum charges you face for DUI are increased. For example, if your BAC is between 0.15 percent and 0.20 percent, you serve a mandatory minimum of five days in jail. Mandatory minimum jail time is increased to 10 days for a BAC greater than 0.20 percent. Additional legal consequences may also follow if you have a high BAC.

At Woodbridge, Coleman & Stevens, P.C. Attorneys at Law we defend individuals arrested for DUI. Our experience handling such matters allows us to challenge police conduct, the reliability of testing equipment and other factors that can result in charges being dropped or acquittal.

Contact DUI attorneys in Fredericksburg, Virginia who understand your rights

At Woodbridge, Coleman & Stevens, P.C. Attorneys at Law we challenge the administration, operation and results of Breathalyzer and drug tests as part of an overall strategy to defend individuals charged with DUI. Our attorneys provide a free initial consultation for DUI cases. You can reach our office in downtown Fredericksburg, Virginia by bus. Contact us online or call us at 540-373-5300. We serve clients throughout the city of Fredericksburg and Caroline, Spotsylvania, Stafford, King George, Prince William, Fairfax, Culpeper, Westmoreland and Hanover counties.