Attestation binds Virginia breath technicians in DUI cases
Attestation clauses signed by Virginia breath technicians bind them to the terms of the state breathalyzer testing manual
Attestation clauses (AC’s) need to be signed by breathalyzer machine operators to effectuate the Virginia law that gives prosecution-friendly meaning to such testing. Virginia Code §§ 18.2-268.9, 19.2-187, and 19.2-187.1. As a Fairfax DUI lawyer, I religiously check the certificate of analysis for whether the breath technician signed the blood alcohol concentration / blood alcohol content (BAC) certificate of analysis (COA) AC at all (on occasi0n the signature line is left blank) or merely printed their name therein rather than signing it. In pertinent part, that COA clause says “I certify… that the test was conducted… in accordance with the methods approved by the Department of Forensic Science [DFS].” I am ready to object to direct examination testimony by the technician that s/he followed methods approved by the DFS without stating what are those methods, which are the ones stated in the DFS Breath Test Operator Instructional Manual effective July 7, .2008 for the Intox EC/IR II machine, which is the only breathalyzer machine approved for years by the DFS.
The Virginia certificate of analysis attestation clause binds the breath technician to the terms and conditions to the DFS Breath Test Operator Instructional Manual
In my hundreds of Virginia DWI trials, never have I seen the prosecutor introduce into evidence the DFS Breath Test Operator Instructional Manual. When the Certificate of Analysis attestation clause is blank or only printed, I object to its introduction into evidence, based on the certificate’s and the above-listed statutes’ language’s own requirement that it be signed (and not simply printed). Whether the or not that clause has been signed by the breathalyzer technician, one of my early questions on cross examination of the technician is along the lines of: “Are you certified by the DFS to be a breath technician?” (I know this answer in advance by having already obtained from the DFS detailed information from the DFS detailed online and by written request (here is my standard letter and DFS’s approved request contents) about the breath testing machine and breath testing steps.) Q: As part of your training to be a DFS-certified breath operator, were you issued a Breath Test Operator Instructional Manual? A: Yes. Q: Is the instructional manual published by the Virginia Department of Forensic Science? A. Yes. Q. (Providing the technician a printout of the instructional manual from the DFS website). Is this the manual you were issued? A. Yes. (Usually the answer is yes.) If the answer is no: You know that the instructional manual is available on the DFS website. (If the answer is yes: Q: I printed this manual this month from the DFS website.) If the answer is no: The manual is on the DFS website. Would you like me to show you my accessing the manual online in realtime? (The witness by this point will probably agree that the manual I have handed him or her is the one s/he was trained on.)
What if the judge, prosecutor or breath technician challenge the 2008 publication date of the breath operator instructional manual
I myself have been curious about whether a judge, prosecutor or breath technician will challenge whether the 2008 publication date of the Virginia DFS breath operator instructional manual is so old as to have probably been updated. Consequently, recently I wrote a letter to the Department of Forensic Science’s Breath Alcohol Section Supervisor asking to confirm that the 2008 manual is current. By letter dated April 5, 2022, said DFS supervisor replied to me that said 2008 manual is current. In any event, the above sample cross examination of the breath test operator on his or her attestation clause should make rare any challenges to the applicability of the 2008 DFS breath operator instructional manual.
What is the importance of cross examining a Virginia breathalyzer operator on the DFS instructional manual?
Once the Virginia breathalyzer operator admits that s/he was trained with the 2008 DFS instructional manual, that manual, therefore, states the ” methods approved by the Department of Forensic Science” that is referenced in the certificate of analysis’s attestation clause. Several times, I have won Virginia DUI trials by keeping out or weakening the certificate of analysis results by showing that the 20-minute observation period rule (at page 22 of the manual) were not followed. I also am ready to argue the inaccuracy of the BAC testing when an air blank check of zero has not been conducted before each sufficient sample of air has been received from the Virginia DUI suspect. DFS instructional manual at page 15. I am ready to argue that the breath testing is unreliable if the widest differential among the blows into the machine is greater than 0.02 grams per 210 liters. Instructional manual at page 16. Finally, I am ready to argue that the final BAC result is the lowest of the breath testing results truncated to two digits past the decimal point. Id.
How do I use the Virginia DFS data to my greatest advantage?
Beyond dealing with the attestation clause in the certificate of analysis, once a Virginia DUI defense lawyer obtains data from the Department of Forensic Science about the breath testing of the defendant, the following analysis is important as part of the defense preparation: Look at the margin of uncertainly presented in the Certificate of Instrument Accuracy. For the 0.137 lowest blow found near the bottom of this data reply page from the DFS (at the line for SUBJ), we subtract the referenced +/- 0.004 margin of uncertainty, because forensic toxicological sense combined with the law of reasonable doubt necessitate such subtraction. It also is important to see whether the dry gas standard (a scientific control mechanism) target value (0.100 in the above-linked reply from the DFS) matches the checked (CHK) value, which on the above-linked page is 0.99. Here I address how to adjust all of these values plus to incorporate the Virginia DWI defendant’s mouth temperature dats into the mix. Numerous times I have used the DFS data to show prosecutors instances that the second blow is higher than the first blow into the breathalyzer machine, and say this supports that the defendant’s BAC level was still rising and probably lower at the time of driving. When the certificate of analysis result is under a 0.15 BAC, this latter argument can also be used at trial to the factfinder, whether that be a judge or jury.
Fairfax DUI lawyer Jonathan Katz uses his experience and knowledge of the relevant law and science to fight for your best possible result when facing a Virginia DWI prosecution alleging driving under the influence of alcohol or drugs. Call 703-383-1100 for a free in-person consultation with Jon Katz about your court-pending case.