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Court: Give DUI Defense Breath Machine Evidence

by | Apr 30, 2013

It’s the battle of the breathalyzers.

Our D.C. DUI lawyers know that these machines, which claim to reveal the extent of one’s intoxication level, have been notoriously unreliable. D.C. is intimately familiar with this problem, with the Metro Police Department forced to stop using the machines altogether for nearly two years. This was after the discovery that the machines had been incorrectly calibrated, and were therefore producing faulty readings.

The program started up again in September.

But the war isn’t over.

We reported in recent blog posts how the Florida Supreme Court is weighing whether to strike down all breathalyzer test results in the state because the company that manufactures the machines is refusing to produce documentation related to the software function.

The court has yet to decide.

Now, the West Virginia Supreme Court has ruled that defendants do in fact have a right to have the state provide a sheet of downloadable data that will show the working history of the breathalyzer machine used in their particular case.

This is an important ruling for several reasons, despite the fact that it won’t directly affect DUI defendants in Washington D.C.

The first is that it lays an important foundation of ensuring that defendants will have access that is meaningful to the most important accuser in the case: the breathalyzer machine. There are very few criminal cases in which will you see a situation where a defendant can’t confront the accuser; it’s a fundamental element of our justice system. The fact that the court ruled that DUI cases shouldn’t be any different is a huge victory.

Secondly, it means that if the Florida Supreme Court – or any other court – were to rule differently on this issue, it could potentially be successfully appealed to the U.S. Supreme Court.

The 22-page ruling in the West Virginia case, West Virginia v. Overton, the high court affirmed an earlier decision by the judicial circuit court judge, who was agreeing with the county magistrate who had required the state to produce the breathalyzer machine evidence.

The state had attempted to argue that the magistrate had overstepped her authority by requiring that the breathalyzer machine data be handed over. And when the judicial circuit court judge made her ruling, the state attempted to argue that she had erred by not issuing a write to prohibit the request.

All of this is important because it comes down to accuracy. If the data has the potential to show inaccurate readings of specific machines, that is of critical importance to the case, and the defense in particular.

Prior to this decision, the people of West Virginia – like so many other states in the country – are essentially told there is no challenging the machine, and that a reading higher than 0.08 percent is akin to a case closed.

This is extremely troubling when you look at what happened in D.C., for example. That’s when an outside consultant discovered in 2010 that the machines had inflated blood alcohol levels by sometimes as much as 20 percent. As a result, some 400 individuals were convicted of DUI based on results that weren’t accurate.

No doubt, there are countless more examples of this happening across the country, as law enforcement officials continue to rely on machines that have proven to be flawed.

If you are facing DUI charges in D.C., contact the Scrofano Law, PC at 202-765-3175.