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Rick Shapiro
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Refusing to Take DUI Breath Test Could Become Criminal

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A US Supreme Court decision last week stated that police officers do not need a warrant to administer a breath test to suspects under arrest for drunk driving. The decision also affirmed the right of the states to file criminal charges against drivers who decline a breath test. 

The Supreme Court took the opposing view on DUI-related blood testing; it wrote that officers must have a warrant to do blood alcohol testing and that citizens should not be criminally charged for not complying with the invasive procedure.


The 6-2 opinion, penned by Justice Samuel Alito, was written due to a case in North Dakota where several people charged with DUI claimed blood tests violated their 4th Amendment rights against unreasonable searches and seizures. The court affirmed that drawing blood without a court order was indeed invasive, but that taking a breath test was no more demanding than blowing up a balloon.

The US Supreme Court opinion could mean that more states will treat the refusal to take a breath test as a criminal offense. Currently, most states penalize refusal by taking away the suspect’s driver’s license. The Supreme Court stated that revocation could be too lenient a punishment. The opinion added that some drivers with especially high blood alcohol levels or several DUIs on their record could benefit from refusing to be tested.

The opinion states that drunk drivers take a serious toll on the roads of the US, and claim thousands of lives each year. By making it a crime to decline to a breath test, there will be a stronger incentive for people to cooperate with authorities.

Our View

The law in Virginia states that you must take a blood or breath test if you are arrested for drunk driving. If you refuse to take a blood or breath test, your license will be suspended for a year. However, the first refusal is not currently considered a crime; the second or subsequent refusal is a misdemeanor. That is a crime that could stay on your record.

We support any policy that makes life harder for drunk drivers; we grow weary of seeing lives lost and otherwise ruined due to the reckless actions of drunk drivers on our roads.

We hope that Virginia and other states will respond to this Supreme Court ruling by making the first refusal to submit to a breath test a criminal offense. In the mean time, we as attorneys who sue drunk drivers will continue to sue drunk drivers in civil court and make them pay heavily for their foolish decisions.