In Virginia, the preliminary breath test (PBT) that is offered to you at the scene of the stop is separate from the other tests you may be required to take if you are taken into custody for further investigation on suspicion of drunk driving. The breathalyzer offered to you at the scene of the stop is usually used to establish probable cause for arrest, similar to the use of field sobriety tests. There is no criminal or civil penalty for not consenting to it, although your lack of consent may heighten the officer’s suspicion. In addition, the results of the PBT cannot be used against you at your trial, but may be used in some types of pre-trial motions.
However, if you are arrested and taken into custody and you then refuse to consent to the chemical tests without valid cause (or what the statute calls an “unreasonable refusal”), you may be found to be in violation of Virginia’s implied consent law. Under this law, an individual, by virtue of operating a vehicle on a public highway, gives the Commonwealth “implied consent” to submit to a chemical test if the police have probable cause to suspect that a person is driving while intoxicated. The penalty for a first refusal is a civil penalty and license suspension, while a second or third refusal results in a criminal penalty as well as a more punitive license suspension. These penalties apply in addition to the DWI criminal penalties if one is later found guilty of DWI. Furthermore, it is important to note that in Virginia neither a blood test nor breathalyzer is required to convict a person of DWI (although a lack of such tests may make it much more difficult for the Commonwealth to prove their case beyond a reasonable doubt). Please consult with an experienced DWI lawyer if you would like more information on breathalyzers and Virginia law.