Blood alcohol content stays out of evidence in recent DUI trial when breath technician does not satisfy 20 minute rule

Blood alcohol content (BAC) testing is repeatedly relied on by prosecutors when they try to obtain DWI convictions. As a Fairfax DUI lawyer, I know the importance of fully challenging such prosecutions at every turn, including working to keep out BAC test results, which can make the difference between acquittal or not when testing at the 0.08 threshold or higher, and between receiving mandatory minimum sentencing due to five-days mandatory minimum in jail for DUI with a 0.15 BAC or higher. ten-days mandatory minimum when the BAC exceeds 0.20, and even higher mandatory minimums when BAC’s of 0.15 or more are coupled with proven as a second offense within five or ten  years.

The importance of challenging the 20 minute rule for blood alcohol content testing

DUI prosecutions sometimes are beat by keeping out blood alcohol content evidence. In a recent DWI trial, I kept out the BAC evidence by successfully challenging the breath testing technician on the twenty minute rule that requires breath technicians to check the DUI arrestee’s mouth for the presence or absence of food, chewing gum, or other foreign substances that might trap alcohol in the mouth. This twenty-minute rule is critical for reducing the presence of alcohol in the test subject’s mouth, because the Intox EC/IR II breathalyzer machine is supposed to be testing for deep lung alcohol rather than mouth alcohol. Mouth alcohol  can be present in the test subject’s mouth when breath testing starts too soon, when foreign substances trap alcohol in the mouth, and when contents from the DWI suspect’s stomach come into the mouth through burping or belching (which are synonymous to each other), vomiting (including through burps that carry regurgitant), and through acid reflux / GERD

Keeping out blood alcohol content results when the breath technician contradicts himself about when he started the twenty-minute observation period

In my recent DUI trial where I kept out the blood alcohol content evidence, the prosecutor asked the breath technician (who was not the DWI arresting police officer) the results of the testing early in his testimony. I objected and said that I had some questions first for the breath technician. When the judge permitted me to proceed with questions, I asked the technician questions along the following lines: Q. When did you first see my client on the incident date? A. Somewhere between 1:45 a.m. and 2:22 a.m. (NOTE: The evidence showed that my client first blew into the breathalyzer / Intox EC/IR II machine at 2:24 a.m., which is only two minutes after the latter 2:22 a.m. time.) Q. Did you have my client open his mouth at any time before he started blowing into the breathalyzer machine? A. Yes. Q. When did you do that? A. At least twenty minutes before the defendant started blowing into the breathalyzer machine. Q. Don’t you agree that you first saw my client as early as 1:45 a.m. and as late as 2:22 a.m. on the incident date? A. Yes.

Sticking the police witness with his own words to keep out the blood alcohol content evidence

Clearly, the prosecutor’s efforts to admit blood alcohol evidence through the breath technician’s testimony backfired, and the trial judge barred the BAC evidence at trial. It cannot be reconciled that the breath technician first saw my DUI defendant client as late as two minutes before he started blowing into the breathalyzer / Intox EC/IR II machine but started the twenty minute observation period at least twenty minutes before that breathalyzer blowing began. The breath technician having had a few years experience in this role, he probably did first see my client at least ten to fifteen minutes before my client started blowing into the breathalyzer machine. However, it is the obligation of the DUI defense lawyer to work to block the introduction of BAC test results, and the prosecutor’s job to establish that the twenty-minute rule was followed. Instead, the prosecutor tried to argue that the breath technician had substantially complied with breath testing procedures and that this allowed the breath testing results to come into evidence. However, the judge was not about to let the twenty minute rule so glaringly be evaded, and he kept out the breath test results in my client’s DWI case.

Keeping out breath test results does not automatically equate with acquittal, but brings a DUI defendant closer to a not guilty verdict and eliminates mandatory minimum sentencing

Keeping out blood alcohol content evidence does not automatically assure a DUI trial acquittal. At the same time, keeping out BAC evidence prevents the prosecutor from trying to prove per se guilt through a 0.08 or higher BAC, and to obtain mandatory minimum sentencing by establishing a 0.15 BAC or a BAC exceeding 0.20. In Virginia, in the absence of a BAC result or if the result is under 0.08, the prosecutor is left with a DWI definition that essentially means having consumed enough alcohol to noticeably affect the defendant’s behavior or appearance, which clearly is watered down from the dictionary definition of intoxicated.

Going to trial despite warnings from the prosecutor and an unsolicited suggestion from a colleague

My client’s blood alcohol content result was significant, so much so that after a very able colleague — before my trial began — heard the BAC level from the prosecutor and the prosecutor’s no-active jail offer in my case, the colleague expressed surprise that my client was still proceeding to trial. The prosecutor himself expressed surprise, and opined that the judge would not be pleased about learning my client’s BAC level through a trial. However, trial success cannot be obtained without proceeding to trial. I had several solid defenses up my sleeve, my client had the choice of proceeding to trial or not through making a fully informed decision with my full input starting well before the trial date, and we proceeded to trial.

Can the prosecutor use BAC test results at sentencing even if they are barred at trial? Yes.

Keeping out BAC testing at a DUI trial can bring a defendant closer to an acquittal. However, if a DWI defendant is convicted even after blood alcohol content evidence is kept out of trial, that does not prevent the prosecutor from offering the BAC evidence at sentencing, where a judge is permitted to consider any relevant evidence, and where the formal rules of evidence do not apply. At the same time, if a prosecutor were to offer BAC evidence at sentencing after I kept out that evidence at trial, I would point out to the judge that the relevance of the BAC results to sentencing is diminished for the same reasons that kept the BAC results out from trial in the first place.

Never rely on only one possible silver bullet at trial

Criminal and DUI trials can be like stratospheric speeding roller coasters, where the judge and jury have decisionmaking authority, and may or may not rule correctly. I proceeded to this DWI trial without having any idea that our strongest path to success would be attacking the twenty minute rule. It is rare for a breath test operator to testify counter to the prosecutor’s being able to prove the twenty minute rule. This is why it is so important for a criminal defense lawyer not to over-rely on notes at trial, lest the lawyer miss such a testimonial gift from a prosecution witness, and lest the defense lawyer does not then switch gears to milk that gift for its full benefits.

Fairfax DUI lawyer Jonathan L. Katz pursues your best possible defense against Virginia DWI and criminal prosecutions. Learn the difference that Jon Katz can make for your defense by arranging a free in-person confidential consultation with Jon about your court-pending case, by calling 703-383-1100 to set your consultation.