Fairfax County DUI

Virginia DUI/DWI Breath Test Refusal

Virginia DWI Breath Test Refusal

Just by driving on Virginia’s public highways, you are legally considered to have consented to the chemical testing of your breath and/or blood to determine your blood alcohol content. Because the breath test is more economical and easier to administer, it is the test most commonly used. Although you do not have the right to request a blood test, a blood test will be administered in the event that a breath test is unavailable, you are physically unable to perform a breath test or if the officer reasonably believes you are under the influence of drugs other than alcohol.

Taking The Preliminary Breath Test

In the Commonwealth of Virginia, there are two types of breath tests—a preliminary breath test (PBT) and a state-administered breath test. The PBT is performed on the scene by using a portable device. The purpose of the PBT is solely to determine if alcohol is present in your system; it is utilized to determine if an arrest for drunk driving can be made. The PBT may be performed by any police officer or by any member of the sheriff’s department. The results of the PBT are not admissible in court (unless your attorney challenges the police officer’s probable cause to arrest), and the refusal to submit to a PBT does not violate Virginia’s Implied Consent Law.

Process For The State-Administered Breath Test

If you are arrested for DUI/DWI, you will most likely be transported to the police station and asked to submit to a state-administered breath test. Unlike the PBT, a refusal to submit to a state-administered breath test is a violation of Virginia’s Implied Consent Law and will result in an additional civil offense, or if it’s not your first refusal offense, an additional criminal charge will be made against you. Only a qualified person with a permit can lawfully perform the state-administered breath test. Once the machine takes a sample of your breath, it will measure the amount of alcohol in your breath.

If you’ve failed a state-administered breath test, the facts of your case may still lend themselves to a strong defense. Virginia law provides a series of steps that must be followed. The failure to substantially comply with these procedures can result in the results of your breath test being inadmissible against you in court.