Breath Tests at Virginia DUI Stops

Many people do not understand the laws surrounding sobriety and breath tests. A Virginia DUI stops lawyer can help you understand how any sobriety and breath tests can affect your case.

Common Field Sobriety Tests Administered in Virginia

Everyone has the right to refuse a field sobriety test. Normally, there are at least three tests that are performed by officers. The first one is the horizontal gaze test, which is a test in which the officer uses a stimulus, such as their finger or a pen, and asks the driver to follow the stimulus with their eyes while keeping their head still, and the officer is looking at the involuntary jerking of the eye to determine whether that could indicate the presence of alcohol in the system. That test is called HGN (Horizontal Gaze Nystagmus).

The second test is the one-leg stand, in which the person has to take their foot off of the ground and count out loud, keeping their arms at the side, for at least thirty seconds. The other one is the walk and turn test, in which you walk heel-to-toe down a line for nine steps, turn back and walk nine steps back. Those are the three tests that have been standardized and approved by the National Highway Traffic Safety Administration (NHTSA).

In Virginia, there is now a requirement that all jurisdictions train new recruits on the three standard field sobriety tests by the NHTSA. Up until now, there has not been a mandate that recruits be trained, so there will be a discrepancy and a variance in the types of tests that the patrol officers use. It becomes valuable information on cross-examination that these officers use tests that have not been standardized. It does create a good avenue to try to impeach the value of the field sobriety test.

The other test is the preliminary breath test. That is the portable device that police use for people to blow into prior to when they are arrested. The officers are supposed to advise the drivers that they have the right not to take the test, and if they do take the test the results cannot be used against them in court. However, it can be used for probable cause.

Refusing a Breath Test

There are two types of breathalyzer tests. There is the preliminary breath test, which is a portable device that the officers use to determine the alcohol breath content of a driver before they arrest them. That is different from an evidentiary breath test that is used after someone has already been arrested.

There is a difference, and there is no penalty for refusing the preliminary breath test. However, if somebody is placed under arrest and that arrest is determined to be valid, and then they refuse to take the evidentiary breath test, on a first offense, that is a separate charge and it is a civil penalty. In Virginia, it is a loss of license for 12 months without the ability to have a restricted license.

Each case is different, but if a person refuses for no reason, then they are going to be charged with that offense. Whether they are convicted depends on the facts of the case. If they are arrested the second time for DUI, and if they have a prior DUI or a prior unreasonable refusal charge, then that new refusal charge is a Class 2 misdemeanor. That carries a penalty of up to six months in jail and a $1,500 dollar fine.

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