Will I Be Convicted of DUI if I Refuse a Breathalyzer in VA?

 Posted on June 15, 2025 in Criminal Defense

Refusing a breathalyzer test does not automatically convict you of driving under the influence (DUI) in Virginia. You will still have the opportunity to challenge the charges, and depending on the circumstances, refusing the test may help or harm your case. The first step in building your defense is to talk to an experienced Fairfax, VA DUI defense lawyer about the details of your arrest. 

Did You Refuse a Preliminary Breath Test Before Your Arrest?

In Virginia, there are two types of breath tests associated with a DUI stop. The preliminary breath test (PBT) is taken at the scene before the arrest using a small device. The PBT is voluntary and used much like a field sobriety test to help establish probable cause for the arrest. If you refuse it and are still arrested, that specific refusal cannot be used against you. However, if you are arrested under suspicion of DUI, you are required to submit to chemical testing, which can be a breath or blood test, under Virginia’s implied consent law. 

What Is Virginia’s Implied Consent Law?

According to the implied consent law in Virginia, you already consent to chemical testing if you operate a vehicle and are arrested for DUI. Therefore, if you refuse the PBT and are placed under arrest, you cannot refuse when asked to take a breath test at the police station. The law also requires the officer to explain implied consent, including the punishment for refusing the second breath test. 

What Are the Penalties for Refusing a Breathalyzer in Virginia?

According to Virginia Code § 18.2-268.3, if you refused the breath test after you were arrested, violating implied consent law, you will face penalties. If this is your first offense, you would automatically lose your driver’s license for a year with no possibility of a restricted license. If convicted of DUI, further suspension could be added to the penalty. If this is the second or third time that you violated implied consent law, you would likely be charged with a Class 1 misdemeanor, facing a three-year license suspension and possible jail time and fines. 

How Can You Challenge a DUI Charge in Virginia?

Possible defenses for a DUI charge in Virginia include:

• Challenging the validity of the traffic stop

• Questioning the reliability of the field sobriety and chemical tests

• Arguing that the driver was forced to drive under duress

• Proving that a violation of constitutional rights occurred

Your attorney will investigate the case to determine the most appropriate defense based on the details of your arrest and the investigation that followed.

Schedule a Free Consultation With a Fairfax, VA DUI Defense Attorney

If you were arrested for a DUI after refusing a breath test, you should contact a Fairfax DUI defense lawyer now. While you will face penalties for refusing, you will have the opportunity to fight the DUI charge in court. At Robinson Law, PLLC, we have over 50 years of legal experience, resulting in an extensive understanding of the complex DUI laws in Virginia. Contact us today at 703-844-3746 to schedule your free consultation and start building a robust defense strategy. Hablamos Español.