Last week, I won a drunk driving case in Virginia District Court. Here are some of the highlights of our victory:
– My client’s Intoximeter EC/IR (breathalyzer) reading was 0.08.
– The prosecutor presented the testimony of the cop, the breath technician, and the Virginia Department of Forensic Sciences person who certified the Intoximeter.
– We presented the testimony of our own Intoximeter EC/IR expert, who testified that:
— The Intoximeter should have been recalibrated after the gas was replaced in the machine, but there was no recalibration.
— The Intoximeter does not make room for mouth temperature variations. The Intoximeter assumes 34 celsius mouth temperature. Higher mouth temperature will deliver a false high result on the Intoximeter. Our expert measured my client’s mouth temperature on the trial date 36 degrees celsius.
— My client’s second of the two mandatory blows into the Intoximeter produced a lower breath volume than the first blow, which can (and did) provide a lower BAC.
– The judge denied my motion to strike/for judgment of acquittal.
– In acquitting my client, the judge pointed out:
— No per se rule for a 0.08 Intoximeter result applies to my client’s case, due to even the DFS witness’s admission of a margin of deviation with the Intoximeter. The prosecutor conceded that no per se rule applied to this case, when the judge asked.
— A former Circuit Court judge talked about reasonable doubt approaching when it takes longer than a second to decide if the defendant is guilty. If only jurors were like that.
— Although my client took a left through a red light, that could have been because it was 3:00 a.m. with little traffic, rather than having anything to do with alcohol in the system.
— Although my client’s shirt was off, it was summertime.
— My client did fine on the alphabet test.
— There was no claim that he fumbled to get his license to the cop.
— There was an admission to drinking and odor of alcohol, but no statement of when he drank.
— The judge left room that reasons other than alcohol could have explained my client’s far-from-perfect performance on the walk-and-turn test and the one leg stand test. He mentioned that Rudolph Nureyev could have perfectly performed both tests even if drunk.
One wonders if I would have obtained an acquittal if the Intoximeter had read a 0.09 BAC result.