Jon Katz, P.C.

Virginia DWI defense law – Defending against a test refusal charge

If a Virginia DWI arrestee gets convicted for refusing a breath or blood alcohol test, s/he loses his or her driving privileges for one  year for a first offense with no restricted driving. The stakes increase when a refusal conviction is preceded by a prior refusal or DWI conviction within ten years before the incident date. Then, a refusal conviction can become a criminal offense rather than a civil offense. For such a criminal refusal conviction, the license suspension becomes three years with no restricted driving, and carries up to six months in jail where one such predicate refusal or DWI conviction exists.

Refusing the breath or blood alcohol test makes the prosecutor’s DWI case harder to prove, so long as the test results would not have been favorable to the defendant.

Some DWI arrestees agree to a breath alcohol test, but are unable to produce the required two sufficient breath samples on the Intox EC/IR II (“breathalyzer”) machine, and then get charged with refusal to take the test, rather than getting offered to submit to a blood test instead. Despite claims by police and breath technicians that suspects are “playing games” not trying to blow sufficiently into the machine, the breathalyzer requires more breath volume than does the handheld preliminary breath test (“PBT”) machine used by police on the street.  Consequently, it is false to claim that a suspect’s ability to blow sufficiently into the PBT machine translates into the ability to blow sufficiently into the breathalyzier machine. Plenty of people cannot blow sufficiently into the Intox EC/IR II machine at the jail or police station to provide a sufficient sample, whether the reason be a lung/breathing issue, nervousness, or other health issue.

The breathalyzer is supposed to test deep lung air and not mouth alcohol, and the guidelines for Virginia breathalyzer tests require a minimum twenty minute waiting period after before the test begins, to reduce the presence of mouth alcohol from such sources as food, liquid, belching or vomiting/vomit burping. Unfortunately, I have at least one breathalyzer operator/police officer admit to me that he warned my client that if he burped again, that would result in a refusal charge. By making that threat of a refusal charge, the suspect is intimidated not to admit to any further burping, thus making the inaccurate breathalyzer testing approach all the more inaccurate. Rather than charging burping as a refusal, the suspect should simply be offered a blood test.

Those who know they suffer from acid reflux/GERD — who can unknowingly have contents from their esophagus enter their mouth, leading mouth alcohol to be checked by the breathalyzer machine — can be particularly wary of submitting to a breathalyzer test, which is not going to be reliable if checking for mouth alcohol. Blood alcohol testing should be made more readily available to DWI arrestees who seek that option because of acid reflux, are not able to provide sufficient air volume in the breathalyzer machine, or who continue burping beyond their control.

Sometimes when a DWI arrestee refuses the breath test, the police seek and obtain a search warrant to obtain the suspect’s blood sample, which then can lead to a DWI charge and refusal charge even though blood is ultimately obtained anyway.

Trials for breath and blood alcohol testing are tried pursuant to criminal procedures, which means that the prosecutor has the burden to prove beyond a reasonable doubt that the defendant unreasonably refused to submit to a breath or blood alcohol test.

Repeating, the prosecutor has the burden to prove beyond a reasonable doubt that the defendant unreasonably refused to submit to a breath or blood alcohol test; the defendant does not need to prove s/he reasonably refused (although having a good reason to refuse can help the defendant). The elements of such refusal are “unreasonably refusing to submit to a blood and/or breath test after being arrested for driving under the influence of alcohol or drugs.” D’Amico v. Virginia287 Va. 284, 289, 754 S.E.2d 291 (2014). The criminal defense lawyer will want also to preserve the argument that the arrest was invalid as being without probable cause to believe that the defendant was under the influence of alcohol or drugs. 


The reasonable doubt in a refusal case can include:

– Did the defendant actually refuse? Or else, was the suspect trying to understand the situation and have the time to decide whether to agree to take the breath or blood alcohol test?

– Did the defendant understand that s/he was being asked or instructed to submit to a breath or blood alcohol test? Were there language barriers, particularly ones that the police officer easily could have addressed? Was the police officer speaking clearly? Was the defendant too tired to hear what was being said or otherwise unable to hear clearly (for instance if the test were addressed while the suspect was on a busy and loud highway)? Was the police officer shouting at the defendant, thus making the defendant suffer confusion, upset and information overload, unable to process what was being asked or instructed of the defendant?

– Was the defendant too tired to submit to a breath alcohol test and to even follow the directions to take the test? Was the defendant simply so tired that s/he was focused on sleeping?

– Did the defendant first say no to a breath or blood alcohol test, but then soon after say s/he would submit to such a test? How is that unreasonable refusal if the defendant changed his or her mind in a short time span?

Judges likely will be more ready to convict for refusal than juries. Therefore, if a defendant appeals a General District Court refusal conviction, the defendant will want to carefully consider seeking a jury trial rather than a bench trial for the retrial on appeal for refusal. Beware seeking a jury trial, though, when the defendant risks a criminal rather than civil refusal conviction, because after convicting a defendant, the Virginia jury recommends the sentence (recommmending the active jail time (if any) and active fine), which recommnendation can at least sometimes be harsher than what a judge would have imposed at a bench trial. The trial judge is free to suspend and/or reduce some of the jury’s recommended sentence, but has no obligation to do so.

In some instances, the defendant is appealing both a refusal conviction and a DWI conviction. In that casee, the defendant needs to talk with his or her lawyer about the possibility of getting the DWI and refusal counts tried in a bifurcated manner, whereby the trial judge at a bench trial will not know the refusal case evidence, and whereby the defendant ideally will have a different jury for each count in the event that the appeal is by way of jury trial.