You can still sue a drunk driver if he or she has refused a breathalyzer. Virginia law permits an injured party to seek punitive damages if a driver has “unreasonably refused to submit” to a breath or blood alcohol test. Other evidence may show that the defendant was intoxicated at the time of the accident. For example, a driver that knew or should have known that his or her ability to operate a motor vehicle was impaired may prove the driver was intoxicated.