Virginia Refusal Penalties vs. VA DUI or DWI

DWI and Refusal license suspension: may look similar but, oh no, it is not.

Many people are confused when it comes to refusal penalties vs. suspension for driving while intoxicated.

PBT (blowing on side of road) vs. Evidentiary Breath or Blood test (at station, after arrest)

Did you know that in Virginia, you could be arrested and charged with Driving While Intoxicated (DWI or DUI), as well as Refusal to submit to a breath sample at the station, and end up with a conviction for just the refusal charge? A first offense refusal conviction is not a criminal conviction, but it does carry with it a massive consequence.

This article by our Fairfax DUI attorney explains the circumstances surrounding this seemingly odd outcome. Being found not guilty of DWI in Virginia, but guilty of refusal. How is this possible?

First, understand that if probable cause exists for an arrest for suspicion of driving while intoxicated, then the refusal (also brought up or referred to in the light of something called implied consent) rules come into play.

Second, realize that it is much easier for a prosecutor to persuade a judge that probable cause exists than it is to prove a case beyond a reasonable doubt.

Prior to the example to illustrate below, keep in mind that a first offense refusal to submit to a breath test is not criminal in nature, but does result in loss of one’s privilege to operate a motor vehicle for one year. A restricted license is not available.

Also keep in mind that a DWI / DUI is a criminal Class 1 misdemeanor and could result in a range of either suspended jail time up to 12 months by statute. It also results in a 12-month license suspension period, an ignition interlock device to be installed if a restricted license is sought, a fine of up to $2,500, and ASAP (alcohol safety action program) classes among other possible court orders.

You may be curious: how can I avoid all of this? The only way to avoid any consequences described above would be to prevail at trial by convincing the judge that probable cause did not exist, and as a result, the refusal and DWI charges would both be dropped. There are other possibilities as well, one being that the stop of the vehicle was conducted without reasonable suspicion.


This hypothetical will explain how a person may be found guilty of refusal but not guilty of driving while intoxicated (DWI).

  • Driver stopped for speeding
  • Officer smells odor of alcoholic beverage
  • Officer asks driver if he is willing to perform field sobriety tests
  • Driver performs tests reasonably well but not perfect
  • Driver is offered PBT (Preliminary Breath Test)
  • Driver refuses PBT (absolutely legal)
  • Driver is arrested on suspicion of driving while intoxicated in VA (DWI)
  • Driver refuses to submit to breath test at station and is charged with refusal

While all cases are unique, the above set of circumstances, the driver may end up with the following results:

  • The judge may find that probable cause existed to arrest the driver, but unable to determine beyond a reasonable doubt he or she was intoxicated. Driver would be found guilty of refusal in most circumstances
  • The judge may find probable cause did not exist, and the drive would have both charges dismissed
  • The judge may find there was no reason to stop the driver (if the evidence was clear the driver was likely not speeding), and both charges would be dropped
  • The judge may find the driver was arrested based on probable cause and other factors lead to a conviction of driving while intoxicated as well as refusal

Every case differs – it is important to provide your Virginia DWI lawyer with the details of the case to the best of your knowledge. In many jurisdictions, dash camera footage or body cam footage is available to the defense.

The following two tabs change content below.
Brenton D. Vincenzes is a lifelong Fairfax County resident and Fairfax Criminal Defense Lawyer. He is a member of the Virginia Association of Criminal Defense Lawyers, National College of DUI Defense, NORML, and has been awarded the following in 2014-15: Top 100 Trial Lawyer (National Trial Lawyers) Top 40 Under 40 Trial Lawyer (National Trial Lawyers) Nationally Ranked Top 10 Under 40 Defense Attorney (National Academy of Criminal Defense Attorneys) 10 Best in Client Satisfaction for Criminal Defense (American Institute of Criminal Law Attorneys) Nationally Ranked Top 1% Attorney Award Recipient (National Association of Distinguished Counsel) As a local leader, Mr. Vincenzes mentors troubled youths, volunteers his time to serve at his church, takes select pro bono clients, and strives to improve the community. Mr. Vincenzes represents men, women, and juveniles through zealous and diligent advocacy, strategic planning, and skilled trial work preparation. Mr. Vincenzes' areas of criminal law practice are broad, and include most felonies and misdemeanors such as: reckless driving, DUI & DWI, drug offenses, assault and battery, domestic violence, assault on an officer, destruction of property, alcohol offenses, firearm offenses, larceny, shoplifting, embezzlement, fraud, and other theft offenses, and moving traffic violations among others. His private legal services are available in most Northern Virginia jurisdictions, including Fairfax County, Arlington County, Prince William County, Loudoun County, Stafford County, Alexandria, Manassas, Leesburg, South Riding, and other cities and towns.


Speak Your Mind