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    John C. Whitbeck, Jr. practices in the following areas of law: Family Law, Divorce, Child Custody, Child Support, Visitation Rights, Adoptions, Spousal Support, Mediation, Arbitration, Relocation Cases, Domestic Violence, Criminal Law, DUI/DWI, Reckless Driving, All Felonies, All Misdemeanors, Juvenile Crimes, Mental Health Law, Civil and Business Litigation, Construction Litigation, Education Law, Election Law, Debt Collection, Consumer and Lemon Law.

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    Jennifer D. Cisneros practices in the following areas of law: Family law, Divorce, Child Custody, Child Support, Visitation Rights, Adoptions, Spousal Support, Relocation Cases, Domestic Violence, Juvenile Crimes, Reckless Driving, DUI/DWI, Estate Planning, Wills and Probate, Trusts, Civil and Business Litigation and Debt Collection.

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Supreme Court Hears Case That Could Affect Virginia DUI Laws

The U.S. Supreme Court recently heard oral arguments from a trio of plaintiffs challenging their state’s DUI laws that make it a criminal offense to refuse to submit to a breathalyzer during a DUI traffic stop. Over a dozen states, including Virginia, criminalize the offense and the court’s ruling could have an impact on how far police may go to collect evidence in these types of cases.

Justices hearing arguments from the state questioned solicitors why law enforcement could not take the time to request a warrant from a judge to compel suspects to submit to a BAC (blood alcohol concentration) test rather than threaten indictment. Thus far, constitutional challenges to the laws in Minnesota and North Dakota have been unsuccessful at state supreme courts; in each case the courts have upheld the laws.

In Minnesota, refusal to submit to a chemical BAC test carries a mandatory minimum sentence of three years in prison. In North Dakota, DUI suspects who refuse to submit to such tests may face the same penalties as a DUI.

Reports from the hearing suggest a majority of the High Court’s Justices were skeptical of allowing states to criminally prosecute suspects for invoking their Constitutional rights. Opinion on the court seemed to lean towards some kind of compromise between protecting a suspect’s Fifth Amendment right and a public duty to prosecute drunk driving arrests.

Penalties for refusing to take a breath test in Virginia

Under Virginia’s implied consent law, drivers must submit to chemical BAC testing if lawfully arrested by a peace officer on suspicion of DUI. During a stop, police may ask suspects to take a preliminary breathalyzer test, but suspects are not required to submit to it. Upon arrest, however, suspects may be compelled to submit to breath, urine, or blood testing and refusal of this post-arrest testing may carry criminal charges.

While not as severe as the penalties in Minnesota or North Dakota, Virginia does criminalize a driver’s refusal to submit to a chemical BAC test after arrest. However, there are some caveats to the law drivers should understand, as a first time refusal to submit to a BAC test will not result in criminal charges; only multiple DUI offenses or refusal to submit can result in criminal charges in Virginia.

  • First offense – Civil penalty only of one-year license suspension
  • Second offense – If arrest or refusal to submit occurs within 10 year of prior offense, suspect may be charged with a Class II misdemeanor
  • Third offense – If arrest or refusal to submit occurs within 10 years of prior offense, suspect may be charged with a Class I misdemeanor

In addition to possible criminal charges, suspects with multiple DUI arrests or refusals to submit to chemical testing may incur an additional three-year suspension of their license. DUI suspects may have their suspensions modified to allow for travel to work and medical appointments, but this is never guaranteed.

Leesburg DUI attorneys

If you are facing DUI charges for driving under the influence of alcohol or refusing to submit to a chemical BAC test, contact the Leesburg DUI attorneys of Whitbeck Cisneros McElroy PC for a consultation about your case. Our experienced team of DUI lawyers will stand up for your rights and help ensure your case is given a fair hearing.

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