Blood Tests vs Breath Tests for Virginia DUI

Virginia law says that you consent to have a breath or blood sample taken to determine your level of alcohol in your blood if you are validly arrested on suspicion of DUI. But what does that mean? When can the officer do a breath test and when can he do a blood test.

The default rule in Virginia is if you are arrested solely for suspicion of DUI and the officer just had probable cause for alcohol then the officer is supposed to take you for a breath test. The law says you “shall submit to a breath test.” That’s the default rule. If alcohol is involved the officer is supposed to give you a breath test. The exceptions to that rule are if a breath test is unavailable; then it is up to the Commonwealth to prove that at the time of your arrest the breath test was not available for some reason or if you are unable to submit to a breath test.

The main reason why people would be unable to submit to a breath test is if you are in an accident or there is some kind of other medical situation where they have to take you to the hospital. They want to do a test ASAP and they don’t want to have to wait until the hospital releases you hours later perhaps and so in those cases the law would say that they can do a blood test.

The default rule for a blood test is that the officer must arrest you on suspicion of being under the influence of drugs OR alcohol and drugs. If he has probable cause to suspect drugs, he can opt to take you for a blood test or a breath test. Then it becomes the officer’s choice which test he is going to have you take. But that requires a showing by the Commonwealth that the officer had probable cause that you were under the influence of drugs to some degree.

If the probable cause is solely for alcohol then the Commonwealth would have to take you for breath test, unless you are unable to submit to a breath test or if the breath test is unavailable.

photo credit: Sam Ilić

Andrew Flusche

My name is Andrew Flusche. I am a traffic and misdemeanor defense lawyer in Virginia. I limit my practice to traffic tickets and misdemeanor defense, so I know the ins and outs of these offenses. I literally wrote the book on reckless driving in Virginia which you can get on Amazon here or download for free here. I opened my practice in 2008 after earning my Juris Doctor degree from the University of Virginia School of Law. Since then I have earned over 600 5-star reviews from happy clients on Google, Yelp, Facebook, and Avvo. If you’ve been charged with a misdemeanor offense in Virginia, please don’t hesitate to contact me. Your initial consultation is always free, and you'll talk directly with me about the details of your case.

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