Should I refuse?
Many clients believe that Refusal has a bigger penalty than a DUI 1st. If you Refuse, you might be trading a lesser punishment DWI for a greater Refusal punishment!
If convicted of Refusal, you will not be able to drive for an entire year: no driving to work, no driving to school, no driving your children. There is no fine and no jail time for a Refusal 1st – just a blanket prohibition on all driving for a year.
Of course, most people cannot financially survive for a year without driving. A conviction for a DUI 1st, on the other hand, will gain you a fine, potential jail time, and a license revocation for a year … but you can get a Restricted License and drive for a variety of reasons during that year. See Restricted License.
- Refusal – no driving for a year.
- DUI 1st – drive for the year on a Restricted license.
I was charged with Refusal but I took a breathalyzer. Why am I charged with Refusal?
There are two breath tests in Virginia:
- a preliminary handheld, breath test that is not used in court (also called a “breathalyzer” or “alco-sensor”), and
- a larger, table-top, mandatory breath test that will be used against you in court.
Officers do not usually explain the difference very well in the field. I’ve seen on video, many times, where the officer reads an explanation of your right to refuse the preliminary breath test and then jumps right in to asking about the mandatory breath test without making sure that clients understand the difference.
Other clients assume that they already took the breath test because they blew in the field.
What’s the difference between the preliminary (PBT) and evidentiary breath test (EBT)?
- Location to take the breath test
PBT: usually out by your car and sometimes used before they will let you out of jail
EBT: at the jail or police station
- Machine used for the breath test
PBT: always a handheld unit (but must be approved by Virginia’s Department of Forensic Science)
- EBT: Virginia only uses the Intoximeter EC/IRII table top machine
- Print out
EBT: yes, usually on a green sheet labeled “Certificate of Blood Alcohol Analysis.”
- Penalty for Refusal
PBT: no penalty
1st Refusal: mandatory one year no driving; no fine & no jail time are possible
2nd Refusal: mandatory 3 years no driving; fine of not more than $1,000, and up to 6 months in jail (Class 2 misdemeanor);
3rd Refusal: mandatory 3 years no driving; fine of not more than $2,500, and up to a year in jail (Class 1 misdemeanor)
I was never even charged with Refusal before. Why am I charged with Refusal 2nd this time?
It doesn’t make sense, but the Code of Virginia allows officers to add up all previous Refusal convictions in the last 10 years AND all other DWI convictions in the last 10 years. If you were convicted of drunk driving before, the officer can “count” that as a previous Refusal. It’s not fair – but it’s the law in Virginia:
“If a person is found to have violated this section and within 10 years prior to the date of the refusal he was found guilty of any of the following: a violation of this section, a violation of § 18.2-266 …”
Va. Code 18.2-268.3(D)
The difference between a 1st and 2nd refusal is huge – 2 additional years of no driving and a potential of real jail time.
If the prosecutor cannot use the preliminary breath test in court, why do officers use a preliminary breath test?
Good question. The law does not actually say that the PBT cannot be used “in court”.
Va Code 18.2-267 (D). Whenever the breath sample analysis indicates that alcohol is present in the person’s blood, the officer may charge the person with a violation of an offense.