Generally, Virginia law requires anybody who has been arrested for DUI on a public road to take a breath test. Like all other states, Virginia has adopted a law called “implied consent,” which means that just by driving on Virginia public roads, you have already agreed to take a breath test if you are arrested for DUI.
If you have NOT been arrested yet, officers normally ask someone suspected of a DUI to take a preliminary breath test, or PBT, in the street. This test is totally voluntary and a refusal can never be used against you in trial for your DUI trial. However, if you take a PBT, it can be used against you to show probable cause for the DUI arrest.
However, there are EXCEPTIONS to this requirement:
· Not on a Public Road – you are NOT REQUIRED to take a breath test if you were not seen driving on a public road. If you were pulled over in a private parking lot, in your private driveway, or on a privately owned road, you do not have to take a breath test after being arrested for DUI.
· More than 3 Hours Have Passed – if you were not driving within 3 hours of the time the officers arrest you for DUI, you are not required to submit to a breath test.
· Reasonable Refusal – if it is reasonable to refuse a breath test, you can do so. Under Virginia law, it is only reasonable to refuse a breath test if you are physically unable to take the test. Meaning, you have some physical impairment that would make it nearly impossible to take the test, i.e. in the hospital, unconscious, suffering from a medical emergency, the medical condition which prevents you from blowing hard enough into the breath machine.