DUI Breathalyzer Test: To Blow or not to Blow?
by David A. Cardon, Esquire

Dear Mr. Cardon,
Last week, my brother was arrested in Virginia Beach for driving under the influence. At the scene, he was asked to perform field sobriety tests, which he failed. Afterwards, the police officer arrested him and took him down to the police station. He was instructed to take a breathalyzer test which he refused to do. He was subsequently arrested for refusal to take a breathalyzer. What does "refusal" mean, and what can the judge do to my brother if he convicts him for refusal?

In Virginia, having a license to drive is a privilege, not a right. When you are issued a driver's license, you agree to take a breathalyzer test if you are asked to take one. This is called the Virginia implied consent law. A breathalyzer test measures the amount of alcohol in your body by sampling your breath. To get a sample, you must blow your breath into a plastic tube connected to the breathalyzer machine. If a driver refuses to take a breathalyzer test, the driver is violating the implied consent law.

The punishment for refusal is civil, and not criminal, in nature. That means that a person who refuses to take the test can not be sent to jail for refusal. The worst that can happen for a refusal conviction is a $500 fine and an automatic loss of your driver's license in Virginia for one year. The loss of license for one year is not discretionary. If you are found guilty of refusal, you will lose your license for one year and the judge can not give you a restricted license.

However, just because you will not go to jail for the refusal, you can still go to jail if you are convicted for Driving Under the Influence ("DUI"). A DUI first offense is a class one misdemeanor. The punishment for first offense DUI is loss of license for one year, up to a $2500 fine, court costs, and up to one year in jail. more>>

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