                                 CODE OF VIRGINIA

PRELIMINARY ANALYSIS OF BREATH TO DETERMINE ALCOHOLIC CONTENT OF BLOOD (§
18.2-267)

A. Any person who is suspected of a violation of &#xA7; 18.2-266, 18.2-266.1,
subsection B of &#xA7; 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&#8217;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&#8217;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&#8217;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&#8217;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 &#xA7;&#xA7; 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&#8217;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&#8217;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
&#xA7;&#xA7; 18.2-268.1 through 18.2-268.12.

HISTORY: 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.