If you have been stopped on suspicion of driving under the influence in Virginia, the officer may ask you to blow into a small handheld device before making an arrest. This device — known as the Virginia preliminary breath test (PBT) — is one of the most misunderstood tools in DUI investigations. Understanding how the preliminary breath test works and your rights under Virginia law can significantly affect your case outcome.
What Is the Virginia Preliminary Breath Test?
A preliminary breath test is a portable, roadside breath-screening device used by law enforcement to estimate a driver’s blood alcohol content (BAC) at the scene of a traffic stop. It is distinct from the evidentiary breath test administered later at a police station on a calibrated Intoxilyzer machine.
The PBT is not designed to produce the precise, scientifically reliable result required for a criminal conviction. Rather, its sole purpose under Virginia law is to provide officers with probable cause to make an arrest.
The Governing Statute: Virginia Code § 18.2-267
The preliminary breath test in Virginia is governed by Virginia Code § 18.2-267, titled Preliminary breath test of person suspected of violations involving alcohol.
The statute provides that any person who is suspected of a DUI offense under § 18.2-266 (driving while intoxicated), § 18.2-266.1 (persons under age 21 driving after consuming alcohol), or a local ordinance substantially similar to those provisions, may be requested by a law enforcement officer to submit to a preliminary breath test.
Key Provisions of the PBT (§ 18.2-267)
Reasonable Suspicion Requirement
The officer must have reasonable grounds to suspect a violation. A request for a PBT is not lawful unless the officer has a reasonable, articulable basis to believe the driver has consumed alcohol.
Approved Device Requirement
The test must be conducted with an approved device. The PBT device used must be one approved by the Superintendent of State Police.
Refusal Has No Criminal Penalty (for most drivers)
Refusal carries no civil or criminal penalty for most drivers. Unlike the evidentiary breath test, refusal to submit to a preliminary breath test is not a separate offense and does not result in automatic license suspension for standard Virginia operators.
Results Not Admissible in Court
Under § 18.2-267(D), the results of the preliminary breath test are not admissible as evidence of guilt in any prosecution for DUI offenses. The statute limits its use strictly to establishing probable cause for arrest.
Why the PBT Matters — But Cannot Convict You
The exclusion of the PBT result from evidence at trial is a critical protection for the accused. Because the device is not subject to the same calibration, certification, and chain-of-custody requirements as evidentiary breath tests, it is not considered reliable enough for proving guilt in court.
However, the Virginia preliminary breath test still plays an important role in DUI investigations. If a driver submits to the test and registers a reading of 0.08 or higher, it can provide probable cause for arrest and lead to further evidentiary testing.
Once arrested, the driver becomes subject to Virginia’s implied consent law under § 18.2-268.2, which carries serious consequences for refusal.
The Implied Consent Law and the Virginia Preliminary Breath Test
It is important to distinguish the preliminary breath test from the post-arrest evidentiary test governed by Virginia’s implied consent statute.
Under § 18.2-268.2, any person operating a motor vehicle in Virginia is deemed to have consented to a breath or blood test after a lawful DUI arrest. Refusing this test can result in:
- One-year license suspension for a first refusal
- Three-year suspension for repeat refusal
- Admission of refusal as evidence of guilt
The Virginia preliminary breath test is separate from this law and does not trigger implied consent penalties.
Can a PBT Arrest Be Challenged?
Yes. Because the PBT cannot be used as evidence of guilt, a defense attorney may challenge whether the officer had sufficient independent probable cause to justify the arrest.
Courts evaluate the totality of circumstances, including:
- Officer observations (odor of alcohol, slurred speech, driving behavior)
- Field sobriety test performance
- Whether proper procedures were followed
- Whether the PBT was improperly relied upon as the primary basis for arrest
If probable cause is weak, it may be possible to suppress key evidence obtained after arrest.
Special Rules for Commercial and Underage Drivers
Commercial drivers are held to a stricter standard, with a BAC limit of 0.04 under federal and state regulations. The Virginia preliminary breath test is often used as an initial screening tool in these cases.
Drivers under 21 are subject to Virginia’s zero-tolerance law (§ 18.2-266.1), which prohibits driving after consuming any alcohol. A BAC as low as 0.02 may result in charges, and the PBT is frequently used in these investigations.
Practical Advice During a Traffic Stop
This information is for general educational purposes and is not legal advice. However, key principles include:
- You have the right to remain silent under the Fifth Amendment
- You are not required to answer questions about alcohol consumption
- You may generally refuse the roadside Virginia preliminary breath test without penalty
- You may still be arrested based on officer observations
- Post-arrest breath or blood tests carry serious legal consequences if refused
- Contact a criminal defense attorney as soon as possible after arrest
Facing a DUI Charge in Virginia? We Can Help.
A DUI charge in Virginia carries serious consequences, including fines, license suspension, mandatory programs, ignition interlock requirements, and potential jail time. Every detail matters — from the initial stop to the testing procedure.
At Goff Voltin, PLLC, we represent clients throughout Hampton Roads, including Newport News, Hampton, and Virginia Beach. We carefully examine every stage of the Virginia preliminary breath test process, field sobriety tests, and evidentiary testing to build a strong defense strategy.
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