Comprehensive. Assertive. Creative.
We don't practice law like the others.

Challenging breathalyzer results in Virginia

On Behalf of | Aug 2, 2021 | Criminal Defense |

Virginia refers to DUI as DWI, or driving while intoxicated, which also includes narcotics. A driver in Blacksburg, Virginia, could get charged with DWI if they register .08% when tested with a breathalyzer. If a driver is subjected to a breathalyzer test and they don’t trust the results, they can challenge them.

Challenging a breathalyzer

Your criminal defense attorney could argue the officer lacked sufficient training and used the device improperly. If the officer lacks specific training, devices could give unreliable results.

Another defense is the test gave inaccurate readings because the defendant didn’t have alcohol in their system. Certain everyday products, such as mouthwash with alcoholic content can skew results. Sometimes, some brands of breathalyzers may not be as reliable as others.

Each state maintains a list of accepted devices and sets laws on when a breathalyzer should be calibrated or updated to ensure accuracy. An attorney may order maintenance records of the device in question to present as evidence. The court could deem the results inadmissible if the device hadn’t been calibrated.

The officer must have reasonable suspicion to pull a driver over for DWI and probable cause to test them. Even if the device works properly, the lack of these elements could get results dismissed.

Refusing a breathalyzer

Virginia has implied consent laws dictating that state drivers consent to DWI testing by driving on public roads. A pre-arrest refusal cannot be used against them in a future conviction, but they can still face penalties. Drivers can also still get arrested for DWI without test results if the officer has reason to believe they are intoxicated.

If a driver refuses a test, the officer must read them a disclaimer stating the penalties for refusal. Administrative penalties for a first refusal commonly include a seven-day license suspension. The penalties for a first conviction usually includes a one-year license suspension without a hardship option.

Virginia takes DWI seriously, and charges can follow drivers around a long time. However, mistakes happen often in DWI cases, and drivers should know their rights.


FindLaw Network
Photo of John N. Spicer and Kristopher Robert Olin