Can You Get a DUI Without Failing a Breath Test?

October 19, 2025
|In Uncategorized
|By Rebecca Peters

You absolutely can be charged with a DUI without failing a breath test in Virginia.
Under Virginia DUI law, police and prosecutors can pursue charges even if you blow below 0.08 or decline the test altogether. A Henrico DUI lawyer can evaluate whether the evidence truly proves impairment or simply assumptions based on behavior.

1. Virginia DUI Law and Low BAC Arrests

Under Virginia Code § 18.2-266, operating a vehicle while “under the influence” of alcohol, drugs, or both is illegal. This section of Virginia DUI law lets prosecutors proceed even when chemical results are low or missing.
Common situations include:

  • BAC under 0.08 percent but officer claims impairment.

  • Refusal cases under the Implied Consent Law (§ 18.2-268.2).

  • Medication or marijuana use that allegedly impairs driving.

2. Evidence Used in a DUI Without Failing a Breath Test Virginia

When no BAC result exists, prosecutors lean on:

  • Officer testimony about speech, balance, and driving.

  • Field Sobriety Tests and video footage.

  • Statements you made during the stop.

  • Blood tests if drugs are suspected.

Because this evidence is subjective, a skilled Henrico DUI lawyer can challenge every assumption.

3. Common Scenarios Leading to a DUI Without a Failed Test

  • Low BAC but “impaired” behavior: fatigue or illness misread as intoxication.

  • Refusal to test: triggers a one-year suspension under the Implied Consent Law.

  • Prescription drug DUIs: lawful medications can still prompt arrest.

4. Defenses for a DUI Without Failing a Breath Test Virginia

Effective defenses include:

  • Challenging whether the traffic stop was lawful.

  • Showing field tests were administered incorrectly.

  • Citing medical conditions (vertigo, diabetes) causing symptoms.

  • Using bodycam video to contradict police reports.

An experienced Henrico DUI lawyer or Richmond DUI attorney can often reduce or dismiss charges built on weak evidence.

5. Local Impact: Henrico, Richmond, Chesterfield & Hanover

Courts in Henrico County, Richmond, Chesterfield, and Hanover aggressively prosecute DUIs—even when no test failed. Prosecutors may rely solely on officer observations.

Hiring a Henrico DUI lawyer early allows you to challenge probable cause, implied consent warnings, and the accuracy of video evidence.

At Peters Law Firm, we appear daily in these courts and understand how local judges evaluate DUI without failing a breath test Virginia cases.

6. What to Do Next After a DUI Without a Failed Test

  1. Call a DUI defense lawyer immediately.

  2. Do not post online or talk to police.

  3. Collect witness info and medical records.

  4. Request bodycam footage quickly.

  5. Show up for court—missing it worsens penalties.

Prompt legal help can preserve your license and shape the outcome of your case.

Peters Law Firm Can Help

At Peters Law Firm, we help people protect their liberty and livelihood after DUI arrests. We’ve defended clients across Henrico, Richmond, Chesterfield, and Hanover Counties, including DUI without failing a breath test Virginia cases and drug-related DUIs.

Our attorneys know Virginia DUI law, the local courts, and how to build strong defenses.
Contact Peters Law Firm today to schedule your consultation.