Probable Cause for Virginia DUI / DWI

If you’re charged with DUI / DWI in Virginia, the officer will need to prove that he had probable cause to arrest you in order to admit the breath test results against you. Without probable cause, your case might be beatable.

Video Transcription

Hello, my name is Andrew Flusche. I’m a Virginia traffic attorney. One of the important pieces of any DUI case is that the officer has to have what we call “probable cause” to make an arrest for DUI. The important thing there is that probable cause is what triggers the implied consent law in Virginia. Once the officer has made a legal arrest for DUI (and there are some other requirements, but probable cause is one of the big pieces for a legal arrest for DUI) that triggers implied consent. That basically says that by driving on a highway in a Commonwealth you have impliedly consent to have a breath or blood sample taken if you are legally arrested for DUI. So probable cause is a piece they have to have.

But what does that mean, what is probable cause? Probable cause is basically what all those roadside tests are designed to establish. The officer uses the field sobriety tests, such as the one leg stand, the 9 step walk and turn, the alphabet, and all the other little tests he does, they use those, along with the roadside breath test, the PBT. Those are all used to establish that the officer has probable cause to think you’re intoxicated. It’s not proof beyond a reasonable doubt, but it’s definitely more than reasonable suspicion. But it’s not clear proof, it’s just that you are probably intoxicated.

The important thing for us to look at in your defense is that probable cause is made based on what we call “the totality of the circumstances.” So any one piece may not be enough to establish probable cause but when you stack them all up together it could be enough for the judge to say “Yes, that’s a legal arrest.” So the officer is allowed to use things such as an odor of alcohol, slurred speech, what your driving behavior was like, whether or not you were steady when getting out of your vehicle, all these little things. And again, one thing might not be enough to mean anything, but when you add them all up together it may mean probable cause.

So that’s one of the important things for us to analyze when we talk about your case together. Did the officer have probable cause to arrest you for DUI? Because if he didn’t, if there isn’t probable cause, then we may be able to suppress the breath test results, and that could mean the difference between winning or losing your DUI case.

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.

What's Next?

Get Free Answers

Andrew wrote the book on DWI. It’s jam-packed full of answers for your case.

Get Your Free Copy

Andrew wrote the book on reckless driving. It’s the most-reviewed Virginia reckless driving resource on

Get Your Free Copy

Our special report about driving on suspended explains six critical issues to possibly fight in your case.

Get Your Free Copy


We provide free consultations for cases in our area. If we can't help, we'll do our best to connect you with someone who can.


Contact Andrew & Fitz