top of page

What If I Refuse to Take a Breath Test or Blood Test in Virginia? A Virginia DUI Defense Guide

One of the common ways the Prosecution can prove a DUI in Virginia is through introduction of the driver’s Blood Alcohol Content (BAC). This is done through a breath or blood test administered at the Police Station after a DUI arrest. Va. Code § 18.2-268.2 states that a driver of a motor vehicle arrested for DUI in Virginia shall submit to a breath or blood test, pursuant to implied consent.


Implied consent does two very important things for the Prosecution. First, it gives the Prosecution presumptions as to what the Blood Alcohol Content numbers mean when you provide a sample. This alleviates the prosecution from having to bring an expert into every court hearing to explain what Blood Alcohol Content is. Second, if a driver refuses to provide a breath or blood consent they can be charged with a separate offense.


When does Implied Consent Apply:


Three factors must be present in a DUI case for implied consent to apply under Va. Code § 18.2-268.2.

  1. The driver must be arrested specifically for Driving While Intoxicated or Driving Under the Influence.

  2. The driver must have been operating his or her vehicle on a “public highway” ("public highway" means the entire width between the boundary lines of every way or place open to the use of the public for purposes of vehicular travel in the Commonwealth, including the streets and alleys)

  3. The driver of the vehicle must be arrested within 3 hours of the offense. (This prevents the situation in which you were driving, then went home and consumed alcohol and the Prosecution attempting to punish you for the alcohol you consumed after driving).



What is the Punishment for Refusing to submit to a Breath or Blood Test


If implied consent applies to your DUI arrest then you can be punished for refusing the submit to a Breath or Blood Test. The punishment depends on whether you have been convicted of Refusal or DUI before.


results in civil penalty.  The punishment is a 12 month driver’s license suspension and the driver CANNOT apply for a restricted license during this period.  

  • Second Offense Refusal in Virginia in 10 Years

    • A second offense for Refusal in Virginia under Va. Code § 18.2-268.3 is a Class 2 misdemeanor, punished with up to 6 months in jail and a fine up to $1000.  Additionally, the driver’s license will be automatically suspended for 3 years.  The offender cannot apply for a restricted license during this period.  A prior DUI counts as a prior Refusal conviction.

  • Third or Subsequent Refusal in Virginia in 10 years

    • A third or subsequent Breathalyzer Refusal in Virginia under Va. Code § 18.2-268.3 in 10 years is a Class 1 misdemeanor.  It is punished with up to 12 months in jail, a fine up to $2500, and an automatic driver’s license suspension for 3 years with no restricted license.  A prior DUI counts as a prior Refusal conviction.



What if I Physically cannot perform a Breath Test

Some questions arise if an individual cannot perform a breath test because of physical ailments. If a defendant cannot perform a breath test then the Police Officer has the obligation to offer a blood test. If a blood test is not offered, then the DUI charge shall be dismissed.


If you do not tell an officer about your physical inabilities’ courts have been reluctant to find the defendant physical could not take the breath test. See Hudson v. Commonwealth and Bennett v. Commonwealth.




The consequences of a Refusal or DUI conviction in Virginia can be immense. The Pickett Law Group, PLLC is an experienced law firm with two generations of former prosecutors and DUI lawyers, who have handled numerous DUI and Refusal cases. Our DUI attorneys have successfully fought DUI and Refusal charges in Fairfax County, Arlington County, Loudoun County, and Prince William County. Contact one of our DUI Attorneys today for a free consultation.

Edited 1 Modified 2.jpg
Edited 3 Modified 2.jpg
bottom of page