Should I Take a Blood Test or a Breathalyzer Test if I am Asked in the state of Virginia?
To take a Breathalyzer or not - this can be a difficult decision.
The law of implied consent and blood alcohol content (BAC) testing varies from state to state. Generally, as a precondition to obtaining a driver's license, a driver has to consent in advance to submitting to a either a blood, Breathalyzer, or urine test when requested to do so by an officer. Of course, the penalty for refusal is often far less than that of a drunken driving conviction, so in some cases, refusal is technically a better choice. However, there are many factors to consider when making such a determination.
Amount of Alcohol Consumed
A person's BAC will vary based on many factors, but primarily on the amount of alcohol consumed, the person's gender, body type, and the time passed since the alcohol was consumed. If you are fairly certain that you are sober, the best decision might be to submit to a test in order to end the ordeal quickly. Conversely, if you are certain that you are highly intoxicated and above the legal limit (usually 0.08, which is on average, four to five drinks), your best bet might be to refuse and accept the punishment for refusal, which is typically an automatic license suspension.
Forced Blood Draws?
In some states and in limited circumstances, the decision to submit to testing is taken out of drivers' hands with the practice of forced blood draws by police. In extreme cases, officers can actually hold you down and draw your blood by force. Though this rarely happens, when it does, it usually happens after the driver was involved in a serious accident and subsequently refuses to submit to a BAC test. Whether or not forced blood draws are an option depends on your particular state; but the U.S. Supreme Court ruled in 2013 that a warrant is required.
The constitutionality of forced blood draws was briefly addressed by the Supreme Court in 1966, where the court ruled the process constitutional under certain exigent circumstances. However, laws with regard to forced blood draws are controversial and in a state of flux within the courts. The bottom line for the moment is that blood draws are rarely done, and almost never done unless the suspected driver was involved in an accident and a judge issues a warrant.
The decision on whether or not to submit to a BAC test does not happen in a vacuum. You must also consider any other evidence against you, such as failed field sobriety tests or poor driving. If the officer already has other evidence, and if your state allows authorities to use your refusal as further evidence of guilt (many do), the penalty for refusal could be tacked on to the penalty for the DUI, resulting in double penalties. On the other hand, if you were simply pulled over, the officer smelled booze, and then asked you to take a BAC test, a refusal alone may not be enough to convict.
The bottom line is, there are only a few circumstances in which a refusal is a better idea than taking a BAC test required by law. Your task will be to weigh your estimated blood alcohol content, local laws, and the evidence against you, in determining whether to refuse a BAC test. Of course, if you are under the influence at the time, that will only make the decision-making process more difficult (unless they let you call a lawyer). This all leads to the best course of action, not drinking anything at all before driving.
Should You Take a Blood or Breathalyzer Test? Talk to an Attorney
Whether you chose a breath or blood test, it's important to understand the repercussions of a DUI conviction in your state. While your driver's license may be suspended if you refuse, there may be some good reasons to decline such a test. Learn more by speaking with an experienced DUI attorney in your area who can discuss the strengths and weaknesses of your case and your best legal options moving forward.
For more questions or for a free consultation in the Northern Virginia area with an experienced DUI defense attorney, contact The Smith Firm PLLC @ 703-600-9246.