What are Virginia DUI Refusal charges?
A refusal to provide breath or blood is always charged in conjunction with a DUI/DWI charge. Essentially, the Virginia Commonwealth Attorney is trying to prove that you refused to provide a blood or breath sample after arrest for a DWI or DUI in Virginia . The government must also prove:
- That the arrest for the DUI/DWI happened within three hours of the driving or operation of a motor vehicle.
- That the police officer's decision to make an arrest for DUI/DWI was supported by probable cause.
- That you were operating or driving a vehicle on a public highway.
- That your refusal to provide a breath or blood sample at the jail or hospital was unreasonable.
A DUI refusal in Virginia is never charged because a person refused to take a preliminary breath test (a PBT) on the side of the road. Under Virginia law, a preliminary breath test is voluntary and a driver has the right to refuse a preliminary breath test.
A Virginia DUI refusal is charged when a person:
decides not to provide a sample in a breath test machine at the jail, called an EC/IR2; or
a person tries to provide breath sample at the jail on the EC/IR2 and the officer thinks the person is not trying enough; or
a person is requested to provide a blood sample and they refused.
What is the Punishment for First-Offense Refusal in Virginia?
A first-offense refusal in Virginia is civil. A civil offense means you cannot be incarcerated for the charge, it is equivalent to a traffic violation. The penalty for a first-offense refusal is a one-year loss of license.
Currently, the law does not permit people convicted of a first-offense refusal to have a restricted license. However, the Governor has recently signed a change into the law that takes effect on July 1, 2020 which will allow for people convicted of first-offense refusal to obtain restricted license privileges after thirty days. Please contact Carlos Wall and Alex Gordon so we can explain what this change in the law will mean for you.
The Virginia DUI Refusal lawyers at The Gordon Law Firm have successfully represented more than a thousand people charged with DUI/DWI and refusal charges in Fairfax, Prince William County, and Loudoun County. We understand the stress that you may be under after being charged with DUI refusal and we know that good people sometimes make mistakes. Our goal is to give good people a second chance. We look forward to providing you our honest and experienced advice in this area of the law. We currently accept cases in Fairfax County, Prince William County, Loudoun County, Arlington County, and the Cities of Alexandria, Fairfax, Manassas, Manassas Park and the other local towns encompassed in these counties.
What is the Punishment for Second Offense Refusal in Virginia?
A second-offense refusal within ten years of a prior refusal or a prior DUI/DWI, is a class 1 misdemeanor. Class 1 misdemeanors are punishable by a fine of up to $2500.00 and/or a jail sentence of up to one year. A conviction for second-offense refusal will also require revocation of your license for three years.
Currently, the law does not permit people convicted of a second-offense refusal to have a restricted license.
The upcoming change in the law regarding granting restricted privileges to first-offense refusals does not apply to second-offense refusals. It appears that if convicted of a second-offense refusal the punishment will still include a loss of license for three years without a restricted license. Please contact Carlos Wall and Alex Gordon so we can explain what this change in the law will mean for you. We have successfully represented countless individuals charged with DUI/DWI and refusal charges. We look forward to providing you our expertise in this area of the law. We currently accept cases in Fairfax County, Prince William County, Loudoun County, Arlington County, and the Cities of Alexandria, Fairfax, Manassas, Manassas Park and the other local towns encompassed in these counties.
What are the Defenses to DUI Refusals in Virgnia?
Your attorney will discuss all the facts and circumstances regarding the elements of the offense as well as any possible defenses you may have. The following information is not meant to supplant a discussion with either Carlos Wall or Alex Gordon, but merely to inform you of typical avenues of defense.
First, can the police prove you were operating on a public highway? A public highway in Virginia is a road open to the use of the public. This does not include parking lots, private property, such as roads in an apartment complex where there are posted access restrictions, driveways, private roads that are not publicly maintained, etc.
Second, can the police prove the arrest happened within three hours of the operation or driving? If the police do not see you driving, be careful about answering any questions they may ask you. They ask you questions to figure out if you were driving the car and when so that they can prove the act of driving or operating for the DUI/DWI charge as well as establish a timeline for the taking of a blood or breath sample.
Third, can the police prove the arrest is lawful? Depending on your level of cooperation with the investigation and/or your performance on field sobriety tests, your attorney may be able to argue the arrest for the DUI/DWI is unlawful. An unlawful arrest, i.e. an arrest unsupported by probable cause, is grounds to have both the DUI/DWI and the refusal charges dismissed.
Fourth, was your refusal unreasonable? Most refusal charges are held to be reasonable. However, certain individuals with underlying health issues may be able to refuse to provide breath and/or blood. Also, if the procedure was not followed properly or the police fail to inform you correctly of your rights under the law, it is possible for your attorney to argue that your refusal was otherwise reasonable.
Call Now to Discuss Your DUI Case for Free
To learn more about Virginia DUI refusal and your legal rights and how we can help you get on the road to the best possible outcome, please call The Gordon Law Firm at 703-218.8416 or complete the form on this page for a free consultation. We welcome clients from Fairfax County, Prince William County, Loudoun County, Arlington County, and the Cities of Alexandria, Fairfax, Manassas, Manassas Park and the other local towns encompassed in these counties.