Getting stopped for a DUI can be a frightening experience for many. It can be hard to know which decisions to make and what actions could damage your case further down the line.
Virginia police officers may use various types of testing for two separate purposes: establishing probable cause and building the case for the prosecution. As for other types of crimes, officers can arrest you for DUI if they have "probable cause" to believe you were driving drunk.
Implied consent applies after arrest, not before
Similar to many other states, Virginia's implied consent law states that driving on Virginia's roads means you consent to chemical testing after arrest. Thus, refusing chemical blood alcohol content (BAC) testing after you are arrested can result in additional charges (if this is not your first refusal) and legal penalties, and you will receive a license suspension right away. After the arrest, an officer should advise you of the above and also let you know that your refusal can count against you in court.
The law does not obligate you to take chemical tests before your arrest, nor does it mandate you to take the field sobriety test. Refusal before arrest should also not count against you in a DUI prosecution.
Why field test results may suffer from inaccuracy
Portable breathalyzers officers use in the field may not always deliver accurate results. In addition to operator error and improper calibration, false positives can result from mouth alcohol, the presence of acetone in the environment and certain medical conditions that generate a high amount of ketones. The standardized field sobriety test can also err, especially for people who suffer from conditions affecting their balance or from foot, knee and hip injuries. If the stop resulted from a car crash, the driver may feel shaky or suffer from an injury.
While officers should ideally ask you about impairment that could affect the test, not all will do so. Drivers do not always feel free to speak up and mention any conditions, as many feel shaken and intimidated around authority.
Refusing testing does not make the case go away
Refusing testing does not mean the officer will lack probable cause for arrest or that you will not face conviction. Other acceptable evidence that could accomplish the same goals may include witness testimony, officer testimony, driving behavior and your own statements. The best way to protect your rights is to consult a qualified defense attorney as soon as you can.