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Preliminary Breath Test for Virginia DUI

Virginia Code section 18.2-267 entitles a person suspected of DUI to have his breath analyzed before arrest  "to determine the probable alcoholic content of his blood."

However, since few people know of this entitlement, the possibility of taking a preliminary breath test -- or, PBT -- is usually raised by the detaining officer. The statute also requires that the officer tell the suspect that he has the right to refuse the PBT, and neither his refusal to submit to the PBT nor the results themselves, "shall be admitted into evidence in any prosecution" for DUI.

While it cannot be said that all officers have ulterior motives for suggesting the driver take a PBT prior to arrest to "prove he is not impaired," in most cases only the suspected DUI violator who recently has had little or nothing to drink will benefit from taking a preliminary breath test because the results usually will be used against him to justify his arrest.

The statute -- as written -- implies the law authorizing a preliminary breath test is intended as a shield the DUI suspect may use it to prove he has no alcohol in his blood, or less than that required to be deemed impaired under Code secion 18.2-266. But in most cases the PBT statute is a sword officers use to bolster their probable cause for the driver's arrest for DUI. This is why.
 
The preliminary breath statute permits the officer to arrest for DUI "whenever the breath sample analysis indicates alcohol is present in the person's blood." Notice that the statute contains no language specifying that a preliminary breath test result below a certain level or above a certain level will or will not justify the person's arrest. The statute merely states that the officer may arrest for DUI whenever the PBT result indicates alcohol is present in the person's blood! In other words, even if the preliminary breath test result is below the statutory impairment level of 0.08 -- say, it reads 0.06 -- the officer may still arrest for DUI, using the PBT result either alone, or in combination with other factors that may lead a reasonable officer to conclude the driver was impaired.

Many people -- and some attorneys who do not have much experience in defending DUI cases -- believe the statute prohibits any and all use in court of the preliminary breath test results.  This is a myth! The preliminary breath test result may be admitted into evidence "at a probable cause or pre-trial suppression hearing." Therefore, a person who agrees to take a preliminary breath test because he believes the results can't be used against him in court may find -- to his detriment -- that the test results may be used against him if his attorney challenges the probable cause for arrest, or to suppress evidence on some other ground.