Refused a Breathalyzer in Virginia? What It Means for Your License
Virginia DUI Laws: Roadside PBT vs. Station Breathalyzer Tests
You may have heard lawyers, friends, or even our team at Battlefield Law Group say, “Don’t take the breath test.” In many situations, that advice refers to the Preliminary Breath Test (PBT), the small handheld device officers use during a traffic stop to help decide whether to make an arrest. The PBT is not always properly calibrated and is generally not admissible in court.
What many drivers don’t realize is that Virginia uses two different breath tests, and they carry very different legal consequences. Refusing the roadside PBT typically does not create a separate penalty, while refusing the official test after arrest can lead to a separate Refusal charge and a license suspension that may prevent you from driving for an entire year.
The Statutes Behind the Two Tests
Under Virginia law, this distinction is written directly into the statutes. The roadside PBT is governed by Virginia Code § 18.2-267, which makes the test voluntary. The official breath test after arrest falls under the state’s implied consent law, § 18.2-268.2, which requires drivers to submit to testing once they have been lawfully arrested.
| Feature | Roadside PBT | Station Breathalyzer |
|---|---|---|
| Location | On the side of the road. | At the Police Station or Jail. |
| Mandatory? | No. You can refuse without legal penalty. | Yes. Covered by Implied Consent. |
| Refusal Penalty | None (but likely leads to arrest). | 12-Month License Loss (No restricted license). |
Refusing the Roadside Tests Does Not Automatically Cause an Arrest
During consultations, people often say, “They arrested me because I refused the roadside tests.” It can feel that way, but legally, that’s usually not what’s happening.
In Virginia, officers do not need a breath test to make a DUI arrest. Tools like the Preliminary Breath Test (PBT) and field sobriety tests simply help an officer establish probable cause. Observations such as driving behavior, odor of alcohol, or statements during the stop can be enough on their own.
Because the PBT is not always regularly calibrated and roadside field tests can be subjective and physically challenging even for sober people, these tests are primarily investigative tools for the officer, not safeguards for the driver. The real legal consequences typically arise later, after an arrest, when the official station test is requested.
What Happens If You Refuse the Station Breath Test?
Once you have been lawfully arrested for DUI in Virginia, the law changes.
Under Virginia’s implied consent statute, Virginia Code § 18.2-268.2, drivers are required to submit to a breath or blood test after arrest. If you refuse that official test, you can be charged separately under Virginia Code § 18.2-268.3.
For a first refusal, the penalty is typically:
• 12-month license suspension
• No restricted license for work, school, or essential travel
• A separate court proceeding in addition to the DUI charge
That 12-month suspension is often referred to as a “hard” suspension because there is generally no option for restricted driving privileges.
This consequence is more disruptive than the DUI charge itself. Losing the ability to drive entirely can affect employment, family responsibilities, and daily life.
Is a Refusal Charge Automatic?
Not necessarily. For a refusal conviction to stand under Virginia Code § 18.2-268.3, the arrest itself must be lawful. The officer must have had probable cause to arrest you for DUI and must properly advise you of Virginia’s implied consent law before requesting the official breath or blood test.
In court, judges look closely at how that process unfolded. Was the arrest supported by sufficient evidence? Was the implied consent warning clearly given? Was the request for testing clear and understood?
A refusal case often turns on details that don’t feel significant at the time of the stop but become very important later. That is why these charges are rarely as simple as they first appear.
What Should You Do If You’ve Been Charged With DUI or Refusal?
If you’ve been charged with DUI or refusal in Prince William, Fairfax, Loudoun, Stafford, Culpeper, or surrounding Northern Virginia courts, speaking with an attorney early can make a difference. Refusal cases move quickly, and license consequences can begin before your first court date.
Our team takes a detail-driven approach to DUI and refusal cases. We look carefully at how the stop was handled, what the officer observed, how testing was conducted, and whether breath or blood results were properly obtained and analyzed. These cases are technical, and the smallest detail can matter. We do not treat DUI defense as a template process. We treat it as an individual case that deserves focused attention.
