DUI in Fairfax VA – Breathalyzer Tests

You got arrested for a DUI in Fairfax VA and now you are trying to figure out what to do. Should you get an attorney to represent you – or take your chances and plead guilty? Maybe find an attorney to negotiate a guilty plea and try to save some money (and reduce the consequences)? Maybe try to represent yourself in court? How hard could it be?

Keep in mind that a Fairfax VA DUI conviction will affect many areas of your life for a very long time. And that an arrest does not mean an automatic conviction. Let’s look at just one aspect of a DUI charge in Fairfax VA – the Breath Analysis.

Here is an excerpt from a book to teach lawyers how to defend a client in court:

Breath Analysis.

1. The Procedural Statutes. Sections 19.2-187, 19.2-187.1, 18.2-268.7, and 18.2-268.9 of the Virginia Code set out the requirements for the admissibility of blood or breath test results over a hearsay objection. The certificate can be used as evidence only if the statutory procedures that form the prerequisites for its admission are faithfully followed. In addition, defects on the face of the certificate or in the timing of its filing with the court may be raised to defeat its admission into evidence.

A review of the certificate itself can also reveal potential defenses. When the client’s blood alcohol level was determined using a breath test, the following should be examined in every case:

1. Whether the certificate has been timely filed and properly stamped by the clerk pursuant to section 19.2-187 of the Virginia Code;

2. Whether the test operator’s license is current;

3. Whether the breath testing machine has been calibrated within six months of the date of the test. (The date of the test of the equipment must be within six months of the date of the breath test and the equipment must have been found to be working properly. Prior to Melendez-Diaz, if the date of the last equipment test was not filled in, it was a procedural omission that should be raised to bar the test’s admission into evidence. Now counsel must go behind the certificate to check on whether the machine has been properly calibrated and certified within the last six months);

4. Whether the arresting officer was the test operator. (If so, the section 19.2-187 “hearsay” exclusion is more difficult to obtain but still not impossible, as the Commonwealth must first lay the proper foundation to get the certificate test results in, regardless of who performed the test.);

5. Whether the breath test was administered using methods and equipment approved by the Department of Forensic Science. The certificate of analysis requires no input from the breath test operator (BTO), just a signature affirming that the test was done correctly. The affidavit does not require him or her to verify the accuracy of what is contained in the affidavit. This can be fertile ground for cross-examination by counsel to determine whether the machine is or has been calibrated, since “only equipment found to be accurate shall be used to test the blood alcohol content of breath.” If the court rules that this is not within the BTO’s scope of knowledge, then an argument can be made that one’s confrontation rights have been denied because the wrong person is testifying. Secondly, there is no blank on the form to indicate that the machine is not providing an accurate reading. In Fitzgerald v. Commonwealth, the Court of Appeals held that the Commonwealth has no duty to introduce evidence of compliance by the Department of Forensic Science’s with section 9.1-1101(B)(3) as a prerequisite to the admissibility of the certificate of analysis. The court found the elimination from section 18.2-268.9 of the express requirement that the certificate state that the test equipment had been tested within the last six months and found to be accurate has been eliminated from the statute. But if counsel discovers from the Department of Forensic Science maintenance records that the machine has not been properly serviced, this could still be raised as an affirmative defense.

In summary, this review should be made in every case and may allow counsel to object to the admissibility of the breath test certificate if there are facial omissions or irregularities. It is not as uncommon as might be thought for a certificate to contain a defect that will render it inadmissible.

2. Log Entries from the Department of Forensic Science. When chemical breath testing for alcohol is used, counsel should request copies of all log entries regarding the breath test equipment and both of the breath test results. The request should include a copy of the breath test certificate and the court date. The Department of Forensic Science keeps the records for all certified breath-testing equipment in Virginia. It also performs the blood test on the Commonwealth’s blood sample and retains custody of the defendant’s sample until it is sent to an independent laboratory at the defendant’s request or the time allowed for such a request expires. Every jurisdiction must file with the Department the specifics of the testing and operation of the breath test machine. Information obtained from the Department can be critical in obtaining an acquittal or in negotiating a favorable settlement.

3. Copy of Certificate of Analysis. In a hearing in which the requirements of section 19.2-187.1(A) do not apply and which appears to be only a preliminary hearing for a felony, counsel should file a written request for a copy of the test results. Section 19.2-187 requires that the request be made “upon a form prescribed by the Supreme Court.” The request is sent to the clerk’s office of the court where the case is being tried. Once the request is made, the clerk of court or the Commonwealth must provide the certificate of analysis at least seven days before the hearing if it has been requested at least 10 days before the hearing date by the defendant or his attorney. If the certificate is not provided within that time period, the defense is entitled only to a continuance, although suppression of the certificate was formerly the result. Even so, the request still has value because the certificate itself will sometimes have errors or omissions that may form the basis of a successful motion to suppress.

It’s a lot to know! Keep in mind that your Boone Beale Fairfax VA DUI Defense Attorney is not only aware of all this (and much more), but our principal attorney actually wrote the book!

DUI law takes years to learn and become well-versed in. Your future is on the line because a DUI conviction is something that will be with you for many years and can affect insurance rates, credit, and even jobs.

You can take advantage of our no-obligation, FREE CONSULTATION for your Fairfax VA DUI. Just contact us with the form below – or call 888-384-8948. Our 35+ years of Fairfax VA DUI defense experience can help you today.

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