The DUI Breath Test You Must Refuse
Will you lose your driver’s license for failing to take the breath test? No and yes.
I’m Northern Virginia criminal defense attorney, Scott Nolan, and I’m here to talk to you about the two breath tests.
Do I have to take the breathalyzer test?
The single most common comment I get that I have to respond to four or five times every day is, “Hey, if we follow your advice and we don’t take the breathalyzer test, we’re definitely going to lose our license, right?” No.
Look, there are two different breath devices. The breathalyzer is a small handheld device about the size of a wallet that the police use at the roadside. They carry it in their police cars. They give it to you to breathe into. It’s the one you’re used to seeing on television and in movies.
Refusing that is not a violation of the law. Breathing into it is not mandatory. You are protected by your First Amendment right to remain silent, that is, you don’t have to provide the police with any evidence. So you don’t have to blow into that device. It’s in the law.
The theory is that it’s actually for your benefit, but that’s, of course, extremely stupid. There’s no benefit to you from ever blowing in that device. Police will try and get you to do it. They’ll say, “Well, if you were sober, why wouldn’t you blow into it?” and on and on. Don’t blow into that dopey device.
What happens after you’re arrested?
Now, after you’re arrested, the police will take you back to the station, and they will present you with a different device. In Virginia, this is called the EC/IR II, at least at the this time. This machine is much more complex and bigger. It’s not handheld. It sits on a desk.
And you’re going to be required by law to blow into that. Virginia law says that you have already consented to blow into that device simply by driving on the highways of the Commonwealth. Failing to blow into this device, sometimes called the evidentiary breath test, is a violation, but it’s not a criminal violation. It is a civil violation, unless you’ve previously been convicted of refusal.
The thing to remember
The thing to remember is this: If you are not under arrest, don’t blow. If you are under arrest, go ahead and blow. Believe me, police have no problem telling you when you are required by law to do something.
The question to ask
If you’re not sure which one you should blow into, the question is, “Am I required by law to blow into this?” And if the police say something like, “I want you to blow into this,” then the answer is, “No,” because they’re never going to flat-out tell you “No, you don’t have to.”
If you don’t want to blow into the evidentiary test device back at the station, believe me, the first thing they’re going to do is tell you if you don’t, you’re going to be charged with a separate crime. The second thing they’re going to do is charge you with that second crime. So, it’s easy to remember, if you aren’t under arrest, don’t blow.