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Should you take a Breathalyzer if you get pulled over by the police?

Nobody wants to get pulled over by the police on their way home, and that’s especially true when you’re coming home from a restaurant or a bar where you’ve had a few drinks.

One thing is for certain: If the officer thinks that you’re impaired, it won’t take you long to figure it out. Officers use a variety of methods to decide if a driver is intoxicated, including a chemical breath test that’s designed to measure your blood alcohol content (BAC).

Can you refuse this test? If so, should you refuse it? Here’s what you need to know:

There are two different breath tests you may face

Every state has some version of “implied consent” law on its books, which means that a driver gives implicit consent to chemical testing for drugs or alcohol as a condition of being granted a license to drive in the first place. However, Virginia is somewhat unique in that you are not legally required to submit to a Breathalyzer unless you’ve already been arrested on suspicion of driving under the influence (DUI).

This doesn’t stop officers from trying to make use of what’s called a “preliminary breath test” at the side of the road – and heavily implying that you don’t really have any option but to comply with their request.

You do not legally have to take that test, and you probably shouldn’t – even if you know that the officer intends to arrest you if you refuse. Those devices are often inaccurate, and they only serve to build a case against you.

If you are arrested, you’ll be taken to a police station and asked to take a different breath test within three hours. This test is legally required. If you refuse to comply, you will not only likely be charged with a DUI, but you’ll also be charged with violating the state’s implied consent law. That means:

  • For your first refusal, your license will be suspended for a year, even if you aren’t convicted of a DUI.
  • For a second or subsequent refusal, you face a three-year license suspension, up to a year in jail and a hefty fine.

It’s important to understand that even if you fail a Breathalyzer test, that doesn’t automatically mean that you’ll be convicted. There are a myriad of potential defenses available. If you’ve been charged with driving under the influence in Virginia, find out more about your legal options.