Misnaming tests can preclude a conviction says Fairfax criminal lawyer

Misnaming marijuana field tests and DUI breathalyzer equipment is at a police officer’s own risk, says Fairfax criminal lawyer

Misnaming marijuana field tests and DUI breathalyzer equipment should preclude allowing the field testing and breath testing results into evidence at trial. As a Fairfax criminal lawyer, I have in many DWI trials objected to breath testing results when the breath technician has mistakenly referred to the sole Virginia Department of Forensic Science (“DFS”)-approved post-arrest breathalyzer as the Intoximeter EC/IR II or Intoxilyzer EC/IR II, when the only correct name for the equipment is Intox EC/IR II.

Virginia Court of Appeals requires police to correctly name their tests

This week, the Virginia Court of Appeals reversed a marijuana possession conviction over the marijuana field testing police officer’s misnaming the test as “NARK II #2005 Duquenois-Levine Reagent” whereas the DFS’s only approved marijuana field testing kit of a similar name is “05 – Duquenois – Levine Reagent,” under the heading NARK II. In other words, the testifying police officer only varied the DFS-approved name of the field testing kit by calling the the “#2005 Duquenois…” rather than the 05-Duquenois…, when Virginia statutory law requires that such testing kits be DFS-approved. (Va. Code § 19.2-188.1._ See Williams v. Virginia, 71 Va.App. 462 (Jan. 14, 2020).

Concerning this misnaming, Williams proclaims that the Virginia Court of Appeals is not convinced that the “NARK II #2005 Duquenois-Levine Reagent” “field test used by Nathanson is, as a matter of law, the same as the ‘NARK II” “05 – Duquenois – Levine Reagent’ test approved by the DFS… This is not a matter of common knowledge. The description of the test in the record does not exactly match the description of the approved test in the Virginia Register of Regulations now relied on by the Commonwealth. On this record, to conclude that they reference the same test requires technical knowledge.” Williams. Such misnaming is material rather than a minor deviation.

A police officer’s misnaming DUI breath testing equipment should also preclude admitting the equipment’s name into evidence

The same reasoning about misnaming applied in Williams to barring testimony about the name of a marijuana field test kit should also bar Virginia breath technician testimony about the name of the breathalyzer equipment used in DUI cases. Just as with the 05 – Duquenois – Levine Reagent marijuana field testing kit used in Williams, the name of the Intox EC/IR II breath testing machine is not a matter of common knowledge, and requires technical knowledge to establish that the misnamed breathalyzer test machine is the same as the machine approved by the DFS — see  Va. Code § 18.2-268.9 —  particularly when Virginia breath testing technicians are expressly trained on this equipment, so should not be misnaming the machines.

Fairfax criminal defense lawyer Jonathan L. Katz is a top-ranked Northern Virginia criminal defense lawyer pursuing your best defense against felony, misdemeanor, DUI, drug and sex prosecutions. To discuss your case with Jon Katz, please call his staff to schedule a confidential consultation, at 703-383-1100.