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What You Need to Know About Virginia Breathalyzer Laws

Virginia Breathalyzer Laws

Understanding Virginia Breathalyzer Laws, Breath Tests, and Field Sobriety Tests in DUI Arrests

Breath tests and field sobriety tests are critical components of DUI (Driving Under the Influence) cases in Virginia. Understanding how these tests work, your legal rights and considerations, and how they can impact your case is essential if you find yourself facing DUI charges. In this blog, we will provide an explanation of these tests, delve into the legal aspects and considerations of these tests, and discuss their significance in the context of your DUI case. It is in your best interest to understand Virginia Breathalyzer laws.

What is the Breathalyzer law in Virginia?

Breath tests used to measure a driver’s blood alcohol content (BAC) are a cornerstone of DUI laws in Virginia. According to VA Code § 18.2-269, the state has established 0.08% as the de facto legal BAC limit for adult drivers. Meeting or surpassing this limit is often classified as a ‘rebuttable presumption,’ signifying that a driver is assumed to be under the influence if their BAC is 0.08% or higher. However, this presumption (and the validity of the test itself) can be challenged in court.

Virginia, like many states, takes DUI (Driving Under the Influence) charges seriously and employs strict laws and penalties to deter drunk driving. Among these regulations, the breath test plays a crucial role in enforcing Virginia’s DUI laws. Virginia operates under the “implied consent” law, which means that if you drive on a public road in Virginia, you are considered to have consented to take a Breathalyzer or other chemical test if you are arrested for a DUI. Unreasonable refusal to do so can lead to a separate refusal charge along with the DUI charge.

What is a Breathalyzer or Preliminary Breath Test?

A Breathalyzer result (also referred to as an Intoxilyzer or EC/IR II result) is a key piece of evidence in most DUI cases. A full breath test is different from a preliminary breath test (PBT), which measures the alcohol content from a person’s breath at the scene of the traffic stop using a portable device. Conducted during traffic stops, PBTs help an officer determine whether a driver’s Blood Alcohol Concentration (BAC) is higher than the legal limit for purposes of deciding whether or not to make an arrest. The subject is asked to blow into the device while the device measures their BAC from their breath.

Here’s a simplified breakdown of how a breath analysis works:

  • Capture of Breath Sample: The individual is required to blow into a mouthpiece connected to the Breathalyzer device.
  • Alcohol Detection: The Breathalyzer captures the alcohol molecules present in the exhaled air.
  • BAC Estimation: The device calculates an estimate of the individual’s BAC, translating the breath alcohol content into a blood alcohol estimate.

Although PBT results are not admissible at trial as proof of the DUI, under the Virginia breathalyzer laws they can be admitted as evidence by the government if there is any attempt by the defense to challenge the legality of the DUI arrest itself. It is the results from a post-arrest Breathalyzer test using a certified machine, such as an EC/IR II device at the jail, that is typically used to provide forensic evidence of a DUI offense.

What are Field Sobriety Tests

Field Sobriety Tests (FSTs) are a series of physical and cognitive exercises administered by law enforcement officers during a traffic stop where a driver is suspected of driving under the influence of alcohol or drugs. These tests aim to objectively evaluate a person’s impairment level and help determine whether their ability to operate a vehicle has been compromised. The most common field sobriety tests are the three primary tests approved by the National Highway Traffic Safety Administration (NHTSA):

Common Types of Field Sobriety Tests

    • Horizontal Gaze Nystagmus (HGN) Test: In the HGN test, an officer moves an object like a pen or a finger horizontally in front of the driver’s eyes, with a flashlight illuminating the driver’s face. The driver is asked to follow the object with their eyes without moving their head. Officers are looking for involuntary jerking movements in the eyes, which can be exaggerated when a person is impaired.
    • Walk-and-Turn Test: During this test, the suspect is instructed to take a specified number of steps, heel-to-toe, along a straight line, turn around, and then return in the same manner. Officers will watch for signs of impairment, such as an inability to maintain balance, stopping while walking, not following instructions, or stepping off the line.
    • One-Leg Stand Test: In this exercise, the individual is asked to stand with one foot approximately six inches off the ground and count aloud until instructed to put the foot down. Officers look for signs like swaying, hopping, or using arms to balance, indicating impairment.

Field sobriety tests provide law enforcement with observational evidence that could substantiate the suspicion of impairment due to alcohol or drugs. The officer will evaluate a suspect’s performance, looking for specific indicators or clues of impairment. Poor performance on these tests could give the officer probable cause to arrest the driver for DUI. (They are not considered “testimonial” on your part and they occur prior to an arrest, so Miranda protections do not apply to their administration.)

Can you refuse a Breathalyzer in Virginia?

You can refuse to take a breath test in Virginia, but doing so comes with consequences due to the state’s implied consent law. When you obtain a driver’s license in Virginia, you automatically consent to chemical tests, like the Breathalyzer, if you are suspected of driving under the influence. Note that a “breath test” is different from a preliminary breath test (“PBT”). The breath test is typically administered at the local jail after an arrest has been made; a PBT is administered prior to a DUI arrest using a handheld device, to give the officer a ballpark figure of the driver’s level of intoxication.

What happens if you refuse to take a chemical test in Virginia?

Refusing the breath test could result in a license suspension. Under Virginia breathalyzer laws, a first-offense refusal is a civil offense, resulting in a one-year driver’s license suspension. This suspension is separate and in addition to any potential suspension from a DUI conviction. For subsequent refusals, the penalties could be more severe, including longer suspension periods and potential criminal charges. A second violation, especially if it occurs within ten years of a prior implied consent law violation or DUI conviction, escalates to a criminal offense, specifically a misdemeanor. Consequences for such an offense could entail a jail sentence of up to one year and a fine reaching $2,500. Additionally, there could be a three-year suspension of the driver’s license.

Refusing a breath test is an option for you. However, exercising the right to refuse a breath test or field sobriety tests can lead to legal consequences. Hence, it is vital to seek advice from an experienced DUI attorney in Virginia to understand your rights and how exercising them may have affected your case.

Are Breathalyzer tests accurate?

Breathalyzer tests are a common method used to measure alcohol impairment in drivers, but in certain situations, their accuracy can be questioned. Research shows that some breathalyzers can be off by up to 50% compared to blood tests. Several factors like age, gender, and medication can affect the results. For accurate readings, breath test devices need regular maintenance, and the test should be administered by an officer certified in its administration. Additionally, the Breath test should ideally yield at least two readings, with the results being within a .02 range of each other. If any of these elements are off, the results may not stand strong in court, providing an opportunity for your Virginia DUI lawyer to challenge their validity.

How Breath Tests Impact Your Virginia DUI Case

  • Evidence in Court: In court, the outcomes of these tests are almost always used as evidence. However, their accuracy can sometimes be contested, providing a way for you to challenge their weight as evidence. And sometimes the admissibility of the test result itself can be challenged.
  • Legal Defense Strategies: An experienced Virginia DUI lawyer can conjure a spectrum of defense strategies centered around these tests, such as examining the legality of the traffic stop or the integrity of the test’s administration.
  • Impact on Legal Consequences: The repercussions of these tests resonate profoundly, influencing the legal outcomes and penalties one might incur, with higher BAC levels potentially amplifying the severity of the punishment imposed by the court–typically involving higher mandatory fines and mandatory jail sentences.

The Best DUI Lawyer for You: What You Need to Know

A knowledgeable Virginia DUI lawyer can be by your side to challenge the authenticity and reliability of breath tests and field sobriety test results. 

Facing DUI charges can be stressful and full of uncertainties, especially when it comes to breath breathalyzer tests. Having an experienced DUI attorney like David G. Parker by your side can make all the difference! David can help you understand the details of your case, build a strong defense, and work towards the best possible outcome for you.

Contact us today for a free consultation! We’re here to offer you expert legal advice and support. Schedule a confidential consultation, and let’s discuss the best strategies to handle your DUI case together.


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