Mark R. Matney, Virginia DUI/DWI Defense Attorney with Michael C. Tillotson, LLC – Attorneys at Law
A recent case reminded me of the importance of carefully reviewing breath machine reports in DWI cases. In Virginia, we are able to request a report from the Department of Forensic Science (DFS) when a client provides a breath sample into the Intox EC/IR II breath machine. DFS is responsible for maintaining and monitoring all of the breath machines in Virginia.
Whenever someone provides a breath sample, the machine generates a Certificate of Blood Alcohol Analysis that identifies the accused and the breath test operator along with the final result of the test. The test result may either be an error message or a BAC level. To obtain a valid result, the accused must provide two sufficient breaths in one testing cycle.
What the accused and the breath test operator do not see is sometimes more important than what they do see. While they only see the limited information described above, the DFS report provides details for the machine used to conduct the test and for each attempted breath sample. With respect to the machine, the DFS report includes the machine’s trouble call log, maintenance history, and location history. With respect to the breath samples, the report lists the time and pressure of each sample and records the BAC of each valid breath, whether or not a valid result was obtained during the testing cycle.
In my recent case, I discovered that my client submitted to two sets of breath tests before a valid result of .15 BAC was obtained. The significance of the .15 BAC is that it triggers enhanced penalties of mandatory jail and installation of an ignition interlock machine. Upon reviewing the DFS report, I found that during the first set of breaths, my client achieved one valid breath sample amid several insufficient ones. The one valid breath was a .141 BAC. The second set of tests resulted in the final result of .15 that was printed on the breath certificate.
If my client had obtained a second valid breath during the first testing cycle, then he would have received the benefit of a standard .14 BAC final breath test result. However, the .15 final BAC moved him into the enhanced penalty category. The DFS report revealed a breath sample that was not disclosed to my client or the breath test operator at the time of the breath test and permitted me to demonstrate to the court that my client should receive the benefit of a .14 BAC breath sample.
In this case, the DFS report helped my client avoid 5 days of mandatory jail and the requirement of an ignition interlock machine in his car for 6 months.
Should you find yourself in a DUI/DWI situation in Virginia you can contact Michael Tillotson for a FREE No obligation Case Evaluation by contacting our office today. Michael C. Tillotson, LLC – DUI Defense Attorneys in Virginia. Office 757.969.5197 visit http://www.VaDWIDefenders.com or email at info@vaduilawyer.org
