DUI Breath Tests – To Blow or Not?


As a DUI trial attorney, one question that I constantly get from people is whether or not take the breath test. Also, as a DUI trial attorney, the answer is: it all depends.

To best address the question, it is important to note a key distinction for those of you who are not familiar with Virginia DUI law. Namely, there are two different breath tests: one that is offered on scene and another that is done at a police station or jail. The test offered to you on scene is commonly called a Preliminary Breath Test (“PBT”). This is a small handheld device that can obtain a preliminary analysis of your breath. Under Virginia Code 18.2-267, a law enforcement officer is required to offer you a PBT if the officer suspects you are DUI. You, however, are not obligated to take this test. In fact, the PBT and all field sobriety tests are completely voluntary and participation may be declined. Additionally, the PBT can only be used against a person in a DUI case for purposes of showing probable cause. In other words, the PBT is only admissible in court when the reading is offered in response to a challenge to the legality of the arrest. It cannot be used against you to prove you were intoxicated based on the 0.08 legal limit. That being said, under 18.2-267, any positive reading on the PBT (even as low as 0.02) can be used as automatic probable cause to arrest.

The other test that is offered to you after being placed under arrest is the evidentiary breath test or “Intoxilyzer.” Unlike the PBT, failure to submit to the Intoxilyzer can result in an additional charge of Unreasonable Refusal. Thus, although you still have a right to refuse to take the Intoxilyzer, doing so would come with an additional charge against you. Also in contrast to the PBT, the results of the Intoxilyzer are used to prove you were over the legal limit. 

So, knowing all of this, where does it leave us? In my experience, I have observed two leading schools of thought when it comes to breath tests in DUI investigations. One is to refuse all chemical testing (and some also advocate refusing all Field Sobriety Tests). This would certainly avoid the issues of providing breath test evidence that could be used against you in any way. However, there are some drawbacks. First, a staggering number of people who refuse the preliminary breath test get arrested anyway. Second, as noted above, refusal of the Intoxilyzer results in an additional charge of Unreasonable Refusal. Additionally, upon refusal of the Intoxilyzer, an officer could still theoretically obtain chemical testing results from a person by seeking a search warrant for that person’s blood.

 The second school of thought is to take the PBT on scene to start and make the decision about the Intoxilyzer based upon that. The reasoning behind this is to allow a motorist the opportunity to get an idea of what their BAC is before taking the Intoxilyzer. This is particularly important when considering mandatory minimum jail time that could be triggered by a high BAC. It also gives some insight into how close you are to the legal limit early in the DUI investigation. For example, if you take the PBT and the reading is over 0.15, you will probably not want to take the Intoxilyzer because a similar result there would cause you to face a 5-day mandatory minimum jail sentence. In contrast, if your PBT reading is 0.08-0.12 you may want to take the Intoxilyzer in the hope that you will have a similar or lower reading. That way you have a low, more manageable BAC reading and do not have to contend with an Unreasonable Refusal charge.

The “one-test-at-a-time” school of thought has one main caveat. If your case ends up going to trial, one of the best avenues to win is to challenge probable cause to arrest, which means that your attorney would need to find a way to keep the PBT result out of evidence. Failure to do so, would mean failure of one of your best defensive weapons. Notwithstanding this caveat, a skilled DUI trial attorney will have possible ways to neutralize the PBT. Although the PBT cannot be kept out in every case, the possibility is there and can be a comfort to those adopting this school of thought.

Thus, the correct answer is still that it all depends. That doesn’t mean that the choices you make to help yourself are 100% reliant on the facts of your case. They also depend on your personal preference. Perhaps you can afford not to drive for a period of time and would accept an Unreasonable Refusal conviction? Maybe your real-time assessment of your situation attracts you to refusing all chemical testing and field sobriety tests? Or are do you favor a step-by-step appraisal in an effort to hedge your bets as you go? Ultimately, it is your choice. At least now you have an idea of what you are getting yourself into.