Litigation can become a war of attrition. How much time, numerous court appearances and money are each side willing to invest in the litigation? For criminal defendants, they also face the risks, if convicted, of incarceration, substantial fines and court costs and other case-related expenses.

With Virginia DWI charges and the other misdemeanor charges, the convicted criminal defendant has the right to a new/de novo trial upon a timely appeal from the District Court to the Circuit Court. By the same token, by appealing, the defendant risks the possibility of a worse sentence if convicted on appeal than the sentence in District Court.

Court-appointed criminal defendants and defendants with financial means likely are the ones most likely to appeal a Virginia District Court conviction to the Circuit Court. Defendants with court-appointed lawyers have a government-paid lawyer, reducing the financial equation from the decision to appeal or not. Those with access to significant assets are more ready to appeal a District Court conviction, because the expense of paying a lawyer for appeal is less of a financial strain than if they had fewer assets.

Magical things sometimes can happen on appeal. Sometimes evidence suppression issues work more successfully on appeal than not. Perhaps an essential prosecution witness will not appear for the appellate trial. Sometimes a trial win will come when the defense least expects it. Consequently, when my clients ask me their prospects on appeal from a District Court conviction, I preface my viewpoint by pointing out the many times that I exceed my expectations in fighting for criminal defendants.

With the foregoing as a backdrop. recently I won a DWI trial on appeal to the Virginia Circuit Court, where my client blew a 0.12 into the breathalyzer machine.

My client first lost in General District Court for DWI for the same case. He invested in an appeal without a jury trial, and we got assigned a judge who seems to convict a high percentage of time. We had a joint arresting and breath testing police officer who had significant trouble remembering anything outside of his police report, and even forgot some material items from his short police report.

At our appellate trial, the police officer testified that our client was stopped after exceeding the speed limit and had a light odor of alcohol. The officer claimed that his cruiser was not equipped with video recording equipment, and recounted my client performing fair on the field sobriety tests.

The judge denied my motion to suppress my client’s arrest, despite my pointing out that the police officer’s memory was sketchy.

The arresting police officer later testified in his role as the technician of the Intox EC/IR II breath alcohol testing machine. When I cross examined/voir dired the police officer, my questions included the following:

– The officer arrested my client in the Tysons Corner, Virginia, area, around 8:30 p.m.

– The officer did not recall whether he took Route 123 South or the Beltway to Route 66 west to the jail that had the breath testing machine.

– At least 15 minutes passed to arrive from the incident scene to the jail.

– The officer confirmed that around five minutes passed to get my client from the entry of the jail, to the breath testing room.

– Having gotten the answers I wanted for working to keep out the breathalyzer reading, I moved onto the topic of the mouthpiece used to blow into the machine, so as not to highlight to the prosecutor where I was headed most.

– In successfully arguing to keep out evidence of the breath test result, I pointed out to the judge that the breath test paperwork from Virginia’s Department of Forensic Science asserted that the breath testing started at 2:-8:08 p.m. after my client would have arrived at the breath testing room at 7:30 a.m. (time of arrest) plus 15 minutes later to get to the jail (now 7:45 p.m.) plus 5 minutes to get to the breath testing room now bringing us to 7:50 p.m.

The breath testing time of 8:08 p.m. only left 18 minutes from the time of arrival at the breath testing room to the time of first blowing into the breathalyzer machine. Before then, I already had gotten the police officer to commit on cross examination to the importance of observing that the suspect’s mouth is free of foreign substances for at least 20 minutes before blowing into the breathalyzer machine, to reduce the risk that mouth alcohol is being tested.

The judge granted my objection to the breath testing results coming into evidence, due to the prosecutor’s inability to satisfy the above-referenced 20-minute rule. The judge subsequently found my client innocent/not guilty.