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DUI, DWI & Criminal Legislation in Virginia  

The Code of Virginia , section: 18.2-267

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DUI Procedure/Evidence, Preliminary analysis of breath to determine alcoholic content of blood

A. Any person who is suspected of a violation of 18.2-266, 18.2-266.1 or 18.2-272 shall be entitled, if such equipment is available, to have his breath analyzed to determine the probable alcoholic content of his blood. The person shall also be entitled, upon request, to observe the process of analysis and to see the blood-alcohol reading on the equipment used to perform the breath test. His breath may be analyzed by any police officer of the Commonwealth, or of any county, city or town, or by any member of a sheriff's department in the normal discharge of his duties.

B. The Department of Criminal Justice Services, Division of Forensic Science, shall determine the proper method and equipment to be used in analyzing breath samples taken pursuant to this section and shall advise the respective police and sheriff's departments of the same.

C. Any person who has been stopped by a police officer of the Commonwealth, or of any county, city or town, or by any member of a sheriff's department and is suspected by such officer to be guilty of a violation of 18.2-266, 18.2-266.1 or 18.2-272, shall have the right to refuse to permit his breath to be so analyzed, and his failure to permit such analysis shall not be evidence in any prosecution under 18.2-266, 18.2-266.1 or 18.2-272.

D. Whenever the breath sample analysis indicates that alcohol is present in the person's blood, the officer may charge the person with a violation of 18.2-266, 18.2-266.1 or 18.2-272, or a similar ordinance of the county, city or town where the arrest is made. The person so charged shall then be subject to the provisions of 18.2-268.1 through 18.2-268.12, or of a similar ordinance of a county, city or town. >P> E. The results of the breath analysis shall not be admitted into evidence in any prosecution under 18.2-266, 18.2-266.1 or 18.2-272, the purpose of this section being to permit a preliminary analysis of the alcoholic content of the blood of a person suspected of having violated the provisions of 18.2-266, 18.2-266.1 or 18.2-272.

F. Police officers or members of any sheriff's department shall, upon stopping any person suspected of having violated the provisions of 18.2-266, 18.2-266.1 or 18.2-272, advise the person of his rights under the provisions of this section.

G. Nothing in this section shall be construed as limiting the provisions of 18.2-268.1 through 18.2-268.12.

Comments : Before being arrested, an accused can submit to a preliminary breath test. This test cannot be used against you at the trial for DUI, but can be used against you during pretrial motions and other non-DUI charges.

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