If you were stopped by a law enforcement agent on suspicion of driving under the influence (DUI) in the Commonwealth of Virginia, you were probably asked to take two types of breath tests at the location where you were stopped. Both tests are used to estimate your blood alcohol content (also known as a BAC).
The first test, usually taken by your vehicle, is known as the "preliminary breath test." Legally, you do not need to take a preliminary breath test. The second test, given at the police station or jail, is an "evidentiary breath test" that you are required to take.
To administer the preliminary breath test, the officer will ask the driver to blow into a plastic tube that is attached to a hand-held device. The officer will then tell the driver to stop blowing. At this point, the results will be provided either on a screen or printout.
Virginia law does not require a driver to submit to the preliminary breath test, but refusal may influence the officer's arrest decision.
In Virginia, it is illegal to operate a motor vehicle or boat with a BAC of .08 percent or higher. If the preliminary breath test shows that your BAC is over the legal limit, the officer will have probable cause to arrest you on suspicion of drunk driving.
If you took a breath test in Virginia, you should immediately hire an experienced DUI defense attorney to represent you. Typically, if a breath test is admitted into evidence and not refuted, you will lose the case. A good attorney will attack the test results. By finding problems or flaws with the test thereby excluding the test from your trial.
Michael C. Tillotson is a certified Intoxilyzer 5000 operator. He also has his own Intoxilyzer 5000 machine and an Intoxilyzer S-D5, which he uses to conduct experiments for his clients.
If you are interested in receiving a free, no obligation evaluation from Mr. Tillotson, you can fill out our online form.