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Why Breath Test Law is Important

The issuance of a breath test is an important component of any DUI charge in Virginia. VA Code § 18.2-266. In many cases, its validity can mean the difference between you getting off on a DUI charge or the Commonwealth proving its case. However, the issuance of a breath test is a nuanced procedure with strict statutory requirements. Its not as simple as blowing into the machine and getting back a reading. If these procedures aren't followed to a T, then its possible the results of a breath test will not be admissible in court. 

The Basics 


Virginia is an implied consent state, meaning that when you choose to operate a motor vehicle in Virginia, you agree to submit to a blood or breath test after you are arrested for DUI. VA Code § 18.2-268.2. Therefore, this has important consequences if you choose to refuse to a blood or breath test following a DUI (See Below). In short, breath tests measure a driver’s blood alcohol content (BAC) and,  in Virginia, the legal limit for an adult driver is 0.08.

This legal limit is often referred to as a rebuttable presumption because you are presumed to be intoxicated if you have a BAC of .08% or greater. VA Code § 18.2-269. In other words, the statute allows a judge to presume you were intoxicated just based on the breath test results. 

The Types of Breath Tests

    Preliminary Breath Test (PBT)


If you are ever pulled over for a suspected DUI, its critical to understand the distinctions between the types of breath tests in Virginia. There are two very distinct types of breath tests. The first is referred to as a preliminary breath test or PBT for short. This type of test can only be used as part of an officer's roadside field sobriety test. It is used to assist the officer in determining whether there is probable cause to make the arrest. Importantly, this test cannot be used as evidence to prove your guilt in court unless your lawyer challenges probable cause of the arrest. Officers must advise you of this before you decide to submit to the test. Moreover, there is no penalty for refusing a PBT on the side of the road. 

   Police Station Issued Breath Test

The second type of test is a Breathalyzer Test that is administered at a police station following an arrest for DUI. Under Virginia law, if you refuse to take a breathalyzer test after being arrested for DUI, you will be charged with another crime called Breathalyzer Refusal in Virginia (Refusal). An important distinction is that this is something that can be used against you in court.

Refusing a Breath Test (Refusal)

As discussed above, there is a separate "Refusal" charge for refusing a breath or blood test at the police station because of implied consent. However, this charge is only a Civil Infraction (for first offenses), meaning it will not go on your criminal record. The penalties for a refusal charge may include:

  •  Automatic license suspension of 12 months for the first offense if convicted. During this period, there is no opportunity to get a restricted license.

To be convicted of a refusal charge, an officer must take several important procedural steps. These include reading you a form that details the nature of the implied consent law in Virginia and outlines the penalties you will face for refusal. Only after you have been informed can you be convicted of a Refusal charge in Virginia. 

How We Can Help

The Pickett Law Group, PLLC is an experienced law firm with two generations of former prosecutors, who have fought from both sides of the courtroom on all types of legal issues including DUI & Refusal Charges. We know the technical ways to keep breath and blood results out of a trial. Contact us today and we will begin fighting on your behalf. 

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