Last reviewed October 15, 2026 by Kimberly Stover, The Law Office of Kimberly Stover, PLLC
Yes, you can refuse, but only one of Virginia’s two breath tests is voluntary. The small handheld test an officer offers at the roadside is voluntary, and your refusal cannot be used against you as evidence at trial (Va. Code § 18.2-267). The breath test at the station after a DUI arrest is different: under Virginia’s implied consent law (Va. Code § 18.2-268.2), refusing it is a separate offense that costs a first-time refuser a one-year license suspension and a repeat refuser a Class 1 misdemeanor and a three-year loss of driving privileges (Va. Code § 18.2-268.3).
Here is what each test is, what refusal triggers, and how a refusal charge plays out in Northern Virginia courts.
Is the roadside breath test in Virginia optional?
Yes. The preliminary breath test (PBT), the handheld device used before any arrest, is voluntary under Va. Code § 18.2-267. The statute says:
- You may refuse the preliminary breath test, and your refusal cannot be used against you as evidence at trial.
- Even if you take it, the result is not admissible as evidence of guilt at a DUI trial.
- The officer must tell you about these rights. If the officer does not, the Commonwealth cannot use the breath sample to show probable cause when the defense moves to suppress evidence.
Officers use the PBT mainly to decide whether to arrest. Declining it does not stop an arrest if the officer has other reasons, such as driving behavior or field sobriety tests.
What is Virginia’s implied consent law?
Under Va. Code § 18.2-268.2, anyone who drives on a Virginia highway is treated as having agreed to a breath and/or blood test if they are arrested for DUI (§ 18.2-266), underage drinking and driving (§ 18.2-266.1) or a related offense under § 18.2-272(B) within three hours of the alleged offense. For an alcohol DUI arrest, the test is normally a breath test at the station or jail. A blood test is used if the breath equipment is unavailable or the person is physically unable to give a breath sample.
You have the right to watch the breath analysis, see the reading on the machine, and receive a copy of any printout (Va. Code § 18.2-268.2(B)).
What happens if you refuse the breath test after a DUI arrest?
The officer must read you a refusal advisement form approved by the Supreme Court of Virginia. It explains that you are deemed to have consented and what refusing costs (Va. Code § 18.2-268.3(C)). If you still refuse, the officer goes before a magistrate and swears that you refused and that the form was read to you. That sworn statement is the basis for a refusal warrant or summons (Va. Code § 18.2-268.3(D)).
At that point you can face two separate cases: the DUI charge and the refusal charge.
What are the penalties for refusing a breath test in Virginia?
The penalty depends on whether you have a prior refusal or DUI within the last 10 years. Under Va. Code § 18.2-268.3:
| Situation | Type of offense | License consequence |
|---|---|---|
| First breath-test refusal | Civil offense (not a crime) | Driving privileges suspended for 1 year |
| Breath-test refusal within 10 years of a prior refusal, a DUI under § 18.2-266, or another offense listed in § 18.2-270(E) | Class 1 misdemeanor: up to 12 months in jail and a fine of up to $2,500 (Va. Code § 18.2-11) | Driving privileges revoked for 3 years |
| First blood-test refusal | Civil offense | 1-year suspension |
| Repeat blood-test refusal within 10 years | Civil offense | 3-year loss of driving privileges |
These suspensions are in addition to any license loss from a DUI conviction. A person convicted of both DUI and refusal can face back-to-back suspensions.
Is your license suspended right away after a refusal?
Yes. Under Va. Code § 46.2-391.2, a refusal triggers the same immediate administrative suspension as a breath result of 0.08% or higher:
- 7 days if you are charged with a first offense;
- 60 days (or until trial, if sooner, but never less than 7 days) if you are charged with a second offense;
- until the day of trial if you are charged with a third or subsequent offense.
This happens before any court date. We explain it in more detail in Understanding the 7-Day Administrative License Suspension in Virginia.
Can you get a restricted license after a first refusal?
Yes, for a first offense. Under Va. Code § 18.2-268.3(F), a person found guilty of a first refusal may ask the court for a restricted license for the remaining suspension. The court may grant it for good cause, and it comes with conditions:
- an ignition interlock on every vehicle the person owns or has registered, for at least six consecutive months without alcohol-related violations;
- completion of an Alcohol Safety Action Program (ASAP), with a fee of $250 to $300.
A person charged with refusal may also enroll in ASAP and install an ignition interlock before trial. Interlock time accrued before trial counts toward a later court-ordered interlock or restricted license period (Va. Code § 18.2-268.3(E)). Our post on ignition interlock devices in Virginia covers how the device works.
Can a refusal be used against you at your DUI trial?
Only in a limited way. Va. Code § 18.2-268.10(B) says a refusal to give a breath or blood sample is not evidence, and the prosecutor may not comment on it, except in rebuttal. Under § 18.2-268.10(C), a finding that you unreasonably refused may be admitted only to explain why there is no test result, not as evidence of guilt.
Refusing also does not end the DUI case. For most DUI charges, the judge or jury decides guilt from all the evidence of your condition at the time, such as driving behavior, field sobriety tests, statements and video (Va. Code § 18.2-268.10(D)).
Where are DUI and refusal cases heard in Northern Virginia?
A DUI or refusal charge against an adult is heard in the General District Court for the city or county where the arrest happened:
- Alexandria: Alexandria General District Court, 520 King Street, Alexandria
- Arlington: Arlington County General District Court, 1425 North Courthouse Road, Arlington
- Fairfax County: Fairfax County General District Court, 4110 Chain Bridge Road, Fairfax
- Loudoun: Loudoun County General District Court, 2 Church Street NE, Leesburg
- Prince William: Prince William County General District Court, 9311 Lee Avenue, Manassas
An appeal, or a DUI charged as a felony, goes to the Circuit Court for the same locality.
Frequently asked questions
A first refusal is a civil offense, not a crime. A breath-test refusal within 10 years of a prior refusal or DUI conviction is a Class 1 misdemeanor (Va. Code § 18.2-268.3(A)).
One year for a first refusal and three years for a repeat refusal within 10 years, plus the immediate 7-day, 60-day or until-trial administrative suspension under Va. Code § 46.2-391.2.
Yes. The preliminary breath test is voluntary, and your refusal cannot be used against you as evidence at trial (Va. Code § 18.2-267).
Yes. Under this circumstance, the police are likely to obtain a search warrant for your blood.
About the author
Kimberly Stover is the founding attorney of The Law Office of Kimberly Stover, PLLC. A former public defender, she has more than 15 years of Virginia criminal defense experience and serves on the boards of the Virginia Association of Criminal Defense Lawyers (VACDL) and Justice Forward Virginia. She is a graduate of Georgetown University Law Center. Offices: 211 North Union Street, Suite 100, Alexandria, VA 22314, and 8280 Willow Oaks Corporate Drive, Suite 600, Fairfax, VA 22031. Full attorney profile · (571) 554-5977
Charged with DUI and refusal in Northern Virginia?
The Law Office of Kimberly Stover, PLLC defends DUI and refusal charges in Alexandria, Arlington, Fairfax, Loudoun and Prince William. See our county DUI pages for Fairfax, Arlington, Loudoun, Prince William and Alexandria, and our guide to DUI checkpoints and your rights.
Call (571) 554-5977 to talk with us about your case.
This post is general information about Virginia law, not legal advice.
