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DUI Testing in Virginia

If you’re pulled over by a police officer who suspects you might be driving under the influence of drugs or alcohol, there are a few situations that may arise. The first thing you should know is that the police must have probable cause to pull you over. If the police notice that you’re driving erratically, speeding, failing to stop at lights or signs, or driving excessively slow, you may be pulled over.

Pulled Over for a DUI?

You are required to provide your driver’s license and registration if an officer pulls you over, but you are not required to answer any other questions unless they pertain to your license or registration. If an officer begins to ask you about your driving or where you were before being stopped, you do not need to answer these questions without a lawyer present. You should state that clearly and politely. Law enforcement will ask questions to see if you’re slurring your words or to try and get you to say something that will incriminate you. Always remember that you have the right to remain silent. If an officer continues to ask you questions after you state that you don’t wish to speak without an attorney present, be sure to tell your Virginia DUI attorney what happened. Evidence collected after you ask for an attorney can be considered inadmissible.

My Rights During Field Sobriety Tests

If you have been driving erratically or if you appear to be under the influence (e.g. glassy eyes, bloodshot eyes, slurred speech), you may be asked to take a field sobriety tests. These tests assess driver coordination and your ability to follow instructions, but they’re easy to fail even if you’re sober. Examples of field sobriety tests that law enforcement may have you do include:

  • Standing on one leg
  • Walking in a straight line heel-to-toe before turning and repeating
  • Performing the Rhomberg Balance test (close your eyes, tilt your head back, and stand still for 30 seconds)
  • Performing the Horizontal Gaze Nystagmus test (using a pen or finger to see how your eye moves from point to point)

You have the right to refuse a field sobriety test. The thing to know is that field sobriety tests are set up for you to fail. Law enforcement will be looking for any sign, small or large, to use as evidence for intoxication and your arrest. This could include lowering your foot down, failing the Horizontal Gaze Nystagmus test because your eye twitched, or any other number of minute movements. You have the right to refuse a field sobriety test. If you refuse a field sobriety test, you could be arrested for DUI if the officer has already made the decision that there is enough evidence against you to show that you are intoxicated. One thing to know is that if you refuse a field sobriety test, the prosecution may sometimes cite this refusal as evidence of your guilt.

Should I Take a Breathalyzer Test?

Law enforcement may also ask you to submit to a breath or blood test. You can refuse to submit to a breath or blood test, but this comes with potential penalties. By accepting driving privileges in the Commonwealth of Virginia, you have given consent to have samples of your blood or breath taken within three hours of the alleged offense to determine your blood content. If you refuse, you will likely be charged with refusal to submit to a breath or blood test. This is a separate charge from DUI, and if you’re convicted it can lead to a license suspension for one year without the opportunity to apply for a restricted driver’s license.

How breath tests are administered in Virginia is more complicated than it seems. There are two types of breathalyzers issued – Preliminary Breath Tests (PBTs) and Evidential Test Devices (ETDs).

You do not have to submit to a PBT. This is a small handheld breathalyzer that police can administer when they stop you. By law, a Virginia police officer must inform you that you don’t have to submit to a PBT and that you have to right to see the results. A PBT is used to establish probable cause, not to prove intoxication. Under VA Code Section 18.2-267, you are not required to blow into PBTs. If you voluntarily submit to a PBT, this evidence can be used to establish probable cause for your DUI arrest.

However, you are required to submit to an ETD if you’re arrested for a DUI unless you want to be charged with refusal to submit to a breath or blood test. This is done within three hours of your arrest and it’s typically conducted at a police station. Before you submit to an ETD, a police officer should read you a notice that explains the implied consent law.

You have a right to see the digital results of any breath test you take. This applies to all breathalyzers, including PBTs and ETDs. In order for this chemical evidence to be used against you, the police must inform you of these rights. If they fail to inform you of this, your defense attorney may be able to suppress the evidence.

Blood testing for DUI

Blood testing is less common, but it’s used if a driver suspects you of being under the influence of drugs. It may also be administered if a suspect is passed out. Under Virginia’s implied consent law, you must submit to a blood test if you’ve been arrested for DUI unless you wish to be charged with refusal to submit to a blood or breath test. However, you do not have to take the test if you haven’t been arrested. If your blood is sampled without your permission (e.g. you’re at the hospital following an accident), your rights may be have been infringed.

DUI Testing in Virginia

An experience Roanoke DUI attorney will have a wealth of knowledge about the variety of tests you could be subjected to during or after an arrest. These testing methods have their downsides, like unusually high readings, faulty electrical equipment, mishandling, and more. It’s key that you ask your defense attorney about his or her experience in defending cases using forensic evidence. You should also be clear and detailed in what you tell your attorney about the circumstances around your arrest, because sometimes evidence can be suppressed if it was unlawfully obtained from you.

Call a Roanoke DUI Lawyer Today

If you’ve been charged with a DWI / DUI in Virginia, the experienced Roanoke criminal defense attorneys at Copenhaver, Ellett & Derrico can help evaluate the details of your case and your options. For an appointment, call us at .

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