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 have the right, if such equipment is available, to have his breath analyzed to determine the probable alcoholic content of his blood. The person shall have the right 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. If a police officer or a member of any sheriff's department fails to advise a person of his rights under the provisions of this section, any breath sample obtained pursuant to this section shall not be admissible by the Commonwealth in any motion to suppress for the purpose of determining probable cause.
G. Nothing in this section shall be construed as limiting the provisions of §§ 18.2-268.1 through 18.2-268.12.
Code 1950, § 18.1-54.1; 1970, c. 511; 1975, cc. 14, 15; 1979, c. 717; 1985, cc. 355, 609; 1990, c. 825; 1992, c. 830; 1994, cc. 359, 363; 1996, cc. 154, 952; 2004, c. 1013; 2005, cc. 757, 840, 868, 881; 2024, c. 759.
Notes of Decisions
Cited in
42
cases (
6 in the last 5 years), 1984–2024 · leading case:
Wohlford v. Commonwealth, 351 S.E.2d 47 (Va. Ct. App. 1986).
Wohlford v. Commonwealth, 351 S.E.2d 47 (Va. Ct. App. 1986).
· cites it 34× “First, he contends that his conviction should be reversed because the arresting officer failed to comply with the provisions of Code § 18.2-267. Second, he contends that the evidence was insufficient to support the conviction.”
Farmer v. Commonwealth, 404 S.E.2d 371 (Va. Ct. App. 1991).
· cites it 16× “Code § 18.2-267 provides for a preliminary breath test of any person suspected by the police of driving under the influence of alcohol.”
Hall v. Commonwealth, 529 S.E.2d 829 (Va. Ct. App. 2000).
· cites it 24× “Appellant contends that Code § 18.2-267 bars that testimony in a prosecution under Code § 18.”
Stevens v. Commonwealth, 603 S.E.2d 642 (Va. Ct. App. 2004).
· cites it 15× “1 specifically predicates prosecution under that statute upon a violation of either clause (ii), (iii) or (iv) of Code § 18.”
Stacy v. Commonwealth, 470 S.E.2d 584 (Va. Ct. App. 1996).
· cites it 20× “Code § 18.2-267 provides that any person suspected of driving while intoxicated is “entitled, if such equipment is available, to have his breath analyzed to determine the probable alcoholic content of his blood.”
Stevens v. Commonwealth, 616 S.E.2d 754 (Va. Ct. App. 2005).
· cites it 4× “2-266, in direct contravention of Code § 18.2-267(E), which provides that such results "shall not be admitted into evidence.”
Woolridge v. Commonwealth, 512 S.E.2d 153 (Va. Ct. App. 1999).
· cites it 8× “ADMISSIBILITY OF TESTIMONY THAT APPELLANT WAS OFFERED A PRELIMINARY BREATH TEST Under Code § 18.2-267(A), “[a]ny person who is suspected of a violation of § 18.”
Jones v. Town of Marion, 508 S.E.2d 921 (Va. Ct. App. 1999).
· cites it 12× “Jones contends *793 the trial court erred in denying his motion to strike because (1) the arresting officer failed to offer him a preliminary breath analysis pursuant to Code § 18.2-267, and (2) the arresting officer failed to bring him before a magistrate to determine probable…”
Santen v. Tuthill, 578 S.E.2d 788 (Va. 2003).
· cites it 4× “Noting that the results of such tests are inadmissible in a criminal prosecution, see Code § 18.2-267(E), the court observed that the issue here was whether a different rule should apply in a civil case.”
Farmer v. Commonwealth, 390 S.E.2d 775 (Va. Ct. App. 1990).
· cites it 4× “Code § 18.2-267 provides for a preliminary breath test of any person suspected by the police of driving under the influence of alcohol.”
Cutright v. Commonwealth, 601 S.E.2d 1 (Va. Ct. App. 2004).
· cites it 2× “See 2003 Va. Acts, chs. 933, 936. The amendments took effect after Cutright’s conviction, and thus, have no bearing on this case.”
Williams v. Commonwealth, 595 S.E.2d 497 (Va. Ct. App. 2004).
· cites it 4× “2d 47, 49 (1986) ("We note that Code § 18.2-267(f) clearly reflects a legislative policy that law enforcement officers inform a suspect of his rights under this section.”
— Va. Code Ann. § 18.2-267(A) — 9 cases
Hall v. Commonwealth, 529 S.E.2d 829 (Va. Ct. App. 2000).
“Appellant contends that Code § 18.2-267 bars that testimony in a prosecution under Code § 18.”
Woolridge v. Commonwealth, 512 S.E.2d 153 (Va. Ct. App. 1999).
“ADMISSIBILITY OF TESTIMONY THAT APPELLANT WAS OFFERED A PRELIMINARY BREATH TEST Under Code § 18.2-267(A), “[a]ny person who is suspected of a violation of § 18.”
— Va. Code Ann. § 18.2-267(C) — 3 cases
Farmer v. Commonwealth, 404 S.E.2d 371 (Va. Ct. App. 1991).
“Code § 18.2-267 provides for a preliminary breath test of any person suspected by the police of driving under the influence of alcohol.”
— Va. Code Ann. § 18.2-267(D) — 9 cases
Stacy v. Commonwealth, 470 S.E.2d 584 (Va. Ct. App. 1996).
“Code § 18.2-267 provides that any person suspected of driving while intoxicated is “entitled, if such equipment is available, to have his breath analyzed to determine the probable alcoholic content of his blood.”
Woolridge v. Commonwealth, 512 S.E.2d 153 (Va. Ct. App. 1999).
“ADMISSIBILITY OF TESTIMONY THAT APPELLANT WAS OFFERED A PRELIMINARY BREATH TEST Under Code § 18.2-267(A), “[a]ny person who is suspected of a violation of § 18.”
— Va. Code Ann. § 18.2-267(E) — 16 cases
Stevens v. Commonwealth, 603 S.E.2d 642 (Va. Ct. App. 2004).
“1 specifically predicates prosecution under that statute upon a violation of either clause (ii), (iii) or (iv) of Code § 18.”
Hall v. Commonwealth, 529 S.E.2d 829 (Va. Ct. App. 2000).
“Appellant contends that Code § 18.2-267 bars that testimony in a prosecution under Code § 18.”
Stevens v. Commonwealth, 616 S.E.2d 754 (Va. Ct. App. 2005).
“2-266, in direct contravention of Code § 18.2-267(E), which provides that such results "shall not be admitted into evidence.”
Santen v. Tuthill, 578 S.E.2d 788 (Va. 2003).
“Noting that the results of such tests are inadmissible in a criminal prosecution, see Code § 18.2-267(E), the court observed that the issue here was whether a different rule should apply in a civil case.”
Woolridge v. Commonwealth, 512 S.E.2d 153 (Va. Ct. App. 1999).
“ADMISSIBILITY OF TESTIMONY THAT APPELLANT WAS OFFERED A PRELIMINARY BREATH TEST Under Code § 18.2-267(A), “[a]ny person who is suspected of a violation of § 18.”
— Va. Code Ann. § 18.2-267(F) — 6 cases
— Va. Code Ann. § 18.2-267(a) — 2 cases
Wohlford v. Commonwealth, 351 S.E.2d 47 (Va. Ct. App. 1986).
“First, he contends that his conviction should be reversed because the arresting officer failed to comply with the provisions of Code § 18.2-267. Second, he contends that the evidence was insufficient to support the conviction.”
— Va. Code Ann. § 18.2-267(c) — 3 cases
Wohlford v. Commonwealth, 351 S.E.2d 47 (Va. Ct. App. 1986).
“First, he contends that his conviction should be reversed because the arresting officer failed to comply with the provisions of Code § 18.2-267. Second, he contends that the evidence was insufficient to support the conviction.”
Farmer v. Commonwealth, 404 S.E.2d 371 (Va. Ct. App. 1991).
“Code § 18.2-267 provides for a preliminary breath test of any person suspected by the police of driving under the influence of alcohol.”
— Va. Code Ann. § 18.2-267(e) — 3 cases
Wohlford v. Commonwealth, 351 S.E.2d 47 (Va. Ct. App. 1986).
“First, he contends that his conviction should be reversed because the arresting officer failed to comply with the provisions of Code § 18.2-267. Second, he contends that the evidence was insufficient to support the conviction.”
Farmer v. Commonwealth, 404 S.E.2d 371 (Va. Ct. App. 1991).
“Code § 18.2-267 provides for a preliminary breath test of any person suspected by the police of driving under the influence of alcohol.”
— Va. Code Ann. § 18.2-267(f) — 3 cases
Wohlford v. Commonwealth, 351 S.E.2d 47 (Va. Ct. App. 1986).
“First, he contends that his conviction should be reversed because the arresting officer failed to comply with the provisions of Code § 18.2-267. Second, he contends that the evidence was insufficient to support the conviction.”
Williams v. Commonwealth, 595 S.E.2d 497 (Va. Ct. App. 2004).
“2d 47, 49 (1986) ("We note that Code § 18.2-267(f) clearly reflects a legislative policy that law enforcement officers inform a suspect of his rights under this section.”
Annotations are extracted automatically from the opinions in the
Syfert caselaw corpus and ranked by authority, recency, and
treatment. Dots show Syfertize treatment of the citing case itself.