Can You Refuse a Breath Test in Virginia Without Losing Your License?

 Posted on December 20, 2025 in Criminal Defense

In Virginia, refusing a breath test during a DUI stop usually leads to an automatic driver’s license suspension. However, you will still have your day in court, and strong legal representation can help you challenge the charge more efficiently. If you are facing this issue, speaking with a Loudoun County, VA DUI defense lawyer can help you understand what the law requires and what legal options might be available to you.

Do I Have To Take a Breathalyzer During a DUI Stop in Virginia?

Virginia uses an implied consent law under Virginia Code § 18.2-268.2. This means that by driving on public roads, you agree to submit to chemical testing if you are lawfully arrested for driving under the influence. It applies only after an arrest, not during the initial traffic stop.

This distinction matters. Officers may first ask you to perform roadside field sobriety tests, such as walking in a straight line. Those tests are optional. The breath test covered by implied consent is the evidentiary breath test. It is usually given at the police station or in a mobile testing unit after an arrest.

What Happens if I Refuse the Breath Test for DUI in Virginia?

Under Virginia Code § 46.2-391.2, the officer will take your license at the time of refusal and issue a temporary permit. For a first refusal, the suspension lasts seven days. A second refusal within ten years leads to a sixty-day suspension. A third refusal results in a ninety-day suspension. These suspensions apply even if the DUI charge is later dismissed.

Will Refusing a Breath Test Help or Hurt My DUI Case?

Refusing a breath test does not always make a DUI case easier. While there may not be a breath alcohol reading, the refusal itself can still be discussed in court. Judges are allowed to know that a driver chose not to take the test. Prosecutors may suggest that the refusal was connected to uncertainty about the result, rather than treat it as a neutral choice.

Every DUI case is unique. Courts often look at many details, such as what the officer observed, any available video footage, and how the driving appeared. Choosing whether to take a breath test can carry important legal effects, so talk to your attorney about how it may affect your case.

Can an Attorney Help Me if I Refused a Breath Test in Virginia?

An attorney can take a careful look at what happened during the stop and arrest. Implied consent rules only apply after a lawful arrest, so that timing matters. If something about the arrest does not meet legal requirements, it may be possible to challenge the refusal penalties.

An attorney can also review whether the officer followed the proper steps. This includes checking if implied consent warnings were given clearly and at the correct time. Small details in this process can make a difference in how refusal evidence is treated.

Because refusal cases move quickly, early help is important. An attorney can help you understand your options and explore whether limited driving privileges may be available.

Contact a Fairfax County, VA DUI Defense Attorney Today

Attorney Kaveh Noorishad is client-focused and results-driven, with a reputation for making the impossible possible. He takes on a limited number of cases, including high-profile matters, and brings more than 16 years of experience to every case. Call Noorishad Law, P.C. today at 703-542-4500 to schedule a consultation and discuss your unique circumstances with our Loudoun County, VA DUI defense lawyer. The phones are open 24/7.