In Virginia, the evidentiary breath test is only valid if it is taken within three hours of the driving and this is typically easy to prove. The police officer has pulled you over and they document what time they pulled you over meaning they can establish how long it was between the driving and the breath test.

How Do Police Determine The Time You Were Driving?

But what if the police officer comes up on you during a single car accident? For example, your car hit a tree, you’re in a ditch or you’ve broken down. How are they going to establish the time of driving? If they can’t establish the time of driving, they cannot use the breath test against you.

The way they are almost always going to establish the time of driving is because you are going to tell them. You are going to cooperate and most likely say, “Oh, it was just before you got here, about five minutes ago.”

Do not do that. Do not tell the police officer when you were driving. Unless the prosecutor can prove the time of driving, they cannot establish that the blood or breath test was taken within three hours of the driving and it will not be admitted at the trial. This alone could win you your case.

The moral of the story is to know your right to remain silent and use it. You don’t have to be a jerk or impolite, but you just should not talk. To learn more about the three-hour rule and how to protect your rights following a DUI arrest, contact our law firm today