The Virginia Verdict Review

Comprehensive and Informative Commentary on State and Federal Legal Matters

The Truth Behind “Implied Consent”: Roadside Sobriety Tests Explained

NOTE: The purpose of this posting is to discuss the implications of Virginia statute on drivers confronted with a roadside breath test or a roadside sobriety field test.  Different considerations come in to play if you have already been arrested and are asked to take breath test at the police station.  Hopefully, by acting responsibly and remaining knowledgeable as to your rights, you will never find yourself in such either situation.

As a defense attorney who deals with multiple DUIs each month, one of the most frequent — and, to me, most upsetting — comments I hear from clients is, “I didn’t want to take a breathalyzer, but the cop told me I had to because Virginia has an ‘implied consent’ law.  I didn’t know that I had the right to refuse it without getting arrested.”

Whether it be something they learned in Driver’s Ed or something they just heard from friends, it seems that most Virginia drivers are under the impression that if a cop asks you to take a breath test or to perform a sobriety field test, you have to comply… or else be arrested on the spot.  While this assumption is simply not true, many people are never properly informed of their rights until they are sitting in my office, preparing to fight the DUI they have already been charged with.  So, for the sake of getting it right before it is too late, let’s take a minute to examine Virginia’s “Implied Consent” law and the implications it has on drivers statewide.

First things first: The Commonwealth of Virginia does have what is commonly referred to as an “implied consent law.”  However, it is probably not what many of you think it is.  In Virginia, the “implied consent law” is officially known as Code § 18.2-268.2 and is stated as follows:

“Any person, whether licensed by Virginia or not, who operates a motor vehicle upon a highway, as defined in § 46.2-100, in the Commonwealth shall be deemed thereby, as a condition of such operation, to have consented to have samples of his blood, breath, or both blood and breath taken for a chemical test to determine the alcohol, drug, or both alcohol and drug content of his blood, if he is arrested for violation of § 18.2-26618.2-266.1, or subsection B of § 18.2-272 or of a similar ordinance within three hours of the alleged offense.”

What is interesting and important about this particular code is that it is strictly limited to those who have already been arrested for driving while intoxicated (see bold section). Put even more simply, you are never nuder any obligation to take a roadside breath test (PBT) or to perform a roadside field test.  The above cited statute is expressly limited to individuals who have already been arrested and taken back to the police station, which is a far cry from the side of the road.  In fact, contrary to what many police officers will indicate after they have pulled you over, Virginia law actually protects your right to refuse a breath test at the scene of a traffic stop. This right is affirmed in Virginia Code § 18.2-267, where it states:

“Any person who has been stopped by a police officer of the Commonwealth, or of any county, city or town, or by any member of a sheriff’s department and is suspected by such officer to be guilty of a violation of § 18.2-266 or § 18.2-266.1, shall have the right to refuse to permit his breath to be so analyzed, and his failure to permit such analysis shall not be evidence in any prosecution under § 18.2-266 or § 18.2-266.1.”

In other words, not only can you refuse a roadside breath test, but this refusal is not, by itself, grounds on which you can be arrested and your refusal can not be used against you should you end up in court.  A good way to think of it is like this: the police need probable cause to place anyone under arrest.  While a roadside breath test is not admissible in court, it does provide sufficient evidence to establish probable cause.  So, when a cop asks you to agree to a roadside breath test, they are really just looking for a way to easily establish probable cause.  The logic behind your right to refuse such a test is similar to logic that justifies pleading the 5th–you can never be forced to incriminate yourself or to implicate yourself in any crime.

So what does this mean to the average Virginian?  At the very least, having this information presented to you should reinforce the importance of becoming knowledgeable as to your rights and learning how they apply to everyday situations.  More importantly, you should know how to exercise those rights.  Hopefully, you will never put yourself in a situation where you will have to put this knowledge to use, but at the very least you can help put an end to the wide-spread rumors surrounding Virginia’s Implied Consent law.


One response to “The Truth Behind “Implied Consent”: Roadside Sobriety Tests Explained

  1. Beth August 8, 2011 at 8:40 pm

    So some of your relatives wold like to know if this applies in Michigan also

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