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What rights do Virginia drivers have when stopped at DUI checkpoints?

Knowing their rights when stopped at sobriety checkpoints may help drivers in Virginia protect themselves and avoid getting arrested.

Each year, the number of Virginians arrested for driving under the influence (DUI) in continues to increase. In fact, the Virginia State Police reported approximately 21,019 DUI arrests across the Commonwealth of Virginia in 2017 alone. While many such charges result from routine traffic stops for other traffic infractions, others are the result of getting stopped at sobriety checkpoints. Therefore, it may benefit drivers to understand their rights at a DUI checkpoint in order to help protect themselves from unexpected and damaging arrests.

Answering questions

Normally, when a vehicle is stopped at a sobriety checkpoint, the first step taken by law enforcement personnel is to speak to the driver of the vehicle and ask to see their license and registration. Often, during this time, the officer will chat with the driver of the vehicle and ask friendly questions designed to elicit a response from the driver. More often than not, drivers feel obligated to talk with the officer and answer what appear to be rather “innocent” questions not understanding that the officer is actually using this time to see if they can smell the odor of alcohol emanating from the vehicle or from the driver’s breath. Citizens are REQUIRED to produce identification for law enforcement during these encounters, but are NOT required to engage in conversation with the police. Citizens should ALWAYS be polite and courteous to the law enforcement officer, but are well within their rights to politely decline to engage in “chit chat”.

Performing roadside tests

If the officer detects the odor of alcohol coming from the vehicle (or specifically from the driver), the officer may ask the driver to step out of the vehicles and perform field sobriety tests. While a well-trained officer will “ask” the driver to perform the field sobriety tests in such a manner that it seems as if the driver has no choice in the matter, drivers DO have a choice as to whether or not to perform the field sobriety tests. Under Virginia law, field sobriety tests must be VOLUNTARY and cannot be compelled by the law enforcement officer. Therefore, while every citizen should be polite and courteous in doing so, he or she has the absolute right to refuse to perform any and all field sobriety tests offered by the officer. There is nothing illegal or improper about declining to perform field sobriety tests during the DUI checkpoint encounter.

The PBT (Preliminary Breath Test)

In addition to the more “physical” field sobriety tests, most officers in Virginia are equipped with a PBT (Preliminary Breath Test), which is a handheld device that can be used on the scene of a checkpoint to test the blood alcohol level of the driver. These handheld tests are often “offered” to drivers suspected of driving under the influence. Like the other field sobriety tests, this “test” must be VOLUNTARY and therefore, the driver is legally entitled to decline to take the test. If the driver chooses to provide a breath sample and the reading is .08 or higher, the driver will (almost without exception) be arrested on suspicion of DUI. Generally, it does not matter how well the driver did on the other field sobriety tests because police officers rely heavily (and sometimes exclusively) on the results of this test.

Submitting to chemical testing at the jail

If the driver of the vehicle is arrested by the officer, the driver will be asked to submit to chemical testing to determine their actual blood alcohol concentration levels. Unlike the handheld PBT discussed previously, the device used at the jail to take the breath sample is MUCH larger and complicated. Unlike the PBT, a driver arrested on suspicion of DUI CANNOT decline to provide a breath sample at the jail once arrested. Under Virginia’s implied consent law, anyone who operates a motor vehicle in the state is determined to have agreed to give a breath or blood sample to determine the person’s blood alcohol level. Drivers do NOT have a choice as to whether they want to provide a breath or blood sample and must give a breath sample if requested. Drivers who refuse to provide a sample after being legally arrested can face additional charges and penalties including the loss of their driving privileges.

Obtaining legal representation

Whether it is their first arrest, or they have been charged with alcohol-related offenses before, drunk driving charges can have serious implications for the citizens of the Commonwealth. In addition to facing possible fines and jail time, such arrests may have adverse impacts on both their personal lives and professional opportunities. It is strongly suggested that individuals arrested for DUI after a sobriety checkpoint seek legal counsel immediately. A skilled and experienced lawyer may help them craft a strong defense that can sometimes lessen or mitigate the effects of the charges.