Virginia breath test results need aggressive scientific and factual attack, says Fairfax DUI lawyer

Virginia breath testing (VBT) results always need aggressive scientific and factual attack by the defense. As a Fairfax DUI lawyer, I have benefitted in that regard by having worked with forensic toxicology experts in over one hundred Virginia DWI cases, and also by having successfully defended hundreds of DUI cases at trial and having defended hundreds more DWI cases than that. I have posted many times about making such attacks, and today I focus on the falsely high VBT results that will follow the presence of alcohol in the suspect’s mouth when s/he blows into the Intox EC/IR II breathalyzer machine.

Are Fairfax police a suitable replacement for more experienced Virginia breath test technicians?

Until a few years ago, a high percentage of my Fairfax DUI defense cases — prosecuted under Virginia Code § 18.2-266 —  involved two technicians who worked their entire shift at the county jail, including such work as Virginia breath test procedures and drawing their blood for BAC testing in the event of alleged breath testing refusals, inability to produce enough air volume to yield a BAC result, or to check for drugs rather than only alcohol. When two of the jail-based technicians checking for BAC departed their positions, it soon became necessary for more police to be trained in administering BAC testing. However, with police not having to have scientific expertise and with plenty of other daily work obligations on their plate, how many Virginia law enforcement officers falter in adhering to essential scientific methodology in conducting breathalyzer / BAC testing? That question is particularly pertinent to arresting police officers who conduct their own breath testing, rather than handing that task to another breath technician who can come to the matter with a fresher perspective, let alone if the separate breath technician is not drained of energy from dealing with the suspect or the investigation, arrest and suspect transport in general.

Police always must testify honestly, including whether they checked the Virginia DUI suspect’s mouth at least twenty minutes before breath testing

Post-Covid, more breath testing police officers than before the pandemic are admitting to me that they did not (or do not recall) have my client open his or her mouth at least twenty minutes before commencing the Virginia breath test, even though the Virginia Department of Science (DFS) has required that for over fourteen years. See DFS Intox EC/IR II Breath Test Operator Instruction Manual at pp. 20-22. When a breath testing police officer claims that s/he usually has the suspect open his or her mouth at least twenty minutes before commencing breath testing, that is insufficient under the foregoing DFS protocols. Nor is it sufficient for the breath testing officer (several have told me this) to testify that the Virginia DUI suspect and officer were talking at least twenty minutes before testing commenced. Such talking does not reveal tobacco in the mouth, may not reveal chewing gum, and may not even reveal any dental device (whether removable or not). The foregoing pages 20-22 of the DFS breath testing operator’s manual requires checking the open mouth of the suspect. By the DFS’s own admission, “mouth alcohol can cause a potentially greater concentration of alcohol in the breath sample, which in turn can cause a falsely higher BAC reading.” DFS manual at 21.

The DFS clearly says for breath technicians to check the suspect’s mouth before blowing into the breathalyzer machine

For a Virginia breath test of a DUI suspect, the DFS breath test operator’s manual commands that the breath test operator check the inside of the suspect’s mouth for foreign objects at least twenty minutes before breath testing begins: “The Department of Forensic Science operator and instrument protocols, along with the Intox EC/IR II have several safeguards in place to prevent an inaccurate analysis and to ensure a valid test. Visual inspection of the mouth: Inspecting the mouth prior to conducting the observation period ensures that no foreign object(s) are within the mouth. If found, the foreign object(s) should be removed and a 20 minute observation period observed.” DFS breath test operator’s manual (emphasis added).

Failure to have the suspect open their mouth at least 20 minutes before commencing a VBT violates the breath technician’s attestation clause

The certificate of analysis attestation clause of the breath technician involving a DUI suspect affirms that the Virginia breath test was conducted “in accordance with the methods approved by the Department of Forensic Science.” That is an incorrect statement where the breath technician did not have the suspect open his or her mouth at least twenty minutes before commencing breath testing.

Fairfax DUI lawyer Jonathan Katz has successfully defended hundreds of DWI arrestees. He is among the small percentage of Virginia DUI defenders who belongs to the National College of DUI defense and who has been trained in administering field sobriety tests to subjects who have consumed alcohol, by one of the nation’s top trainers to police. Call 703-383-1100 for your free initial confidential consultation with Jon Katz about your court-pending case.