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Blowing or bleeding- Does a Virginia DUI defendant get to choose?

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Blowing into breathalyzer machines- Blood image

Blowing into the breathalyzer machine or giving a blood sample is the arresting officer’s choice, says Fairfax DUI lawyer

Blowing into the breathalyzer / Intox EC/IR II machine is distasteful to many Virginia DUI arrestees who know that a blood test can reduce the gross inaccuracies that too often accompany breath testing for blood alcohol concentration (BAC). As a Fairfax DUI lawyer, I repeatedly hear from Virginia DWI defendants who get charged with refusing a BAC test when police rejected their insistence on a blood BAC test over a breath test. For those who do not mind the one year loss of Virginia driving privileges that comes with a refusal conviction (having to wait thirty days to apply for restricted driving with the interlock for a first offense), simply refusing the breath test might no sound like a bad thing, unless the police officer charges refusal and proceeds to obtain a blood search warrant to require providing a blood sample.

What is the difference between voluntary handheld roadside portable preliminary breath test (PBT) testing and post-arrest BAC testing for Virginia DUI defendants?

Whether or not some Virginia police fail to make clear the difference between the two BAC tests, blowing into the handheld roadside pre-arrest portable preliminary breath test (PBT) machine is fully voluntary, pursuant to Virginia statutory law. As a Fairfax DUI lawyer, I know that the Virginia law makes post-arrest BAC testing mandatory in DWI prosecutions under Virginia Code § 18.2-266 . If you are going to refuse BAC testing — just as if you are going to refuse to answer police questions or to agree to or assist any searches — make sure you are doing so with diplomatic words and a diplomatic tone of voice.

Why won’t the Virginia lawmakers come into the 21st century and scrap blowing into the breathalyzer machines?

Blood testing is more expensive in terms of time and money than blowing into a breathalyzer machine. With breath testing, a Virginia prosecutor / assistant commonwealth’s attorney sometimes only needs to call one witness when the arresting officer is one and the same with the breath technician. Blood testing needs at least three witnesses for the prosecutor to introduce a Virginia DUI defendant’s BAC at trial: the arresting officer, the blood draw person (and if the prosecutor tries to introduce documents of the blood draw person’s medical licensing, that is time for the defense to pounce on their absence from trial), and the Virginia Department of Forensic Science (DFS) scientist who tested the blood.

How do I convince the arresting officer to give me as a Virginia DUI defendant the option to submit to blood testing rather than breath testing for BAC analysis?

If a Virginia DUI defendant is going to try to persuade the arresting police officer to let the arrestee submit to blood rather than blowing into a breathalyzer machine for BAC analysis, the arrestee risks being accused of refusal for such words, unless couched along the lines of “I will submit to breath testing if you do not grant my preference for blood testing. I know it takes more time and people for blood testing, but I would really appreciate it if I could have the blood testing option.”

Is it reasonable refusal to refuse breath testing when denied the blood testing option?

Virginia BAC refusal law does not outlaw refusing BAC testing unless the refusal is unreasonable. Virginia Code § 18.2-268.3. Seeing that the Virginia Code lets the Virginia DFS designate a breath testing method, that by itself means that judges should be expected to bar arguments that it is reasonable to refuse blowing into a post-arrest breathalyzer machine testing merely because of the gross inaccuracies that often accompany such testing. Instead, Virginia DUI defendants have the option to challenge such inaccuracies, including presenting the testimony of a forensic scientist or other appropriate witness. In hundreds of DUI cases, I have brought a forensic scientist or toxicologist to the trial date for that very reason.

Fairfax DUI lawyer Jonathan Katz relentlessly pursues your best defense against Virginia DWI & criminal prosecutions. Call 703-383-1100 for your free in-person confidential consultation with Jon Katz about your court-pending case.