breathalyzerUPDATED June 23, 2016 
Today the U.S. Supreme Court released its opinion on the case of Birchfield v North Dakota which questioned whether a state could criminalize a person’s decision to refuse to submit to a blood test when suspected of driving under the influence of alcohol. This ruling has an immediate impact on Virginia and nullifies part of the Code of Virginia § 18.2-268.3.
Virginia is one of only 12 states that criminalize a person’s refusal to submit to a breathalyzer or blood test. In its ruling today, the Supreme Court reaffirmed a state’s ability to impose sanctions on someone who refuses a test under the legal doctrine of “implied consent.” Since driving is deemed to be a privilege, not a right, all drivers in Virginia give “consent” to having their breath tested at any time, according to state law. The Supreme Court today said the penalty for refusing a blood test, though, cannot carry criminal consequences. The court noted. “It is one thing to approve implied-consent laws that impose civil penalties … but quite another for a state to insist upon an intrusive blood test and then to impose criminal penalties on refusal to submit.”
Virginia drivers will no longer have to face criminal charges for refusing to submit to an intrusive blood test. However, the ruling leaves in place criminal penalties for refusing a breathalyzer test. The Supreme Court distinguished the breath test as not as intrusive as drawing blood and the interest of the state keeping drunk drivers off the road outweighed an individual’s Fourth Amendment protections against unreasonable searches and seizures.
Original Post By Rob Poggenklass Tony Dunn Legal Fellow
When police pull you over and suspect you’ve been drinking and driving, an investigation is already underway. In that situation, it’s important to know what you can and cannot do, and the rules may be about to change.
In Virginia, there is no penalty for refusing to do field sobriety tests, such as counting backwards, reciting the alphabet, walking in a straight line and counting while touching each finger to your thumb.
You can refuse to do any of these tests and others. The police may still suspect you of driving under the influence, but they won’t have gained any evidence to use against you at trial.
When it comes to refusing a breath or blood test of your blood-alcohol content, the law is quite different. In all 50 states, if you refuse such a test, your driver’s license will almost certainly be suspended, likely for a year. Plus, in Virginia and 12 other states, you could end up in jail – whether you were driving under the influence or not.
Since a case in 1966, the law has been clear that blood alcohol tests do not violate the Fifth Amendment’s protection against self-incrimination. In a case decided that year, the U.S. Supreme Court found that drawing a man’s blood did not amount to forcing him to give evidence against himself.
More recently, however, defendants have raised questions about whether blood and breath tests violate another important constitutional protection: the Fourth Amendment right against warrantless searches of the person. Should someone go to jail for refusing to allow police to investigate the contents of his or her own body?
The U.S. Supreme Court agreed earlier this week to decide whether states can jail someone for refusing a blood or breath test if the person is suspected of driving under the influence and police do not have a warrant.
The Court accepted three cases for review – two from North Dakota and one from Minnesota – in which the defendants were convicted of the crime of refusal. Like North Dakota and Minnesota, Virginia makes it a crime to refuse such a test, though in the Commonwealth refusal is only a crime on the second or third offense.
In all three cases, the defendants argue the laws that criminalize refusal violate the Fourth Amendment’s protection against warrantless searches.
In their petition to the Court, lawyers for the defendants in Minnesota and North Dakota argue that “government may not criminalize a person’s refusal to submit to an unconstitutional search – that is, a search unsupported by a warrant or a valid exception to the Fourth Amendment’s warrant requirement.”
The crime of refusal relies on a doctrine called “implied consent.” All 50 states have enacted laws that require any person who drives a vehicle on public roads to consent to a blood alcohol test if the person is suspected of driving under the influence. When a person is stopped and questioned on suspicion of driving under the influence and refuses to provide a blood or breath test, that person has revoked the implied consent. In 13 states, including Virginia, refusal can result in jail time.
Like North Dakota and Minnesota, Virginia criminalizes refusal. But Virginia’s law is a bit different than Minnesota’s or North Dakota’s, because Virginia does not criminalize first-offense refusal.
A first offense carries only a civil penalty: a 12-month suspension of the person’s driver’s license, with no restricted license allowed. Second-offense refusal, however, is a Class 2 misdemeanor that carries up to six months in jail and a $1,000 fine. Third-offense refusal is a Class 1 misdemeanor, punishable by up to 12 months in jail and $2,500 fine.
Strangely, under Virginia law, a person who has never been convicted of refusal but who has been previously convicted of driving under the influence can be prosecuted for second-offense refusal.
Refusals are commonly used in driving under the influence prosecutions in the Commonwealth, often as bargaining chips, sometimes as additional punishment. As many people have discovered, driving under the influence carries significant criminal penalties, as well as a 12-month driver’s license suspension. But even when a person is convicted of driving under the influence, courts often grant a restricted license, so that the person can still drive to and from work and doctor appointments.
Courts cannot, however, grant a restricted license to a person found guilty of a refusal. There’s even a law that encourages defendants to plead guilty to driving under the influence by allowing a court to dismiss the refusal charge after the person pleads guilty to driving under the influence.
The Supreme Court will likely hear arguments on the refusal cases in April 2016, and render a decision by the end of June. If the Court invalidates the crime of refusal under the Fourth Amendment, as the defendants in all three cases have requested, the decision would have a significant and immediate impact in Virginia.