Weaponizing Virginia breath testing results for the defense – Fairfax DUI lawyer shows how

Weaponizing Virginia breathalyzer test results is essential for Virginia DUI lawyers. This is all part of my approach as a Fairfax criminal lawyer of obtaining the essential evidence in my clients’ cases, finding and creating gold among the seeming dung of adverse evidence, and, with the adverse evidence that cannot be spun into gold, to attack, diminish and disintegrate it. This is the second of my two-part article on using science to the benefit of Virginia criminal defendants, specifically for Virginia DUI defendants. The first part is here.

Weaponizing Virginia DUI prosecutions by attacking the science at every turn

Weaponizing one’s Virginia DUI defense as to breath testing starts not at the arrest stage, but with the junk science of preliminary breath testing, which Virginia law allows police to use as part of determining probable cause to arrest for a prosecution of DUI under Virginia Code § 18.2-266, but which cannot be considered if the police do not adhere to Virginia Code § 18.2-267, which governs such testing. I extensively cover PBT challenges here, here, and here. Usually, a Virginia DUI lawyer needs to attack PBT results, by working to exclude them from the witness stand, and otherwise to blunt them for instance by pointing out that the PBT machine is so inaccurate that the Virginia Code bars PBT results from proving guilt or innocence in a Virginia DWI trial, id., underlining that probable cause to arrest looks to the totality of the circumstances, and that PBT testing omits the essential 20-minute rule (which should really be called the 20 minute after arrival at the breathalyzer testing rule) is used with the PBT that is required by the Virginia Department of Forensic Science to be applied for post-arrest breath testing in DWI cases, to reduce residual mouth alcohol in the suspect, because more accurate breathalyzer testing requires testing for deep lung alcohol.  Of course, when the PBT results are favorable to the defense, those results are there to be used to the defendant’s favor in arguing lack of probable cause to arrest.

Weaponizing what at first looks like prosecutor-favoring DUI testing laws

As a Fairfax DUI lawyer, I believe that science needs to be kept with those knowledgable about science, and that science should not be turned on its head with laws that make a mockery of science. This mockery of science starts with the law that it is a crime under Virginia Code § 18.2-266 to drive with a blood alcohol concentration (BAC) of 0.08  grams or more per 210 liters of breath. Because impairment is affected by susceptibility when driving to be impaired by certain alcohol concentrations, the 0.08 threshold mocks science and turns DWI law into a simpleton’s exercise, rather than giving Virginia DUI defendants their due when they risk such harsh consequences from a DWI conviction. Weaponizing the DUI defense is essential.

Owning the law and DFS procedures for the DUI defense side

Virginia DUI law about the applicable science is not going to change anytime soon, so weaponizing the defense is needed (of course only in the proverbial sense). Therefore, criminal defense lawyers’ only choice is to know, own, and transcend that law. The Virginia Code creates rebuttable presumptions concerning breathalyzer testing for and against defendants in determining a DWI violation. Va. Code §§ 18.2-269 and 18.2-268.10; Yap v. Virginia, 49 Va. App. 622, 631 (2007). The Virginia law vests the Virginia Department of Forensic Science (DFS) with unacceptable extraordinary authority to create and regulate the DWI breath testing regime, which at least means that when DFS procedures are not followed, it is time to pounce, and to deflate the shameful Virginia Code provision that “substantial compliance [with required BAC testing procedures] shall be sufficient.” Va. Code § 18.2-268.11. Of course, “substantial compliance” rules out shoddy compliance.

Owning the gold in the DFS Breath Test Instructional Manual

The Virginia Code requires that post-arrest BAC testing be “conducted in accordance with the Department’s specifications.” Virginia Code § 18.2-268.9, which therefore includes that BAC testing may only be conducted on equipment authorized by the DFS (which currently only is the Intox EC/IR II) the specifications in the DFS Breath Test Instructional Manual (Manual) (most recently dated 2008). The gold in that Manual includes: “The [Intox EC/IR II] instrument performs a purge/air blank cycle and the subject may then attempt another breath sample.” Manual at 21. Therefore, the failure for the DFS data to show such a purge / air blank check after each breath used to determine BAC means an unreliable BAC test. Add to this that the Intox EC / IR II assumes a mouth temperature of 34 degrees celsius, when many people have a higher mouth temperature, thus causing a falsely high BAC reading for them. All this information helps weaponize the DUI defense.

“The Department of Forensic Science protocol requires a minimum of 2 breath samples, 2 minutes apart, with a minimum 0.02 sample agreement.” Manual at 22. Therefore, differentials over 0.02 of two breaths requires using another breath testing machine or to use blood analysis for BAC determination. “[T]he subject must be observed for 20 minutes prior to providing a breath sample.” Manual at 21. “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 22. Many breath test operators miss this step, and probably more omit that step now during Covid-19, lest they be further risk coronavirus exposure. The breath testing must be used with a dry gas standard (DGS) as a control mechanism. Manual at 27. When cross-examined on the DGS, many breath test operators will claim limited familiarity with the standard and the extent to which it was used with the breath testing at hand. Unfortunately, Fitzgerald v. Com, 61 Va. App. 279, 734 S.E.2d 708 (2012). limits DGS challenges in Virginia DWI cases. Fortunately, absent judicial notice, the breath test operator’s failure to state the precise name of the Intox EC/IR II machine makes breathalyzer test results inadmissible in evidence. This further helps to weaponize the DUI defense.

Fairfax DUI lawyer Jonathan L. Katz pursues your best defense against Virginia DWI, felony and misdemeanor prosecutions. Call 703-383-1100 for a free in-person consultation with Jon Katz about your court-pending case.