Intox EC/IR II challenges in DWI cases – Fairfax DUI lawyer

Intox EC/IR II testing data is ripe for challenge, says Fairfax DUI lawyer

Intox EC/IR II (Intox) testing is the sole breath test machine approved by the Virginia Department of Forensic Science (DFS) in DWI cases. As a Fairfax DUI lawyer, I know how essential it is to aggressively challenge the admissibility, reliability and meaning of such test results. This blog entry follows up on the last one focusing on the twenty-minute observation rule for the machine.

The Virginia Fitzgerald decision does not preclude defense challenges to breath testing, says Fairfax DUI lawyer

In 2012, the Virginia Court of Appeals ruled that “the substantial compliance provisions of Code § 18.2-268.11 explained above indicate that the defendant has the burden of producing evidence showing noncompliance with procedural requirements like that contained in Code § 9.1-1101(B)(3),” whereby the foregoing code section provides that the DFS shall test “the accuracy of equipment used to test the blood alcohol content of breath at least once every six months. Only equipment found to be accurate shall be used to test the blood alcohol content of breath.” Fitzgerald v. Virginia, 61 Va. App. 279 (2012). Consequently, Fitzgerald does not preclude defense challenges to breath testing accuracy and the weight such results should be given, even though Fitzgerald limits defense challenges to the admissibility of the Intox machine’s certificate of analysis into evidence at a Virginia DUI trial.

Fairfax DUI lawyer on available challenges to Intox EC/IR II testing

A Virginia DUI lawyer should consider the availability of the following challenges to Intox EC/IR II testing:

• Challenge the twenty-minute rule, including the timepiece that was used to measure the twenty minutes, and whether the Intox operator at any time during the twenty minutes looked away from the suspect.
• Did the Intox operator sign the attestation clause of the certificate of analysis? Sometimes operators forget to sign the attestation clause, and I argue that such omission makes the certificate of analysis inadmissible, where the certificate of analysis can lead to the magistrate’s temporary suspension of a Virginia DUI arrestee’s license, and where Fitzgerald focuses so heavily on relying on the accuracy represented by the operator’s signature on the attestation clause. (Also, now that the Fairfax police no longer have daily available staff to administer tests, Intox training has expanded to all or just about all county police, where they are bound to make more errors in testing than with more experienced operators.)
• Can the Intox operator correctly name the model of the breathalyzer machine s/he used? Repeatedly I hear breath test operators mis-name the machine as the Intoxilyzer or Intoxilyzer EC/IR II, when clear as day the only breathalyzer machine approved by the DFS and addressed in its operator’s manual is the Intox EC/IR II.
• Has the Intox machine been kept free from excessive moisture, heat and dust? 6VAC40-20-50.
• Has the Intox machine been “stored in a clean, dry location that is only accessible to licensees and to other authorized individuals”? 6VAC40-20-40. 
• Have any modifications been made to the Intox machine without the DFS’s written consent? 6VAC40-20-60.
• Does the operator know what the dry gas standard (covered on pages 17, 28, and 29 of the operator’s manual) is, and did s/he assure that the Intox machine was properly operating with the dry gas standard?

Finally, as it is only a presumption, the defense can overcome the statutory presumption of being under the influence of alcohol at the time of the alleged offense when a 0.08 blood alcohol level is present on the Intox machine at the time of testing. Va. Code § 18.2-269

That is buttressed all the more by Yap v. Virginia, 49 Va. App. 622, 631 (2007), as limited by the subsequent Wimbish v. Virginia, 51 Va. App. 474 (2008), in challenging Intox machine results. (Wimbish only applies to blood alcohol readings of 0.15 and over, when the defendant is charged with the same.).

Fairfax DUI lawyer Jonathan L. Katz pursues your best defense against Virginia prosecutions alleging DWI, impaired driving, and drugged driving. To discuss your case with Jon Katz, please call his staff at 703-383-1100.