May 04, 2015 A DWI victory obtained through getting the breath test result discounted
Recently, I won a Virginia driving while intoxicated/under the influence bench trial appeal after my client was convicted in the lower General District Court when represented by a different and very capable attorney.
Here are a few highlights from this victory:
First and foremost, criminal defendants who lose at trial in Virginia District Court should seriously discuss their appeal option with their existing criminal defense lawyer or with another qualified lawyer. An appeal gets a new trial in Circuit Court with a jury unless both parties agree to waive a jury. An appeal provides the chance to further negotiate a possible case resolution, to go to trial, or to withdraw the appeal at least one business day before the Circuit Court trial date if the defendant changes his or her mind about appealing.
The potential benefit of an appeal is to obtain a better result than the General District Court disposition The risk is that the sentence in District Court does not cap the possible disposition in Circuit Court.
In my recent DWI victory on appeal in Circuit Court, my client was accused of running a red light late at night, displaying some adverse clues on the field sobriety tests, and having a 0.08 blood alcohol level result in the Intox EC/IR II breathalyzer machine. The defense attacks included.
I used the videotape of the incident as our friend, including grasping the point where my client early on told the police officer that his English was inadequate, with the police officer still never offering to seek if a bilingual police officer or translator was available in this very common language that my client speaks.
I presented the testimony of a breath test expert to highlight the deficiency of not having the Intox EC/IR II machine calibrated after it was certified at
the Virginia Department of Forensic Science in Richmond and then transported to the police department in Northern Virginia. The miles long transportation of the Intox EC/IR II machine can dislodge essential components of the machine to render the breath test results inaccurate absent a recalibration after the machine arrives at its destination.
In acquitting my client, the judge emphasized the absence of evidence that the Intox EC/IR II machine had been recalibrated after arriving in Northern Virginia. The judge also essentially stayed firm on his statement at the earlier evidence suppression hearing that probable cause to arrest for DWI would have been absent other than my client’s preliminary breath test reading exceeding 0.09, which result by law cannot be considered at the guilt-innocence phase.
This result was by no means guaranteed. In most of my trials, the judges have rejected my arguments about the failure to recalibrate the Intox EC/IR II machine. I did have my already-made backup arguments that my client’s blood alcohol level likely had risen since the time of driving (the blood alcohol level at the time of driving is what is important for BAC’s under 0.15), and that the DFS-admitted +/- 0.004 margin of uncertainty also created reasonable doubt about whether my client had a BAC under 0.08 at the time of testing.