Hiding the PBT ball no longer gets a free pass for Virginia police, says Fairfax DUI lawyer

Several times, I have won Virginia DWI trials by keeping out the preliminary breath test (PBT) results for police hiding/ failure to clearly advise the drunk driving suspect prosecuted under Virginia Code § 18.2-266 that they have the right to refuse the test, or by failing to show that they used PBT equipment approved by the Virginia Department of Forensic Science (DFS) . As a Fairfax DUI lawyer, I have also watched and read in deep disappointment when judges have said that such rights are not enforceable under the statute nor under the Constitution, despite my underlining that statutes must be given meaning and that the legislators are presumed to so intend, whether or not police have intentionally hidden drinking and driving suspects’ rights from them. Disappointingly, even a substitute lawyer whose practice includes criminal defense one day overruled such an objection by me without even saying why. Today is a new day in the Commonwealth of Virginia, where mid-2024 saw the effective date of a new provision of the PBT statute proclaiming: “If a police officer or a member of any sheriff’s department fails to advise a person of his rights under the provisions of this section, any breath sample obtained pursuant to this section shall not be admissible by the Commonwealth in any motion to suppress for the purpose of determining probable cause.” Virginia Code § 18.2-267.

Gone are the days when police could get away with mis-stating / hiding that PBT results cannot come into court or “can only help and not hurt you”

How I would cringe every time I would hear some police on their bodycam and dashcam videos tell Virginia driving under the influence of alcohol suspects that PBT results cannot come into court or “can only help and not hurt you.” Unfortunately, the following hiding language jointly remains in the Virginia PBT law:  “The results of the breath analysis shall not be admitted into evidence in any prosecution for an offense listed in subsection A,” whereby the Virginia Court of Appeals has defined prosecution to be a trial, whereas PBT results are only relevant in court to challenging the legality of the defendant’s arrest, which is not part of the trial. Consequently, the next great legislative change in Virginia with PBTs is to make clear that police must tell arrestees that the PBT results can be used against the defendant who challenges the legality of his or her arrest.

Refusing PBTs is the way to go with Virginia DUI prosecutions

The less data you provide police when investigated for possible driving under the influence of alcohol or drugs, or for other crimes, the better, from you or your attorney.  whether or not you have all discovery in your case and whether or not the prosecution is hiding material evidence  That is your simple watchword to avoid answering police questions other than providing booking and ticketing information, to decline consenting to police searches and to refuse field sobriety testing in DWI cases. The Virginia PBT statute does say that a suspect’s “failure to permit such [PBT] analysis shall not be evidence in any prosecution for an offense listed in subsection A” whereby prosecution may only mean a trial versus a hearing moving to suppress the defendant’s arrest, but I am ready to argue back that seeing that one has a right to refuse the PBT and must be told that right, that exercising that right is meaningless in determining consciousness of guilt or in determining legality of the arrest at all.

Praised be audio recordings of your police encounter

All police encounters must be audio-recorded, lest a police officer (for instance) incorrectly (intentionally or not, including hiding material) claims that they told the suspect their statutory PBT rights, let alone getting accuracy about anything that happened during the police encounter. Many times, I have had a police officer claim not to know something that as clear as day is established by the video footage showing the encounter with that very same police officer.

Fairfax DUI lawyer Jonathan Katz is totally committed to your best defense. Virginia DWI defense constitutes 30% of Jon Katz’s law practice, and criminal defense is 99% of his law practice. Jon is among the small percentage of Virginia lawyers who are members of the essential National College of DUI Defense (NCDD) or its equivalent, and is particularly well suited to attack pre-arrest field sobriety tests (FSTs) by having been trained by among the nation’s top FST instructors to police, on top of being well suited for attacking blood alcohol concentration (BAC) results, having interacted hundred of times with forensic science experts on BAC. Jon Katz usually can schedule a free in-person confidential consultation with you about your court-pending case within a business day of your contacting us at 703-383-1100, info@BeatTheProsecution.com and (text) 571-406-7268.