[VIDEO] Can the Handheld Breath Test be Used Against You in Court?

There’s three steps for DUI which I explain when you contact my office and we will analyze your case together. One question is does the officer have a good reason to arrest you. That’s where the hand held breath test comes in. If you’re charged with DUI or DWI definitely contact me so we can discuss your defenses.

Video Transcription

Can the preliminary breath test be used against you in court? Let’s find out. Hi, I’m Andrew Flusche. I’m your Virginia DUI lawyer and the simple answer is yes, the preliminary breath test or hand held breath test or portable breath test, whatever you want to call it, a little device that the officer holds in their hand can and most likely will be used against you in court. Now, let’s explain what that all means.

Essentially, the officer in Virginia before they give you a little hand held breath test on the side of the road, they read a little card with some legal mumbo jumbo and it kind of sounds like, oh this test isn’t going to be used against me in court. The officers a lot of times even go further than that and explain in their own words, “well, what that just says is that I can’t bring this test into court, this is just between you and me, it’s going to stay right here on the side of the road and it’s just a gauge for me to see if you’re safe to go home or not.” Sometimes, they’ll even say flat out this test cannot be used in court. That’s just wrong. The preliminary breath test cannot be used in your prosecution for DUI to prove whether or not you were actually impaired. That’s legal mumbo jumbo for saying that this test cannot be used to decide if you in fact were drunk. However, this test can and most likely will be used to decide whether or not the officer was justified in arresting you.

There’s three steps for DUI which I explain when you contact my office and we will analyze your case together. The first one is does the officer have a reason to pull you over. This test doesn’t matter for that. The second question is does the officer have a good reason to arrest you. That’s where the hand held breath test comes in. If the officer does not have a good reason to arrest you, you normally win the case because that means that it was an invalid arrest, they really don’t have enough evidence to prove intoxication typically other than that. A lot of times you would just walk away with a dismissal or a not guilty. That’s where the hand held breath test comes into play. It’s used for the purposes of probable cause to arrest and it will come into court if you challenge probable cause. The third question in a DUI is whether or not you were actually impaired. The hand held breath test is not used for that. That’s correct. That’s where they take you to the station and have you do a big breath test with a big tube or they take your blood or something. That’s the key thing for you to take away though.

Any breath test can and most likely will be used against you in court. It can be used for different things but don’t believe anyone who says that this test is not going to be used against you in court. It’s simply not true. If you’re charged with DUI or DWI definitely contact me so we can discuss your defenses.