DUIs remain some of the most common criminal charges in Virginia. According to data provided by the Virginia Department of Motor Vehicles (DMV), prosecutors obtain around 20,000 DUI convictions in the state each year. If you are pulled over on suspicion of intoxicated driving, it is crucial that you have a basic understanding of your rights and responsibilities. Here, our Chesapeake, VA DUI defense lawyers explain the most important things Virginia drivers need to know about their responsibilities when it comes to field sobriety tests.
Field Sobriety Tests are Not Mandatory in Virginia
If you are pulled over on suspicion of drunk driving in Virginia, you may be asked to submit to one of three field sobriety tests (FSTs), which include:
- The walk-and-turn,
- One-leg-stand test, and
- Horizontal gaze nystagmus (HGN) test.
However, under Virginia law, you have no obligation to take a field sobriety test. In addition, your decision not to take one of these tests cannot be used against you in a DUI case or any other criminal proceeding. You are fully within your rights to decline to take any FST. Notably, there is strong evidence that field sobriety testing is not always accurate. Indeed, a study published in the Journal of Forensic Sciences found the field sobriety tests are subject to high error rates — especially when the test-taker has a blood alcohol concentration (BAC) below 0.15.
Breathalyzer and Blood Tests May Be Required
While drivers may not be required to submit to field sobriety tests, they are sometimes required to submit to breathalyzer tests and blood tests. Virginia has an implied consent law (Va. Code § 18.2-268.2). However, the implied consent law only applies to post-arrest testing. In other words, if you have been arrested for drunk driving, you are required to blow into a breathalyzer. The failure to do so can lead to additional criminal charges.
To be clear, before an arrest has been made, you have the right to refuse to take a breath test, a blood test, or a chemical test. A pre-arrest test is often referred to as ‘preliminary testing’. Similar to a field sobriety test, there is no obligation to submit to a preliminary breathalyzer test in Virginia. You have the right to decline to take any such test, until you have been lawfully arrested. While law enforcement officers should make these rights clear to you, unfortunately, they will not always do so.
Were You Charged With Drunk Driving in Hampton Roads, Virginia?
We are available to help. At Shannon & Associates, P.C., our Virginia criminal defense lawyers have deep experience handling all types of DUI cases. If you were arrested and charged with intoxicated driving, it is essential that you take quick action to protect your rights. For a fully private criminal defense consultation, please contact our legal team today. From our law offices in Chesapeake and Suffolk, we handle criminal law cases throughout Hampton Roads.