Understanding implied consent laws in Virginia

On Behalf of | May 31, 2022 | Criminal Defense |

An arrest on DWI charges in Virginia can lead to serious consequences that will impact an individual’s life. A DWI conviction will remain on their record, which may limit their ability to get a job or to keep the one they have. Depending on the circumstances and the defense team’s ability to minimize the damage done, jail time and stiff fines can make life difficult, and a license suspension will make daily activities challenging.

Some people believe that resisting a breath or blood test when an officer pulls them over will prevent them from obtaining the evidence needed to make the arrest. The National Highway Transportation Safety Administration (NHTSA) estimates that 20% of all DUI suspects refuse to comply with such tests. Unfortunately, depending on state laws, these actions can create even more severe driving restrictions.

Virginia implied consent laws

Every state has implied consent laws, which treat a driver’s license as a permit by the government to drive on a public road in exchange for their compliance with state traffic laws. In other words, driving is a privilege, not a right. When an officer pulls a driver over on suspicion of drunk driving, the driver has already implicitly given consent to take a breath or blood test. Refusing the test will result in penalties.

Under Virginia law, a motorist who has been arrested must submit to a blood or breath test, and refusal to comply will trigger the charge of unreasonable refusal. The law also has provisions for the Three-Hour Rule, which require that law enforcement must arrest a motorist within three hours from the time that they were driving.

The penalties for unreasonable refusal include:

  • First violation civil offense, suspension of driving privileges for one year.
  • Second offense within 10 years, Class 1 misdemeanor, suspension of driving privileges for three years.

In addition, the prosecution can enter unreasonable refusal charges as evidence at trial.

Defending yourself against DWI charges

When an officer pulls you over, all they have on you is their suspicion that you are DWI. Everything they do from that moment on is to gather enough evidence to be able to make the charges stick. Unfortunately, resisting a blood or breath test can compound the charges and give them more evidence to use against you.

A good defense strategy will put the prosecution on defense, such as arguing that the initial stop lacked probable cause. They may question the officer’s arresting procedures or if there were errors in the administration of the test. Having an effective legal advocate in your corner can help you fight the charges and reduce or even eliminate penalties.