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Loudoun County Attorneys > Blog > Criminal Defense > Virginia Implied Consent Law

Virginia Implied Consent Law

Virginia statutes require that someone operating a motor vehicle provide a breath sample to an officer who suspects them of driving under the influence of alcohol or drugs once the driver has been placed under arrest. It is important to note that the breath sample must be given within three hours of the suspected consumption of either the alcohol or drugs. This law is often known as the refusal statute, or the Virginia law of implied consent.

What the Refusal Statute Does Not Include

This law should not be confused with an officer asking you to take a preliminary breath test. That test is completely consensual and there is no punishment for refusing to take a preliminary breath test, or any other test determining your level of intoxication before you are arrested. These tests may include the stop and turn test, the alphabet test, the one-legged stand test, and the horizontal gaze nystagmus test.

The Variety of Tests the Refusal Statute Does Include

After a person is arrested for suspicion of a DUI, they will be transported to a booking station. Here, they will take the breath test that the implied consent statute addresses. An officer must observe a waiting period of twenty minutes before they can begin the test.

Alternatively, if there is an accident or the person cannot submit a breath sample, an officer may transport the person to a hospital in order to have a blood sample drawn that can be used to determine the blood alcohol content of the person.

A Violation of the Implied Consent Statute

A violation of this law will result in a civil charge and a fine for your first offense. If, however, it is not your first DUI then the charge will be a criminal charge and may carry some jail time. Also, an unreasonable refusal to consent to a blood or breath test may be admitted in court during your criminal trial.

The implied consent law can be confusing. In plain English the law states that those who use the highways of Virginia retroactively have consented to have a sample taken of their breath or blood to determine if they are under the influence of drugs or alcohol. If you unreasonably refuse to submit to a breath or blood sample, you may have your driving privileges revoked. If you choose to do so within ten years of a previous DUI conviction, the refusal will carry with it a Class 2misdemeanor.

However, it is important to understand that the refusal to submit must be unreasonable. If you cannot provide a breath sample due to a physical inability, you cannot be charged with the refusal statute.

A DUI is a serious offense, with serious consequences. It is important to have an experienced Leesburg attorney that is well versed in the many defenses to a DUI. The law offices of Simms Showers LLP can help. Our experienced team will fight for you and ensure you have the best defense available.

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