Why was my Virginia license taken after my DUI arrest?
Drivers who are arrested for DUI or drunk driving are sometimes surprised that their license is immediately confiscated by the police officer after a DUI arrest. What many drivers do not realize is that most states have instituted implied consent laws which state that drivers have given their “implied consent” to submit to a chemical test (blood, urine or breath test) after they have been arrested for DUI or if a law enforcement officer requests them to do so.
If the officer asks the driver to submit to the test and they refuse, the officers are supposed to notify the driver of the penalties for refusal. If the driver continues to refuse they will have their license automatically suspended for up to one year for a first offense refusal, three years for a second refusal (assuming the prior refusal was within 10 years) and another three years for a third BAC test refusal.
Drivers will also face an administrative license suspension if they submit to the blood alcohol concentration test but their BAC is above the legal limit of 0.08% or higher.
The chemical test request after the DUI request should not be confused with the preliminary breathalyzer test which may be requested prior to your DUI arrest to establish probable cause for the arrest. You have the right to refuse this test and the state will not be allowed to use the refusal against you in court, but if the officer believes that you are intoxicated more than likely you will be arrested for DUI, even if you refuse the breathalyzer test, and then asked to submit to the chemical test. More information about Virginia’s implied consent law can be found in the Virginia Code Annotated 18.2-268.2.
Should I refuse a BAC chemical test?
Implied consent laws have gained popularity in the states as drivers started to refuse blood alcohol tests. Now, in many states the refusal of the BAC test may lead to a license suspension penalty which is more severe than a suspension from a DUI conviction.
Another issue many drivers do not consider is that the administrative license suspension will be enforced regardless of whether they are ultimately found guilty of the DUI or not. If the driver is convicted of drunk driving their license suspension from the DUI conviction may be added to the administrative license suspension or in some states it may run concurrently.
After the Virginia DUI arrest
After the DUI arrest the arresting officer will send the magistrate a sworn report of the arrest that shall include information to identify the driver, how the driver violated the law or information about the BAC test refusal.
According to Virginia state laws, drivers have a right to request a hearing to challenge the suspension in the general district court. If the person proves to the court “by a preponderance of the evidence that the arresting officer did not have probable cause for the arrest, that the magistrate did not have probable cause to issue the warrant, or that there was not probable cause for issuance of the petition, the court shall rescind the suspension, or that portion of it that exceeds seven days if there was not probable cause to charge a second offense or 60 days if there was not probable cause to charge a third or subsequent offense.
If the court finds in favor of the driver their license is returned to them and the suspension is rescinded. If the court finds against the driver their license suspension will continue.
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