Does one arrested for DUI in Virginia have to do the breath test? Ask the Arlington-Fairfax Criminal Lawyer.

If arrested for DUI, in most instances, one must do a breath test.  In Virginia there are usually two breath tests:  the preliminary breath test that is usually administered roadside prior to one being arrested, and the evidential breath test administered after an arrest at the police station.  The preliminary breath test is optional; the post-arrest breath test is mandatory in most circumstances.  (The penalty for refusing the second test is a separate charge called “Refusal of Tests.”  Depending upon one’s criminal history, Refusal is subject to either a civil penalty with a one year license suspension, or it is a criminal penalty).

There are three main exceptions to the breath test requirement.  First, one need not submit to a breath test if the crime occurred on a place other than a public road (such as on most private property).  Second, one need not submit to a breath test unless he is arrested within 3 hours of the crime.  Third, the police must tell you that you are required to submit to a test by reading you a form approved by the Supreme Court of Virginia.  See Virginia Code sec. 18.2-268.2 (A) and 18.2-268.3 (B).

A person does not get to choose between a blood test and a breath test.  However, state law favors breath tests.  If the police officer suspects a DUI from alcohol, he must administer a breath test.  If a breath test is unavailable or the suspect is physically unable to submit to a breath test, then the police may administer a blood test.  See Virginia Code sec. 18.2-268.2 (B).

Interestingly, a police officer is not required to offer any chemical tests if he doesn’t want to do so. This can be very frustrating for one who wants to prove his innocence.  See Oliver v. Commonwealth, 40 Va. App. 20, 24 (2003).

What happens if the police suspect a motorist of being impaired, but doesn’t know if the impairment is due to alcohol, drugs, or both?  Breath tests do not detect drug use.  Does the police officer need to administer a breath test or a blood test?  This was a question that the Court of Appeals recently answered.

A police officer stopped a motorist, Jacob Patterson, on suspicion of DUI.  She suspected that he was impaired by something, but didn’t know what.  She did not smell alcohol on him.  After she arrested Mr. Patterson, she took him for a blood test.  The test revealed a blood alcohol level of 0.16 – double the “legal limit.”  Even though the officer’s suspicion was drug impairment, she never tested Mr. Patterson’s blood for drugs.

Mr. Patterson’s criminal defense attorney appealed this conviction because the police procedure appeared to him to be contrary to statutory law.  He argued that the law expressly states that “Any person so arrested for a violation of [DUI-alcohol] shall submit to a breath test.  If the breath test is unavailable or the person is physically unable to submit to a breath test, a blood test shall be given.”  See Virginia Code sec. 18.2-268.2 (B).  Thus, he reasoned, the police officer didn’t follow statutory procedure.

The Court of Appeals rejected this argument by pointed to the next paragraph of the statute, which applies to DUI-drug arrests.  It reads, “A person, after having been arrested for a violation of [DUI-drugs] may be required to submit to a blood test to determine the drug or both drug and alcohol content of his blood.  See Virginia Code sec. 18.2-268.2 (C).  It rejected Mr. Patterson’s lawyer’s argument on the basis that the arresting officer suspected something other than drugs and that this second paragraph of the law applied to the procedure for such suspicions.  In this case, the officer did not suspect alcohol and, therefore, we was permitted to skip a breath test in favor of a blood test.  It didn’t seem to matter to the Court that the blood test only tested for alcohol.  The DUI conviction was affirmed.

The case is Patterson v. Commonwealth, 1909-12-3 (November 5, 2013).