Can the preliminary breath tester be used in Virginia to establish probable cause to arrest?

Absolutely! If you blow into the hand held breath tester, also called the preliminary breath tester, and it shows positive for any alcohol that is probable cause to arrest for DUI in Virginia. The Officer can then use that result in any hearing to determine whether there was probable cause to arrest. It can and will be used against you if needed. The Officers and Prosecutors also use that information in evaluating your case. Blow into the PBT and go to jail in Virginia.

A number of Virginia lawyers have posted information about the new (?) Breathalyzers being used in that state. Although I do not practice in Virginia, it sounds like that's exactly what those devices are used for -- if you blow into it, you give the officer probable cause to arrest you. Generally speaking, you should not take legal advice from a police officer. Ever.

The use of preliminary breath analysis is described in Virginia Code 18.2-267. At paragraph E, it says that the results of the preliminary breath test is inadmissible in any prosecution fo DWI. The courts typically will take evidence about whether the test was administered and whether an arrest was made afterward but the results are not admissible in trial. The evidence absent the results are admissible as part of the basis for establishing probable cause (arrest). See Crewey v. Commonwealth, no. 1288-97-3 (Ct. App. 12/22/98). A person can refuse to take that preliminary test though, without consequences as noted in 18.2-267, paragraph C. [Note: Consistent with policy, this communication is intended as general information and not specific legal advice, and this communication does not create an attorney-client relationship.] Brian Geno Geno Law Firm Red Maple Court Office Condominiums 10617 Jones Street, Suite 201-B Fairfax, VA 22030 703-691-GENO (4366) Office 703-691-4774 Fax [email protected] Email www.NovaAttorney.com Web

Not only can it be used, it is probably the most important piece of evidence for law enforcement at that stage of the process. Many things factor into the probable cause analysis, including the driving behavior before police activated the lights and siren, the time it took to respond, the manner in which the suspect pulled over, the personal observations of the suspect (glassy eyes, odor of alcohol, slurred speech), the manner and speed with which the suspect provides the officer requested documents (typically license and registration), the manner in which the suspect exited the vehicle, the way the suspect performed on field sobriety exercises, etc. However, I have seen many cases where, after considering all of the factors listed above, police suspect a person to be under the influence of alcohol and ask the suspect to take a preliminary breath test (PBT) - only to have the PBT prove that the person was not under the influence of alcohol. This phenomenon shows that law enforcement officers are unable to reliably identify those who are impaired by alcohol through the use of field sobriety exercises, and will rely upon the PBT result (if a PBT is available) when determing whether to make an arrest. T. Kevin Wilson, Esq. The Wilson Law Firm DUI & Criminal Defense…When Results Matter 9300 Grant Avenue Suite 301 Manassas, Virginia 20110 Telephone 703-361-6100 Telephone 888-DUI-LWYR Facsimile 703-365-7988 Web: www.TheWilsonLawFirm.org For a FREE copy of the Virginia DUI / DWI Arrest Survival Guide: The Guilt Myth, a consumer guide written by a nationally recognized Virginia DUI Defense Lawyer, visit www.TheWilsonLawFirm.org.