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If I am stopped by the police, should I take a preliminary breath test?

Virginia Beach, VA |

Cop told me that I didn't have to take it but that I could be arrested if I didn't.

Attorney Answers 3


  1. Best answer

    Interesting question. And difficult to answer without knowing the circumstances in your case. In many states, a PBT is not admissible at trial. But in some states, like WI, the PBT is admissible if you challenge the officer's decision to arrest in a motion. If you did well on the field sobriety tests (and generally the officer will not tell you how you did) and there was no PBT, you would have a better shot at a motion. If you did poorly on the tests, but had under a .08 on a PBT, an officer may decide not to arrest you. But, if you did poorly on the tests and you tested less than .08 on the PBT, the officer may arrest you anyway. I guess I am having difficulty coming up with reasons to take the PBT. So, I am leaning towards not taking it.

    Keep in mind, however, while you may refuse a PBT, refusing an evidentiary breath test (the breath test back at the station) or a blood test goes against the implied consent laws of most, if not all, states. So, you could be charged with a criminal or civil offesne for refusing the evidentiary breath or blood test.

    An attorney to ask would be Paul McGlone. He is on Avvo and practices DUI defense in VA.

    Hope this information helps you in the future (not that I wish you to be in this circumstance again)!

    Good luck!


  2. While I don't practice in your state, I believe the cop gave you honest advice. Most states have now adopted that stance in their law.

    Hire a decent experienced lawyer and get the right advice on your specific case.

    Good luck.


  3. While the question of whether you SHOULD take a preliminary breath test (PBT) is a difficult one to answer without more information about a specific factual situation, refusal to submit to the PBT is NOT illegal or an offense of any sort in Virginia, and if the officer was suggesting to you that it was, the officer was not being truthful with you.

    In Virginia, officers are issued cards which include the specific advisements which Virginia officers are required to give suspects. These advisements include telling the suspect that he or she has the right to take the PBT, but is not required to do so, and there is no consequence or sanction for failing to do so. In addition, if the suspect agrees to take the PBT the result cannot be used during the trial to prove the person was under the influence.

    However, despite Virginia law requiring them to do so, many officers fail to advise suspects of these things. Other officers incorrectly advise suspects - either mistakenly or intentionally - leading suspects to believe they are required to take the PBT. It sounds as if this is what happened to you.

    If police cruisers were equipped with audio and video recording equipment, we would be able to know exactly what officers were saying to suspects, and perhaps officers would be more likely to correctly advise suspects.

    To avoid any possible confusion on this issue - in Virginia, DUI suspects are not required to submit to a preliminary breath test, and there is no sanction or punishment for failing to do so.

    However, your question was not whether you are required to take the PBT, but rather whether you should take the PBT. Evaluating whether one should take a PBT depends on the facts of the situation and the goals of the person. There is no answer to this question which will apply in all situations.

    If you have had absolutely nothing alcoholic to drink, then perhaps a PBT result could avoid a possible DUI arrest. On the other hand, if you agree to take a PBT and the result is 0.08 or higher, you will most likely be arrested for DUI.

    However, PBT devices are not specific for ETHANOL, meaning they will identify and report all alcohols found on your breath as ethanol. Another important thing to remember is that PBT devices cannot distinguish between alcohol in one's blood and alcohol merely in one's mouth. This means that even if you have had nothing alcoholic to drink and there is no alcohol in your blood, you can get a very high reading on a PBT if you have recently rinsed with mouthwash or placed any of the other many things in your mouth which can lead to a false positive result.

    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.

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