Virginia DUI Breathalyzer Tests: Can the Results Be Challenged?

Why Roadside Breath Test Results Deserve a Closer Look

Defense Attorney Steve Duckett recently discussed a DUI/DWI case he defended that shows why roadside breath test results deserve a closer look. His client initially blew a .06 on a Preliminary Breath Test. The officer was not satisfied with that result, so he used another officer’s breathalyzer, the same brand but a different machine, and tested the client again. The second reading was .10, a difference of .04.

That kind of discrepancy is one reason DUI evidence should be examined carefully. At Battlefield Law Group, our attorneys look at how testing was performed, how evidence was handled, and whether the science and procedures support the reported result. Our attorneys also pursue advanced DUI-defense training focused on breath testing, blood testing and other scientific issues that can arise in these cases.

That raises the central question: how reliable is a roadside breath test, and how should that result be evaluated in a Virginia DUI/DWI case?

What Is a Preliminary Breath Test?

The Preliminary Breath Test, or PBT, is the handheld roadside breath test that may be used during a DUI investigation. Battlefield Law Group attorney Robert W. Yurkowski describes the PBT as an investigative tool used by law enforcement to help determine whether there is probable cause to make a DUI arrest.

It is often used in conjunction with field sobriety tests and other evidence gathered during the stop, including the officer’s observations, the driver’s statements and driving behavior.

Virginia law specifically addresses the PBT under Va. Code § 18.2-267. As Yurkowski explains, the purpose of the test is to allow law enforcement to conduct a preliminary analysis of the alcoholic content of a person’s blood. Importantly, the roadside PBT is not the same as the chemical breath test that may be administered after an arrest.

Can You Refuse a Roadside PBT in Virginia?

Generally, yes.

Yurkowski notes that a person may refuse a roadside PBT without incurring the statutory refusal penalties associated with refusing a chemical test under Virginia’s Implied Consent Law. Refusing the PBT, however, does not necessarily prevent an officer from making a DUI arrest. The officer may rely on other evidence gathered during the investigation, including field sobriety tests, observations, statements and driving behavior.

Virginia law also provides that the result of the preliminary breath analysis is not admissible into evidence in a prosecution for the offenses covered by Va. Code § 18.2-267.

That distinction is significant. A roadside PBT may produce a BAC reading, but its purpose and legal treatment are very different from those of the post-arrest chemical test.

Why PBT Results Deserve Scrutiny

Steve’s case provides a practical example of why DUI evidence should be examined rather than simply accepted.

Two devices of the same brand were used on the same person during the same roadside investigation. One produced a reading of .06 and the other .10.

That does not mean every PBT is inaccurate. It does show why the circumstances surrounding the test matter.

A DUI defense attorney may examine which device was used, how and when the test was administered, whether multiple tests produced consistent results, and whether the readings make sense when compared with the rest of the evidence.

The Roadside PBT Is Different From the Post-Arrest Breath Test

One of the most important points in Yurkowski’s write-up is the distinction between the preliminary roadside test and the chemical test governed by Virginia’s Implied Consent Law.

Under Virginia law, a person who operates a motor vehicle on a highway in the Commonwealth is deemed, under the circumstances established by the statute, to have consented to chemical testing of breath, blood, or both.

That is why refusing the post-arrest chemical test can have consequences that do not apply to refusing the roadside PBT.

A first refusal can result in a one-year suspension of the person’s driver’s license. The consequences become more serious with a qualifying second or subsequent refusal within 10 years, which can constitute a Class 1 misdemeanor and result in a three-year license suspension.

Refusing the chemical test also does not prevent the Commonwealth from pursuing a DUI charge. As Yurkowski explains, prosecutors may rely on other evidence such as the officer’s observations, driving behavior, field sobriety test performance, statements, body-camera or surveillance footage, witness testimony and other circumstances surrounding the stop.

Challenging Breath Test Evidence Means Looking Beyond the Number

The post-arrest breath or blood test may be admissible in court if the Commonwealth satisfies the applicable statutory and evidentiary requirements. That is another area where the details matter.

Yurkowski notes that a DUI attorney should examine not only the reported test result, but also the circumstances surrounding the test and whether the Commonwealth complied with the requirements necessary to introduce that evidence in court.

For Battlefield Law Group attorneys, that means looking beyond a BAC number and asking how the evidence was produced. Was the test administered properly? Was the equipment functioning as expected? Were required procedures followed? Is the result consistent with the other evidence in the case?

Steve Duckett’s PBT example illustrates why those questions matter. When two roadside breath-testing devices produce readings of .06 and .10 during the same investigation, the number alone does not tell the entire story.

The Bottom Line

Virginia law treats the roadside Preliminary Breath Test differently from the post-arrest chemical breath or blood test. The roadside PBT may generally be declined without triggering the refusal penalties associated with Virginia’s Implied Consent Law, while refusing the post-arrest chemical test can carry significant consequences.

But the larger lesson goes beyond refusal.

Breath test results are evidence, and evidence can be examined. Battlefield Law Group’s attorneys approach DUI cases by looking at the testing process, the handling of the evidence, the science behind the result and whether the Commonwealth can establish what it needs to establish in court. If you have been charged with DUI in Northern Virginia or in the Lynchburg area, give us a call.