Fight Your DWI if the PBT was Done Post-Arrest – From a Recent Case

arrest for DUI/DWI

The point behind the preliminary breath test for DUI and DWI in Virginia is for the officer to have an idea of your blood alcohol level in order to justify whether or not they should arrest you. However, if the officer arrests you first and then gives you a preliminary breath test, the preliminary breath test should not be used against you at court at all.


I recently had a DUI in Fredericksburg where the officer put my client through the paces of the field sobriety test and decided that my client was probably intoxicated. He then read my client the preliminary breath test advice card that explains what the test is and that you can refuse it, and my client agreed to take it. However, the officer looked at his back-up officer and neither of them had a test handy. They simply arrested my client. About 3 minutes later, another officer arrived with a breath test and they administered it to my client.

In this situation, the preliminary breath test was inadmissible and worthless for the Commonwealth’s case. The DUI charge was reduced to reckless driving by agreement.

The whole issue for probable cause is, “What information did the officer have at his disposal at the time that he cuffed you and actually arrested you?”

In this case, it was abundantly clear, courtesy of the officer’s body camera, that he arrested my client before my client blew into the preliminary breath test. Therefore, he did not have that information available at the time of the arrest, and so it could not be used for probable cause.

Now this does not mean that the order of the preliminary breath test is going to be an issue in every case and it does not mean that it’s going to be a winner in every case. However, it’s something that must be scrutinized when evaluating a DUI case. All of the evidence must be reviewed to see if there is an argument to be made in the case.

In this particular example, it’s actually even more concerning because the complaint that the officer filled out for the Magistrate and the officer’s report BOTH indicated that the PBT was done pre-arrest.

However, as I showed the prosecutor on the body camera footage, that is not what happened. The officer did the breath test after the arrest; therefore, it cannot be used to justify the arrest.

This example provides two important lessons:

1) Always view video if it’s available. I’m not saying that officers intentionally lie but sometimes people get their facts wrong when they’re doing their reports later on.

2) Be aware of the timing of the preliminary breath test in relation to the arrest. Was the arrest done first and the breath test second? If so, the handheld breath test cannot be used to justify the arrest, and of course, it cannot be used to prove whether or not you were actually intoxicated. Therefore, it should not be used in court at all in your case.

If you are charged with a DUI or DWI in Virginia, definitely contact me so we can discuss your case and fight together to keep your license and keep you out of jail.

Photo by: Handcuffs

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, and Facebook. 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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