Evidentiary rulings in your Virginia DWI trial require being ready for anything, says Fairfax DUI lawyer

Evidentiary rulings in your Virginia DWI or criminal trial can be favorable, unfavorable or both. As a Fairfax DUI lawyer, I read with glee about a correct judicial ruling to exclude a blood test certificate of analysis (showing the defendant’s purported blood alcohol level (BAC)) in a prosecution for an alleged repeat DWI offense. This trial court ruling is recounted in Smith v. Commonwealth of Virginia, ___ Va. App. ___ (Sept. 5, 2023). However, Smith states no opinion on this BAC test result exclusion. Moreover, I read with concern what I consider to have been incorrect judicial permission in Smith for a witness from the Virginia Department of Forensic Science (DFS) to opine at length about the effect of alcohol on one’s behavior, and about the meaning of nystagmus with the horizontal nystagmus (HGN) test.

What is damaging about the evidentiary rulings in Smith v. Commonwealth of Virginia?

Smith v. Com. threatens extensive harm to DWI defendants prosecuted under Virginia Code § 18.2-266  alleged to have driven under the influence of alcohol and/or drugs submit to HGN testing. Before Smith was published, for evidentiary rulings I was able to argue as a Fairfax DUI lawyer that no published Virginia appellate opinions approve of HGN testing, and to point to the excellent law review-type Schultz case showing that presence of nystagmus means nothing more than presence of alcohol in the blood. Schultz v. Maryland, 664 A.2d 60 (1995). Here is the damaging Smith language on HGN: “Dr. Dalgleish explained that the greater the level of alcohol in one’s system, the more pronounced the “gaze nystagmus” effect—the ‘involuntary jerking of the eye,”’ like a ‘dry wiper on a windshield,   occurring when alcohol interrupts signals to the brain. That testimony was “beyond the knowledge and experience of ordinary persons,” Va. R. Evid. 2:702(a)(ii), and it assisted the jury to understand that what the troopers observed during the field sobriety test—“involuntary jerking” of both of Smith’s eyes—evidenced Smith’s intoxication. So we cannot say that the trial court abused its discretion by permitting Dr. Dalgleish’s testimony.

What is the relevance of the police officer’s standardized field sobriety testing (SFST)?

With Smith, the following is all the more important for your Virginia DUI lawyer to do: Find out which NHTSA SFST training manual was used by the police officer administering FSTs (a large percentage of police in Virginia do not seem to have received or else to have reviewed such manuals). The manuals are here. If the police officer denies being trained in SFSTs (versus removing the S for standardized), then the HGN test should be excluded as part of the court’s evidentiary rulings, because it is too scientific a test not to be standardized.

Why is it now more important than ever before to hire a Virginia DUI lawyer who understands HGN testing?

With the Smith evidentiary rulintes, It is all the more important now for Virginia DUI defense lawyers to be trained in conducting FSTs on people who have consumed alcohol, by a high-quality FST trainer, which I have already completed. In my FST article is my rundown of some key HGN points of attack. To that I add that your incident video may show whether the FST officer is moving their stimulus in a straight line. If the officer is standing parallel to the suspect (common)– rather than at an angle — their bulletproof vest will likely prevent that straight line. Furthermore, a strong argument can be made that no HGN testimony should be allowed if the HGN administrator does not have sufficient expertise or was not exercising such expertise.

Fairfax DUI lawyer Jon Katz knows that you seek a Virginia DWI lawyer who will pursue a full court press for you in fighting for your best possible outcome in court. Jonathan Katz and his staff settle for nothing less. Start your road to a great defense by meeting with Jon for your free in-person initial confidential consultation about your court-pending prosecution. Call 703-383-1100 to calendar your meeting with Jon.