Virginia DWI testing for blood alcohol content (BAC) needs transparency and accuracy, says Fairfax DUI lawyer

Virginia DWI testing for BAC content needs transparency and accuracy. Instead, as a Fairfax DUI lawyer, I know that the breath testing approach to BAC testing is severely flawed by the inherent inaccuracy that comes with breath testing rather than blood testing, by giving the Virginia Department of Forensic Science (DFS) nearly unbridled discretion for selecting and governing the machinery that will be used for breath BAC testing, and because of the refusal of the highly impenetrable access of the defense and defense expert witnesses to have access to and ownership of the very breathalyzer / Intox EC/IR II machines used as the sole currently DFS-approved post-arrest breath testing machine. Consequently, Virginia DWI defense lawyers need to push on this unjust state of affairs through advocating legislative and procedural reform, while pushing the envelope for victory in court, through motions practice, general legal arguments, and trial advocacy.

Should I refuse breathalyzer testing after being arrested for an alleged Virginia DUI violation?

As a Fairfax DUI lawyer, I know that Virginia DWI testing for BAC content is mandated by law after being arrested on probable cause for such an offense. If you refuse breath testing, at least in Fairfax and most other Northern Virginia jurisdictions, it is common for police to then obtain a search warrant to obtain a sample of your blood anyway, and to still charge you with the separate count of refusal to submit to a breath alcohol test on top of charging you with DUI. I cannot advise anyone to violate the law requiring breath testing after a valid DWI arrest, nor to violate any law. I can say that for Fairfax DUI blood cases, for instance, the time consuming nature of prosecuting them — in addition to the need to have at a trial the arresting officer and blood analyst, and, I argue, the blood draw person — can be beneficial (but not guaranteed) for more favorable settlement negotiations than if this were a breath testing case. WARNING: Again, I am not saying to refuse post arrest breath testing, and am prohibited from telling anyone to violate the law. I also cannot tell you that your case negotiating prospect will be better when your case is a blood BAC case. Consult with your qualified lawyer about that.

Prosecutors should be barred from cross-examining defense expert witnesses in Virginia DWI testing cases, about matters that the DFS and manufacturer hide from such experts

Many times, my Virginia DUI clients opt to retain an forensic science expert witness to provide persuasive testimony about the fallibility of their post-arrest breath BAC testing, focusing on such items as margin of uncertainty, failure of the breathalyzer machine to assure voided alcohol from the testing tube after any breath sample that is of an inadequate volume (and thus making possible the accumulation of alcohol in the tube), the circumstances under which the BAC level at the time of driving could have been lower than at the time of testing (due to alcohol absorption followed by alcohol dissipation in the bloodstream), acid reflux/ GERD, and other factors. Intoximeters — the manufacturer of the Intox EC/IR II breathalyzer machine authorized by the Virginia DFS — reportedly limits the ability of such private expert witnesses from purchasing such breathalyzer machines, and the DFS reportedly generally bars such witnesses from being trained on the DFS breathalyzer machines through the DFS. Consequently, prosecutors should be barred from asking such questions of such defense experts, which amount to hiding the ball and then cross examining on why the defense witness therefore knows less about the ball. Fortunately, I have been able scores of times to secure the presence of a forensic expert witness who has been trained on the Intox EC/IR II breathalyzer machine by an emeritus university professor who has been trained directly by Intoximiters, which manufactures this Intox EC/IR II breathalyzer machine.

Should I fight breath testing when the breathalyzer manufacturer and DFS are not making the breathalyzer machines more available to the defense?

Never give up and never give in when charged with a Virginia DUI offense or any other misdemeanor or felony, whether or not you have submitted to Virginia DWI testing. A qualified lawyer almost always can find potential avenues for success in court for you. Many police and prosecutors want to demoralize you as a DUI or criminal defendant. Do not let them. Fight, fight and fight alongside your lawyer. As my watchword says, Beat The Prosecution.

Fairfax DUI lawyer Jonathan Katz knows that successful Virginia DWI defense calls for your lawyer to be excellent with persuasion, trials, understanding of the applicable law, and knowledge of the applicable science. Not only does Jon Katz have such ability and experience with successfully defending hundreds of people accused of driving under the influence of beer, wine, alcohol and drugs under Virginia Code § 18.2-266 , but he also is among the small percentage of Virginia DUI defenders who are members of the National College of DUI defense and who have been trained by one of the nation’s top field sobriety testing (SFST) trainers to people who have consumed alcohol, including on real test subjects who have drunk alc0hol. Call 703-383-1100 for your free initial confidential consultation with Jon about your court-pending case.