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Winning a DWI trial by challenging the opposing toxicologist

Oct 02, 2013 Winning a DWI trial by challenging the opposing toxicologist

Here is an overview of events leading to my recent trial win for a 0.14 blood draw case in Virginia General District Court. GDC:

The police officer testified to seeing my client’s car stuck in a ditch, and my client’s saying he drove the car and nothing to drink after the ditch incident.

The officer also was the breath technician, and said my client was taken to the hospital for a blood draw after belching while blowing into the Intox EC/IR II at the police station.

The judge denied my motion under Hammond v. Virginia, 17 Va.App. 565, 4I argued that under Missouri v. McNeely, 133 S.Ct. 1552 (2013), Virginia’s implied consent warning by police to DWI suspects of the license suspension that follows unreasonable refusal to take a breath test ,amounts to a non-consensual obtaining of blood under the totality of the circumstances and when considering consent search law, including Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041 (1973). That argument went nowhere.

When the toxicologist started testifying about the blood analysis procedures, I objected that the non-present scientist who actually ran the blood analysis — the toxicologist did not see nor handle my client’s blood — should be the one to testify on that, and that the Sixth Amendment’s Confrontation Clause backed me up. On cross, one of my chapters focused on the toxicologist’s utter absence during any of scientist Moses’s analysis. To show that the DFS’s future work would not be stymied by excluding my client’s blood, I brought out that the toxicologist could have done the scientist’s work in a day, leaving around 4 hours of that day to do other work.

The prosecutor relied on the following two published opinions to support allowing the toxicologist to testify: U.S. v. Darden, 656 F.Supp. 2d 560 (2009) (D.Md.) (Digirolamo, J.), and Aguilar v. Com., 280 Va. 322 (2010).

U.S. v. Darden, like my trial, also involved a toxicologist who was absent for critical aspects of the blood analysis. Aguilar v. Com. has some good points supporting the need to have the testimony of the analyst handling some of the blood examination, if the toxicologist did not observe the chemist’s testing nor replicate the chemist’s testing.

After taking a break to read the foregoing cases, the judge returned to the courtroom and said that Aguilar v. Commonwealth influenced the judge’s decision to exclude the certificate of analysis/blood test results, saying that both the toxicologist and chemist, in this instance, needed to testify before letting in the certificate of analysis.

The prosecution rested. I made a motion to strike the evidence/for acquittal, and it was granted. The day was sweet.

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