Understanding implied consent and sobriety testing in Virginia

Almost everyone understands the law about alcohol and driving in Virginia. Getting behind the wheel of a vehicle after drinking can put other people and yourself at risk for serious, even fatal crashes. Alcohol can lead to poor decision making, increased response time and even issues with staying in your lane.

To reduce the potential social consequences posed by intoxicated driving, Virginia has strict laws in place to penalize those who drive while impaired.

Law enforcement can stop people in a number of ways. The most common is probably the standard roadside stop, initiated because a driver was speeding, swerving or giving another indication of an issue. It's also possible that law enforcement may conduct a roadblock or checkpoint.

When this happens, every car on the road gets stopped for intoxication screening. You may worry about the potential consequences and think about refusing a roadside breath test. Doing so is often a mistake.

What is implied consent?

Because driving is a privilege, not a right, the state imposes certain expectations on drivers. Under Virginia law, for example, anyone operating on public roadways, whether licensed to drive in Virginia or another state, has given implied consent to a chemical test if law enforcement suspects intoxication. If there is reasonable suspicion, such as a failed roadside test or erratic driving, law enforcement has the right to request a chemical test.

Of course, no one can force anyone to take a chemical test. You have the legal right to refuse the test. However, if you do so, you will likely get arrested on the spot for intoxicated driving and refusing to take the test. Refusing the test could be criminal act in an of itself.

What are the criminal penalties for refusing to take a chemical test?

The first time you refuse to take a chemical test, there are no criminal penalties. However, you will still lose your license for a full year. If you refuse a second time in a ten year period, your license will get suspended for three years. You will also get charged with a misdemeanor that will stay on your criminal record.

Even if you don't get charged with a DUI, you will still have a crime on your record, which could make it harder for you to get a job or secure a rental home.

Refusing can be used as evidence against you

If you think that refusing a breath test will stop the charges for intoxicated driving, you're wrong. In fact, law enforcement and the courts will usually view a chemical test refusal as strong evidence that the driver was knowingly impaired and trying to avoid the consequences.

If the refusal happens during the week when a judge is available, officers could still obtain a warrant to test you. If that happens, the consequences could be very real.

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