I am far away
On our anniversary
Dinner with Ed instead

Dinner with a friend 2000 miles from home is no way to spend my 30th anniversary.

Our 30th anniversary on 8-19 found me 2000 miles from home on a business trip. I had flowers delivered because I didn't make it to 30 years by being an idiot.

We weren't celebrating until the weekend so it wasn't that big of a deal that I was out of town. However I almost missed that too as I had both a pre-check screw up and a security snafu at the Denver airport that led to me getting to the gate 5 minutes after takeoff.

The plane was still there. I have never been so happy to have the middle seat at the back of a Southwest flight. If I had missed the flight I was probably stuck in Denver until Sunday.

We spent the weekend in Hampton, VA, hanging out at Buckroe Beach by day and enjoying a nice seafood dinner on Saturday night.

It wasn't the epic European vacation that we had been talking about (thanks COVID-19!) but it was just fine. Beach, beer, seafood, and the love of my life. All my favorite things!

I am far away
On our anniversary
Dinner with Ed instead

Dinner with a friend 2000 miles from home is no way to spend my 30th anniversary.

Our 30th anniversary on 8-19 found me 2000 miles from home on a business trip. I had flowers delivered because I didn't make it to 30 years by being an idiot.

We weren't celebrating until the weekend so it wasn't that big of a deal that I was out of town. However I almost missed that too as I had both a pre-check screw up and a security snafu at the Denver airport that led to me getting to the gate 5 minutes after takeoff.

The plane was still there. I have never been so happy to have the middle seat at the back of a Southwest flight. If I had missed the flight I was probably stuck in Denver until Sunday.

We spent the weekend in Hampton, VA, hanging out at Buckroe Beach by day and enjoying a nice seafood dinner on Saturday night.

It wasn't the epic European vacation that we had been talking about (thanks COVID-19!) but it was just fine. Beach, beer, seafood, and the love of my life. All my favorite things!

Many states across the nation have statutes criminalizing the operation of motor vehicles while under the influence of alcohol or other narcotics.

In most cases, DUI laws prevent intoxicated drivers from operating motor vehicles and allow law enforcement to arrest individuals who violate the law.

However, circumstances can arise when police officers improperly arrest or charge someone with DUI. 

Virginia law prohibits drivers from operating a motor vehicle when their blood alcohol content (BAC) is at or above .08%. Failure to comply with this law can result in a charge for Driving Under the Influence (DUI).

Even if your BAC is below .08%, authorities can charge you with DUI if your ability to operate the motor vehicle is impaired due to the presence of alcohol or drugs in your system. You might be wondering, How can law enforcement determine what my BAC is?

The most common method used to determine a driver’s BAC at the scene of the traffic stop involves the use of a breathalyzer test. 

I can answer the questions you have about DUI arrests in Virginia.

Validity of Breathalyzer Tests in Virginia

Virginia law authorizes individuals suspected of DUI to submit to a preliminary breath analysis to determine the “probable alcoholic content” of his or her blood.

However, the law does not allow the introduction of the results of the PBT into evidence. Police officers typically conduct the PBT at the scene of the traffic stop.

Officers then obtain a second breath sample at the police station with a device that is significantly larger and more accurate than the PBT.

The court allows admission into evidence of the results of the second breath test, as long as proper procedures were complied with. Generally, law enforcement performs the breathalyzer at the police station multiple times to ensure its accuracy.

Still, inaccurate readings occur in some cases.

Issues That Can Cause a False Positive on a Breathalyzer

Like any piece of equipment, breath analysis machines must undergo routine maintenance to stay in good condition.

Additionally, the smallest presence of chemicals in the room of the breathalyzer or in the suspect’s mouth can alter the results of the test. Listed below are the most common causes of breathalyzer false positives. 

Lack of Proper Maintenance and Testing

 

The Department of Forensic Science (DFS) requires breathalyzer machines to be calibrated routinely for results to be admissible in court.

Virginia statutes require DFS to test the accuracy of breathalyzer machines at least once every six months. Without proper calibration, the breathalyzer machine can inflate the BAC reading. 

Additionally, officers must conduct a test of the breathalyzer between each sample taken. An attorney can request a record of the tests performed on the breathalyzer machine around the time of your arrest and ensure that the breath machine was used properly to obtain your breath test results.

Law enforcement must place a breathalyzer machine in a room with adequate ventilation. Officers must consider factors including excessively high or low temperature within a room or the presence of contaminants such as dust or moisture when determining the location for the breathalyzer.

Presence of Mouth Residue

The presence of alcohol and other liquids inside a person’s mouth can alter the accuracy of a breathalyzer reading. Alcohol residue can linger in your mouth for a variety of reasons.

Certain metals from dental work or piercings can contain alcoholic residue as well. Breathalyzers are supposed to measure the BAC of your breath only.

However, if someone has alcohol residue inside their mouth, the breathalyzer measures the BAC of both the air and the mouth. This can result in a BAC result that is higher than it should be.

Observation Period Requirements

The Department of Forensic Science requires breathalyzer administrators to observe DUI suspects for a 20-minute period prior to performing the breath test.

The 20-minute observation period allows for the absorption of any residual mouth alcohol prior to the test, thereby lessening the chance of an inaccurate reading.

A failure to observe the observation period requirement can warrant excluding the breath test results from the prosecution’s case. 

Medical Considerations

Certain medical conditions can lead to a false positive breathalyzer result. For example, excessive amounts of acetone in your breath can cause an inaccurate BAC reading.

Individuals with hypoglycemia can experience elevated levels of acetone in their breath, which could result in a higher BAC reading. Gastrointestinal medical conditions can also cause false positive breathalyzer results. 

Inadequate Training or Experience

To be considered valid evidence, Section 18.2-268.9 of the Code of Virginia sets requirements for who can administer the test. An individual must possess a valid license to conduct the breath test with the specific equipment used and in accordance with methods approved by the Department. 

The Department of Forensic Science administers the training required to obtain a valid license. If an unlicensed police officer administers your test, a DUI lawyer can fight to exclude the results from evidence. 

Contact a DUI Lawyer Today

Now you know what can cause a false positive on a breathalyzer test. If you believe your BAC results are inaccurate, do not hesitate to contact my office to discuss your case.

BAC results often make up the strongest evidence against you in a DUI case. If a breathalyzer false positive occurred, a DUI criminal defense attorney can advocate for excluding the results from evidence.

Without the BAC results, we might be able to negotiate with the prosecutor to lessen or even dismiss your DUI charges, depending on the circumstances of your case. Contact my office today for a consultation. 

 

The post What Can Cause a False Positive on a Breathalyzer Test? appeared first on Andrew Flusche.

Drunk driving results in the loss of thousands of lives each year across the state of Virginia. In fact, 264 of Virginia’s 827 traffic fatalities involved the presence of alcohol.

Virginia criminalizes the act of operating a motor vehicle while under the influence of alcohol, and law enforcement authorities enforce DUI statutes with consistency. In 2019 alone, 18,648 people received DUI convictions in Virginia.

Despite the stiff penalties associated with the crime of drunk driving, it still occurs with alarming frequency.

DUI convictions carry significant monetary penalties, and in some cases, a mandatory jail sentence. If you receive a fourth DUI charge in Virginia, contact me to determine what options are available to you. 

Virginia Penalties for Fourth DUI

Virginia legislators have passed some of the strictest DUI laws in the country. For example, Virginia requires first-time offenders to give up their driver’s license for an entire year.

In an attempt to limit repeat offenders, Virginia imposes more severe penalties on individuals convicted of DUI multiple times. 

For instance, for a 4th DUI in Virginia a driver faces one year of mandatory jail time. Please keep in mind that mandatory jail time means that the judge does not have the discretion to lower that jail sentence.

It is set by the legislature, written into the laws of the state, and is non-negotiable if you are convicted for a fourth offense. 

Additionally, the driver can incur a minimum fine of $1,000. Unlike the jail time, this amount is a minimum. The judge does have discretion to increase that amount as they see fit.

A fourth time offender also faces the suspension of his or her license for an indefinite period of time. A 4th DUI in VA carries the classification of a Class 6 felony.

Additional Consequences of a 4th Offense DUI

Legal penalties associated with a fourth DUI are provided above. However, DUI convictions impose additional consequences outside of the criminal justice system, including:

• Increased insurance rates;
• Installation of an ignition interlock device;
• Loss of driving privileges; and
• Loss of job opportunities.

These added penalties cause far-reaching issues for individuals with multiple DUI convictions. Before pleading guilty to a DUI charge, consult with an experienced DUI attorney to determine whether the facts of your case warrant lessening your charges. 

Defenses to DUI Charges

A number of legal defenses are available to drivers accused of driving under the influence. Getting your charges reduced or dismissed is a possibility when one of these legal defenses exists in your case. Consult with me to determine whether any of these circumstances apply to your case.

Invalid Traffic Stop

Authority to initiate a traffic stop requires law enforcement officers to have a “reasonable suspicion” that you are violating the law. If there is no reasonable suspicion of illegal activity, the police cannot stop you.

Potential violations that constitute reasonable suspicion include equipment violations or minor traffic infractions, in addition to indications of driving under the influence.

In other words, if police witness an erratic driving pattern, this can give them reasonable suspicion that you are under the influence of some mind-altering substance like alcohol or drugs. Common signs of impairment that police look for include:

• Failure to maintain a single lane;
• Failure to use turn signals;
• Driving too slow for road conditions;
• Slow reaction time; and
• Lack of awareness of stoplights and signs.

If an officer charged you with DUI but did not have reasonable suspicion to make the initial traffic stop, you may have a valid defense to your charges.

An attorney could fight to show that no reasonable suspicion to stop you existed. If they succeed, they will likely be able to get any evidence obtained during or after the traffic stop excluded—including your breath test results. 

Advisement of Miranda Rights

Many individuals charged with DUI are not aware of their rights. Police officers are required to notify individuals they suspect of driving under the influence of certain information before conducting an examination to determine your BAC.

Advisement of Virginia’s implied consent law is required. 

Additionally, the law requires police to advise individuals of their Miranda rights once they are “in custody.”

So if officers questioned you without first reading your Miranda rights to you, the information you provided could be deemed inadmissible in court. 

Testing Equipment Malfunctions

 

Chemical tests used by law enforcement to ascertain a driver’s BAC are not infallible. The machines used to collect breath samples from defendants require routine calibration and maintenance to ensure the accuracy of their results.

Improper test administration and operator error can also contribute to inaccurate readings. Virginia requires breath test administrators to have a valid license to obtain the breath test results.

This license is issued by the Virginia Department of Forensics. If the person who administered your test does not have a valid license, the court can exclude the BAC results from the prosecution’s case.

If authorities obtained your BAC by administering the test incorrectly or with a machine that was not properly maintained, we can argue to have your DUI charges dismissed.

Facing a 4th DUI Charge in Virginia? Hire an Experienced Criminal Defense Lawyer Today

I have represented thousands of clients throughout Virginia with a wide array of criminal issues. I understand the stress you are under, and I know that you need an ally and advocate.

When your liberty is at stake, consulting with an attorney who has extensive professional relationships with local law enforcement and prosecutors is an invaluable asset.

I take a result-oriented approach, meeting with clients one-on-one to determine your desired result. Contact my office today to discuss your case.

 

The post What Are the Penalties for a Fourth Offense DUI in Virginia? appeared first on Andrew Flusche.

Jim Beam Repeal Batch is a bottle I picked up when it was first released in 2019. I enjoyed it, and emptied most of the bottle, before being distracted by other things. Repeal Batch is said to have been inspired by the Jim Beam bourbon of the 1930's. The bourbon is aged four years, is non-chill filtered, and bottled at 43%ABV. The flavor profile features oak, butter, and vanilla. It's a very smooth sipper with a clean finish. It sells locally (when you can find it) for $16.99 for a 750 ml bottle. It's a fine whiskey at a bargain price.

A couple of weeks ago we escaped to western North Carolina to disconnect for a week of relaxation. We ensconced at a bed and breakfast for the week, which made for a nice base of operations. We would eat a hearty meal in the morning, then head out for a day of hiking, sight seeing, and brewery visits. 

We were treated to an appearance by the local bird feeder bandit one evening as we enjoyed dinner on the patio. The hungry bear stepped out of the woods, stared at us for a moment, then retreated back into the trees.

Naturally, I was looking forward to enjoying cigars at local breweries during the trip. Surprisingly, the NC breweries we visited were, with one exception, less than accommodating when it came to that pleasure. Of course, there are dozens of breweries in the Asheville area, so maybe we just hit the wrong ones. As so many of our local breweries allow cigars, many even having humidors onsite, I was shocked by the restrictions at breweries in our neighboring state.

I talked to the bartender for a bit to express my delight with finding them, and shared how much we enjoyed ourselves. "We are just a small business trying to be welcoming," she replied. I think they are succeeding. If you are in the area, and want a break from the larger, more well-known, and crowded, local breweries you won't go wrong with a visit to Lookout Brewing in Black Mountain, NC.

Velocitation Definition

Have you ever driven on a highway thinking that you are going with the flow of traffic, only to suddenly realize that you’re going a lot faster than you thought?

Or have you ever exited the highway onto local roads and felt like your car was crawling? This phenomenon is called velocitation.

Velocitation is the tendency to perceive your current speed as slower than it actually is. What happens is that your eyes get used to the fast speed of the images they are processing.

In this way, your brain becomes accustomed to traveling at a fast pace. Velocitation means your ability to judge the speed at which you are traveling is temporarily impaired. This happens when your mind has become desensitized to your velocity.

Velocitation is different from highway hypnosis. Highway hypnosis is a phenomenon that causes you to go into a trance-like state while driving. It is akin to operating on autopilot.

For example, when you have been driving for a while and suddenly realize that you don’t remember driving the last 50 miles. Highway hypnosis happens when your brain is lulled by the monotony of the road, the repetition of the white lines, and the sound of the motor.

Fatigue is the most common reason. Both highway hypnosis and velocitation are dangerous, but different, phenomena. 

Why Is Velocitation Dangerous?

Velocitation is dangerous because it can cause you to travel at a much higher speed than you intend to or realize. Car accidents at high speeds can be deadly, or result in disfigurement or serious injury.

The National Highway Traffic Safety Administration  (NHTSA) determined that accidents on highways are five times more likely to result in death than crashes that happen on local roads with speed limits under 40 mph.

Speeding reduces your ability to steer safely around curves and objects. Also, your brakes are less capable of stopping your vehicle at short distances. Your airbags and seatbelts are less effective and can even be dangerous at very high speeds.

You are putting yourself, your passengers, and others  at risk when you are not aware of how fast you are going. At the very least, you could end up with some steep penalties for traffic offenses if you are caught.

How Can I Prevent Velocitation?

The best way to prevent velocitation is to remain alert and frequently check your speedometer. Velocitation occurs most during long, monotonous drives, when your brain has a likelihood of “checking out.”

So check in with yourself to make sure you are staying aware and present while you are driving. Take a break once in a while to clear your head and allow your eyes and senses to readjust. Try to avoid staring too far off into the distance on an open road.

And make sure to plan frequent stops on long drives. Get out at a rest stop and walk around a bit, or take a nap if you find yourself spacing out.

Are There Penalties for Velocitation?

If you drive over the posted speed limit and get pulled over, you could be facing serious consequences. A police officer does not want to hear that you didn’t know how fast you were going.

Charges for reckless driving or speeding will result in points on your license, high fines, increased insurance premiums, and possible jail time. Points on your driving record, called demerit points, will remain for at least two years.

You could voluntarily take a safe driving course to earn safe driving points and offset the demerits. However, you can’t earn safe driving points if a court orders you to take the course. If you end up with too many points on your record, your license may be suspended, or even revoked. 

Speeding

Speeding is a three, four, or six-point violation, and the points will remain on your driving record for five years.

A violation of the speeding laws with aggravating factors, such as hazardous lane changes, could also result in a charge of aggressive driving, a Class 2 misdemeanor. Penalties for a Class 2 misdemeanor  are up to six months in jail and a maximum fine of $1,000. 

Reckless Driving

Reckless driving  is  a criminal violation in Virginia. It is defined as driving that puts another person in danger of injury or death, or endangers property.

Other activities may also land you with a reckless driving charge, such as speeding on a highway. If you are pulled over for driving over 85 mph, or 20 mph over the speed limit, you will normally be charged with reckless driving.

It is a Class 1 misdemeanor in Virginia. Reckless driving convictions can come with jail time up to a year, a maximum penalty of $2,500, and six points on your driving record. A charge for reckless driving will remain on your Virginia driving record for 11 years.

Even if you live out of state, the charge may follow you home and hit you with license suspensions, surcharges, or penalties. Your attorney may be able to have your reckless driving charge reduced to improper driving or speeding depending on the facts of your case.

Improper driving is a lesser traffic violation with a maximum penalty of $500.

Get Help from an Experienced Virginia Traffic Attorney

If you were charged with violating Virginia traffic laws, you are facing high fines, points on your record, increased car insurance premiums, and possibly even jail time.

You need an experienced attorney to help you get the best possible result for your case. I specialize in traffic tickets and misdemeanor defense, specifically reckless driving.

Contact my firm to schedule your initial consultation and speak to me directly about the details of your case. 

 

The post What Is Velocitation and What Are the Penalties? appeared first on Andrew Flusche.

In a schedule almost reminiscent of the "old days," I squeezed in IDPA matches on two consecutive weekends in July. After the Rivanna match the prior weekend, last weekend I made it to the monthly match at Cavalier Rifle and Pistol. It was an overcast morning, and we saw a brief rain shower early in the day, but the sun eventually shone and warmed things up. 

Refusing a breathalyzer test can be a crime in Virginia. If you refuse a breathalyzer test under certain circumstances, you will probably violate Virginia Code section 18.2-268.3.

The bad news is that Virginia can convict you of refusing a breathalyzer test even if you are acquitted of DUI.

 

Virginia DUI Laws

In Virginia, you are legally intoxicated if a breathalyzer test reveals your blood alcohol concentration (BAC) to be at least 0.08%. DUI is a misdemeanor in most cases. Moreover, Virginia’s DUI penalties are among the harshest in the nation.

Even for a first offense, Virginia can sentence you to:

• Up to a year in jail;
• A fine of up to $2,500 ($250 minimum); and
• Suspension of your driver’s license for up to 12 months.

Penalties increase if your BAC was 0.15% or higher or if you have a previous DUI on your record. In fact, a third offense within 10 years is a felony. Virginia can also charge you with DUI for driving under the influence of drugs such as marijuana.

Why Virginia Enacted the Breathalyzer Requirement

Virginia enacted the requirement to consent to a breathalyzer because people could evade DUI convictions by refusing the breath or blood test. The implied consent law changes this dynamic in at least two ways:

• Virginia can now suspend your driving privileges even if you are never convicted of DUI; and
• The law allows the judge to dismiss the refusal if you plead guilty to DUI.

As a consequence, the state has been able to secure more DUI convictions among drivers who refuse breathalyzer tests.

Additionally, the state has suspended a greater number of driver’s licenses among people who refuse breathalyzer tests, even without a DUI conviction.

Arrest, Refusal, and “Reading You Your Rights”

Refusing to take a breathalyzer is not always against the law. In fact, you are not required to take any tests until the police actually arrest you for DUI. After arresting you, the officer usually asks if you are willing to submit to a breath test at the police station.

If you refuse, the officer is required to read a long form that explains the consequences of your refusal. At that point, if you still will not submit to the test, you can be charged with refusal. The breathalyzer that Virginia law requires you to submit to takes place at the police station or the jail after your arrest.

The officer is not required to read you your Miranda rights during this process.

Field Sobriety Tests and the Preliminary Breath Test: What You Need to Know

In many cases an officer will seek to administer a “field” breathalyzer test, also known as a preliminary breath test, before arresting you.

The purpose of these tests is to decide whether to arrest you. Virginia cannot charge you with refusal for refusing to take a preliminary breath test. You also have no obligation to submit to a field sobriety test, such as walking in a straight line.

Most Virginia drivers do not realize this.

Penalties for Refusing a Breath Test

Refusal to submit to an alcohol test can result in suspension of your driver’s license for a year, at least for a first offense. The state will add this penalty to any penalties it might impose for DUI.

If Virginia convicts you of both DUI and refusal, you could lose your driver’s license for two years. It is possible, however, to apply for a “restricted license” for you to drive to and from work or perform other necessary tasks.

A restricted license is only allowed for a refusal conviction after 30 days of not driving at all.

Refusing a breath test is not a criminal offense unless it is your second offense of either refusal or DUI within 10 years. If you do commit a second offense within 10 years, however, Virginia will suspend your license for up to three years (mandatory), jail you for up to six months, and fine you up to $1,000.

Defenses

DUI is a very complicated area of law, and law enforcement officials must follow certain procedures. If they fail to follow these procedures, you can have evidence excluded.

If you exclude enough evidence, Virginia might lack the evidence to convict you of the offense. Following is a description of some common defenses:

• You could not complete a breathalyzer test for legitimate medical reasons, such as severe asthma.
• English is not your native language and you did not understand what the police officer was asking you to do.
• The officer pulled you over without reasonable articulable suspicion.
• The officer insisted that you submit to a blood test before attempting to administer a breathalyzer test. This is a legal gray area that a good lawyer can exploit.

Depending on the specific facts of your case, you might employ any one of the foregoing defenses, or some other defense.

If You Hold an Out-of-State Driver’s License

Suppose you are arrested for DUI and charged with refusal but you are driving on a Maryland license. How does that affect your case? Well, Virginia can only suspend your right to drive in Virginia.

It cannot suspend your Maryland driver’s license. Instead, Virginia will notify Maryland (or whatever state issued your driver’s license), and Maryland will decide if they should penalize you based on their laws.

Virginia can still jail you and fine you for DUI; it just cannot suspend an out-of-state driver’s license. Virginia can also punish you if you drive on Virginia roads with an out-of-state license that is valid in your home state but invalid in Virginia.

Someone in Your Corner

I am Andrew Flusche, and I am here to help you. If you have been charged with DUI or refusing to take a breath test, I can promise you that I will not pass off your case to someone else.

I handle all my cases myself, and I maintain good working relationships with local prosecutors and judges. You can see how my former clients have rated me here.

Call me at 540-318-5824, schedule an appointment to meet me at my office in Spotsylvania, VA, email me at andrew@andrewflusche.com, or contact me online for a free consultation, so we can discuss your options.

 

The post Are There Penalties for Refusing to Take a Breathalyzer Test in Virginia? appeared first on Andrew Flusche.

Refusing a breathalyzer test can be a crime in Virginia. If you refuse a breathalyzer test under certain circumstances, you will probably violate Virginia Code section 18.2-268.3.

The bad news is that Virginia can convict you of refusing a breathalyzer test even if you are acquitted of DUI.

 

Virginia DUI Laws

In Virginia, you are legally intoxicated if a breathalyzer test reveals your blood alcohol concentration (BAC) to be at least 0.08%. DUI is a misdemeanor in most cases. Moreover, Virginia’s DUI penalties are among the harshest in the nation.

Even for a first offense, Virginia can sentence you to:

• Up to a year in jail;
• A fine of up to $2,500 ($250 minimum); and
• Suspension of your driver’s license for up to 12 months.

Penalties increase if your BAC was 0.15% or higher or if you have a previous DUI on your record. In fact, a third offense within 10 years is a felony. Virginia can also charge you with DUI for driving under the influence of drugs such as marijuana.

Why Virginia Enacted the Breathalyzer Requirement

Virginia enacted the requirement to consent to a breathalyzer because people could evade DUI convictions by refusing the breath or blood test. The implied consent law changes this dynamic in at least two ways:

• Virginia can now suspend your driving privileges even if you are never convicted of DUI; and
• The law allows the judge to dismiss the refusal if you plead guilty to DUI.

As a consequence, the state has been able to secure more DUI convictions among drivers who refuse breathalyzer tests.

Additionally, the state has suspended a greater number of driver’s licenses among people who refuse breathalyzer tests, even without a DUI conviction.

Arrest, Refusal, and “Reading You Your Rights”

Refusing to take a breathalyzer is not always against the law. In fact, you are not required to take any tests until the police actually arrest you for DUI. After arresting you, the officer usually asks if you are willing to submit to a breath test at the police station.

If you refuse, the officer is required to read a long form that explains the consequences of your refusal. At that point, if you still will not submit to the test, you can be charged with refusal. The breathalyzer that Virginia law requires you to submit to takes place at the police station or the jail after your arrest.

The officer is not required to read you your Miranda rights during this process.

Field Sobriety Tests and the Preliminary Breath Test: What You Need to Know

In many cases an officer will seek to administer a “field” breathalyzer test, also known as a preliminary breath test, before arresting you.

The purpose of these tests is to decide whether to arrest you. Virginia cannot charge you with refusal for refusing to take a preliminary breath test. You also have no obligation to submit to a field sobriety test, such as walking in a straight line.

Most Virginia drivers do not realize this.

Penalties for Refusing a Breath Test

Refusal to submit to an alcohol test can result in suspension of your driver’s license for a year, at least for a first offense. The state will add this penalty to any penalties it might impose for DUI.

If Virginia convicts you of both DUI and refusal, you could lose your driver’s license for two years. It is possible, however, to apply for a “restricted license” for you to drive to and from work or perform other necessary tasks.

A restricted license is only allowed for a refusal conviction after 30 days of not driving at all.

Refusing a breath test is not a criminal offense unless it is your second offense of either refusal or DUI within 10 years. If you do commit a second offense within 10 years, however, Virginia will suspend your license for up to three years (mandatory), jail you for up to six months, and fine you up to $1,000.

Defenses

DUI is a very complicated area of law, and law enforcement officials must follow certain procedures. If they fail to follow these procedures, you can have evidence excluded.

If you exclude enough evidence, Virginia might lack the evidence to convict you of the offense. Following is a description of some common defenses:

• You could not complete a breathalyzer test for legitimate medical reasons, such as severe asthma.
• English is not your native language and you did not understand what the police officer was asking you to do.
• The officer pulled you over without reasonable articulable suspicion.
• The officer insisted that you submit to a blood test before attempting to administer a breathalyzer test. This is a legal gray area that a good lawyer can exploit.

Depending on the specific facts of your case, you might employ any one of the foregoing defenses, or some other defense.

If You Hold an Out-of-State Driver’s License

Suppose you are arrested for DUI and charged with refusal but you are driving on a Maryland license. How does that affect your case? Well, Virginia can only suspend your right to drive in Virginia.

It cannot suspend your Maryland driver’s license. Instead, Virginia will notify Maryland (or whatever state issued your driver’s license), and Maryland will decide if they should penalize you based on their laws.

Virginia can still jail you and fine you for DUI; it just cannot suspend an out-of-state driver’s license. Virginia can also punish you if you drive on Virginia roads with an out-of-state license that is valid in your home state but invalid in Virginia.

Someone in Your Corner

I am Andrew Flusche, and I am here to help you. If you have been charged with DUI or refusing to take a breath test, I can promise you that I will not pass off your case to someone else.

I handle all my cases myself, and I maintain good working relationships with local prosecutors and judges. You can see how my former clients have rated me here.

Call me at 540-318-5824, schedule an appointment to meet me at my office in Spotsylvania, VA, email me at andrew@andrewflusche.com, or contact me online for a free consultation, so we can discuss your options.

 

The post Are There Penalties for Refusing to Take a Breathalyzer Test in Virginia? appeared first on Andrew Flusche.