Do I Have a Choice Between a Blood and Breath Test During a DUI Stop?

The short answer is "no." Several years ago, Virginia motorists arrested for DUI had the option of either a blood or breath test to determine their blood alcohol content (BAC). The conventional wisdom at the time was that it was better to request a blood test because it took longer to have the blood drawn than it did to give a breath sample, so there was more time to sober up and hopefully slip under the legal limit. This was generally good advice, as long as you weren't terrified of needles.

But the legislature took away this option in 1995, so now the vast majority of DUI cases involve a BAC result produced through a breathalyzer. But there are still times where DUI charges will include blood evidence of intoxication. One such case is where the individual suspected of DUI is involved in an accident and is unable due to injury to submit to a breathalyzer. In these cases, the officer will typically subpoena the blood work from the hospital to send to the laboratory in Richmond for testing.

Another less common source of blood results in DUI cases come in cases where the arresting officer suspects that the person may be under the influence of some sort of narcotic. The breathalyzer machine only tests for breath alcohol, and cannot detect any narcotics that may be in the individual's system. A blood sample, however, can be tested for virtually any type of narcotic.

The bottom line in terms of DUI defense is that cases involving blood testing instead of breath testing offer far more avenues for acquittal. For one thing, if the sample is taken for medical purposes at the hospital, the forensic precautions involved with a police blood draw are not followed, opening up a myriad of possible defenses. In addition, the procedural mandates for processing blood samples are specifically laid out in the Virginia Code, Section 18.2-268.5 to 18.2-268.7. Because these procedures are statutory, unlike the breath sample procedures which are regulatory, non-compliance will likely result in suppression of the results, and in many cases dismissal of the charge.

An experienced DUI attorney will not treat a breath test the same as a blood test. The issues are completely different, and attacking each requires a different approach. Hire a lawyer who understands the difference, and is ready to defend your case accordingly! We are ready for your call.

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