If you’re stopped for DUI / DWI in Virginia, the officer may offer you a preliminary breath test (PBT). He might even say, “This won’t be used against you in court.” But nothing could be further from the truth.
Hello, my name is Andrew Flusche. I’m a Virginia traffic attorney. A lot of times, with DUI or DWI stops in Virginia, the officer, deputy, or trooper tells the defendant–the person they’re about to charge with DUI–that they’re going to give you a preliminary breath test and that you have the right to have it done and they read you this advice card about the preliminary breath test on the side of the road. And they’ll say, in passing, “Oh, this can’t be used against you in court” or “This doesn’t come into court” or “This won’t hurt you in court.”
Nothing could be further from the truth! Let me explain the way a preliminary breath test operates in Virginia for a DUI.
When you’re pulled over, it is correct that if it’s available, you are entitled to have your breath analyzed with a preliminary breath test. It’s done on the side of the road. Now, I’ve talked before about how you absolutely have the right to refuse that test. You do not have to do any of the tests on the side of the road in Virginia. However, if you do the preliminary breath test, if you consent and take that test and blow into the machine, the reading from that machine is used to help determine whether or not the officer had probable cause to arrest you for DUI.
It does matter in the case. It goes only, though, towards determining whether there is probable cause to arrest you. That’s the analysis of whether or not it’s probable that you are driving while intoxicated and that triggers the officer’s ability to arrest you and then take you to the station or the jail to do the real breath test on the intoxilizer or the breathalyzer. And that is the breath test that will actually be used at your trial.
What the officer is meaning to say is that the preliminary breath test cannot be used against you to prove guilt or innocence as far as whether or not you are in fact intoxicated. However, the preliminary breath test can and will be used to establish whether or not it’s a legal arrest for DUI. That’s one of the pieces in the case that is actually critical to us to examine and hopefully be able to defend against. Because if the arrest itself is illegal, then the breath certificate that actually proves that you’re intoxicated cannot be used against you in court.
It is kind of confusing, but it’s a very critical piece for any driver to understand, that if you’re pulled over on the side of the road, first of all you can refuse the preliminary breath test. The handheld breath machine, you do not have to do. But if you do take it, that result will be used if there is any challenge to the legality of the arrest. That result will be used in court for probable cause determination. It is not used to determine guilt or innocence, but it can be used to determine probable cause, and if there is no probable cause for a DUI arrest, then you walk free.
It really is critical that you understand, if you choose to take it, what it is you’re consenting to. The officers unfortunately misrepresent the nature of that a lot of times, and so it’s critical to understand that distinction. That it does get used against you, just not in your actual trial to determine if you’re guilty of DUI.
If you have any questions about that, or if you’ve been stopped, please call me and we’ll definitely talk more about it.
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