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Do I Have to Take the Breath Test at The Jail or Police Station?

Feb. 8, 2021

Understanding your rights when it comes to breath and blood tests as related to a Virginia DUI is crucial to protecting yourself against unfounded criminal charges and penalties. Virginia law makes it clear when you must submit to a test, when you do not have to, and how you can be punished for refusing.

If you have been arrested for DUI in Virginia and have questions concerning your breath or blood tests, experienced Virginia DUI attorney Bryan J. Jones is here to answer your questions, defend your case, and protect your rights.

Difference Between Preliminary Breath Test and "Official" Breath Test in Virginia

There are two types of breath tests officers use in Virginia: the preliminary breath test and the official test at the jail or police station.

The Preliminary Breath Test

The preliminary breath test usually occurs on the side of the road before you are arrested. The test is used to establish probable cause that you were driving under the influence. You DO NOT have to consent to this test. In fact, all cases are different, but it is generally a good idea to refuse to take the preliminary breath test because the test is inaccurate and, contrary to common understanding, can be used against you in certain circumstances.

Roadside breath tests are performed with a portable breathalyzer. These devices are not known for their accuracy. In fact, even a properly calibrated breathalyzer can be off by as much as 0.02% blood alcohol content (BAC). This means that if you are actually 0.07%, but the device reads 0.09%, you can be arrested for having a BAC above the 0.08% legal limit when you were not actually over the limit.

The "Official" Breath Test at The Station

The test at the jail is different. Under Virginia's implied consent law, lawfully arrested drivers consent to have tests performed on their breath and blood. A person may not unreasonably refuse to take the test in Virginia, but a few reasons exist that allow a person to refuse the breath test.

Law enforcement officers use the Intox EC/IR II Breath Test machine in order to determine your BAC after your arrest. This machine is approved for use by the Virginia Department of Forensic Science. Evidence obtained through the use of this device may be used against you in court. The device detects ethanol on the breath in order to determine BAC.

A motorist may not simply refuse this breath test the way they can the preliminary roadside breath test. There are penalties for unreasonable refusal, which include the following.

  • First Time Refusal Loss of driver's license for one year.

  • Second Time Refusal or Previous DUI Conviction (within 10 years): Possible six months in jail and/or fine of up to $1,000.

  • Two Prior Refusals or DUI Convictions (within 10 years): Possible 12 months in jail and/or a fine of up to $2,500.

When Is a Blood Test Taken in Virginia in Place of A Blood Test?

For the most part, but not always, a Virginia law enforcement officer will ask you to submit to a blood test. The officer has the right to request both, and the refusal penalties listed above apply to refusing the blood test as well. You do not get to choose which test you prefer.

Blood tests are usually administered if the driver is unable to take the breath test for some reason or if the officer believes the driver is intoxicated by drugs. Breath tests cannot detect the presence of drugs, so a blood test is often required in those cases.

There are specific blood testing procedures to be followed by law enforcement. The results of a blood test are sent to law enforcement and will likely be used against you if the results show that you were intoxicated while driving. If, however, those procedures are not followed, the results of the blood test may be inaccurate and could be the basis for a defense against the DUI charges.

Consult an Experienced Virginia DUI Attorney

If you have been charged with DUI in the Commonwealth of Virginia, the penalties are serious: there is a good chance you face jail, high fines, and the loss of your driver's license if convicted. Knowing your rights when it comes to breath tests and blood tests is crucial to making proper choices as well as defending your rights.

You do not have to face this process alone. To protect your constitutional rights, you need Virginia DUI attorney Bryan J. Jones to defend your case. Contact us today to schedule an initial consultation to discuss your case.