Student Legal Services Blog: Breathalyzers

Blaine Adams
SLS Article- Breathalyzer

We all know that you’d never drink and drive (or, heaven forbid, be drunk in public!), but what if you do get pinched? Should you talk to a lawyer? Should you hope you can pass yourself off as sober? Should you refuse to take a breathalyzer test? These are heady questions with multiple answers, but let’s examine one mythical beast in detail: the breathalyzer.

First, according to VA Code § 18.2-268.3, it’s unlawful for you to “unreasonably refuse” to take a breathalyzer test. The rationale is that merely by driving a car on the road, you’ve given implied consent to the police to administer a breathalyzer test. A first-time violation is a civil offense, and the court will suspend your license for one year. After that, subsequent violations are criminal and constitute Class 1 and 2 misdemeanors.

Second, the amount you blow has a very specific meaning. According to VA Code § 18.2-269, if your BAC is .05% or less, the presumption is that you’re not under the influence. However, if your BAC is .08% or higher, the presumption is that you are. What about the middle ground? According to the statute, being in that range is a “fact [that] may be considered with other competent evidence in determining the guilt or innocence of the accused.”

Finally, what if there’s a mix-up in the handling or classification of your test? It seems like this would be the kind of “technicality” that prints you a “Get Out of Jail Free” card.
Wrong. VA Code § 18.2-268.11 specifically states that the police’s failure to comply on their end doesn’t get you off automatically, but “shall be considered with all the evidence in the case.” Remember—the purpose of these laws is to keep you safe.



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