Refusal of DUI Testing in Fredericksburg
When someone is arrested for suspicion of DUI, they may be asked to provide a breath test or a blood test. In most cases, when someone is thought to be under the influence of alcohol, there are two different situations where they can be requested to do a breath test.
If you need a better understanding of your rights regarding refusal of DUI testing in Fredericksburg, an experienced DUI attorney can help. A Fredericksburg DUI lawyer can give you the clarification you need to better assess your case.
Types of BAC Tests
The first breath test is conducted on the scene and is known as the preliminary breath test or a PBT. The PBT is voluntary. Refusal of DUI testing in Fredericksburg applies in this scenario, as an individual should feel free to refuse that PBT. If they are arrested for suspicion of DUI and taken to the police station, they are then offered a second test. This is the official breath test using an Intox EC/IR II machine and prints out an official scientific analysis of the level of alcohol of an individual’s blood. If the person refuses the test after being duly informed of consequences, they can be charged with unreasonable refusal, which is a civil violation in many circumstances.
Virginia does not do urine tests. However, police officers, state troopers, or deputies in Fredericksburg may also request a blood sample. Blood tests are most common when the law enforcement officer believes an individual is under the influence of something other than alcohol, the person is involved in an accident, or a breath test is unavailable. This can be done at the hospital. Similar implied consent procedures may apply.
Refusal cases are heard in general district court, which is a court not of record. The case must take place in the circuit court or at the Court of Appeals level to have a trial with the judge’s ruling preserved. Section 18.2-268.3 is entitled unreasonable refusal. The evidence presented in a refusal case may be actual proof where the person states that they refuse to take the test or it can be constructive. For example, the person does not blow into the machine hard enough and the officer thinks they are not performing it as thoroughly as requested.
Either way, there may be defenses for a person charged with unreasonable refusal. The person can claim that refusal of DUI testing in Fredericksburg is reasonable rather than unreasonable which puts the burden of proof on the accused. The affidavit is prima facie evidence.
The person may have a medical condition that hinders their ability to use the breath machine and they can produce evidence of the medical condition. The person may not understand English and can produce evidence of their lack of fluency in the language. Those are ways that an individual can challenge the reasonableness of the refusal. The burden of proof to challenge that is typically on the accused.
Impact on a License
Refusal of DUI testing in Fredericksburg after being arrested for suspicion of DUI, they can be charged with unreasonable refusal under Virginia Code § 18.2-218.3. If an individual is charged with this code section, their license may be administratively suspended as if they had taken the test as well.
The length of time for the administrative suspension is determined by whether the individual has previous offenses and whether they have a Virginia license. Virginia does not administratively suspend an out-of-state license.