Northern Virginia Criminal Justice Academy (NVCJA) Practice Exam

Can Garcia be charged with refusal if he agrees to a blood test but refuses a breath test?

1. Yes, because he refused both tests

2. No, because he consented to a blood test

3. Yes, because the officer chooses the test

4. No, since refusal can only be applied to breath tests

The correct answer is: Yes, because the officer chooses the test

In this scenario, the correct answer is based on the understanding of implied consent laws and the authority that officers have in choosing the type of test administered during a DWI investigation. When a driver is stopped on suspicion of driving under the influence, they are generally considered to have given implied consent to a chemical test, which can be a breath test, blood test, or urine test. If an officer determines the circumstances warrant a breath test and the individual refuses it, that refusal can lead to charges of refusal. The key point here is that the law allows an officer to choose the appropriate test based on the situation at hand. In many jurisdictions, if a driver refuses the test selected by the officer, regardless of their consent to another type of test, they can still be charged with refusal. Understanding that an officer may choose the test based on specific indicators of impairment illustrates why refusing the breath test—when it is the officer's chosen method for assessing sobriety—can be grounds for refusal charges. Thus, the refusal of the breath test is what results in liability for refusal, despite the consent to another test like blood being provided.