Most people are familiar with the practice of breath testing as a way to determine whether someone has been drinking. But what people may not know is that there are two possible times that breath tests can be given to someone suspected of DUI in Virginia.
If you get pulled over and an officer asks you to take a breathalyzer test in the field you may and should refuse. But by being a licensed driver you have agreed to take a breath test after being arrested. Refusing to take that test will result in losing your license.
The DUI Laws in Virginia are some of the strictest in the nation. Knowing your rights if you get pulled over and are suspected of DUI can greatly help your legal situation and will allow a Virginia DUI defense attorney to build a stronger case in your defense.
Police officers carry portable breath test devices referred to as PBTs because they take a ‘preliminary breath test’.
Under Virginia Law, a DUI suspect is ‘entitled’ to take a preliminary breath test when asked to do so by an investigating officer. However, before the officer administers the test he or she is obligated to inform you that preliminary breath testing is optional and there are no penalties for refusing to do it.
Here is why you should refuse to do it. From the time that the officer pulls you over he or she is attempting to collect enough evidence to support arresting you for DUI. You have no obligation to assist the officer by incriminating yourself. By refusing to take a PBT – or any other field sobriety test – you limit the information that the officer can use to justify arresting you. And you make it easier for your criminal defense attorney to attack the validity of your arrest.
Furthermore, the results of a PBT are NOT admissible in court because they are not considered a reliable measure of blood alcohol content (BAC) and are only trusted to show the presence or absence of alcohol.
Even if you refuse to take any field sobriety tests you may still be arrested. The officer may have observed enough other physical signs of intoxication (red eyes, slurred speech, odor of alcohol on your breath, trouble exiting the vehicle if asked to do so) to justify an arrest.
At the police station, you will be asked to submit to a second breathalyzer test. If you are a licensed driver in Virginia the law states that you have implied your consent to submit to a breath or blood testing after arrest to determine your blood alcohol level. Your refusal to take the second breath test will incur civil penalties (in addition to any administrative and criminal penalties that may be imposed).
If this is your first DUI arrest, you will lose your license for a year – though you may be able to regain limited driving privileges after 30 days. If you have had other alcohol-related violations within the last 10 years, a refusal will cost you your license for 3 years.
To make matters worse, if you refuse to submit to the breath test after your arrest, the prosecutor in the criminal case against you can suggest that your refusal was because you were intoxicated – almost like an admission of guilt.
Keep in mind that even if your BAC is above the legal limit that does not mean an automatic DUI conviction. There are valid defenses to breath test results. A good criminal defense attorney will know exactly what to look for and where to find potential issues with your breathalyzer screening.
At Randall, Page & Bruch, P.C. our Virginia DUI defense lawyers know exactly how to challenge breathalyzer test results. You can contact us for a free consultation of your case by clicking here or calling 757-517-8956.