Most Virginians understand that a police officer can request them to take what is called a “field sobriety test” if they are stopped for a suspected violation of a traffic law. The consequences of refusing such a request can have a significant adverse impact on a person’s right to operate a motor vehicle in the state.
Understanding the legal basis for Virginia’s right to compel all motorists to comply with a request for a field sobriety test can be essential in defending a person’s right if the individual is faced with a request to take a breath test.
What is a field sobriety test?
Under Virginia law, all persons who operate a motor vehicle on the state’s highways are deemed to have consented to undergo a field test of their sobriety.
The test is usually conducted by having the defendant blow into a machine such as a Breathalyzer; the machine has a mechanism that measures the percentage of blood in the driver’s bloodstream (known as blood alcohol concentration or BAC).
Penalty for refusal
If the driver refused either the breath test or blood test, he or she can be compelled to attend a court hearing.
The magistrate judge in charge of the hearing has the power to determine whether the person had a BAC over the state limit of 0.08%. If the suspect was driving a commercial vehicle, a finding that the suspect had alcohol in their blood can justify an order by the magistrate prohibiting the defendant from operating a commercial vehicle for 24 hours.
What to do?
Lawyers have different answers to the question of whether it is a good idea to submit to a breath test. The different responses are generally driven by the attorney’s view of the reliability of the breath test.
Not all breath tests or all personnel operating the breath test device are equally reliable. A skillful trial lawyer can impeach the results of a breath test by cross-examination, thereby excluding the prosecutor’s most powerful evidence of intoxication.