The Breathalyzer Test in Virginia is a breath test performed after a driver has been arrested for driving under the influence. It’s purpose is to determine the driver’s Blood Alcohol Content (BAC). If the driver’s BAC reading from the Breathalyzer Test is higher than .08, the law presumes that he was under the influence of alcohol at the time of the offense (Va. Code §18.2-269(A)(3)). BAC readings above .15 result in mandatory minimum, active jail time and fines. Second and subsequent DUI convictions with high BAC readings have increased mandatory minimum penalties. For more information on Blood Alcohol Content and DUI convictions in Virginia, click here.
What is the Difference Between the PBT and the Breathalyzer Test in Virginia?
The Breathalyzer Test in Virginia is NOT the same thing as the Preliminary Breath Test (PBT). Both tests measure Blood Alcohol Content, but they are very different. The PBT is a road side breath test performed as part of field sobriety tests to determine the presence of alcohol in the driver’s blood. It’s purpose is to establish probable cause for a DUI arrest and is conducted before a driver is arrested. The PBT is voluntary and the results cannot be used against the driver in a DUI trial as evidence of intoxication (Va. Code §18.2-267(E)).
The Breathalyzer Test in Virginia is conducted after a driver is arrested for a DUI. The results from the Breathalyzer Test in Virginia will come into evidence as proof that the driver was under the influence of alcohol at the time of the offense. Unlike the PBT, the Breathalyzer Test in Virginia is mandatory under the implied consent law and refusal to take the test is a separate charge.
For more information on the difference between the PBT and Breathalyzer Test in Virginia, click here.
Implied Consent Law in Virginia
Va. Code §18.2-268.2 states that any Virginia driver impliedly consents to have a sample of his breath or blood tested if he is arrested for DUI, Underage DUI, or Driving on a Revoked License. The driver must be arrested within 3 hours of operating a motor vehicle on a public highway for the implied consent law to be implicated.
A blood test can also be required if the driver is unable to take a Breathalyzer Test, if there is no Breathalyzer Test available, or if the officer suspects that the driver is under the influence of drugs or a combination of drugs and alcohol (Va. Code §18.2-268.2). For more information on when blood tests are required in lieu of, or in addition to, the Breathalyzer Test in Virginia, click here.
If the driver refuses the Breathalyzer Test in Virginia, the officer is required to read the driver a form advising him of the implied consent law and the penalties for Breathalyzer Refusal. If the driver still unreasonably refuses the Breathalyzer Test after being advised of the implied consent law, he will be charged with refusal under Va. Code §18.2-268.3.
The driver can also be charged with Breathalyzer Refusal if the machine prints error messages and officer thinks he is trying to avoid producing a breath result.
Breathalyzer Refusal Penalties in Virginia
A conviction for Breathalyzer Refusal in Virginia has harsh penalties. A first offense Breathalyzer Refusal in Virginia is punished with 12 months of driver’s license suspension with no possibility of a restricted license (Va. Code §18.2-268.3(D)).
Drivers can be charged with, and convicted of, second or subsequent Breathalyzer Refusals even if they have never been convicted of Breathalyzer Refusal. Va Code §18.2-268.3(D) states that any combination of Refusal or DUI convictions can be the basis for enhancing the current charge to a second or subsequent offense.
A second offense Breathalyzer Refusal in 10 years is a Class 2 misdemeanor, punished with 3 years of driver’s license suspension without a restricted license, up to 6 months in jail and a fine up to $1000 (Va. Code §18.2-268.3(D)). A third offense Breathalyzer Refusal in 10 years is a Class 1 misdemeanor, punished with 3 years of license suspension with no restricted license, up to 12 months in jail, and a fine up to $2500 (Va. Code §18.2-268.3(D)).
For more information on Breathalyzer Refusal penalties in Virginia, click here.
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