The most common question a get when talking to  people about Virginia DUIs is whether you are “required to take the breath test.” To understand the answer, you first need to know that there are actually TWO kinds of breath tests.

The Preliminary Breath Test. 

In most cases of DUI, law enforcement encounter a suspect shortly after pulling them over. They then ask whether the suspect has been drinking and ultimately ask them to step out of the car to do a few “field sobriety tests.” After having the suspect do random things like lifting their leg in the air, walking awkwardly, and counting backwards, they then ask “will you take a breath test?”

The breath test on the scene is commonly referred to as the Preliminary Breath Test or the PBT. In asking you to perform a PBT, the officer is trying to develop enough evidence to justify arresting you for DUI. Because the 5th Amendment protects you from self-incrimination, you are not required to take the PBT. 

If you politely refuse, the officer will encourage you to submit to the PBT. If the PBT detects any alcohol on your breath, it will assist the officer in justifying your arrest, thus, taking away a possible defense of your case. 

While I’ve seen prosecutors try to argue that refusal to take a PBT demonstrates your “consciousness of guilt,” it’s generally a better position to be in than having the PBT provide a positive result for alcohol.  

The Official Breath Test. (If you refuse, you are charged with Civil Refusal)

Once you’re arrested for a DUI, you generally get taken back to the police station where you’re offered another breath test, which I like to call the “Official Breath Test.” You’ll know what it is because the officer is required to inform you that if you refuse this test, you will be charged with Civil Refusal.

Keep in mind, the 5th Amendment protects you here as well against self-incrimination. Therefore, you’re not technically required to take this test either. The catch is, though, that if you are charged with Civil Refusal, and ultimately convicted, you will lose your license to drive, and NOT be granted restricted driving privileges. What that means is that you’ll be prohibited from driving in Virginia for a year for any reason.

The Civil Refusal is often what “jams you up” because you face both a DUI and Civil refusal charge. As a result, the prosecutor often times offers you to plead guilty to the DUI in exchange for dropping the Refusal charge because he or she knows most people need to be able to drive for work. 

Should I take the Official Breath Test?

Look, the short answer is that it depends. Every case is different, and your own circumstances are different. In reality, if you’re smart enough to be reading this article, you should do yourself a huge favor and call an taxi any time you’re concerned about your ability to drive. The purpose of this article is simply to clear up the confusion about this question.

For more information, feel free to call BenGlassLaw. 

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