In Virginia it is illegal to operate a motor vehicle with a blood alcohol level (BAC) of .08 or above. Given this, often times individuals being investigated for DWI will refuse to provide a breath sample after being arrested.  When they are finally released, they come to realize that not only do they have charge of DWI, but also one of civil refusal.  What does this mean for that individual?  Are they in a better position, from a defense perspective, than if they had simply submitted to having their BAC taken? 

With respect to the DWI, in many cases, such charges are much more defendable when there is no BAC.  Without that objective BAC number, the Commonwealth is left with proving intoxication through other means such as admissions to drinking alcohol, bad driving behavior, slurred speech, etc.  Certainly, it is possible for the Commonwealth to win in the absence of a BAC level.  But such behavior can be explained by other reasons than intoxication, which could lead to a dismissal. 

However, when one is convicted of civil refusal, they lose ALL ability to drive on the roads of Virginia.  That means NO RESTRICTED LICENSE.  No driving for work, no driving for school, no driving even for church.  And simply by driving on the highways of Virginia, that person has given implied consent to having his BAC tested.  Therefore, so long as the proper procedures where followed, the Commonwealth often times will have a rock solid case for the civil refusal with a relatively weaker DWI case.

In many instances, the Commonwealth will agree to nolle pross (or drop) the civil refusal in exchange for a guilty plea to the DWI. And in many cases, the person charged is forced to accept the agreement simply because they cannot afford to lose their driving privileges outright.  At least with a DWI, they usually get a restricted license. 

This Catch 22 was the exact intention of the General Assembly – to force those being investigated for DWI to either provide the evidence needed by the Commonwealth to prove the offense or force the person off the streets for a year.

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