Preliminary Breath Test in Virginia DUI

In the majority of driving while intoxicated cases that take place in Northern Virginia, law enforcement will offer the suspect a breathalyzer test on the scene.  This test is known as the ‘preliminary breath test’ and is used by the officer to determine whether probable cause exists to arrest the suspect for driving while intoxicated.  The suspect is actually entitled under Virginia Code 18.2-267 to have his or her breath analyzed to determine the probable alcohol content so long as the equipment necessary to analyze breath is available to the officer.  If the test indicates that any alcohol is present in the suspect’s blood, the officer may charge the suspect with driving while intoxicated.

While the test can be used by the officer to determine whether there is probable cause to arrest the suspect, the results of the test can not be used in court to prove the a defendant is guilty of driving while intoxicated.  However, a positive result on the preliminary breath test takes away an important weapon in the defendants arsenal at trial – a challenge to whether the officer had probable cause to arrest the defendant.  If the defendant moves to suppress evidence based on lack of probable cause for his or her arrest, the results of the preliminary breath test are admissible for that purpose.

When a suspect refuses to take the preliminary breath test, Virginia Code 18.2-267 states that “failure to permit such analysis shall not be evidence in any prosecution for an offense listed in subsection A.”  Thus, the code specifically states that refusing to take the breathalyzer test at the scene can not be used as evidence of guilt.  However, the Virginia Court of Appeals has held in Jones v. Commonwealth that refusal to take field sobriety tests can be considered by the Court as evidence tending to support a finding of probable cause to arrest.  While there is no case specifically on point with regard to refusal to submit to a preliminary breath test, it can certainly be argued that refusing to submit to the test could be used against the defendant in order to establish probable cause.

Every case is different.  The attorneys at Henson Pachuta, PLLC are available for a free consultation to discuss your circumstances.  We practice in all Northern Virgnia Courts, including Fairfax County, Prince William County, Arlington County, Alexandria City, and Fauquier County.  Call us by phone at 703-822-4701 or reach us by email at