Virginia DUI Evidence: VA DUI Blood and Breath Testing
Virginia DUI Evidence: VA DUI Blood and Breath Testing
Virginia’s DUI statutes permit law enforcement to request chemical tests of a DUI suspect’s breath or blood to determine their BAC. The consequences of refusing a breath or blood test are listed under the Virginia Implied Consent section.
PORTABLE BREATH TESTS: In Virginia, a DUI suspect may be requested to submit to a portable breath test prior to his/her arrest. A portable breath test is a handheld device that is administered on scene. As it is an unreliable method of measuring a person’s BAC, its results are not admissible against you in court. Furthermore, a suspect is entitled to refuse the portable breath test and there is no penalty for his/her refusal.
BREATH TESTING:Once a suspect is arrested for DUI in Virginia, they will typically be taken down to the police station and a chemical test of the breath may be requested. Unlike the portable breath test, results of the evidentiary breath test are admissible in court and carry consequences if refused. See the Implied Consent section for more information on the consequences of refusal. Virginia evidentiary breath tests are conducted on breath testing machines called the Intoxilizer 5000. Only a qualified person with a permit may administer breath tests. Once a breath sample is taken, the machine will provide a print out of your results. Prior to taking the breath test, you should be advised that you have a right to see the breath test printout containing your results. Breath test operators have a series of steps that must be completed in each DUI case. Failure to substantially comply with these procedures will render the results inadmissible in court.
BLOOD TESTING: There is no automatic right to a blood test in Virginia DUI cases, but if one is requested and you refuse, your refusal will be admissible as evidence against you. Typically blood tests are requested if a breath test is unavailable or physically impossible. Virginia has specific rules and regulations governing the administration of blood tests. Only qualified persons as specified in Virginia’s statutes may conduct a blood test. Your attorney will look into all possible problems regarding the preservation and testing of your blood sample to help contest the reliability and admissibility of the result.
Virginia DUI Statutes
18.2-267. 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, subsection B of 18.2-272, or a similar ordinance 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 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 an offense listed in subsection A, 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 for an offense listed in subsection A.
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 an offense listed in subsection A. 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.
E. The results of the breath analysis shall not be admitted into evidence in any prosecution for an offense listed in subsection A, the purpose of this section being to permit a preliminary analysis of the alcoholic content of the blood of a person suspected of having committed an offense listed in subsection A.
F. Police officers or members of any sheriff’s department shall, upon stopping any person suspected of having committed an offense listed in subsection A, 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.
18.2-268.5. Qualifications and liability of persons authorized to take blood sample; procedure for taking samples.
For purposes of this article, only a physician, registered nurse, licensed practical nurse, phlebotomist, graduate laboratory technician or a technician or nurse designated by order of a circuit court acting upon the recommendation of a licensed physician, using soap and water, polyvinylpyrrolidone iodine, pvp iodine, povidone iodine or benzalkonium chloride to cleanse the part of the body from which the blood is taken and using instruments sterilized by the accepted steam sterilizer or some other sterilizer which will not affect the accuracy of the test, or using chemically clean sterile disposable syringes, shall withdraw blood for the purpose of determining its alcohol or drug or both alcohol and drug content. It is a Class 3 misdemeanor to reuse single-use-only needles or syringes. No civil liability shall attach to any person authorized to withdraw blood as a result of the act of withdrawing blood as provided in this section from any person submitting thereto, provided the blood was withdrawn according to recognized medical procedures. However, the person shall not be relieved from liability for negligence in the withdrawing of any blood sample.
No person arrested for a violation of ß 18.2-266, 18.2-266.1, or subsection B of ß 18.2-272, or a similar ordinance shall be required to execute in favor of any person or corporation a waiver or release of liability in connection with the withdrawal of blood and as a condition precedent to the withdrawal of blood as provided for in this section.
18.2-268.6. Transmission of blood samples.
The blood sample withdrawn pursuant to ß 18.2-268.5 shall be placed in vials provided or approved by the Department of Forensic Science. The vials shall be sealed by the person taking the sample or at his direction. The person who seals the vials shall complete the prenumbered certificate of blood withdrawal forms and attach one form to each vial. The completed withdrawal certificate for each vial shall show the name of the accused, the name of the person taking the blood sample, the date and time the blood sample was taken and information identifying the arresting or accompanying officer. The vials shall be placed in a container provided by the Department, and the container shall be sealed to prevent tampering with the vials. The arresting or accompanying officer shall take possession of the container as soon as the vials are placed in the container and sealed, and shall promptly transport or mail the container to the Department.
18.2-268.7. Transmission of blood test samples; use as evidence.
A. Upon receipt of a blood sample forwarded to the Department for analysis pursuant to ß 18.2-268.6, the Department shall have it examined for its alcohol or drug or both alcohol and drug content and the Director shall execute a certificate of analysis indicating the name of the accused; the date, time and by whom the blood sample was received and examined; a statement that the seal on the vial had not been broken or otherwise tampered with; a statement that the container and vial were provided or approved by the Department and that the vial was one to which the completed withdrawal certificate was attached; and a statement of the sample’s alcohol or drug or both alcohol and drug content. The Director shall remove the withdrawal certificate from the vial, attach it to the certificate of analysis and state in the certificate of analysis that it was so removed and attached. The certificate of analysis with the withdrawal certificate shall be returned to the clerk of the court in which the charge will be heard. After completion of the analysis, the Department shall preserve the remainder of the blood until 90 days have lapsed from the date the blood was drawn. During this 90-day period, the accused may, by motion filed before the court in which the charge will be heard, with notice to the Department, request an order directing the Department to transmit the remainder of the blood sample to an independent laboratory retained by the accused for analysis. The Department shall destroy the remainder of the blood sample if no notice of a motion to transmit the remaining blood sample is received during the 90-day period.
B. When a blood sample taken in accordance with the provisions of 18.2-268.2 through 18.2-268.6 is forwarded for analysis to the Department, a report of the test results shall be filed in that office. Upon proper identification of the certificate of withdrawal, the certificate of analysis, with the withdrawal certificate attached, shall, when attested by the Director, be admissible in any court, in any criminal or civil proceeding, as evidence of the facts therein stated and of the results of such analysis. On motion of the accused, the report of analysis prepared for the remaining blood sample shall be admissible in evidence provided the report is duly attested by a person performing such analysis and the independent laboratory that performed the analysis is accredited or certified to conduct forensic blood alcohol/drug testing by one or more of the following bodies: American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB); College of American Pathologists (CAP); United States Department of Health and Human Services Substance Abuse and Mental Health Services Administration (SAMHSA); or American Board of Forensic Toxicology (ABFT).
Upon request of the person whose blood was analyzed, the test results shall be made available to him.
The Director may delegate or assign these duties to an employee of the Department.
18.2-268.9. Assurance of breath-test validity; use of test results as evidence.
To be capable of being considered valid as evidence in a prosecution under ß 18.2-266, 18.2-266.1, or subsection B of ß 18.2-272, or a similar ordinance, chemical analysis of a person’s breath shall be performed by an individual possessing a valid license to conduct such tests, with a type of equipment and in accordance with methods approved by the Department. The Department shall test the accuracy of the breath-testing equipment at least once every six months.
The Department shall establish a training program for all individuals who are to administer the breath tests. Upon a person’s successful completion of the training program, the Department may license him to conduct breath-test analyses. Such license shall identify the specific types of breath test equipment upon which the individual has successfully completed training. Any individual conducting a breath test under the provisions of ß 18.2-268.2 shall issue a certificate which will indicate that the test was conducted in accordance with the Department’s specifications, the equipment on which the breath test was conducted has been tested within the past six months and has been found to be accurate, the name of the accused, that prior to administration of the test the accused was advised of his right to observe the process and see the blood alcohol reading on the equipment used to perform the breath test, the date and time the sample was taken from the accused, the sample’s alcohol content, and the name of the person who examined the sample. This certificate, when attested by the individual conducting the breath test, shall be admissible in any court in any criminal or civil proceeding as evidence of the facts therein stated and of the results of such analysis. Any such certificate of analysis purporting to be signed by a person authorized by the Department shall be admissible in evidence without proof of seal or signature of the person whose name is signed to it. A copy of the certificate shall be promptly delivered to the accused. Copies of Department records relating to any breath test conducted pursuant to this section shall be admissible provided such copies are authenticated as true copies either by the custodian thereof or by the person to whom the custodian reports.
The officer making the arrest, or anyone with him at the time of the arrest, or anyone participating in the arrest of the accused, if otherwise qualified to conduct such test as provided by this section, may administer the breath test and analyze the results.
18.2-268.10. Evidence of violation of driving under the influence offenses.
A. In any trial for a violation of 18.2-266, 18.2-266.1, or subsection B of 18.2-272 or a similar ordinance, the admission of the blood or breath test results shall not limit the introduction of any other relevant evidence bearing upon any question at issue before the court, and the court shall, regardless of the result of any blood or breath tests, consider other relevant admissible evidence of the condition of the accused. If the test results indicate the presence of any drug other than alcohol, the test results shall be admissible, except in a prosecution under clause (v) of ß 18.2-266, only if other competent evidence has been presented to relate the presence of the drug or drugs to the impairment of the accused’s ability to drive or operate any motor vehicle, engine or train safely.
B. The failure of an accused to permit a blood or breath sample to be taken to determine the alcohol or drug content of his blood is not evidence and shall not be subject to comment by the Commonwealth at the trial of the case, except in rebuttal or pursuant to subsection C; nor shall the fact that a blood or breath test had been offered the accused be evidence or the subject of comment by the Commonwealth, except in rebuttal or pursuant to subsection C.
C. Evidence of a finding against the defendant under 18.2-268.3 for his unreasonable refusal to permit a blood or breath sample to be taken to determine the alcohol or drug content of his blood shall be admissible into evidence, upon the motion of the Commonwealth or the defendant, for the sole purpose of explaining the absence at trial of a chemical test of such sample. When admitted pursuant to this subsection such evidence shall not be considered evidence of the accused’s guilt.
D. The court or jury trying the case involving a violation of clause (ii), (iii) or (iv) of 18.2-266 or 18.2-266.1, or a similar ordinance shall determine the innocence or guilt of the defendant from all the evidence concerning his condition at the time of the alleged offense.