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Loudoun County Attorneys > Blog > Criminal Defense > How Does Virginia Test Drivers for Intoxication?

How Does Virginia Test Drivers for Intoxication?


During a traffic stop for driving under the influence (DUI), the police officer involved must adhere strictly to certain testing requirements. Depending on the circumstances, the officer may conduct a preliminary breath test and a post-arrest chemical test. If the officer deviates from the official process, it may be difficult to prove misdemeanor or felony charges for DUI.

Testing Requirements

When a person commits certain criminal offenses in Virginia, state law allows breath or chemical tests to determine the level of intoxication or impairment. Specifically, Virginia law authorizes testing for the following criminal offenses:

  • Driving a motor vehicle, engine, or train while impaired by alcohol or drugs, as detailed in Code of Virginia Section 18.2-266;
  • Underage minors driving after the illegal consumption of alcohol, as outlined in Code of Virginia Section 18.2-266.1;
  • Drinking and driving after license suspension or revocation for a similar offense, as highlighted in Code of Virginia Section 18.2-272(B); and
  • Any substantially similar ordinance or law in Virginia or the United States.

Any person who commits the offenses above may be subject to a preliminary breath testing and post-arrest chemical testing outlined in the following sections.

Preliminary Breath Tests

Code of Virginia Section 18.2-267 enables certain law enforcement officers to conduct preliminary breath tests under particular circumstances. Specifically, a law enforcement officer is allowed to conduct a pre-arrest breath test for alcohol if:

  • The officer uses official equipment that is properly tested and calibrated;
  • The driver is allowed to observe the process and receive the results upon request;
  • The officer is a member of a police or sheriff’s department; and
  • The officer is conducting the test in the normal execution of their official duties.

If the breath tests indicate a blood-alcohol concentration (BAC) above legal limits, or the driver exhibits other signs of intoxication, then the law enforcement officer will make the arrest. Then the officer will take the driver the police station for chemical testing.

Post-Arrest Chemical Tests

Code of Virginia Section 18.2-268.2 authorizes certain law enforcement officers to administer post-arrest chemical tests under distinct conditions. From a legal standpoint, every person who drives in Virginia provides implied consent to chemical testing of their breath, blood, or both.

Unlike preliminary breath tests, which only screen for alcohol, chemical tests can measure the concentration of both alcohol and drugs. Section 18.2-268.2 requires the authorities to conduct chemical testing within three hours of arrest. If a person refuses to submit to post-arrest chemical testing, Code of Virginia Section 18.2-268.3 establishes a separate and mandatory penalty, including driver’s license revocation.

Let Us Help You Today

If you need legal help with a criminal charge for DUI or a similar offense in Virginia, it is wise to speak with a talented Leesburg criminal defense attorney. The attorneys at Simms Showers, LLP, servicing Leesburg, Winchester, Fairfax, and Manassas, have vast experience in matters of criminal defense, including DUI and similar offenses. If you have legal questions about criminal defense, contact us today for a free initial consultation.


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