Roulette happens when breath testing refusal leads to search warrant drawn blood, says Fairfax criminal defense lawyer

Roulette may end up being the exercise when a Virginia DUI defendant declines post-arrest breath testing, because if a blood search warrant follows, that often is accompanied with a breath testing refusal charge, which, if convicted as a first offense, amounts to one year of suspended driving, needing to wait a month to apply for limited restricted driving privileges. Nonetheless as a Fairfax criminal defense lawyer, I know that in such a jurisdiction as Fairfax, sometimes no blood is drawn after a breathalyzer refusal, whether because the arresting police officer / law enforcement officer does not want to expend the energy on obtaining and executing a blood search warrant, or if no designated blood drawer is available at the time at the Fairfax jail. Some Virginia DWI (under Virginia Code § 18.2-266) arrestees are willing to take a chance that a blood draw will not follow breath testing refusal, if they even know of the risk of a blood draw in the event of refusing breathalyzing with the Intox EC/IR II machine.

Beware the roulette of incriminating yourself by saying you want blood testing to give time for your blood alcohol concentration (BAC) to dissipate

Beware the roulette of wagging your tongue to the police, including saying you prefer blood testing to give more time for your BAC to dissipate. Moreover,  beware whether blood testing is going to catch your BAC while alcohol is still absorbing into your blood stream, with the alcohol level therefore rising and not dissipating. Henry Whitaker wagged his tongue again and again to the police about why he preferred a blood test over a breathalyzer test in the Virginia DWI investigation against him. Whitaker v. Commonwealth of Virginia, Record No. 0996-25-1 (Va. App. 2026) (unpublished. He emphasized: “‘I’ll take the blood test because by the time the blood’s drawn then I’ll be below the legal limit.’” “‘So by the time we get to the hospital, everyone, the phlebotomist comes out, it’ll be like an hour or two and my BAC will drop low enough to where I’ll be in the legal limit, which is admissible in court.'” Whitaker. Whitaker got convicted of DWI anyway, and his complaint on appeal about the LEO giving him the option to choose blood testing met with deaf appellate ears, commenting: “But just because Whitaker’s calculus for taking the blood test was flawed does not mean that he was entitled to have the evidence suppressed.” Whitaker. 

Should I refuse breathalyzer testing in my Virginia police DWI investigation?

Virginia DUI law requires lawfully-arrested DWI defendants to submit to breath or blood (or both) BAC testing as directed by the LEO. The penalty for a refusal conviction when the defendant has no prior DWI nor refusal convictions is civil refusal liability and the one year loss of license as outlined above. Virginia Code § 18.2-268.3. A refusal conviction after a prior applicable DWI or refusal conviction is a Class 1 misdemeanor involving a three year loss of driving privileges, with no restricted driving. As a Fairfax criminal defense lawyer, I am barred from telling a person to violate this or any other law. At the same time, if a person does not need to drive for the relevant driving suspension period under Virginia’s refusal statute, the person may have less of a reason to submit to post arrest breath or blood testing. (As to defenses, the federal Supreme Court’s Birchfield v. North Dakota opinion (136 S.Ct. 2160 (2016)) bars a misdemeanor refusal conviction for a refusal to submit to a blood draw, versus refusing a post-arrest breath test.)  The roulette with refusing post arrest BAC testing includes how your criminal record will look as a result.

Who should I hire to defend me against a Virginia DUI prosecution?

A Virginia DUI prosecution is a major criminal charge and needs a full court press defense. Here are some essential questions to ask your potential Virginia DWI defense lawyer. Included in those questions are my answers. Hiring the right lawyer for your criminal defense reduces the aspect of going to court, and helps overcover your risk.

Fairfax criminal defense lawyer Jonathan Katz treats each client’s Virginia felony, misdemeanor and DUI roulette defense as if their life depends on it, which it does. Secure your free initial confidential in-person consultation with Jon Katz by contacting his staff (usually Jon can meet with you within a business day of your calling) at 703-383-1100, Info@KatzJustice.com and (text) 571-406-7268.