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Breathalyzer Test FAQ

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Frequently Asked Questions About Breathalyzer Tests in Virginia

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Messman Law, PLC defends motorists from Norfolk to Virginia Beach and throughout the Chesapeake region on DUI/DWI charges including breathalyzer refusal cases. To schedule a confidential consultation, call me at 757-340-5800 or contact the office online.

If I’m pulled over in Virginia, am I required to take a breathalyzer test?

No, and yes. When an officer pulls you over, he or she may ask you to take a preliminary breath test (PBT). This is entirely voluntary. It can only be used by the officer to determine probably cause to arrest you; it cannot later be used in court as evidence against you. However, if you are arrested for DUI and taken to the police station, you will be requested to blow into an evidential test device (ETD), which is meant to collect evidence to be used in the trial against you. This test is covered under Virginia's implied consent law. You can still refuse, but there are penalties for doing so.

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What is the penalty for refusing a breathalyzer test?

Your first "unreasonable refusal" is treated as a civil offense. The penalty is the loss of your license for 12 months. This is additional to any revocation for a DUI conviction that may follow. Subsequent refusals are criminal offenses and carry higher penalties, such as revocation of your license for 3 years, up to six months in jail and a stiff fine.

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What is a reasonable refusal for taking the mandatory breath test?

What the court will consider reasonable is very limited; including evidence that you weren't driving or that you were not on a public road. Unless your Virginia Beach DUI lawyer can present evidence of officer misconduct, there's not much to be done.

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Is a breathalyzer test reliable?

The PBT is considered not very reliable, so its results are not admissible in court. The EDT, however, is considered reliable provided the machine is maintained regularly and operated professionally. Machines must be regularly tested and recalibrated. Operators must be certified. Moreover, the DUI suspect must be processed properly, including a 20-minute observation period to ensure there's no burping, hiccupping or any regurgitation that might bring alcohol up into the mouth.

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How can my Virginia Beach DUI lawyer challenge breathalyzer results?

Forensic test results can be challenged based upon operator error of the machine or the functionality of the machine. Your Virginia Beach breathalyzer test lawyer will check maintenance records and the certification of the operators to see if these are up to date. Your attorney will also look for procedural violations. For instance, a DUI suspect must be observed for 20 minutes before blowing into the EDT. If the suspect is hustled through the test without the requisite observation, the results can be challenged. Finally, DWI lawyers can challenge the initial traffic stop for lack of probable cause. If the stop lacked probable cause, any evidence resulting from a search and seizure after the stop is inadmissible.

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