Aug 29, 2019 Blood alcohol test options in DUI cases – Fairfax criminal lawyer weighs in
Blood alcohol test option in DWI cases addressed by Fairfax criminal lawyer
Blood alcohol testing routinely is sought by police after arresting DUI suspects, whether through breath testing or blood drawing. As a Fairfax criminal lawyer, I know the importance of thoroughly attacking this and all parts of DUI prosecutions.
Fairfax criminal lawyer on physical inability to provide a sufficient breath sample
Virginia law requires a DUI arrestee, if asked or directed by the police, to “submit to a breath test. If the breath test is unavailable or the person is physically unable to submit to the breath test, a blood test shall be given.” Va. Code § 18.2-268.2(B).
Failure to offer the DUI defendant a blood test if the DUI arrestee is physically unable to submit to a breath test requested by police for blood alcohol testing, calls for dismissal of the DWI prosecution. Lamay v. Commonwealth of Virginia, 29 Va. App. 461, 476 (1999). The trial court must permit the defendant to testify about physical inability to provide a sufficient breath test. Id.
Fairfax criminal lawyer on when a blood test can be offered over a breath test for blood alcohol testing
For blood alcohol testing, Virginia’s implied consent statutory scheme generally requires offering breath testing over blood testing when available for driving under the influence of alcohol cases. However, my client’s Virginia DUI charging documents typically allege driving under the influence of alcohol and/or drugs. Where a DUI-arresting police officer has sufficient belief that the defendant “was under the influence of something other than (or perhaps in addition to) alcohol,” the officer can opt to request a blood test instead of a breath test. Patterson v. Commonwealth, 62 Va. App. 488, 498 (2013); see also Va. Code § 18.2-268.2
Fairfax criminal lawyer on police not having a duty to offer blood alcohol testing
Virginia DUI arrestees are obligated to submit to blood alcohol testing as directed by the police, but the police have no obligation to offer any such testing at all. Brown-Fitzgerald v. Virginia, 511 Va. App. 232, 236 (2008).
Fairfax criminal lawyer Jonathan L. Katz pursues your best defense against felony, misdemeanor and DUI prosecutions. For a free confidential consultation with Jon Katz about your pending criminal court case, please call 703-383-1100 to schedule an appointment.