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Virginia Breathalyzer Results Not Always Accurate to Prove DUI Cases

Under Virginia's "implied consent" law (Code section 18.2-268.2), any person operating a motor vehicle on Virginia highways is deemed to have consented to have samples of his blood or breath taken for a chemical test to determine whether alcohol and/or drugs is present in his system, if he is arrested for DUI. The test must be conducted within three hours of the alleged offense.

It should not be confused with the preliminary breath test (PBT) which is performed on a small hand-held device at the scene of the traffic stop. That test is voluntary.

This is not a voluntary test! It is mandatory, and if refused, can subject the person to additional prosecution. If convicted of unreasonably refusing to take the test following arrest, the person's right to drive in Virginia can be suspended for up to one year, and no restricted driver's license may be issued.

This test is usually performed at the police station or jail, and follows the person's arrest for DUI or DWI. The machine used in Virginia is an Intoxilyzer 5000 or 8000 model. This machine uses a breath sample to estimate the amount of alcohol in the blood.

The test results are admissible as evidence at trial to prove guilt.

An experienced and aggressive DUI lawyer in Virginia knows the limitations and defects of this procedure. Many factors can skew the reliability of the test results, and prove the person has not violated the DUI law.