Virginia DUI Laws, Breath Test Refusal Law, “do I have to blow?”

Virginia DUI Laws and Breath Test Refusal:
Preliminary vs. Evidential Breath Tests, plus
3 Ways Virginia DUI Lawyers Attack BAC Evidence

Virginia DUI Laws: visit the primary Virginia DWI law page for more generalized information.

The Commonwealth (the prosecution) will try to use results from a breath test to prove the accused was intoxicated. If the accused refused to submit a breath or blood sample, he or she will likely influence a case in two ways:

  1. Refusal is a violation of law, and he will be charged.
  2. It will potentially drastically alter the focus at trial, for both the prosecution and the defense.

Virginia Code § 18.2-268.2 is the Virginia DUI law dealing with a concept called, “Implied consent.” Unless an exception applies, the government needs a warrant to search or seize something unless the person offers consent. “Implied Consent” means exactly what it sounds like: the consent to submit to a breath or blood test is implied by virtue of the statute, which states, in-part:

Any person . . . who operates a motor vehicle upon a highway . . .  in the Commonwealth shall be deemed thereby, as a condition of such operation, to have consented to have samples of his blood, breath, or both blood and breath taken for a chemical test to determine the alcohol, drug, or both alcohol and drug content of his blood, if he is arrested for violation of [driving while intoxicated] . . . within three hours of the alleged offense.

Refusing to submit to a breath or blood test post-arrest is a civil violation, so long as it is a first offense. The penalty for a refusal conviction is revocation of driving privileges for 12 months.

Though refusal is itself a violation of the law, the Commonwealth will have to rely on other evidence to show the defendant was intoxicated beyond a reasonable doubt. Often, this other evidence ends up being performance of field sobriety tests and driving behavior.

To properly understand the context in which this area of DWI law fits into the larger picture, we address:

  • the most common DWI trial issues
  • the “Preliminary Breath Test” (PBT)
  • the “Evidential Breath Test,” how it differs, and is used as evidence
  • Several ways Virginia and local Fairfax DUI lawyers sometimes prevent the Blood Alcohol Content (BAC) evidence from coming evidence
  • Pros and Cons: Consenting to a PBT prior to arrest
  • Pros and Cons: Refusing to submit a breath or blood sample post-arrest

The approach a Virginia DUI attorney takes to defend a client charged with  Virginia Code 18.2-266 (Driving While Intoxicated / DWI / DUI), will always depend on the facts, application of Virginia DUI laws, prior cases (case law), and local rules.

How the Post-Arrest Evidential Breath Test Fits in to the Overall Picture

To understand the role a post-arrest breath test plays, one must grasp the flow of a DWI trial. DUI cases are remarkable in a way, in that often, the same 3 or 4 broad issues are responsible for making (or breaking) the prosecutor’s case. In Virginia and most states, when a DUI attorney successfully wins a case, it is often related to one of the following issues.

  1. Did the officer initiate a legal traffic stop of the vehicle?

Was the defendant legally stopped by the officer? The stop must be based on a reasonable suspicion of criminal activity or of a violation of some traffic law. If not, the stop is illegal and a Virginia DWI lawyer might make a motion to suppress all evidence as a result. If the judge agrees – the police officer is not able to reasonably articulate the alleged violation of law behind the stop – the case must be dismissed. This may happen if an officer is under-trained, and/or stops a vehicle based on a mere hunch.

  1. If the stop was valid, did the officer have probable cause to make the arrest?

“Probable cause” is assessed by looking at the totality of the circumstances. In real life, the most common factors DWI attorneys and prosecutors both look at with scrutiny to assess probable cause, include:

  • The performance of field sobriety tests
  • The driving behavior
  • Demeanor, instances of slurred speech, odor of alcoholic beverage, nervousness, etc.
  • The facts surrounding the Preliminary Breath Test (PBT), if the driver consented to blow
  • Anything relevant

The first question many Virginia and local Arlington, Prince William, Loudoun, and Fairfax DUI lawyers ask clients:

“did you agree to blow into a PBT on the side of the road?”

The PBT is the pre-arrest, handheld device (not the breath test device used at the station or detention center). The PBT is not used to determine guilt at a trial. This often is what many officers will stress when explaining the reason for the test. In reality, the officer is trying to downplay the significance of the decision.

After completing the FSTs (e.g., one-legged stand), the officer will typically tell the driver:

  • he has a right to take a preliminary breath test and it will help reassure the officer they are safe to drive;
  • he is not legally required to consent to the test; and
  • if he consents, the results are not admissible at trial.

Read the statute itself, here.

Many respected experienced Virginia criminal lawyers are of the opinion that in a typical case involving a defendant who did reasonably well on the field sobriety tests, the decision to take the PBT is often the single most critical factor when assessing the chances of obtaining a dismissal due to lack of probable cause.

If a defendant consents and the officer subsequently places him or her under arrest, it is much more difficult for a Virginia DUI lawyer to succeed on a motion to suppress based on lack of probable cause. The positive reading is almost always enough to provide probable cause. In rare cases, it may be possible to keep the PBT test out of evidence because the officer did not properly explain the relevant DWI law, applied too much pressure to the suspect rendering any consent involuntary, or made some other error. Another strategy may entail challenging the scientific reliability of the handheld breathalyzer and the officer’s training, understanding, and ability to use the device properly.

3. The Implied Consent Statute and Post-Arrest Breath or Blood Test

The evidential test is not the same thing as the preliminary breath test (PBT)!

This is a major source of confusion:

Preliminary Breath Test (PBT):

This is the handheld device used by officers (usually on the side of the road). The driver suspected of DWI in Virginia does not have a legal obligation to consent to a PBT.

When the driver does not consent to the PBT, he or she may have a better chance attacking probable cause to arrest, which results in dismissal. This is a very general piece of information, and an accused should always consult with an attorney as soon as possible following the arrest. Each case is so factually unique, it is important to disclose all facts to your local Virginia or Fairfax DWI lawyer.

Evidential Breath Test:

This is the test administered at the police station or detention center. After arrest, the accused is transported and booked. If a breath test at the station is refused, it is a civil violation (first-time offense).

va dui law refusalAlthough civil in nature, a conviction will result in loss of driving privileges for 12 months. In Virginia, authorities use a device called the Intoximeter EC/IR-II. Some DWI cases are won (or lost) on the ability to keep breath test evidence out of evidence. If it stays out of evidence, then the facts often come down to the performance of the field sobriety tests, statements and admissions, general behavior, and other (usually non-scientific) circumstantial evidence.

PBT vs. Evidential Breath Test:

  • If stopped on suspicion of DWI, a driver may consent or deny consent to perform field sobriety tests as well as blow (into a PBT).
  • It is not against the law to refuse to blow prior to arrest.
  • If arrested and transported to the station, law enforcement will not use a handheld PBT, but a larger, more reliable and scientific device.
  • It is not a criminal violation to refuse to submit to this test if it is a first-time. A conviction is punished civilly, and results in revocation of driving privileges for 12 months.
  • For a first DWI conviction, there is mandatory active jail if the Commonwealth can prove the defendant’s BAC level as equal to, or greater than .15.
  • On the other hand, there is no mandatory jail time if the accused is convicted of a first DWI violation and refuses to submit to the breath test, or if the breath test results post-arrest are kept out of e evidence.

Why is it Important to Keep a Breath Test Results Out of Evidence?

Assume hypothetical person, “John,” is pulled over because a brake light is out. The officer smells alcohol, and asks John if he has been drinking and whether or not he would be willing to confirm his sobriety by taking a few field sobriety tests. John agrees and he believes he does well.

The officer then tells John he can take a preliminary breath test to confirm his sobriety. John thinks all is well because the officer is a very relatable guy.

The PBT reading reveals to the officer John’s BAC is a .12. John is then arrested and transported to the Fairfax Adult Detention Center.

At the detention center, John submits a breath sample and the reading is .15.

Hypothetical Trial: John Doe Arrested for Violation of Virginia DUI Law 18.2-266

A motion to suppress is one of the most common tools DUI lawyers use to win cases. It is the assertion that the police officer did not have probable cause to believe the driver was intoxicated.

The evidence relevant to assess probable cause varies case by case, but a common nail in the coffin is when the driver consents to the PBT. The officer may testify to the fact that the PBT was administered a prior to arrest, and based upon the results, the arrest was effected.

Without the PBT, the defense attorney can make a case that the sobriety tests were performed well enough to conclude, along with all of the other factors, probable cause did not exist.

In John’s case, the Commonwealth (prosecution) will likely try to introduce the evidential breath test result. It is not uncommon for BAC levels to rise over the course of time it takes between a roadside PBT and evidential test.

In John’s case, his BAC of .15 is enough to get him mandatory jail time if convicted. The only way to keep John out of jail is to keep the evidence of his BAC out.

It will not guarantee a “not guilty” finding, but it will result in a high likelihood the judge will only order suspended jail time (assuming there was not a car accident, other aggravating factor, and is a first offense).

If the DUI lawyer can prevent the evidence, then the question becomes:

Can the Commonwealth prove that the driver was operating a motor vehicle while intoxicated beyond a reasonable doubt?

Without the breath certificate in evidence (whether due to it being excluded as discussed in the next section, or because the defendant refused to submit), the Commonwealth has a more difficult task.

In John’s case, his local Fairfax DUI attorney may have a basis to exclude the evidence of BAC: the following examples only apply in some cases, and are not exhaustive of all ways experienced criminal defense lawyers are able to exclude evidence.

How do Fairfax DUI Lawyers Keep Breath Test Results Out of Evidence?

Northern Virginia DUI lawyers may make arguments to exclude evidence derived from a breath testing device. Three common categories include:

  1. Operator Error
  2. Defendant’s Characteristics etc.
  3. Machine Error

Operator Error

Example 1: Improper or Inexperienced Oversight (20 minute rule)

Based on widely accepted national standards, the breath technician must make sure the arrested party has not produced vomit, nor consumed anything for 20 minutes prior to providing the sample. Furthermore, the technician must also observe the suspect for the entire duration of the waiting period.

What would a Virginia DUI lawyer ask?

A DWI trial lawyer might ask the Commonwealth’s witness questions aimed to exploit deviations from the proper standards. If a breath technician/operator cannot recall something related to the oversight and instructional phase, it may be enough to exclude the evidence of the BAC.

Example 2: Inadequate directions lead to inaccurately high reading

For an accurate reading, it is important that the individual immediately blow into the Intoximeter EC/IR-II machine, not hold his or her breath beforehand. The following are two ways authorities can skew results:

  1. The operator or officer giving the instructions may fail to tell the subject to immediately blow. The arrested party must be instructed to first take a deep breath, followed by an immediate blow.
  2. The operator/officer may improperly or accidentally delay the process by holding the blow-tube too long, so as to force the individual to wait to blow. An officer must hold the tube the suspect blows into; it is said to be a matter of officer safety. As a result, however, there is a lapse of time between the moment the arrested party takes the deep breath, and able to blow.

Defendant’s Characteristics / Issues

Breathing patterns can greatly influence a reading. Any DWI arrest is a traumatic experience. When one experiences anxiety or is greatly distressed or crying, breathing patterns become disrupted. Hyperventilation can skew results by as much as 15%.1

Hematocrit Ratio

Hematocrit ratios may lead to a 5% margin of error.2 “ This refers to a measure of red blood cells. The ratios can differ between healthy adults, and are also affected by altitude, dehydration, and illness. The important point is that even within normal range, the “normal” ratio can lead to a substantial error margin.

Problems with the Breath Device (Intoximeter EC/IR-II)

There are many creative ways local Fairfax, Prince William, and Arlington DWI lawyers raise doubt as to the accuracy. A Virginia criminal lawyer may assess the inherent margin of error in order improve a client’s position.

In other cases, regardless of the BAC, some Northern Virginia defense attorneys have been known to assert claims of interference by way of radio frequency. Not only are frequencies emitted by police radios, but also, electric motors! As a result, it may be appropriate in some cases to determine the presence of any electromagnetic emitting devices near the location of the Intoximeter.

Overview of Major Virginia DUI Law Issues

(each case is unique and some of the following issues may not be applicable)

  • The stop: why was the vehicle stopped in the first place? Where was the stop? Were the keys in the ignition? Was there reasonable suspicion from the officer’s perspective, to believe criminal activity or a traffic infraction occurred?
  • The field sobriety tests: did the officer follow proper protocol when administering roadside field sobriety tests? Where were they performed? How were they performed? How were they explained?
  • The preliminary breath test (PBT): did the officer follow protocol? Did the driver consent to blow, or was it coerced? Was the device an approved device?
  • The behavior of the accused: was the behavior and demeanor of the individual consistent with one who is intoxicated?
  • The breath certificate from breath testing device at the police station, after arrest: were the proper laws explained and read to the accused? Did the operator follow proper protocol? Did the machine work properly, and was it maintained as required? Did the accused suffer from any sickness, illness, or otherwise?

Talk to a lawyer as soon as possible if you have been charged with violation of Virginia DUI laws. Preservation of dashcam footage is important and often time-sensitive.

[1] Jones, A.W.; Physiological Aspects of Breath-Alcohol Measurement, Alcohol, Drugs and Driving, 6:1-25, 1990.

[2] Labianca, D. “The Chemical Basis of the Breathalyzer,” J. Chemistry Education, 76:261, 1990

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Brenton D. Vincenzes is a lifelong Fairfax County resident and Fairfax Criminal Defense Lawyer. He is a member of the Virginia Association of Criminal Defense Lawyers, National College of DUI Defense, NORML, and has been awarded the following in 2014-15: Top 100 Trial Lawyer (National Trial Lawyers) Top 40 Under 40 Trial Lawyer (National Trial Lawyers) Nationally Ranked Top 10 Under 40 Defense Attorney (National Academy of Criminal Defense Attorneys) 10 Best in Client Satisfaction for Criminal Defense (American Institute of Criminal Law Attorneys) Nationally Ranked Top 1% Attorney Award Recipient (National Association of Distinguished Counsel) As a local leader, Mr. Vincenzes mentors troubled youths, volunteers his time to serve at his church, takes select pro bono clients, and strives to improve the community. Mr. Vincenzes represents men, women, and juveniles through zealous and diligent advocacy, strategic planning, and skilled trial work preparation. Mr. Vincenzes' areas of criminal law practice are broad, and include most felonies and misdemeanors such as: reckless driving, DUI & DWI, drug offenses, assault and battery, domestic violence, assault on an officer, destruction of property, alcohol offenses, firearm offenses, larceny, shoplifting, embezzlement, fraud, and other theft offenses, and moving traffic violations among others. His private legal services are available in most Northern Virginia jurisdictions, including Fairfax County, Arlington County, Prince William County, Loudoun County, Stafford County, Alexandria, Manassas, Leesburg, South Riding, and other cities and towns.



  1. Wow, this is complicated. Thank goodness for lawyers! I have been wondering what would happen if you refused to blow in one of those things. Just to be clear, if you refuse to blow into the meter, does the officer have a better reason to arrest you?

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