Narrowing reliance on police testimony is important to pursue in trial, says Fairfax criminal lawyer

Narrowing reliance on police testimony is an important pursuit for criminal defense lawyers. As a Fairfax criminal lawyer, I expect many judges, jurors and prosecutors to treat the testimony of most law enforcement officers (LEOs) as worthy of reliability. In that regard, it was wonderful when a judge who was a former prosecutor whom I had assumed had a strong law enforcement bent, favored my clients’ passenger’s testimony that my client had proceeded through a green light, over the police officer’s claim of going through a yellow light that turned red before clearing the intersection, leading that off with asking the arguing prosecutor: “What if I don’t believe [the police officer]?”In that trial, the police officer was not outfitted with a dashcam video to back him up, and, sadly, many Virginia county police cruisers do not operate dashcams now that most Northern Virginia county police officers now operate bodycam videos (when it would be great if LEOs used both). The judge’s suppression of the traffic stop of my client’s car in the latter scenario, led to my client’s acquittal.

Is it an untruth for a Virginia LEO to sign a breath testing certificate of analysis without having inspected the Virginia DUI defendant’s mouth at least 20 minutes before post-arrest breathalyzer testing?

The Virginia Department of Forensic Science’s (DFS’s) Intox EC/IRII operator’s manual (Manual) (whereby the latter machine is the sole machine currently approved by the DFS for post-DWI arrest breath testing) directs that: “The operator should always inspect the subject’s mouth for any foreign objects. If found, they should be removed, and the subject must be observed for 20 minutes prior to providing a breath sample.” Manual at 22. Nonetheless, a slew of post-arrest breathalyzer operators tell me that they did not conduct such an inspection, or do not remember whether they did it. In some counties, the breath test operator or arresting police officer (if different from the breath test operator) run their body worn video camera during the breath testing operations, to reveal whether this oral cavity inspection was conducted (which is essential to reduce the risk of testing for mouth alcohol versus deep lung alcohol). Unfortunately, that does not happen at the Fairfax jail, where post-arrest Virginia DUI breath testing is conducted. I have experienced a LEO mocking me for asking if that inspection was conducted. I resisted the temptation to tell this LEO that his attestation on the certificate of analysis that he had followed DFS procedures with the breath testing, was therefore untruthful for having omitted an oral cavity inspection. (That argument I reserved for any case negotiations or trial cross examination or trial argument narrowing the receipt of any such LEO mocking.) I have experienced LEO’s defensively explaining that they saw no foreign substances in my client’s mouth while talking with them at length, but a failure to actually inspect the mouth cannot reveal the absence of foreign substances therein. Here, had the breath technician claimed he had inspected my client’s mouth when he had not, the video of the breath testing would have served in narrowing against such an assertion.

Dip in the mouth can be as little as a pinch between the cheek and gum- Narrowing the comeback of not seeing anything in an uninspected mouth

In my recent Virginia DUI trial acquittal, I engaged in narrowing reliance on the LEO’s defense of seeing nothing in my client’s uninspected mouth by verbaly illustratinghow the breath technician operator’s (here, the same as the arresting LEO) claim to have observed my client for over twenty minutes did not cut it. I pointed out the old Skoal smokeless tobacco commercial about only needing as little as a pinch of Skoal between one’s cheek and gum. That would not be visible without inspecting the mouth. Moreover, I once had a dedicated dip / tobacco chewer, pull a nickel-diameter wad of chaw out of his mouth that was not apparent from merely speaking with him. The trial judge granted my motion to strike the prosecutor’s evidence after he rested — which meant an acquittal at that trial — after wonderfully agreeing with me that the evidence was insufficient to convict absent admitted evidence of my client’s BAC testing results, and reliablity of such evidence. Although the judge initially admitted the certificate of analysis into evidence despite the breath testing officer’s admission of not inspecting my client’s mouth (backed up by the breath testing room bodycam footage, if that was needed to be played at trial), he also found the mouth inspection failure to be material enough to disregard the breath test results and to dismiss my client’s case, which was an acquittal. In reaching this result, our trial judge construed the Virginia Court of Appeals’ Fitzgerald opinion to our favor.

Make sure your Fairfax criminal lawyer and Virginia DUI attorney are up to snuff to be narrowing police and other prosecution witness testimony

Cross examining and narrowing judicial and jury reliance on prosecution witnesses by your Fairfax criminal lawyer / Virginia DUI attorney is an art and skill that calls for brass knuckles, knowing when to softly versus more aggressively question the witness (in part by knowing what will draw the most ideal opposing witness responses and what the judge and jury will accept and permit the criminal defense lawyer to do as far as any aggressive questioning before closing their ears, or worse), and having a full command of the evidence, the law, the situation at hand, and the criminal defense lawyer’s wits. Make sure your lawyer is up to this task, and will not ease up on the opposing witness out of concern of harming any relationship that attorney has with the witness or prosecutor(s).

Fairfax criminal lawyer Jonathan Katz proceeds with you as his only client, and will not hesitate to risk any relationships with police nor prosecutors (with whom he always treats at arms length, in the first place) in doing whatever is legally and ethically permitted to dismantle the prosecution, evidence and testimony against you for Virginia felony, misdemeanor and DUI prosecutions. Call 703-383-1100, Info@KatzJustice.com and (text) 571-406-7268 for your free initial in-person strictly confidential consultation with Jon Katz about your court-pending Virginia prosecution.