Source code and all breathalyzer technology needs to be made available to the defense, says Fairfax DUI lawyer

Source code (SC) and all breathalyzer technology needs to be made available to the defense in Virginia and all DWI prosecutions. As a Fairfax DUI lawyer, I tell you that this is not the situation, which makes it all the more critical for you to hire the best possible Virginia DWI attorney for you when arrested and prosecuted for allegedly driving under the influence of alcohol and/or drugs in violation of Virginia Code § 18.2-266. 

What is source code in Virginia DUI prosecutions?

Firmware is “software used to operate” a breathalyzer device. Source Codes are part of that firmware, and are “needed for an analysis of that software.”  NJ v. Chun, 194 N.J. 54, 943 A.2d 114 (2008). The sole post-arrest breathalyzer / breath testing machine approved by the Virginia Department of Forensic Science (DFS) is the Intox EC/IR II (EC means electrochemical; IR means infrared), manufactured by Intoximeters, Inc. Intoximeters jealously guards the proprietary nature of its SC and firmware information, including this contractual provision from a Intoximeters’ own website: “Ownership of software and/or firmware programs (including any [SC] thereto) or other proprietary information (collectively, the ‘Product Software’) supplied by [Intoximeters] to Buyer in connection with the sale of [Intoximeter’s] goods and services to Buyer is not included in the sale of such goods and services.” 

Who decides what breathalyzer equipment may be used for Virginia DUI investigations?

Unfortunately, the Virginia Code vests the DFS with the awesome power of designating the equipment that is used for post-arrest breath testing in Virginia DUI cases. Virginia Code § 18.2-268.9: “To be capable of being considered valid as evidence in a prosecution under § 18.2-266 or 18.2-266.1 or subsection B of § 18.2-272 or a similar ordinance, chemical analysis of a person’s breath shall be performed by an individual possessing a valid license to conduct such tests, with a type of equipment and in accordance with methods approved by the Department.” The Virginia Court of Appeals has heavily limited the challenges that can be made to the Intox EC/IRII breathalyzer machine absent the testimony of a defense forensic science expert.  Fitzgerald v. Com, 61 Va. App. 279, 734 S.E.2d 708 (2012). Fortunately, absent judicial notice, a Virginia breath technician should be barred from testifying to breath testing results without correctly testifying to the formal name of the equipment used (for instance, not Intoxilyzer EC/IRII nor the EC/IRII, but Intox EC/IRII). Williams v. Virginia, 71 Va. App. 462 ( 2020). Do not hold your breath to see Virginia judges require that source code be divulged to your Virginia DUI lawyer. 

Should my Virginia DUI lawyer still challenge the science used to test my blood alcohol concentration (BAC)?

Your Virginia DWI attorney absolutely should fully challenge the science and procedure used to test you BAC. as I fully detail here. If your lawyer presents the testimony at trial of a forensic scientist on your behalf, it is important that your Virginia DUI attorney be ready for the prosecutor to ask your expert if s/he has been trained on the Intox EC/IR II machine, and specifically as modified by the DFS. Two forensic scientists I have dealt in depth with have in fact been trained on the actual Intox EC/IRII machine, through a scientist affiliated with Intoximeters. Unfortunately, it appears that Intoximeters declines to sell its Intox EC/IR II machine to DWI defense experts nor to DUI attorneys, thus making it all the more challenging to examine how the Intox EC/IR II’s source code works. Nor does the Virginia DFS seem to be willing to train defense experts nor DUI lawyers in using the Intox EC/IR II, thereby making ripe for argument that such attacks by the prosecutor ring hollow when Intoximeters and DFS are hiding the ball in that way.

How is it scientific for a scientific equipment manufacturer and a government science department to hide the ball?

It is the opposite of scientific for Intoximeters and DFS to hide the ball as addressed above, including with source code. That state of affairs can be dismantled by legislative change. Until then, this situation makes it all the more critical that you hire a Virginia DUI lawyer who fully understands the science, procedure and arguments for challenging breathalyzer testing.

Fairfax DUI lawyer Jonathan Katz pursues your best defense against Virginia DWI prosecutions. 30% of his law practice covers such defense. On top of that, Jon Katz repeatedly deals with forensic science experts to attack the equipment and procedure used in testing you BAC, and Jon is among the small percentage of Virginia DUI defenders who is a member of the essential National College of DUI Defense (NCDD) or its equivalent, and an even smaller percentage of such defense attorneys who have been trained not only in administering standard field sobriety tests (SFSTs / FSTs) to people who have consumed alcohol, but by one of the nation’s top trainers to police for such testing. You owe it to yourself to meet with Jon to learn the great defenses he can present for you. Call 703-383-1100 for your free initial in-person confidential consultation with Jon Katz about your court-pending case.