Refusing to comply with drunk-driving tests in Virginia

What are your options if you are pulled over for a traffic violation in Virginia and the officer suspects you've been drinking and asks you to step out of the car and take a roadside sobriety test?

Here are the basics you should know:

Before You Are Arrested

Assuming that the officer doesn't arrest you right away on suspicion of drunk driving, you have broader options.

If the officer asks you to stand on one leg, follow his or her penlight with your eyes, say the alphabet backwards, or walk in a straight line, those are known as "field sobriety tests." They aren't mandatory, so refusing to take them won't affect your license or automatically equal jail time.

The same is true of any preliminary breathalyzer test you are asked to take if you haven't yet been arrested. Your refusal can't be used to suspend your license or as evidence against you in a court of law.

Unfortunately, your refusal isn't likely to halt an arrest if the officer genuinely believes that you may be impaired and has enough probable cause to make an arrest -- which can include evidence like the odor of alcohol on your breath and slurred speech in addition to your traffic violation.

After You Are Arrested

If the officer does arrest you and asks you again to take a breathalyzer test on suspicion of drunk driving, you could be out of luck -- and in serious trouble -- if you refuse. Whether you realize it or not, you agreed to take a breathalyzer if you were ever arrested for drunk driving way back when you first requested a driver's license. That's the law under what is known as "implied consent." You essentially traded your agreement for the right to have a license.

At that point, refusal will earn you an immediate suspension of your license for an entire year. If it's the second time you've refused the test after an arrest within a 10-year period, you will lose your license for three years, as well as possibly facing additional penalties.

The prosecution may also use your refusal as evidence that you were conscious of your guilt -- meaning that you refused because you knew you couldn't pass the test.

Seeking legal guidance immediately after a drunk driving arrest can protect your right to drive in the future.

Source:, "Virginia Decoded: 18.2 -268.2 Implied consent to post-arrest testing to determine drug or alcohol content of blood," accessed July 10, 2017

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