A frequent question I get is whether or not a person suspected of a DUI should take a test to measure the level of alcohol in his (or her) system. (While we still see a lot more men charged with this offense than women there seems to be an increasing number of women being charged). You can’t call your lawyer and ask for help during a stop for a DUI. What should you do?
The problem with refusing to take the test (usually the breath test) is that you can be charged with the offense of unreasonable refusal. If convicted, your operator’s license will be suspended for a first offense for one year and for a subsequent offense the penalties are greater including the possibility of a jail sentence. The reason for this is that in Virginia if you operate a motor vehicle on a highway it is implied that you have given consent to give samples of your breath and your blood for analysis if you are arrested within three hours of the alleged offense. This would not ordinarily apply to someone charged with DUI for an offense alleged to have taken place on private property. For example, a person charged with committing a DUI in a parking lot should normally not be required to submit breath or blood samples for testing. Most officers will ask you to take the test; however, and if you consent they will give it to you. The results can then be used against you even if you were not required to take the test.
Be aware, driving intoxicated or under the influence is illegal whether on private property or on a highway. The requirement that you submit to testing only applies to operating a motor vehicle on a highway however. Even a private road can be considered a highway requiring a person to give a sample of his breath or blood. See Va. Code §46.2-100.
There is also a preliminary breath test that is offered at the scene. You are not required to take this test and it is not admissible in court. The officer can use the results as probable cause to arrest you if the test shows the presence of any alcohol. Unless you have not consumed any alcohol or drugs I see no reason to take this test.
A police officer will normally ask a person suspected of DUI to take field sobriety tests. These tests are completely voluntary. You do not have to take them. If you elect to take field tests the officer should ask you if you have any disabilities that would prevent you from successfully completing the tests. If you do you should certainly let the officer know.
The best way to avoid a conviction for DUI is to not get behind the wheel of a motor vehicle if you have consumed any alcohol or drugs. If you are charged you should have an experienced attorney representing you.
