Jon Katz, P.C.

Fairfax DUI defense lawyer on the Virginia alcohol testing refusal law

Fairfax DUI defense lawyer on the Virginia alcohol testing refusal law

Fairfax DUI defense and Virginia alcohol testing refusal defense

Fairfax DUI defense and DWI defense throughout Virginia often also includes defense against charges of unreasonably refusing to submit to a breath or blood test for blood or breath alcohol content (BAC).

Virginia Supreme Court okays the alcohol test refusal law

This week, the Virginia Supreme Court unanimously rejected a challenge to the state’s refusal law, addressing the statute’s dual requirement to submit to breath or blood testing, and the vagueness or not of the meaning of “unreasonable” refusal to submit to such a test. Shin v. Virginia, ___ Va.  ___ (Dec. 28, 2017).

Birchfield does not disturb the Virginia State Supreme Court’s view of the Commonwealth’s refusal statute

Certainly, the United States Supreme Court’s Birchfield decision is great for barring a criminal conviction for refusing to submit to a blood test for BAC, but Birchfield permits states to criminalize refusal to submit to a breath test for BAC. Shin gets around Birchfield by pointing out that Virginia’s implied consent law (implying all drivers’ consent to submit to BAC testing upon being arrested for DUI) prefers breath testing over blood testing.

Virginia Supreme Court says the refusal statute is not void for vagueness

Shin also declines the defendant’s invitation to overrule prior Virginia Supreme Court precedent, in response to Shin’s facial Fifth Amendment Constitutional challenge for Virginia’s refusal statute’s failure to define “unreasonable” in “unreasonable refusal”.

Virginia DUI lawyer on defending refusal prosecutions

In reality, Shin does not seem to change how refusal cases can be defended in Virginia. My arguments include that the  Commonwealth has the burden to prove beyond a reasonable doubt that the defendant’s refusal was unreasonable, and that the defendant has no obligation to provide a reason for refusing, let alone a reasonable reason.

Virginia DUI defense often involves high stakes about the defendant’s liberty,  driving privileges, and security clearance and other collateral interests. Adding refusal defense adds to those stakes. Some defendants will plead guilty to DUI when the prosecutor offers to dismiss a refusal charge in the mix, because a refusal conviction means no driving at all during the resulting suspension period. Some defendants more interested in fighting a DUI conviction than a refusal conviction. Both charges call for a strong defense.

Fairfax, Virginia criminal lawyer Jon Katz has successfully defended a slew of Virginia DUI and refusal clients since 1991. To discuss your case with Jon, please schedule an appointment through his staff, at 703-383-1100.