Below we go over the most common tests officers will request you to take at a DUI stop, and whether one can refuse to take these tests. To learn more about field sobriety tests or to discuss your case, call and schedule a consultation with a Fauquier County DUI lawyer today.
Yes! In the Commonwealth of Virginia, you are not required to perform field sobriety tests and that is the law. An officer can ask you to perform field sobriety test, an officer can tell you that if you perform the field sobriety test properly they will let you go home, and an officer can tell you that the field sobriety test will not be necessarily used against you. These are all common ploys to get you to perform field sobriety test that you’re not legally required to perform.
Again, you are not legally required to perform field sobriety tests in Virginia. This doesn’t mean you should be rude or angry with the officer who asks you to perform field sobriety tests. Just simply, calmly, and curtly exercise your rights and tell the officer you decline to perform the field sobriety test because you do not want to implicate yourself in any type of criminal activity.
In Virginia you can absolutely refuse to perform the preliminary breath test or PBT at the side of the road. You cannot be compelled to take this test. Officers or state troopers will commonly tell suspected DUI offenders that the PBT test is not admissible in court and that is true, to an extent. The PBT test pursuant to Code Section 18.2-269 is not admissible at trial, for the determination of guilt or innocence for a DUI offense. What this means is that an officer cannot testify in court as to what the results of your PBT tests were for the purpose of the determining whether or not that was your blood alcohol content for the purposes of determining guilt or innocence.
However, that PBT test can be used against you to determining whether or not there was probable cause to arrest you in the first place. Probable cause does not go to the underlying guilt or innocence of the offense. Therefore, it is not in your best interest to take a PBT test under any circumstance if you’re pulled over and offered a PBT for this session of DUI unless you have consumed absolutely zero alcohol.
If you’re arrested for suspicion of DUI in Virginia this triggers what is known as the implied consent law. Virginia law states that if you’re arrested for suspicion of DUI in the Commonwealth of Virginia after driving on a public highway then you consent to your blood or breathe being tested for alcohol. It’s simple as that, if you’re driving in Virginia and get arrested then you consent to have the test done. It’s known as the implied consent statute and it is part of driving in Virginia. However, if you refuse to perform a test at the station after probable cause for arrest, you will be charged with unreasonable refusal pursuant to Virginia Code Section 18.2-268.3.
For a first offense unreasonable refusal is a civil violation punishable by a potential one year of hard loss of license. Hard loss means that you’re not eligible for a restricted license during that period of time. This hard loss of license is in addition to any penalty if you’re found guilty of DUI. So the answer is not as simple as it is for the other questions of whether or not you can refuse the BAC test at the station. You can refuse absolutely, but if there’s probable cause to arrest, then you will be charged with the unreasonable refusal. So depending on the circumstances it may not be in your best interest to refuse the test. However, that’s when you can talk to an attorney to learn more.
Patrick Woolley Attorney At Law