Clients often ask about the consequences of refusing a breath test. What are the consequences of refusing and how are breath test results used in a prosecution for driving under the influence?
Virginia has an “implied consent” law. Under Virginia’s implied consent law, any motorist operating a vehicle on a Virginia highway has consented to have his breath or blood tested if properly arrested for driving under the influence. A proper arrest requires that the officer have “probable cause.” Probable cause is established by a combination of observations by the officer, often including a preliminary breath test or “PBT.”
A person suspected of driving under the influence is not required to take a PBT. Although officers may advise that a preliminary breath test cannot be used in court, such statements are not accurate. A PBT cannot be used to prove driving under the influence or a blood alcohol level. However, if a person challenges the reason for the officer’s arrest – whether “probable cause” existed for the arrest – then the results of the PBT may be admitted to establish the presence of alcohol in a person’s system and a presumptive level.
Once a person has been removed from the scene and taken to a location where a standard breath test is administered, then Virginia’s implied consent law requires a driver to comply and give a sample. Refusing to comply is a separate offense, although civil in nature. There is no jail time associated with refusing. However, for many, the penalty is severe because a person convicted of refusal will lose his or her privilege to drive for a period of 12 months and cannot obtain a restricted license.
On the other hand, by giving a breath test, people frequently provide the prosecution with the one piece of evidence needed to ensure an active jail sentence. In Virginia, if a person’s blood alcohol falls between .15 and .20, then there is a five-day mandatory jail sentence. Anything greater than .20 requires a ten-day mandatory jail sentence. In addition, assuming it registers at .08 or greater, a breath test will almost certainly seal a conviction for driving under the influence.
So what about blood tests when a person refuses? Can the police use a blood draw? In 2013, the United States Supreme Court in Missouri v. McNeely ruled that a sample of a person’s blood cannot be taken without first obtaining a search warrant. However, the case created uncertainty because the ruling also acknowledges that cases will arise when anticipated delays in obtaining a warrant could justify a blood test without a warrant. The opinion does not specify exactly which cases fit the bill. It remains to be seen how this ruling will affect law enforcement efforts relating to driving under the influence.