Are You Required to Take a Field Sobriety Test in Virginia?

Criminal Defense Attorneys Serving Fairfax, Leesburg & Manassas, Virginia

Posted: July 15, 2020
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If you’ve been stopped under suspicion of DUI, the police officer may ask you to submit to a series of tests to establish whether you are intoxicated. It’s important to understand your rights regarding which of these tests are mandatory and which are voluntary. In Virginia, an important distinction involves whether tests are considered preliminary field tests or post-arrest tests.

Field Sobriety Tests Are Voluntary

man taking a field sobriety test after being stopped for DUIField sobriety tests are some of the most common preliminary field tests administered to establish whether you may be intoxicated. You may be asked to submit to several field sobriety tests, including:

  • One-leg stand test while counting
  • The walk-and-turn
  • Horizontal gaze nystagmus test
  • Nose touch
  • ABC test
  • Counting backwards

These roadside field sobriety tests are voluntary in Virginia, and you have the right to refuse to take them. However, if you refuse to take a field sobriety test, your refusal to perform the test may be considered as evidence against you in court.

In many instances, it could be in your best interest to refuse to take a field sobriety test. These tests are very subjective and can be difficulty to perform under perfect conditions.  These tests can be inaccurate and often factors such as disability, weight or age can cause you to fail.  You should remember that the fact of refusing a field sobriety test alone may not justify your arrest in the eyes of a judge.  If you have a trial, the DUI lawyers at The Gordon Law Firm may challenge the officer's probable cause to arrest.  If that does happen, the trial judge will decide whether the police officer was correct in evaluating whether you should have been arrested for DUI.

Preliminary Breath Tests Are Voluntary

You may also be asked to take a preliminary breath test prior to being arrested for DUI. If the test is administered before an arrest is made, it is considered a preliminary test and is voluntary. You have the right to refuse this test, and it is often in your best interest to do so, because if you blow above a .08 breath alcohol content it is very likely you will be arrested.  Please understand that if the officer believes that he or she has probable cause without the Preliminary Breath Test, you will still be arrested.  There are no legal consequences at trial for refusing this initial breath test.

Tests Administered after a DUI Arrest Are Mandatory

After you’ve been arrested for DUI, you will be asked to take either a breath test or a blood test to determine your BAC. These mandatory tests are governed by Virginia’s “implied consent” laws which state that you automatically consent to a test to measure your BAC after an arrest on DUI charges.

If you refuse a mandatory blood or breath test after being arrested, you may be charged with "Unreasonably refusing a Blood or Breath Test" or "Refusal".  If convicted of the civil charge of "Refusal" and it is your first offense, your license will be suspended for one year. In addition, your "refusal" to take the breath or blood test at the jail can be used against you at a DUI trial and you may still face a DUI conviction even though your breath or blood alcohol content (BAC) wasn’t measured.

Contact our Virginia DUI Attorneys

If you’ve been arrested for DUI, our lawyers can help. Please contact DUI lawyers at The Gordon Law Firm using the form on this page or call 703-218-8416 today to schedule a free consultation. We serve clients in Fairfax County, Loudoun County, Arlington County, and Prince William County in Virginia.

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