Understanding DUI Arrests and Breath Tests in Virginia

When you have been pulled over and are suspected of drunk driving, you could be asked to provide a breath sample. Misconceptions exist about what your rights are and what these types of tests are. Misunderstandings can lead to more problems, especially if you are facing DUI charges in Virginia

At McGlone Law Firm, Fairfax Freedom Fighters, our DUI defense lawyer in Fairfax/Prince William helps clients understand all aspects of their drunk driving case. We believe informed clients make better decisions about their DUI case. If you have questions or want to speak to a criminal defense lawyer in Virginia, call us at 703-273-2750 to schedule a Free Consultation-- by Phone or IN Person.

What Are Breath Tests?

Police officers use breath tests in roadside testing and following arrests to help determine whether an alleged drunk driver was under the influence of alcohol while operating a vehicle. These tests can be used for operators of cars and trucks as well as operators of motorcycles, boats, and other vehicles as defined by their respective state.

There are two different types of breath tests: the preliminary breath test (PBT) (also known as preliminary alcohol screenings) and the Final Breath test, called simply "BAC" or EC/IR II test. Both "types" are often simply called "breath tests," and that's where the confusion comes in. By referring to both as breath tests, people assume they are the same thing, but they are not. Each is administered for different reasons and purposes.

Preliminary Breath Tests

A preliminary breath test or alcohol screening is a breath alcohol test conducted using a portable breath machine in the field, meaning on the side of the road during a traffic stop or DUI investigation. The PBT measures a person's breath alcohol content (BrAC). Portable breath test results are almost always inadmissible in court because they are unreliable. You would want to speak to a DUI attorney, however, to learn more bout what your Virginia state law says about PBT results and admissibility.  Technically, the results of a PBT (Roadside Test) will be admissible if we are contesting the Probable Cause (PC) for a DUI arrest without a warrant.  

PBTs are always VOLUNTARY, but sometimes they are coerced.   They are administered when a police officer has reasonable grounds to believe you are unlawfully intoxicated. Maybe your speech was slurred or your eyes were bloodshot, and so the officer asks to take a breath sample. If you fail the PBT, that could be enough probable cause to arrest you for a drunk driving offense. A PBT result will usually be used in conjunction with a failed field sobriety test as sufficient probable cause (PC) to arrest you.

Intoximeters EC/IR II-- the "Breathalyzer".  

After an arrest for a drunk driving offense, you will have to take another test. Typically, this is a chemical test using a breathalyzer. The breathalyzer is not a portable machine and produces results that are more accurate and can be admitted into court as evidence against you. Approved breathalyzer machines are subject to calibration requirements established by state or federal law.

Do I Have a Right to Refuse a Breath Test in Fairfax/Prince William?

Whether you are in Fairfax/Prince William or anywhere else in Virginia, you can refuse a breath test in either situation. Breath tests using portable machines in the field are typically voluntary while tests used at the police station while in police custody are not voluntary. You can, however, still refuse either one.

Keep in mind, though, that you should be ready for consequences stemming from the refusal. Immediate consequences include administrative penalties while long-term consequences are those that may result in a criminal conviction.

All states have their own variation of implied consent laws. These laws basically say that you implicitly agree to obey the rules of the road when you get a driver's license. As such, you also implicitly agree to any chemical tests (breath, blood, or urine tests) in exchange for the privilege of operating a vehicle in the state. If you refuse, the state's agency for motor vehicles can impose an automatic license suspension and fines against you. You do not have to be charged and convicted of a drunk driving offense to have your license suspended -- you just need to refuse a breath test.

What's more, in some jurisdictions, your refusal may be used against you in court as evidence that you were drunk driving. If you are convicted, your sentence could include jail time.

Further, if you refuse, the officer may request a warrant to obtain a blood sample. Blood tests are much more reliable and accurate.

If you were arrested in Fairfax/Prince William, you should speak to a drunk driving defense lawyer who handles both administrative and criminal DUI cases. Administratively, you can appeal an automatic license suspension if, for example, the police failed to warn you of the consequences. Criminally, you can fight DUI-related charges and be successful.

Common Problems with the Breath Tests in Virginia

Breath tests using portable machines are known to be unreliable, and that's why they are typically not admissible in court. Breath tests using breathalyzers at the police station, however, are admissible. They, too, can also be unreliable and become inadmissible under certain situations or circumstances.

Problems with breathalyzers can be categorized as those resulting from the testing device or machine, the individual operating the device, or the test sample.

Problems with the Breathalyzer Device

  • Improper calibration
  • Incorrect chemical solutions
  • Inappropriate modification
  • Faulty programming
  • Broken or otherwise not maintained properly

Issues with the Administration of the Test

  • Improper instructions or methodology
  • Failure to follow testing protocols
  • Testing performed by an untrained person

Causes of Improper Breathalyzer Test Readings

  • Pre-existing conditions or other medical conditions suffered by the test taker
  • Residual alcohol from the test taker's mouth
  • Certain diets, like Keto

Breath tests can be challenged. Most of these defenses would require an Expert Witness, which can be quite expensive.   A criminal defense lawyer can file motions to suppress or exclude the results. Sometimes, if successful, this could result in dismissal of the charges or an acquittal.

Five Ways We Challenge DUI Breath Tests in Fairfax/Prince William

A breath test is often a substantial part of the prosecution's case involving DUI offenses. For that reason, it is essential to ensure that a breath test was performed correctly and the results are accurate.DUI defense attorneys who have been well trained and have experience in these cases can identify a problem with a breath test and take proper action to suppress it as evidence.

At McGlone Law Firm, Fairfax Freedom Fighters, we can take any of the following actions, depending on the specific facts and circumstances of your case:

  1. Attack the reliability of the breath test. Many reasons exist why we may not be able to rely on the results of a breath test, like a faulty machine, improper administration, or health issues with the test taker.
  2. Prove the breath device was not properly calibrated. Each state has its respective laws on calibration, but it usually involves a certified forensic analyst and verification of the machine's accuracy.
  3. Prove device was not properly maintained. Typically, the date and time of repairs and maintenance, as well as the nature and extent of and who performed the maintenance and repairs must be logged.
  4. Prove there was a lack of training or an operator's error. Police must be trained in order to conduct breath tests. An untrained or uncertified police officer may not properly administer the test.
  5. Prove records were not properly maintained. Records should be kept to show proper calibration and maintenance, and failure to keep those records updated can be used to prove the device was not properly calibrated or maintained as the law requires.

During the discovery phase of your criminal case, we will obtain the information and evidence we need to support arguments against the breath test's admissibility.

Contact a DUI Defense Lawyer in Fairfax/Prince William Today

You can have your day in court to challenge DUI charges regardless if you took and failed a breath test or refused one. With the right DUI defense lawyer in Fairfax/Prince William, you can be successful. Contact McGlone Law Firm, Fairfax Freedom Fighters today by calling us at 703-273-2750 or filling out an online form to schedule a Free Consultation-- by Phone or IN Person. We will review your case and discuss your best legal options.

Our Mission

Our Mission is to get the best possible result for each client, while including the client in the decision-making process along the way.  Every case is different, so we strive to gain detailed knowledge of the special facts and then find all of the relevant law to help get the best result either at trial or by negotiation.

Areas We Serve

Our Office is located at Fairfax Courthouse.   The Courthouse and Jail are right outside my window and you can’t park any closer than our office.  We focus on defense of DUI, traffic, and other misdemeanor and drug charges.

4085 Chain Bridge Road
Suite 400

FAIRFAX, VA 22030
(703) 273-2750
Mon, Tue, Wed, Thu, Fri, Sat: 09:00am - 04:00pm