Can I refuse to take a breath test if I'm arrested for DUI in Virginia?
Yes. In Virginia, you can refuse to take a breath test. However, your reason for refusing has to be reasonable. That means you can't simply refuse because you don't think you're intoxicated. You also can't refuse simply because you want to speak with an attorney before you take the breath test. It's important to mention that there are very limited circumstances under which a judge will find that your reason for refusing is reasonable. So if you refuse to take a breath test, you'll probably end up with a conviction for Refusal. Click HERE to find out the penalties for refusing to take a breath test in Virginia.
It's also important to remember that we are not talking about a preliminary breath test here. Click HERE for more information on preliminary breath tests. You can refuse to take a preliminary breath test, but you cannot refuse to take a breath test from the machine at the police station or jail. The best way to find out which breath test is being offered to you, is to ask the officer, "will I be charged with refusal if I don't take this breath test?"
What are reasonable basis to refuse a breath test in Virginia?
1. Medical Emergencies
Medical emergencies are a good reason to refuse to take a breath test. If you need medical attention, you can refuse to take a breath test and request that you be taken to be treated by medical professionals.
2. Breathing difficulties
If you suffer from a lung disorder or breathing difficulty, there's a chance your refusal to submit a breath test could be reasonable. It's important to know that there are few, if any, bright line rules for when it's reasonable to refuse to submit to a breath test, but if you have extreme difficulty breathing or if breathing is very painful, that can be a reasonable basis to refuse to submit to a breath test.