Fairfax DUI presumptions must be fully rebutted, says Virginia DWI lawyer

Fairfax DUI presumptions — and DWI presumptions  (both real and claimed) in all Virginia courts — must be fully rebutted by the defense. As a Fairfax DUI lawyer, I regularly present rebutting arguments against statutes, caselaw and arguments addressing such items as the validity of breathalyzer / Intox EC/IR II test results and their meaning, blood alcohol concentration (BAC) test results, and whether to impose longer jail for collisions and high speed, We start with the main Virginia statute criminalizing driving under the influence of alcohol or drugs, which provides in pertinent part about alcohol: “It shall be unlawful for any person to drive or operate any motor vehicle, engine or train (i) while such person has a blood alcohol concentration of 0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath as indicated by a chemical test administered as provided in this article, (ii) while such person is under the influence of alcohol…” Virginia Code § 18.2-266. On top of that, mandatory minimum jail sentencing applies for people convicted of violating the Virginia DWI law with an elevated BAC: “If the person’s blood alcohol level as indicated by the chemical test administered as provided in this article or by any other scientifically reliable chemical test performed on whole blood under circumstances reliably establishing the identity of the person who is the source of the blood and the accuracy of the results (i) was at least 0.15, but not more than 0.20, he shall be confined in jail for an additional mandatory minimum period of five days or, (ii) if the level was more than 0.20, for an additional mandatory minimum period of 10 days.” Virginia Code § 18.2-270.

Is the Intox EC/ IR II breathalyzer machine a statutory dictator?

The foregoing language in Virginia Code § 18.2-270 may read to some to say that the Intox EC/IR II breathalyzer machine (which is the only breath BAC testing machine currently approved by the Virginia Department of Forensic Science (DFS)) results dictate a mandatory minimum sentence if showing a 0.15 or higher BAC result where the remaining elements of DWI are met (including probable cause to arrest for driving under the influence of alcohol, and a BAC certificate of analysis that is properly completed). That is not true and does not allow Fairfax DUI irrebuttable presumptions, because the Virginia Code provides: “In any trial for a violation of § 18.2-266 [DWI], 18.2-266.1 [those under 21 years old driving with at least 0.02 BAC], or subsection B of § 18.2-272 [driving on a restricted driver’s license with a BAC 0f at least 0.02] or a similar ordinance, the admission of the blood or breath test results shall not limit the introduction of any other relevant evidence bearing upon any question at issue before the court, and the court shall, regardless of the result of any blood or breath tests, consider other relevant admissible evidence of the condition of the accused.” Virginia Code § 18.2-268.10(A). 

Failure of the breath test operator to attest to the certificate of analysis should deprive the Virginia assistant commonwealth’s attorney / prosecutor of being able to benefit from hearsay and procedural shortcuts

The commonwealth code provides that the DFS certificate of analysis in a Virginia DUI prosecution “when attested by the individual conducting the breath test on equipment maintained by the Department, shall be admissible in any court as evidence of the facts therein stated and of the results of such analysis…” Virginia Code § 18.2-268.9(B). However, where, as sometimes happens, the breath technician leaves the certificate of analysis’s attestation box blank or merely block-writes — rather than signs — his or her name therein, my argument is that the foregoing hearsay- and procedural-shortchanging approach is then nixed, and that the shortchanging provisions of Fitzgerald v. Com, 61 Va. App. 279, 734 S.E.2d 708 (2012), are also nixed, and no Fairfax DUI presumptions should then apply. The absence of a breath technician signature in the attestation clause box also should enable the defense to argue against admitting the BAC results in the absence of proof of sufficient certification of the breathalyzer / Intox EC/IR II machine at least six months before the testing. Virginia Code § 9.1-1101(B)(3). 

Substantial compliance is absent in the face of negligence or sloppiness by the Virginia breath technician

Your Virginia DUI lawyer can counter a prosecutor’s claim that the absence of a breath technician signature in the certificate of analysis’s attestation clause is substantial compliance, by pointing out that negligence and sloppiness is not substantial compliance, and should not permit Fairfax DUI presumptions. Moreover, even the presence of substantial compliance simply means that acquittal does not thereby result: “The steps set forth in §§ 18.2-268.2 through 18.2-268.9 relating to taking, handling, identifying, and disposing of blood or breath samples are procedural and not substantive. Substantial compliance shall be sufficient. Failure to comply with any steps or portions thereof shall not of itself be grounds for finding the defendant not guilty, but shall go to the weight of the evidence and shall be considered with all the evidence in the case; however, the defendant shall have the right to introduce evidence on his own behalf to show noncompliance with the aforesaid procedures or any part thereof, and that as a result his rights were prejudiced.” See Virginia Code  § 18.2-268.11.

Do Fairfax DUI presumptions extend to enhanced sentencing for collisions and high speed?

At least some judges in Fairfax and other Virginia jurisdictions will enhance your active jail sentence when finding a nexus between alcohol influenced driving and a collision, and to enhance jail time when finding very high speed connected with DWI behavior. As to any collision, your Virginia DWI lawyer can be ready to remind the judge that the “mere happening of an accident does not give rise to an inference of reckless driving,” and should not permist Fairfax DUI presumptions. Powers v. Virginia, 211 Va. 386 (1970). Consequently, the mere happening of a collision does not automatically mean the collision was caused by alcohol, and should be the prosecutor’s burden to show that the collision in the defendant’s case was caused by his or her having allegedly driven an automobile under the influence of alcohol and/or drugs.

Virginia DUI defendants should own Nelson v. Commonwealth

When the a Virginia DUI defense lawyer argues to reduce the BAC score in the light of the DFS-admitted uncertainty of measurement, prosecutors sometimes like to trot out the case of Nelson v. Virginia, 430 S.E.2d 553 (1993). However, Nelson does not undercut such a defense argument — and should not permit Fairfax DUI presumptions beyond the following rebuttable presumption addressed in Nelson: “We find no basis upon which to conclude that the trial judge held that the breathalyzer measurement of .10 percent was conclusive proof of guilt. The record demonstrates that the trial judge recognized that the evidence of the margin of error did not rebut the Davis presumption. The trial judge ‘assume[d] the General Assembly was aware of the process used to convert the breath analysis to a blood alcohol concentration when they enacted the legislation permitting use of the breath test.’ That statement evidences recognition that margin of error was an issue and ‘[u]nless rebutted . . ., [breathalyzer] test results are sufficient to establish the blood alcohol concentration at the time of driving.’ Davis, 8 Va. App. at 300, 381 S.E.2d at 16.” Nelson. 

The foregoing discussion underlines how critical it is for your Virginia DWI lawyer to fully understand, synthesize, and relevantly and persuasively argue the in-depth science, procedure and law applicable to your defense. Fairfax DUI lawyer does all that and more. Call 703-383-1100 for your free in-person confidential consultation about your court-pending prosecution.