Preliminary Breath Tests in Virginia

There are two types of breath tests used in Virginia to measure Blood Alcohol Content (BAC) when a police officer suspects that a driver is under the influence of alcohol.  These tests are the Preliminary Breath Test (performed before a driver is arrested) and the Breathalyzer Test (performed after a driver has been arrested).  This post focuses on the Preliminary Breath Test in Virginia.  For more information on Breathalyzer Tests in Virginia, click here.

What is the Preliminary Breath Test in Virginia?

The Preliminary Breath Test, or PBT, is a hand-held breath test performed on the road side as part of field sobriety tests.  It is used to determine the driver’s Blood Alcohol Content (BAC) when a police officer suspects that a driver is under the influence of alcohol.  The Preliminary Breath Test in Virginia is used to establish probable cause for a DUI arrest and it is performed before a driver is arrested.  If the PBT detects any alcohol, Va. Code §18.2-267(D) states that an officer may arrest a driver for Driving Under the Influence (DUI).

The Preliminary Breath Test in Virginia is one of many tools a police officer can use to establish probable cause for a DUI arrest.  For more information on other ways that police officers develop probable cause for a DUI arrest in Virginia, click here.

What Happens with the Results of the PBT?

PBT results do not come in as evidence against the driver at the DUI trial.  PBT results can only come in if the driver is challenging probable cause for the DUI arrest and can only be used to explain the arresting officer’s probable cause.

The Virginia Code requires the officer to inform the driver of certain rights he has regarding the Preliminary Breath Test in Virginia.  The officer must tell the driver that:

• he has the right to see the BAC reading on the machine (Va. Code §18.2-267(A))
• he has the right to see the BAC analysis (Va. Code §18.2-267(A))
• the PBT results cannot be used against the driver as evidence of intoxication (Va. Code §18.2-267(E)), and
• the driver can refuse the PBT without the refusal being used against him (Va. Code §18.2-267(C)).

What Happens If I Refuse to Take the PBT?

The Preliminary Breath Test in Virginia is voluntary.  Va. Code §18.2-267(C) states that a driver’s refusal to take the PBT cannot be used against him in his DUI trial.  Additionally, he will not be charged with Breathalyzer Refusal for refusing the PBT.

What If The Officer Never Asked Me to Take the PBT?

If the officer does not offer the PBT, the DUI arrest may still be valid if the officer had other sufficient evidence to justify probable cause for an arrest.

What is the Difference Between the Preliminary Breath Test and the Breathalyzer Test?

The Preliminary Breath Test and the Breathalyzer Test in Virginia both measure a driver’s Blood Alcohol Content (BAC).  However, the results of the tests (and their refusals) are very different.

Results from a Preliminary Breath Test in Virginia will NOT come into evidence against a driver unless he challenges probable cause for the arrest.  The BAC results from the Breathalyzer Test, however, WILL come into evidence against the driver as proof that he was under the influence of alcohol when he operated the motor vehicle.

Another important distinction between these two tests is that a driver can refuse to take a Preliminary Breath Test in Virginia and that refusal cannot be used against him in court.  However, all Virginia drivers are required by the implied consent law to take a Breathalyzer Test after they have been arrested for a DUI.  If a driver unreasonably refuses to take the Breathalyzer Test after being arrested for a DUI, he can be charged with Breathalyzer Refusal.  For more information on Breathalyzer Refusal charges in Virginia, click here.

For more information on the difference between the PBT and Breathalyzer Test in Virginia, click here.

 

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tags: Alcohol | Blood Alcohol Content | Breath Tests | Breathalyzer | Breathalyzer Refusal | Implied Consent | Intoxication | PBT | Probable Cause | Probable Cause for DUI Arrest | Under the Influence | Under the Influence of Alcohol