All battles have hurdles. For Virginia drunk driving defense, last December the state’s intermediate appellate court threw a King Kong-sized hurdle for challenging the accuracy of the breathalyzer machines, in the form of Fitzgerald v. Com, 61 Va. App. 279, 734 S.E.2d 708 (2012).

Fitzgerald does away with Sixth Amendment Confrontation Clause rights by making breathalyzer test certificates of analysis admissible at trial so long as the breath technician testifies and has properly completed the certificate of analysis. Completely missing from the equation is any documentary or testimonial evidence  at trial from the state’s Department of Forensic Science ("DFS"), which maintains the breathalyzer machines and dry gas standards used to check that they are working.

Across the Potomac River, in Maryland, by law breathalyzer results are inadmissible without the prosecutor’s first getting into evidence proof of the state toxicologist’s certification of the accuracy of the breathalyzer equipment and dry gas standard or alcohol simulator solution that is used as a control mechanism to check the ongoing accuracy of the breathalyzer machine. Md. Code Cts. & Jud. Proc. art. § 10-304. Without such a confirmation of accuracy, one is left in a situation akin to having a home scale of dubious reliability purchased from a yard sale, and a barbell for testing the scale where the barbell’s stated weight is of dubious reliability. 

By Fitzgerald’s not requiring written nor testimonial evidence from the DFS that the breathalyzer and dry gas standard are accurate, the defense should be able to argue to the factfinder (whether a judge or jury) all the more strongly that little weight should be placed on the accuracy of the breathalyzer machine. The machines are junk science. When done properly, blood tests are more accurate, but are more expensive in terms of time, number of witnesses and money, so police ordinarily prefer breath testing in the jurisdictions where I practice.

Even with Fitzgerald, many DWI cases remain winnable, including when the defense wins a motion to suppress the arrest of the defendant, which ordinarily precludes evidence of any breath or blood test. DWI convictions carry harsh consequences, so defendants should do their best to hire a qualified lawyer who will fight for them tooth and nail.