Criminal Defense Lawyer Norfolk, VA and throughout Hampton Roads
Criminal Defense Lawyer Norfolk, VA and throughout Hampton Roads

DUI Breath, Blood, and Urine Tests

Norfolk, VA DUI defense lawyers explain chemical tests

If you have been arrested for driving under the influence (DUI) in Virginia, one of the first things the police will often do is administer a test to determine if you are intoxicated. One of the most common DUI tests is a breathalyzer test, which is supposed to measure the amount of alcohol in someone’s breath.

But DUI breathalyzer tests are not the only tests used by law enforcement to determine if someone’s legally intoxicated. Other DUI chemical tests exist. And what you might not realize is these so-called scientific tests are not always 100 percent accurate. Many times, DUI chemical tests produce false positive results – meaning the person who took the test was not legally intoxicated.

If you have been charged with DUI in Virginia due to a breathalyzer test or another chemical test, don’t assume there’s nothing you can do. Talk to an experienced Virginia DUI defense attorney at Welch & Wright, PLLC in Norfolk as soon as possible. We can review your case and explore your legal options.

Types of DUI breath tests

In general, law enforcement officials in Virginia administer one of two types of breathalyzer tests. These tests supposedly measure the amount of alcohol by percentage in someone’s body. If your blood alcohol concentration (BAC) is over 0.08 percent – meaning you have that amount of alcohol by weight by volume in your body – there is a presumption that you are illegally intoxicated in Virginia, according to Virginia Code, Section 18.2-266.

The two most common DUI breathalyzer tests administered by law enforcement in Virginia include:

  • Roadside Breathalyzer Test – Also known as a Preliminary Breath Test (PBT), roadside breathalyzer tests are usually administered by the police officer who pulled someone over because they suspect the driver is intoxicated. PBTs are performed using a portable breath-analysis device. Many PBT results are not used as evidence in court since they are often not considered accurate and cannot be used unless the defense raises certain defenses. Even so, many drivers are arrested on suspicion of DUI based on the results of their roadside breathalyzer test.
  • Evidentiary Breath Test (EBT) – If a driver’s roadside breathalyzer test results in a BAC over 0.08, police will then bring the driver to the police station to administer a more formal DUI breath test. This test is known as an Evidentiary Breathalyzer Test. Police administer EBTs using a stationary breath test in the police station. Even so, many EBTs result in false positive test results.

Other DUI chemical tests

Along with breathalyzer tests, another common DUI chemical test given by law enforcement officials in Virginia is a blood test. This particular type of DUI test requires trained professionals who know how to take a blood sample, properly store it, and accurately test the blood sample for the presence of alcohol. If any mistakes are made in any step in the process, the blood test results might not be accurate.

Another, less common DUI chemical test measures the amount of alcohol in someone’s urine. DUI urine tests are not often given in Virginia since such tests often result in a false positive.

Virginia DUI chemical test regulations

The Commonwealth of Virginia has strict DUI statutes and laws involving chemical tests, including when and how such tests must be given in order for the results to be admissible in court. In particular, law enforcement officials must administer a breath test or blood test within 3 hours of the alleged offense, according to Virginia Code, Section 18.2-268.2, Part A. If police conducted the test more than 3 hours after the alleged offense (driving under the influence) , your rights have been violated.

Other Virginia DUI chemical test regulations include:

  • Driver is entitled to receive a preliminary breath test (PBT) on the roadside before being arrested for a DUI offense.
  • Drivers have the right to observe the analysis of their DUI breath test at the station.
  • A copy of any automatic written test results generated by a DUI breath test machine must be given to the driver who took the test.

Virginia’s Implied Consent Law

Virginia has what’s known as an Implied Consent law when it comes to DUI testing. Under Virginia Code 8.2-268.2, anyone who drives on Virginia’s roads gives their implied consent to take a DUI chemical test to determine if they are driving under the influence of alcohol. This simply means that drivers agree to take a breath test or blood test if a police officer has arrested them for driving under the influence.

However, as explained above, law enforcement must abide by strict rules and regulations under Virginia’s Implied Consent law. They cannot conduct DUI tests on anyone for any reason. If they violated your rights, any DUI charges could be dismissed.

Can you refuse to take a DUI breath test?

Yes, however, there are consequences in some cases. Remember, there are two types of DUI breath tests in Virginia, and they have very different rules and regulations.

The first type of DUI breath test in Virginia is a roadside DUI breathalyzer test. If a police officer or Virginia state trooper asks you to take a roadside DUI breath test – also known as a Preliminary Breath Test (PBT) – you have the right to refuse. However, the officer may have probable cause through other facts during the DUI stop to place you under arrest, even with your refusal to take a PBT.

The second type of DUI breath test in Virginia is an Evidentiary Breath Test (EBT). This type of DUI breath test is given by police in a police station. This is where the implied consent law applies: drivers who refuse to take an EBT DUI test, and are charged, and subsequently, convicted under Virginia Code 18.2-268.3 will have their driver’s license suspended for 12 months.

However, the law has recently been amended to allow someone who has been convicted of a first offense of a Refusal to Take a Blood or Breath Test to petition the court after 30 days to allow them to have a restricted license for the remainder of the suspension period if “good cause” can be shown.  A Defense Attorney who regularly handles DUI cases, such as the lawyers at Welch & Wright, can help with this petition process.

Are DUI chemical tests unreliable?

They can be. In some cases, DUI breath tests and DUI blood tests produce false positive or inaccurate results. Some of the reasons why DUI chemical testing machines produce inaccurate results include:

  • The machine was defective or improperly calibrated.
  • A police officer used the machine improperly.
  • Test samples were improperly stored.
  • The driver had certain medical conditions or other non-intoxicating substances in their system that caused a false positive result.

Whatever the circumstances, if an error occurred and you were wrongly arrested and charged with DUI due to an inaccurate chemical test, you should not be charged and convicted of drunk driving. Our law firm can help you fight your charges and hopefully have your DUI charge dismissed.

What should I do if I believe my DUI test results are wrong?

You need to act fast if you believe you have been wrongly charged with DUI in Virginia due to an inaccurate breath test or blood test. This is why you need to call a DUI defense lawyer right away. The legal system moves fast when it comes to DUI arrests in Virginia. Before you spend another hour in jail or without your driver’s license, talk to an experienced lawyer immediately. They can investigate your arrest and gather evidence in support of your legal case.

Learn how our DUI defense attorneys can help

The law firm you choose after your Virginia DUI arrest can make a dramatic difference in the outcome of your case. That’s why many people choose Welch & Wright, PLLC. We know the rules and regulations that apply to DUI chemical tests in Virginia, as well as all the other relevant DUI statutes. And we will get right to work to build the strongest possible legal case on your behalf.

The clock is running after your DUI arrest. Don’t waste a second. Make us your first call. Contact our law firm to learn more about your legal options. Schedule a free case evaluation with one of our experienced Norfolk, VA DUI defense lawyers today.

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