If you were arrested for a DUI, you were likely subject to (or requested to take) a blood or breath test. The tests are designed to measure your blood alcohol content (BAC) – the percentage of alcohol in your bloodstream. Initially, the officer may use the results of a preliminary breath test to make a drinking and driving arrest. Later, if you participated in an evidentiary breath test or blood test, the prosecution will use the results to build a case against you.
Although the results of breath and/or blood tests may be used in court as evidence, that does not mean they're always accurate. An innocent person can be convicted of a DWI because an improperly administered test generated skewed levels that suggested the individual was under the influence.
Because the science involved in DUI matters is so delicate and can potentially impact your future, you need to retain the services of a lawyer who understands the nuances of the law and knows how to challenge the Commonwealth’s Attorney’s evidence. At Tillotson & Martin, our Virginia DUI lawyers not only wrote the book on DWI law but are also trained and certified in various areas. Both of our attorneys are Breath Test operators. The firm is also the only in the state with an EC/IR and the only firm that has hosted a seminar on the EC/IR 2. Additionally, Attorney Jeff Martin is designated an ACS-CHAL Forensic Lawyer-Scientist, a distinction only one other lawyer in the state has.
If you submitted to a breath or blood test after your DWI arrest, our team can help you understand what your results mean and what your defense options are. Schedule your free consultation by calling us at (757) 568-7978 today. We serve Hampton Roads, Newport News, and all of Coastal Virginia.
Virginia's Two Types of Breath Tests
If you're suspected of drunk driving, the officer may request that you take a breath test. One of these tests may be administered at the time of your stop. This is known as a preliminary breath test (PBT), and your breath sample is taken using a handheld "breathalyzer." Generally, the results of a PBT are not used in court.
The second type of breath test is called an evidentiary breath test (EBT). If you're subject to this, your breath sample is taken on a larger tabletop machine at a police station or jail. As the name implies, the results of an EBT can be used as evidence against you.
Virginia's Two Types of Blood Tests
In addition to having two types of breath tests, Virginia also has two kinds of blood tests. The first is a "quick and dirty" test that is typically taken at an emergency room. It uses only the plasma part of your blood to determine BAC and gives only a rough estimate of the level.
The second is the implied consent blood test. Results can take up to 6 months to generate and are considered more accurate. However, the accuracy depends on whether or not the proper procedures were followed when taking and analyzing your blood sample.
Can I Refuse a Breath or Blood Test?
Whether or not you can refuse a breath or blood tests depends on which you're being asked to take. If the officer attempts to subject you to a PBT, you can respectfully decline and face no penalty.
However, if you are requested to participate in an EBT or any blood test, you could be penalized. The reason is because of Virginia's implied consent law. Although some may claim that you implicitly gave your consent to participate in a breath or blood test when you signed the forms for your driver's license, this is not the case.
The reality is that Virginia's law provides that any person who operates a vehicle on a public road implicitly consents to a chemical test to determine the level of drugs or alcohol in their system. It wasn't always like that. Participating in a blood or breath test was voluntary, but people started refusing to take them, so the government made it a crime to refuse.
What Are the Penalties for a Chemical Test Refusal?
Because refusing a blood or breath test is an offense, you may be charged with a crime and face penalties.
The punishments depend on how many prior refusals you have and include:
- First refusal for blood or breath:
- 1-year driving ban (a civil offense)
- Second or subsequent refusal for breath:
- Class 1 misdemeanor charge
- Up to 12 months in jail
- Fine of up to $2,500
- 3-year driving ban
- Second or subsequent refusal for blood:
- 3-year driving ban (a civil offense)
What's important to note is that a previous DWI conviction, not just a prior refusal, can be used to determine whether you’re charged with a second or third refusal.
Call Tillotson & Martin for a Free Consultation
If you want to learn more about breath and blood tests administered in DWI matters and what defenses may be brought up in your case, reach out to our Virginia DUI lawyers.
We Wrote the Book.We were tasked with writing the book on Virginia DUI Law by Thomson Reuters Westlaw, the leading authority in legal publishing. Prosecutors, defense attorneys, and judges often turn to this resource.
We Possess the Knowledge.Not only are our attorneys committed to attending continued education courses, they lecture and teach courses themselves. In a field as scientific and technical as DUI Defense, keeping our knowledge up to date is crucial to crafting our clients' defense strategies.
We Truly Care.Mike Tillotson & Jeff Martin go the extra mile for their clients. Our team realizes that this is your future at stake and we will employ every strategy to ensure that we are providing you with the best representation possible.
We Have the Fight to Win.With nearly 40 years of combined experience, Mike Tillotson and Jeff Martin have successfully handled thousands of DUI cases, and has tried cases across the entire state of Virginia.
Call (757) 568-7978 or Fill Out a Form for a Free Case Evaluation