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Preliminary breath tests okay for non-driving cases

A roadside alcohol breath test may be inadmissible for charges of driving while intoxicated, but a similar preliminary breath test should be allowed in court for other alcohol-related cases, Attorney General Ken Cuccinelli says.

In a June 7 official opinion, Cuccinelli said preliminary breath test results should come in, with a proper foundation, for underage possession of alcohol, public intoxication, and consumption of alcoholic beverages by an interdicted person.

The opinion was requested by Fredericksburg Commonwealth’s Attorney LaBravia J. Jenkins.

Police officers carry hand-held breath alcohol testers to get a reading in the field on a person’s blood alcohol content. The law requires a more stringent chemical test on breath, blood or both for evidence of drinking-and-driving offenses. The chemical tests are normally performed at a police station or medical facility.

Under Virginia law, the results of the preliminary field tests are barred from evidence on DWI and other driving offenses. “No such prohibition exists” for non-driving offenses, Cuccinelli said.

Cuccinelli emphasized, however, the need for a proper foundation for the preliminary test evidence, including “the foundation that the machine was working properly.”

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