You do not have a general right to choose a blood test instead of a breath test after a Virginia DWI arrest. And if an officer lets you make that choice, it does not automatically make the result inadmissible.
A September 2026 Court of Appeals decision addressed that situation. If you are facing DWI charges in Fairfax or Prince William County, it is worth understanding what the court decided—and what still needs to be reviewed in your own case.
What Virginia's implied-consent statute says
Virginia Code § 18.2-268.2 generally applies to a person who drove on a highway and was arrested for a covered offense within three hours. For the alcohol-related offenses specified in subsection B, the statute calls for a breath test. A blood test is required if the breath test is unavailable or the person is physically unable to submit to it. Subsection C addresses drug-related testing circumstances.
The applicable rules depend on the offense and the circumstances. Simply preferring one test does not give you the right to demand it.
The September 2026 Whitaker decision
In Whitaker v. Commonwealth, Record No. 0996-25-1 (September 1, 2026), the driver requested a blood test because he believed a delay would benefit him. The officer honored that request. The Court of Appeals rejected his argument that allowing the choice required suppression of the blood evidence and affirmed the judgment.
The court also upheld the probable-cause determination based on the circumstances surrounding the arrest. Whitaker is unpublished and is not binding precedent. Its value is as a fact-specific illustration; it does not establish that every blood draw is lawful.
Procedure, substantial compliance, and constitutional questions
Virginia Code § 18.2-268.11 treats specified steps for taking and handling samples as procedural and permits substantial compliance. Noncompliance alone does not require a not-guilty finding; the defendant may present evidence of noncompliance and resulting prejudice.
We need to identify the actual problem. What requirement was not followed? What happened as a result? Is there a constitutional issue apart from the testing procedure? Those questions have to be answered before we can tell you what the error means for your case.
The roadside test is a separate issue
Do not confuse the preliminary roadside breath analysis under § 18.2-267 with post-arrest chemical testing. That section provides a right to refuse the preliminary analysis and limits the use of its result. Its rules should not be confused with the requirements governing a post-arrest test.
What to bring to a DWI consultation
Bring any test paperwork, your summons and court date, and a timeline of driving, arrest, and testing. Tell your attorney about medical conditions, the officer's instructions, whether a warrant was mentioned, and any difficulty providing a sample. Preserve documents and recordings without changing them.
We represent people charged with DUI and DWI in Fairfax and Prince William County. Request a confidential consultation about the evidence in your case.
General information only, not individualized legal advice. Reading this article does not create an attorney-client relationship. Outcomes depend on the facts and applicable law.