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Can You Challenge DUI Breathalyzer Test Results in Virginia?

Posted by John A. Kassabian | Apr 23, 2020

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If you have been charged with a DUI in the Commonwealth of Virginia, it can be overwhelming to learn about the harsh penalties the state imposes for this offense. Since a DUI is a Class 1 misdemeanor, if convicted you will incur a 12 month suspension of your driver's license, expensive fines, enrollment in the Alcohol Safety Action Program, active probation, ignition interlock, possible jail time, and a permanent mark on your criminal record. Commonly, clients ask me if it is possible to challenge DUI breath test results in Virginia, and the answer is yes, but it depends on the facts and circumstances of your case. I'll give you some examples below and discuss when it could be worth it to talk with a Fairfax DUI attorney.

Breathalyzer Tests and Virginia DUI Laws

If a police officer suspects that a driver is intoxicated, under Virginia Code 18.2-267, they can request that the driver blow into a breathalyzer device. If the breathalyzer measures the amount of alcohol on your breath, also known as your blood alcohol content (BAC), and it is above .08 percent or higher, under Virginia Code 18.2-266 you will be charged with a DUI. It is important to understand that a breathalyzer device is the small, hand-held device an officer uses to determine if there is probable cause to arrest you for a DUI. If you fail to pass the breathalyzer test, you will be arrested and asked to take a breath test at the jail. While you can refuse the initial breathalyzer test with no charge or punishment, you will be penalized if you refuse the breath test at the jail.

A common question many people ask is: What happens if I refuse a breath test? While refusing the test is within your rights, keep in mind that if you do so under current law, you will be charged with a civil offense, which carries a one-year license suspension, six points on your DMV record, and no opportunity to get a restricted license. However, there is some good news on the horizon as these restrictions are about to loosen somewhat.

Virginia House Bill 34 was recently passed in the 2020 Virginia Legislative Session, permitting the court to grant a restricted operator's license to anyone convicted of a first offense unreasonable refusal. To be granted a restricted license, you must show good cause and have an ignition interlock device installed in any vehicle you own or that is registered under your name. Additionally, you must enroll in the Virginia Alcohol Safety Action Program (VASAP). Once House Bill 34 is signed and enacted as law by the Virginia governor, getting a restricted license will become possible. Until then, the consequences for refusal will remain the same.

The consequences for refusing a breath test are more harsh if you have had a DUI or a previous refusal in the past. If you have been convicted of a DUI or unreasonable refusal in the past 10 years and refuse, you will be charged with a Class 1 misdemeanor. This criminal charge carries up to 12 months in jail, up to a $2500 fine, and a three-year license suspension as well as a permanent entry on your criminal record. It should be recognized that the 3-year driver's license suspension period is in addition to any other previous suspension that may be in place.    

Unless you are prepared to lose your license outright and potentially receive a harsh punishment and fines, refusing a breath test may not be in your best interests.  

When Can I Challenge a Breath Test Result?

In some situations, you can mount a defense that challenges the results of your test. If you are successful, your charges may be dismissed or reduced. Because Virginia laws are complicated, however, if you plan to challenge a breath test, it is essential that you work with a DUI attorney in Fairfax who has significant experience in DUI defense.

Reasonable Suspicion and Probable Cause


One of the first things that can go wrong with a breath test has nothing to do with the actual test administration. If the arresting officer did not have probable cause for the arrest that led to the administration the breath test, even if your reading was above the legal BAC limit and the test was conducted properly, the result may not be admitted as evidence against you in court.

An officer MUST have reasonable suspicion to stop your vehicle based on how you were driving or some type of motor vehicle violation specifically set-forth in the Virginia State Code. Obviously if you were weaving in and out of lanes, speeding, or ran a red light, this would be considered reasonable suspicion. If you were doing none of these things or if you were doing some of those things to a lesser degree to bring question as to whether you did violated a traffic law, a lawyer may be able to prevent evidence of your breath test result from being admitted in court.



A lawyer may also be able to challenge the reliability of your breath test results for other reasons. If you were charged with a DUI after recently using mouthwash, breath fresheners, or another product that contained alcohol, your breath test results may not be accurate. In this case, you will need to work with a Fairfax DUI lawyer who can bring in an expert witness to testify in court.

Issues with the Breathalyzer Device

Issues with the breath test device itself can also be used to challenge a test result. One example of this is if you were tested with a breath test device that was not properly calibrated. In court, the prosecutor MUST show that the device used to test your BAC was working correctly. If they cannot prove that the test device was calibrated or they fail to establish the device was one approved by the Virginia Department of Forensic Science as set-forth in the Virginia Administrative Code and as published in the Virginia Register of Regulations, the test results could be deemed inadmissible. Again, as you can imagine, working with an experienced DUI attorney is necessary when you want to make technical challenges regarding a breath test device. A good local lawyer will be knowledgeable about how to handle this type of case.

Incorrect Test Administration


Additionally, the administration of the test must be done correctly in order for this evidence to be allowed in court. There are very specific rules and guidelines for how the tests must be administered, and if an officer fails to follow them or was not trained to conduct the test properly, your lawyer may be able to prevent the results from being admitted in court.

Failure to Testify

On your court date, if the person who conducted your breath test (whether that is the police officer or someone else who administered the test) fails to testify in court, you could use this to defend yourself. The Sixth Amendment and the Confrontation Clause of the Constitution awards everyone the right to confront and cross-examine witnesses. If a key witness does not testify, it may be possible to prevent the breath results from being admitted on the grounds that your constitutional rights were violated. This defense requires an in-depth understanding of both state and federal law, so again, working with a DUI lawyer will be in your best interest.

When to Work with a Lawyer

While this blog post is intended to give you a brief overview of circumstances where a breath test result could be challenged, it is certainly no substitute for true legal advice from a qualified DUI attorney serving Fairfax. Whether or not the defenses described above are successful will depend on the specifics of your case.

If you are in any way questioning whether or not your breath test was valid, or are unsure of what to do after a DUI arrest, don't second-guess yourself. Criminal defense attorney John Kassabian has successfully handled many DUI defense cases and may be able to help you as well.  Mr. Kassabian has been fighting for the rights of Fairfax and Northern Virginia citizens for over two decades. During a free consultation, he can give you a clearer sense of your rights and help you determine how best to move forward.

Contact Kassabian & Kassabian, PLC here or at(703) 750-3622 to discuss your case in more detail.

About the Author

John A. Kassabian

John A. Kassabian joined the family firm in 2002 after having served as a Prosecutor in Fairfax County and Prince William County. Specializing in criminal defense, traffic defense and civil related matters, John has an extensive criminal law background and has handled a wide variety of cases for ...

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