If the police arrest you for DUI, you face harsh consequences if convicted. It’s crucial to understand your rights and know what not to do that could hurt your defense or result in additional charges.
Virginia's DUI breath refusal law is one law you don’t want to violate. Our experienced DUI lawyers at The Wilson Law Firm explain your obligations under Virginia's Implied Consent law, how the 3-hour rule could affect your criminal case, and how we can defend you.
What’s the Implied Consent Law? 
Virginia Code § 18.2-268.2—Virginia's Implied Consent law—essentially states that by driving on public roads in Virginia, a person agrees to provide breath and blood samples for analysis if arrested for DUI/DWI.
However, keep in mind that you’re only required to submit to a blood or breath test after your arrest. You don’t have to agree to take a roadside pre-arrest breathalyzer test or field sobriety tests. Our DUI attorneys recommend you say no to requests to take these tests to protect your legal rights.
What Are the Penalties for DUI Breath Test Refusal in Virginia?
The Implied Consent law provides for the admission of breath test certificates in DUI/DWI cases. It also allows for an inference that the driver is impaired if they refuse a breathalyzer or blood test after their arrest.
Violations of the law trigger mandatory punishments. These penalties are in addition to the ones you would face if convicted of DUI/DWI. The judge could sentence you to the following for a DU breath refusal:
- First offense. A first violation of the Implied Consent law is treated as a civil offense. Your driver's license would be suspended for one year in addition to further suspension for the DUI charge.
- Second offense. If you’re convicted of a second or subsequent offense or were convicted of DUI within the last ten years, you would be charged with a misdemeanor. The judge could sentence you to one year in jail, a fine of up to $2,500, and a three-year suspension of your driver's license.
The 3-Hour Rule Under Virginia's Implied Consent Law
The law's provision requiring when the DUI/DWI arrest should occur is commonly known as the 3-hour rule. However, many people get confused about this timeframe and how it relates to the Implied Consent law:
- Some attorneys believe a motorist must be tested within 3 hours of driving. This is incorrect.
- Others believe a motorist must be tested within 3 hours of arrest. This is also false.
In our commonwealth, the 3-hour rule applies to the time between driving and the person's arrest. A motorist must be arrested within 3 hours of operating the vehicle. As long as that happens, it doesn't matter when the motorist is finally tested to trigger Virginia's Implied Consent law.
Of course, in many Virginia DUI/DWI cases, the 3-hour rule is easily satisfied because a motorist is usually arrested within 15 or 20 minutes of a routine traffic stop. However, the 3-hour rule component of the Implied Consent law can be critical in accident cases and other cases where the officer didn’t see the motorist operating the vehicle.
How Our DUI Lawyers in Virginia Can Help You With Breath Refusal Charges
At the Wilson Law Firm, we know you could have strong defenses to the charges you face—even if you violated our state's DUI and Implied Consent laws. We’ll develop a solid defense strategy to challenge the prosecutor's evidence against you and collect the evidence you need to support your defenses. We’ll work hard to get the charges dropped or reduced to a less serious offense with minor penalties. Read our case results to learn how we’ve successfully resolved DUI cases and how we can assist you.