A DUI arrest may seem like a common occurrence in Virginia, but if you are the one in the back of the police car, it can be traumatic and confusing. Whether you had a couple of beers or you know you are completely sober, you may have little control over what happens when police pull you over.

Officers may be giving you directions and asking you questions while traffic zooms past and lights flash in your eyes. Before you know it, you are sitting in the police station while an officer prepares to administer a breath test. When the test results come back, they charge you with DUI. It may seem like there is evidence stacked against you, but before you accept a deal and plead guilty, you would be wise to seek some legal counsel.

Challenging the breath test

Many states have established .08 as the legal limit of a driver’s blood alcohol concentration. If a breath test measures a .08 BAC, police do not need to provide any other evidence that you were driving while impaired. You may refuse to submit to field sobriety tests, refuse to answer questions about whether you were drinking and even refuse to blow into an officer’s portable breath machine. Nevertheless, if you blow a .08 at the police station after your arrest, per se law says you are legally intoxicated.

Even with a .08 BAC, you may be able to build a strong defense against the charges if any of the following factors exist:

  • The police station does not use a breath test device approved for use by law enforcement.
  • The officer who administers your test did not receive appropriate training and certification to use the device.
  • The officer does not follow proper protocol or manufacturer’s instructions for administering the test.
  • The officer administers the test immediately after you have eaten, smoked, vomited or burped.
  • The officer does not administer a second test to verify the results of the first, or the second test result is not within .02 of the first.
  • The device does not receive scheduled maintenance or proper calibration before police administer your test.

Without calibration, breath tests may provide false readings, placing you at risk of conviction for DUI. A DUI on your record can create many complications for the rest of your life. However, as you can see, there are plenty of reasons to challenge the results of a breath test. A skilled attorney will be able to advise you on the best course of action to protect your rights.