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What can I refuse when I am stopped for a DUI?

Police Officer next to car

Whenever a driver gets pulled over by a police officer for suspicion of driving a motor vehicle under the influence of alcohol (DUI), the average driver does not know exactly what their legal rights are under the laws of Virginia. The following information is not meant to protect people who consume too much alcohol and make the decision to get behind the wheel. There are thousands of deaths from alcohol-related crashes each year that negatively impact families.

In general, a driver who is suspected to be under the influence must be operating a motor vehicle. In Virginia, a driver is operating the vehicle when the key is inserted into the ignition switch of the vehicle and the person is in the driver’s seat behind the steering wheel. Enriquez v. Commonwealth, 283 Va. 511, 722 S.E.2d 252 (2012). The actual position of the key within the ignition switch is not determinative which means that even if the car is not on, you are subject to operating the vehicle and being charged with a DUI. Id.

The first thing that you will hear from somebody who obtained a DUI charge is, “I do not even know why the officer pulled me over. I wasn’t doing anything wrong.” In order for a police officer to pull somebody over to lead to a DUI charge, the police officer must initially have sufficient articulable suspicion that criminal activity is afoot. This basically translates into the police officer must have slightly more than a hunch that the driver is committing a criminal act. However, it is important to note that this level does not rise to the level of probable cause as would be needed to actually arrest somebody for a DUI.

What exactly have the Courts in Virginia held to be a valid articulable suspicion for police officers to pull over drivers and charge them with a DUI?

The following is a list of events and circumstances where the Virginia Courts found that there was enough articulable suspicion to pull over a driver.

  1. Missing a rear vent window. Logan v. Comm. 19 Va. App. 437, 452 S.E.2d 364 (1994).
  2. A vehicle weaving within the lane 5 to 10 times over a ½ mile distance.� Neal v. Common, 27 Va. App. 233, 498 S.E.2d 422 (1998).
  3. When a car is in view of a roadblock and while watching police, a driver turning slowly into a private drive. Bailey v. Comm., 28 Va. App. 724, 508 S.E.2d 889 (1998).

The following is a list of events and circumstances where the Virginia Courts found that there was not enough articulable suspicion to pull over a driver.

  1. A vehicle making a legal turn before a roadblock, into a gas station, without committing any infractions. Murphy v. Commonwealth, 9 Va. App. 139, 384 S.E.2d 125 (1998).
  2. A driving switching positions with the passenger before getting pulled over. Zimmerman v. Comm, 234 Va. 609, 363 S.E.2d 708 (1998).

Of course, a person can get pulled over for speeding, running a stop sign, and violating other traffic offenses that normally occur. The above are simply examples of when the driver can get pulled over by a police officer when they are otherwise obeying the proper traffic laws.

Now to the part that drivers are most curious about. What can drivers refuse to do when they get stopped by a police officer when they have been suspected of driving under the influence of alcohol?

Whenever a person is suspected of a DUI violation, the officer must have probable cause that the driver has been operating a vehicle while under the influence of alcohol in order to arrest them. For an officer to conduct an arrest for a misdemeanor, the event must occur in the presence of the officer. However, for a DUI, there is an exception where a driver can be arrested within 3 hours of the occurrence if the officer has probable cause to suspect the person of a DUI violation. Roseborough v. Comm., 281 Va. 233, 704 S.E.2d 414 (2011).

What exactly is enough probable cause to arrest somebody for operating a vehicle under the influence of alcohol?

  1. Mere odor of alcohol is not enough by itself to support probable cause. Baker v. Taylor, 229 Va. 66, 326 S.E.2d 669 (1985).
  2. The driver was not arrested within 3 hours of the offense. Castillo v. Comm., 21 Va. App. 482, 465 S.E.2d 146 (1995).
  3. A driver’s refusal to submit to field sobriety tests without any other circumstantial evidence. Jones v. Comm., 279 Va. 52, 660 S.E.2d 343 (2008).

After reading these three examples, what exactly is probable cause for arresting somebody for a DUI? Unfortunately, an arrest for a DUI is completely circumstantial of all the officer’s evidence and the information taken together during the stop of the driver. Remember, the information that a driver tells a police officer about how many drinks he or she has had are circumstances that lead to the probable cause of a DUI arrest.

What role do the field sobriety tests play in having probable cause to arrest a driver for DUI?

The reason behind the field sobriety tests is to provide the police officer with enough probable cause to arrest the driver for DUI. A driver suspected of driving under the influence does not even have to engage in the field sobriety tests because it is not required by Virginia law. However, if a driver refuses to take the field sobriety tests, then the refusal may have some relevance in a police officer’s assessment of probable cause to arrest for a DUI. Jones v. Comm., 279 Va. 52, 660 S.E.2d 343 (2008). Basically, if the driver does not consent to doing the field sobriety tests, the officer must obtain other evidence and circumstances that the driver was in fact driving under the influence of alcohol but the refusal could, in fact, be used against the driver for probable cause of the arrest.

How come if I take the field sobriety tests and pass them with flying colors does the officer still give me a breathalyzer test?

The breathalyzer test when first stopped by the police officer, known as a preliminary breath test, is another way of obtaining circumstantial evidence to lead to enough probable cause to arrest the driver. The police officer may give a driver a breathalyzer test but it is inadmissible in Court to show the blood alcohol content of the driver. It may only be used to show that there was enough probable cause for the driver’s arrest.

If the breathalyzer test is inadmissible, then does a driver suspected of a DUI even have to take it?

Under 18.2-267 of the Virginia Code, a person “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 for an offense listed in subsection A” which includes operating a motor vehicle while under the influence of alcohol. A driver does not have to consent to a preliminary breath test. Further, if the driver refuses, then the evidence cannot be used against him that he or she refused to take one. In fact, under Section 18.2-267(E) of the Virginia Code, a police officer is supposed to advise the person of his rights that he is not required to take a preliminary breath test.

If a preliminary breath test is inadmissible then what test is admissible in Court?

Once a police officer has obtained enough probable cause that a driver has been driving under the influence, that driver can be lawfully arrested. The driver must submit to a breath and/or blood test to be sent off for chemical testing to determine the drug and alcohol content. This post-arrest test that will be conducted when the driver is in police custody. After the test is conducted, the arrested driver will be able to obtain a copy of the results for their own personal records.

Can I deny the breathalyzer test at the police station?

The simple answer to this is no in circumstances where the operation of the motor vehicle was on a “public highway” as defined by the Virginia Code. When a driver obtains their license through DMV and drives on a public highway, a driver is subjecting themselves to implied consent of a post-arrest breathalyzer test. Va. Code 46.2-100 defines highway to be the “entire width between the boundary lines of every way or place open to the use of the public for purposes of vehicular travel in the Commonwealth, including the streets and alleys…” If you are not stopped on a public highway, then you are not required to take the post-arrest breathalyzer test. Private roads include gas stations, parking lots, and gated communities. However, a road through an apartment complex is considered a highway for implied consent. Mitchell v. Comm. 26 Va. App. 27, 492 S.E.2d 839 (1997).

The only other way you can lawfully refuse the post-arrest breathalyzer test is if the driver can show that he or she was physically incapable to take the test and the driver let the arresting officer know that he or she was physically incapable of taking the test. If this is the case, however, then the police officer must offer a blood test instead. If a driver denies the breath or blood test at the police station once you are arrested, then you are subject to having your license revoked if this would be your first DUI on record. However, if it is your second or third DUI offense in 10 years, then the charge will be either a Class 2 or Class 1 misdemeanor.

What is the normal punishment if a driver is found guilty of driving under the influence of alcohol?

If a person is found by the judge to be guilty of driving a motor vehicle while under the influence of alcohol, the driver will be guilty of a Class 1 misdemeanor. A Class 1 misdemeanor carries a maximum punishment of twelve months in jail and a fine of $2,500. Often times, if it is the driver’s first offense, the court will suspend the year in jail and put the driver on probation. During this time, the driver will have his or her license suspended for a year and have an ignition interlock placed on the car for a minimum of six months. During the twelve months that a person has their license suspended, they can obtain a restricted license.

However, if a person is convicted of a DUI and has a blood alcohol content between 0.15 and .20, the driver must be confined in jail for a minimum of five days. If the blood alcohol level is more than .20, the driver must be confined in jail for a minimum period of ten days. Va. Code 18.2-270.

The Virginia Legislature and Judicial System do not handle driving under the influence of alcohol lightly. If a driver is charged with a DUI, it is extremely difficult to have the matter dismissed. The best and most obvious way to no get convicted of a DUI is to simply not drive after having too much to drink. The last thing anybody wants is to cause any type of harm to an innocent bystander because of a bad decision to get behind the wheel after a few hours of partying. This article only provides information for the repercussions of when it is a traffic stop DUI offense.