Virginia Breath Testing
In our experience, we have found that motorists typically have no understanding of the Virginia breath testing laws. And, in many instances, motorists that contact Riley & Wells Attorneys-At-Law about their case will claim they were “ordered” by a police officer to provide a breath sample. Thus, we believe an explanation of the breath testing laws is in order. There are three primary types of breath testing devices used in Virginia. The preliminary breath test, the Intox EC/IR II breath test machine, and vehicle ignition interlock devices.
Preliminary Breath Test (“PBT”)
There is no requirement to submit to a roadside preliminary breath test (“PBT”). The classic example involves a police officer pulling over a motorist for a traffic offense such as speeding where the police officer then claims to smell an odor of an alcoholic beverage on the driver’s breath. The police officer will likely transition the traffic stop into a DUI investigation. This is just one example of many on how a police officer may encounter a motorist and begin to build a DUI case. The roadside PBT is an important part of the investigating police officer’s DUI investigation. Virginia law says that any motorist suspected of DUI may be “asked” by the police to submit to a PBT in order to determine if there is probable cause evidence for a DUI arrest, but the motorist can refuse to submit to preliminary breath testing and such refusal cannot be used by the prosecution at trial for DUI. See Va. Code § 18.2-267 for a more detailed explanation of the PBT law.
Intox EC/IR II Breath Test Machine
Virginia law enforcement officers that enforce the DUI law currently use the Intox EC/IR II breath test machine to gather evidence for trial. This machine is approved by the Virginia Department of Forensic Science and is used to gather evidence of intoxication for DUI prosecutions. If the police suspect a motorist of drinking and driving, and have probable cause evidence for a DUI arrest while operating on a highway, then – in most cases – the motorist will be directed to submit to a breath test at the police station, but the motorist can refuse to provide breath samples for testing at the police station. If the motorist unreasonably refuses to provide breath samples for testing at the station, then the motorist will be charged with an additional offense for refusing to take a breath test. Motorists that agree to provide a breath sample at the station for testing will be instructed to blow into a tube located on the Intox EC/IR II breath test machine, which uses a sensor that detects ethanol alcohol on the breath. The Intox EC/IR II breath test machine then analyzes the breath samples provided by the motorist to calculate a blood alcohol content (BAC). *****NOTE: Many motorists elect to unreasonably refuse the breath test and not provide a breath sample because they either do not want to provide the prosecution with additional evidence of intoxication or because they do not want to subject themselves to a potential mandatory minimum jail sentence for an elevated blood alcohol level.***** See Va. Code §§ 18.2-268.2 and 18.2-268.2 for a more detailed explanation of this issue.
Scientific evidence is often the best evidence for the prosecution in a DUI case. This is why prosecuting attorneys and police officers rely more and more on breathalyzer tests in their efforts to establish guilt in drunk driving cases, but it is not technically required to prove intoxication beyond a reasonable doubt. In some cases, the other evidence proves intoxication without the need for scientific evidence. On the other hand, a positive breath test result does not automatically mean the motorist is in violation of the DUI law. Breath test results can be successfully challenged during a trial for various reasons by a skilled, trained and educated Virginia DUI Lawyer. Our lawyers are members of the National College for DUI Defense, which is one of the country’s premier organizations that train DUI defense attorneys. An experienced DUI lawyer will be looking for any legal, procedural, technical or mechanical flaw or problem with the breath test results in order to have the test excluded from a trial. In some cases, the police will attempt to secure blood evidence in cases that either involves substances other than alcohol or where the breath test machine is not available.
The Intox EC/IR II breath test machine used by the police is nothing more than a fancy computer, and we all know that computers can malfunction. It is important to hire a Virginia DUI Attorney who knows how to challenge breath tests in court because serious questions have been raised regarding the accuracy of breath-testing devices. For example, did you know that chewing gum or taking cough syrup for a cold can indicate a reading on a Breathalyzer? Our Virginia DUI Attorneys have extensive experience defending cases involving breath test evidence and will research and analyze your breath test results in an attempt to develop the best defense. In appropriate cases, an expert defense witness may be necessary. Remember, you are not automatically guilty of DUI just because your breath test result was equal to or in excess of the legal limit with a BAC of 0.08% because there are many factors to analyze, which sometimes result in the test being inadmissible in court.
Ignition Interlock Devices are required to be installed in the vehicle of the defendant motorist who has been convicted of DUI if there is a request for restricted driving privileges or if ordered at the Court’s discretion or in cases involving subsequent convictions. Most Ignition Interlock Devices now come installed with cameras. In short, the Alcohol-Ignition Interlock Device is essentially a Breathalyzer that is linked to the ignition system of a vehicle. The driver must blow into the ignition interlock device in order to start the vehicle and the vehicle will not start with a positive alcohol reading that exceeds a BAC of 0.02%. Additionally, random breath tests are also performed while the vehicle is in operation.
The Code of Virginia defines an Ignition Interlock System as a device that (i) connects a motor vehicle ignition system to an analyzer that measures a driver’s blood alcohol content (BAC); (ii) prevents a motor vehicle ignition from starting if a driver’s BAC exceeds 0.02%; and (iii) is equipped with the ability to perform a rolling retest and to electronically log the BAC during ignition, attempted ignition and rolling retest. The device keeps a record or log of the activity, which is downloaded at regular intervals by the authorities. Periodic calibration of the device may also be required. If violations are detected or there is evidence of tampering with the device, then additional penalties can be implemented. Finally, Ignition Interlock Systems are installed in the vehicle at driver’s expense, which includes: installation fees, maintenance fees, administrative fees, monthly fees, and download fees.
Let us review the breath test results of your case. We can help!
By Mitch Wells 11/10/2015 | Updated 5/4/2017