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Field Sobriety Tests  |  Refusal Penalties

Virginia DUI/DWI; Refusal Cases

Nearly every DUI/DWI case begins with a stop of the individual's vehicle by an officer. After both cars are resting on the side of the road, the officer will approach and make an initial determination as to whether the driver has been drinking. If the officer perceives the odor of an alcoholic beverage coming from the driver as well as other signs of intoxication such as slurred speach and bloodshot eyes, he may ask the driver to exit the car to perform a few "tests."

These battery of tests are often referred to as field sobriety tests and serve as tools to assist the officer to gather evidence regarding the driver's potential iField Sobriety Testsmpairment. How the driver performs on the tests suggest to the officer a potential degree of impairment. While several of these tests are standardized according to rules outlined by the National Highway Traffic Safety Administration (NHTSA), many of the tests are not and the officer may rely upon his training at the police academy to interpret an individual's performance on a test. The most common tests offered by Virginia law enforcement include:

  • One-Leg-Stand test
  • Walk-and-Turn test
  • Horizontal Gaze Nystagmus test (HGN)
  • Alphabet test
  • Numbers test
  • Finger touch test

Most drivers do not know that they are not obligated to perform these tests which help the officer establish a basis for placing you under arrest and to strengthen his potential DUI/DWI case evidence. However, since most individuals agree to perform the tests at the officer's request, it is important to have an attorney who understands the weaknesses of each test and who understands how to challenge the officer's assumptions of an individual's performance on a given test.

Having an attorney who know's how to challenge an officer's interpretation of an individual's performance on the field sobriety tests becomes even more critical within the context of a refusal case. In a refusal case, the individual may have completed the field sobriety tests offered by the officer and may have taken a roadside breath test referred to as the preliminary breath test, but subsequently refuses to submit to the official breath test at the police station. Virginia Code §18.2-268.3 outlines this offense:

A. It shall be unlawful for a person who is arrested for a violation of §18.2-266, 18.2-266.1, or subsection B of §18.2-272 or of a similar ordinance to unreasonably refuse to have samples of his blood or breath or both blood and breath taken for chemical tests to determine the alcohol or drug content of his blood as required by §18.2-268.2 and any person who so unreasonably refuses is guilty of a violation of this section.

Since everyone who operates a motor vehicle upon the highways of the Commonwealth implicitly consents to have a sample of their blood or breath taken when under suspicion of intoxication, the law allows for a separate offense when they unreasonably refuse to offer that sample. More on Implied Consent In refusal cases, the individual typically will be charged with two offense: the offense of refusal and a DUI.

For a person to be convicted of unreasonable refusal, the officer must follow statutory requirements in advising the individual regarding:

  • implied consent law
  • the admissibility into evidence of an individual's refusal
  • the revocation of an individual's operator's license for unreasonable refusal
  • the potential criminal penalties associated with unreasonable refusal

In addition, the officer must certify to the magistrate who issues warrants that:

  • the individual was read the rights and consequences relating to refusal
  • despite having had read these consequences, has refused to permit a blood or breath sample
  • the number of prior refusal offenses

As with a DUI/DWI offense, the penalties for refusal enhance with subsequent convictions. The following outlines the penalties for unreasonable refusal:

Offense Type
License suspension
1st offense refusal
civil offense
12 months
2nd offense refusal within 10 years or of a prior DUI conviction
class 2 misdemeanor
up to 6 months
up to $1,500
3 years
3rd offense refusal within 10 years or of 2 prior DUI convictions
class 1 misdemeanor
up to 12 months
up to $2,500
3 years

The statute requires that the refusal be unreasonable. While not defining this term, a from providing a deep lung air sample required by the Intoxylizer Model 5000.

Since there are no blood or breath results in a refusal case, to obtain a DUI conviction, the prosecutor must rely on the officer's observations. These observations include performance on the field sobriety tests, the operation of the vehicle and the individual's appearance. The court or jury will then decide if this evidence is sufficient to establish impairment while operating a motor vehicle. It is the role of a skilled attorney to challenge the field sobriety tests and procedures relating to refusal in order to advance the client's interests.

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