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Unreliable breath tests may lead to unwarranted DUI arrests in Virginia
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Unreliable breath tests may lead to unwarranted DUI arrests in Virginia


The reliability of breath tests, which law enforcement often use on DUI stops, may be impacted by numerous factors and may lead to wrongful arrests.

Every day, people throughout Virginia are arrested on suspicion of drunk driving. According to the state’s Department of Motor Vehicles, nearly 25,000 people were arrested for driving under the influence in 2014 alone. Many of these drivers, either before or after their arrests, were asked to perform breath tests. Although there are a number of factors, which may impact the accuracy of these tests, they are often used as evidence to arrest, charge and convict Virginia motorists of DUI.

How do breath tests work?

Some chemical tests, including urine and blood tests, directly measure the actual alcohol concentration in people’s bloodstreams. Breath tests, on the other hand, test for the presence of alcohol in motorists’ breath. The reading, then, is an estimate of the drivers’ BAC levels.

Law enforcement agencies typically use desktop or handheld breath analyzers. To perform the test, drivers are asked to blow into a disposable mouthpiece on a screening device. Then, the device indirectly measures the amount of ethanol in a motorist’s breath. Most breath analyzers use fuel cell technology, infrared technology or a combination of the two to take this measurement and make an estimation.

Factors affecting the reliability of breath tests

According to the Virginia Department of Forensic Science, the state’s breath testing instruments are certified for accuracy at least once every six months. Failing to regularly check and calibrate these devices may cause false results due to substances in the environment or the air temperature.

The timing of the test may also impact whether the Commonwealth can convict a person of driving under the influence of alcohol. Sometimes it is possible to argue that a person’s blood alcohol content has increased since the time of their stop. This often happens if a person is stopped just after they may have had their last drink at a bar or a restaurant. In addition, if a person drinks after they were stopped, it is difficult for the Commonwealth to prove that their blood alcohol level at the time of driving.

Refusing breath tests carries stiff penalties

Sometimes, drivers may choose to forgo performing breath tests in an effort to avoid false results or incriminating themselves. However, this does not guarantee that they will not be arrested for DUI. Instead, it may simply be more difficult for the authorities to prove their case, or their refusal may be used as evidence that they were intoxicated.

It is important for Virginia motorists to understand that, while they may have the legal right, refusing a breath test may carry serious penalties. According to the Virginia Judicial System, an unreasonable breath test refusal may constitute a separate criminal offense. As such, people could face penalties, in addition to those they may face if convicted of DUI. This includes a one-year driver’s license suspension for a first-time refusal. Drivers with previous refusals or convictions may be sentenced to up to six months in jail, fines of up to $1,000 and a three-year driver’s license suspension.

Seeking legal counsel

Law enforcement agencies throughout Virginia often rely on breath test results when making DUI arrests. As such, false readings may easily lead to unwarranted arrests for drivers. Therefore, those who have been charged with DUI may benefit from obtaining legal representation. Working with an attorney may help them to understand their rights and establish a criminal defense, which may include questioning the accuracy of their breath test results.

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