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Unreasonable DUI alcohol test refusal – Ideas from Fairfax Criminal Lawyer

Virginia criminal lawyer for Fairfax County, Arlington, Loudoun, Prince William & Beyond

Aug 26, 2019 Unreasonable DUI alcohol test refusal – Ideas from Fairfax Criminal Lawyer

Unreasonable DUI alcohol test refusal - Ideas from Fairfax Criminal Lawyer - Image of breathalyzer word cloud

Unreasonable DUI alcohol test refusal – Ideas from Fairfax Criminal Lawyer

Unreasonable refusal prosecutions in Virginia DUI cases – Fairfax Criminal Lawyer addresses defense strategy

Unreasonable refusal convictions for declining to be breath or blood tested for blood alcohol content, amount to a civil offense for a first charge and a criminal conviction for a subsequent offense (after a prior conviction for DWI or refusal). As a Fairfax criminal lawyer, I know that a refusal conviction suspends one’s Virginia driving privileges for one year for the first offense and three years for a subsequent offense, with no restricted driving privileges available.

Fairfax criminal lawyer on the jury trial appeal option if convicted for alcohol testing refusal

If a Virginia DUI defendant gets convicted of civil refusal only, a jury trial may well be the ideal approach for pursuing an acquittal on appeal. Nonetheless, a qualified lawyer’s advice is important for making any decision concerning whether and how best to proceed with the appellate option.

Refusal cannot be use as evidence of DUI guilt

Unreasonable refusal “is not evidence and shall not be subject to comment by the Commonwealth at the trial of the case, except in rebuttal or pursuant to [Va. Code § 18.2-268.10(C)]; nor shall the fact that a blood or breath test had been offered the accused be evidence or the subject of comment by the Commonwealth, except in rebuttal or pursuant to [Va. Code § 18.2-268.10(C)].” Va. Code § 18.2-268.10(B).

The foregoing subsection C says: “vidence of a finding against the defendant under § 18.2-268.3 for his unreasonable refusal to permit a blood or breath sample to be taken to determine the alcohol or drug content of his blood shall be admissible into evidence, upon the motion of the Commonwealth or the defendant, for the sole purpose of explaining the absence at trial of a chemical test of such sample. When admitted pursuant to this subsection such evidence shall not be considered evidence of the accused’s guilt.” Va. Code § 18.2-268.10(C).

Fairfax criminal lawyer on the prosecutor’s burden to prove unreasonable refusal beyond a reasonable doubt

Virginia law applies criminal procedures to refusal trials, which includes the defendants’ remaining presumed innocent at all times unless the commonwealth proves guilt beyond a reasonable doubt. Granted, the Virginia Supreme Court has said “there must be some reasonable factual basis for the refusal, for example, endangerment of the health of the accused by the withdrawal of blood.” Also, the state supreme court has said “an unwillingness to take the test ‘without prior consultation with counsel’ does not constitute a reasonable refusal.” Nonetheless, I see nothing in the caselaw obligating the defendant to state the reason for the refusal. The prosecutor must prove beyond a reasonable doubt that the refusal was unreasonable.

Fairfax criminal lawyer Jonathan L. Katz pursues your best defense against felony, misdemeanor, DUI, drug and sex prosecutions. For a free in-person confidential consultation about your pending criminal court case, please call Jon Katz’s staff at 703-383-1100.

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