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I passed the breath test for DWI. Can I go now?

Getting pulled over is never a fun experience in Virginia Beach. When you see those flashing red lights in the review mirror, it can make your heart race and your palms sweat. Your anxiety may already be at a high level by the time the officer walks up to the vehicle and ask for your license and registration.

Like any law-abiding citizen, you comply. You reach into your glove compartment, grab the paper and hand it over. As the officer reviews the card with his flashlight, he starts asking more questions. “Have you been drinking tonight?” is a common one. You know you did not consume enough alcohol to blow above the .08 legal limit, and so you comply with the request to submit to a breath test. You pass. What now?

Many people may think they are out of the woods for DWI/DUI at this point. This is not always the case. If you are under the age of 21, there is a zero tolerance policy in Virginia. You can be arrested if there is any alcohol in your system.

Even if you do not blow above the legal limit as an adult, you can still be arrested. Virginia Code Section 18.2-266 provides that it is a crime to drive “under the influence” of alcohol and/or drugs if it affects your “ability to drive or operate any motor vehicle, engine or train safely.”

That language gives officers the authority to make an arrest if they have probably cause that you were driving under the influence at the time. For instance, did the officer observe you swerving over the line, running a stop sign or traveling at inconsistent speeds? Did the offer smell alcohol, notice that your eyes were glossy or slurred? Did you fail field sobriety tests, like the walk and turn?

If you find yourself in this type of situation, do not confront or argue with the officer. Your best option is to politely invoke your right to an attorney, and then make the call.

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