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On Chemical Breath and Blood Tests in Virginia DUI Cases

Below is an excerpt from an interview with experienced Virginia DUI attorney Thomas Soldan.

What is the difference between a breath test and a blood test, and when are they typically administered?

Thomas Soldan: Virginia DUI Breath and Blood TestThere is a law in Virginia called the implied consent law. Many states have an implied consent law, but the Virginia implied consent law says that by virtue of driving on the highway of the Commonwealth of Virginia, you submit to this test if probable cause is found or if there is a belief that there’s probable cause that you’re driving under the influence of alcohol or another intoxicant. Typically, if that is believed to be alcohol, either through your admission, the observations of the officer, or smell, they’re going to administer a breath test. That’s the easiest one to do at the station. The breath test is done in a separate room following very specific procedures. If a person refuses a breath test at the station, they will be charged with unreasonable refusal under Virginia Code Section 18.2-268.3. If they’re believed to be under the influence of drugs or a combination of drugs and alcohol, or they’re physically unable to give a breath test, then a blood test is typically administered at the local hospital. Blood tests are not usually performed at the police station.

Can someone request a blood test instead of a breath test?

Thomas Soldan: You can request a blood test, but in Virginia, the first step is the breath test. You can’t avoid a breath test by requesting a blood test unless there is an unusual situation, such as physical limitation. Blood tests are typically the secondary test.

What happens if someone refuses to take a breath or blood test at the station?

Thomas Soldan: A refusal charge only refers to the test at the station, and that’s being the breath test in the breath room or the blood test at the hospital. If you refuse those, you can be charged with unreasonable refusal and that unreasonable refusal occurs when the officer reads the affidavit of refusal, which summarizes the Code Section 18.2-268.3, the person says they understand it, and then they affirmatively refuse. That unreasonable refusal charge is in addition to the DUI, but that only occurs at the station. Field tests have nothing to do with unreasonable refusal and refusing the field tests will not lead to additional charges.

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