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Will I have to go back to court after 1 "violation" on my breathalyzer when I wasn't drinking?

Richmond, VA |

Yesterday, I was throwing up quite a bit and managed to eat some bread after taking Pepto Bismol and a Tylenol. Around 2:20 I was leaving for work (I work at a restaurant and we had a big event last night that I couldn't miss) and when I blew for my breath test it read "VIOL". I haven't drank in months and I tried calling my case manager at CAASAP right away and couldn't get ahold of her so I called Smart Start and the tech there said that's common when people are vomiting. When I finally got to talk to my case manager, she told me I had 15 minutes to retake the test, by this time it had been about 25 minutes. I went and took the test right away and it passed. I was never told that I had to retake the test within 15 minutes or that VIOL was a possibility (TRACE, PASS, FAIL, ABORT). Help!

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Attorney answers 3


Call your case manager again and see if she will tell you whether or not she plans to submit a violation to the court based on this incident. If she does you will want to consult an attorney and have one with you in court to help demonstrate how well you have done on the rest of your requirements with ASAP. Also, if you have witnesses to the fact that you were ill or had not consumed alcohol your attorney can determine if the witness should be subpoenaed to court. Further, your attorney can subpoena an employee with Smart Start or obtain documentation to enter at the hearing that references the impact of recent vomiting on the instrument. Good luck.

Megan Blancho

Megan Blancho


I forgot to mention that while my office is in Pensacola, Florida, I am also a licensed attorney in Virginia and I am familiar with the requirements and violations with ASAP.


Ms. Blancho's advice is solid. I'd like to add that if you had an attorney on the DUI, give them a call. Good luck.

Jasen Nielsen


Contact your DUI attorney and tell them what happened. If necessary, they will be able to gather all of the documents necessary to help you out. Your PO may not even file a violation if they can verify your story and the effect of vomiting with Smart Start.

Responses on AVVO do not establish an attorney-client relationship. All responses to questions should be used for informational purposes only. Always consult personally with an attorney prior to initiating or responding to any legal action.

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