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DFS scientists – Virginia DUI lawyers need to talk with them

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DFS scientists are a wealth of information for your Virginia DUI lawyer to consult with, says Fairfax DWI attorney

DFS scientists (DSs) are to be approached with defense-relevant questions by Virginia DUI lawyers, and not feared, in defending against prosecutions for alleged violation of the Virginia law against driving under the influence of alcohol and drugs under Virginia Code § 18.2-266. As a Fairfax DWI attorney, I regular call and speak in the courthouse hallways with professionals from the Virginia Department of Forensic Science (DFS) concerning their blood alcohol concentration (BAC) testing of my clients’ blood, their maintenance and operation of the Intox EC/IR II machines used to check my clients’ BAC, and their testing of alleged controlled substances in my drug defense cases. Their being scientific professionals, DSs should be expected to be more open than police, in general, to speak with defense lawyers (and plenty of Virginia police officers will be very open to speak with criminal defense lawyers, to a point). For me, it helps that I have by now learned extensively about the science and language involved in BAC and drug testing, and with biological science in general, which includes my having obtained and reviewed in-depth and extensive medical and scientific records in many cases, and even goes back to when I participated in my high school paramedics club, which included doing basic health checkups (including for blood pressure), drawing small blood samples, checking urine, and learning lifesaving methods. All of this experience makes me all the more comfortable and attuned in speaking with any DFS or other scientific witness who will be testifying for the defense or the assistant commonwealth’s attorney / prosecutor.

What should my Virginia DUI lawyer do when seeing DFS scientists waiting for court in the Fairfax courthouse or elsewhere?

For Fairfax DWI blood cases, the DFS scientists tend to congregate in the courthouse hallway near the courtroom that is handling such cases. While the prosecutors and Virginia DUI defense lawyers negotiate and otherwise discuss their cases and while the judge handles pleas and procedural matters, this can be an ideal time for your Virginia DUI lawyer — regardless of the courthouse location — to talk with those DSs about any remaining matters needed to be discussed about your case if set for trial that day, about your case if set for a future date, and about Department of Forensic Science work in general as may assist with in defending future cases coming to court. For instance, one day after a Fairfax assistant commonwealth’s attorney (ACA / prosecutor) obtained a continuance of my DWI blood trial over my objection (due to an unavailable prosecution witness), I walked over to the congregated DSs and the sole person who draws blood at the Fairfax jail for DWI cases (otherwise the blood gets drawn at outside medical facilities for Fairfax DWI blood draws). With the blood draw person, I further discussed the method used for drawing blood. With one of the DSs, I talked about what drives the decision to test blood only for alcohol or for both alcohol and drugs, as discussed further below.

Will Virginia DFS scientists check my blood only for alcohol or also for drugs in my DWI case?

Numerous times my Virginia DUI clients have told me about having ingested sometimes even more than one medication or other controlled substance along with alcohol, only to then see that the certificate of analysis by the Virginia DFS scientists only reports finding alcohol in the blood. Why is that? Is it because the drugs have already left the suspect’s bloodstream? Is it because the testing people decided for whatever reason not to test for all types of drugs, or any at all? One of the more experienced professionals from that agency told me that presence of drugs in the blood in such Virginia DUI cases is checked when the BAC level is under 0.10. I asked where I can find that guideline in writing, and this professional indicated it is in a procedural memo, which I found here. This written approach of the Virginia Department of Forensic Science includes: “Step 1: Level I Blood Alcohol Testing: a. All samples are analyzed for ethanol b. If ethanol is ≥0.100%w/v, testing is discontinued and the results are reported. The Certificate of Analysis will state that ‘No other drugs and/or drug classes detected.’ c. If ethanol is <0.100%w/v, the results are included in the report and the analysis continues with Step 2. Step 2: Level II Drug Screening, Confirmation, and Quantitation: a. If no drugs or drug classes are detected, the results are reported. b. If any drug or drug class is tentatively present, the sample undergoes confirmatory analysis for drug identification and quantitation, as necessary.”

Are Department of Forensic Science professionals’ conclusions subject to attack?

No matter how approachable and scholarly are any Virginia DFS scientists or other prosecutorial expert witness, they are still your opposing witness who are part of the effort to seek your conviction for a prosecution under the Virginia DUI law or other criminal law. Such witnesses are humans, and humans are fallible. Even assuming for arguments’ sake that the major scandals from other jurisdictions about scientific experts who prevaricated about their testing results will be absent in Virginia, such Virginia prosecutorial witnesses are still not above making errors or holding or following positions that are less than airtight. Talk well in advance of your trial date with your Virginia DUI lawyer about how to challenge your opposing experts, including whether to find and secure your own.

Fairfax DUI lawyer Jonathan Katz pursues your best defense against Virginia DWI prosecutions. Schedule your free in-person confidential consultation with Jon Katz about your court-pending case by calling his staff at 703-383-1100