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Is Virginia’s DUI Refusal Law Unconstitutional?

If you are arrested for driving under the influence of alcohol (DUI), then you need a DUI lawyer.  One charge that often accompanies a DUI, is known as Refusal.  Technically, it is a violation of Virginia Code 18.2-268.3, refusal to provide blood or breath sample, which stems from the “implied consent” statute.  The law essentially requires that any person driving on a Virginia road that is arrested for DUI, provide a blood or breath sample.  This is not the preliminary breath test, or “PBT,” given on the side of the road.  This is a test given after arrest, usually at a police precinct or jail.  If you refuse to give the sample, then you are charged with a new offense.  The first offense is a civil offense, but if “convicted” you will lose your license for a year, without the ability to get a restricted license.

However, this law may be unconstitutional.  Recently, the Georgia Supreme Court ruled that a similar law in that state violates the Constitution.  The similarities between Virginia’s statute and Georgia’s are striking, and similar reasoning could be applied to a challenge in Virginia.  The Georgia Court considered the blood or breath test to be a search, and thus either requiring a warrant or falling into one of a short (but growing) list of exceptions.  This was based, in part, on a Supreme Court of the United State decision, holding that natural dissipation of alcohol in the blood does not create a legal “exigency.”  Further, the Georgia Court considered consent to the test given pursuant to the implied consent statute, and held it to not be voluntary.    This same reasoning can be argued in Virginia, and may be well-founded.

If you are charged with DUI or refusal, contact our Chesapeake DUI Lawyer, Kevin R. Pettrey, to defend your rights.  We may be able to have either, or both, of these charges dismissed.