Recent Posts in breathalyzer Category
| September 24, 2011 |
| My BAC is over .08, I guess I have to plead guilty... |
| Posted By Shawn Cline |
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Not true!
I can't tell you how often I hear clients who feel absolutely defeated by the fact that they were stopped for DUI and produced a breathalyzer result over .08. "Over the limit, under arrest", right? Well, being over the limit can certainly get you arrested, but there is a long road between arrest and conviction, and an aggressive and experienced DUI attorney knows how to turn that road into a treacherous minefield for the prosecution.
First and foremost, unlike some states, Virginia does not have what is called a "per se" DUI statute. The best way to compare a "per se" DUI statute to Virginia's DUI statute is by example. As it turns out, North Carolina has a "per se" DUI statute. §20-138.1 of the General Statutes of North Carolina provides that a motorist shall be guilty of driving under the influence where "he has, at any relevant time after driving, an alcohol concentration of 0.08 or more. The results of a chemical analysis shall be deemed sufficient evidence to prove a person's alcohol concentration."
Virginia's statute is different, however, and has been interpreted by the Virginia Supreme Court to mean that the result of a breathalyzer or blood test only creates what is called a "permissive inference" that the blood alcohol at the time of the breathalyzer was the same as the blood alcohol at the time of driving. This seems like a minor point, but cases are won and lost on minor points.
What this really means to the DUI practitioner is that in North Carolina, once the motorist submits a breathalyzer over 0.08, the case is essentially over (unless there was no reason to stop the vehicle in the first place, etc.).
However, in Virginia, that BAC over 0.08 is only indicative of the BAC at the time of the breath sample, not necessarily at the time of operation of the vehicle. This is a critical distinction, because the only BAC that matters in Virginia is the BAC at the time of operation of the vehicle.
This is where things get interesting; and where things get scientific. The science of blood alcohol is far more complex than can be explored in this posting. Suffice it to say that blood alcohol is a constantly changing variable. It changes with time, with alcohol intake, with food intake, with metabolism, and with countless other factors. If you have ever consumed alcohol, you know that the effects are not felt immediately. Think about it like this: if you take two bottles of beer and drink them as quickly as possible, you do not feel the effects right away. But perhaps 30 minutes later you will begin to feel some measure of intoxication. Why is there a delay? Shouldn't you feel the aclohol as soon as it's in your body? The answer is that the effects of intoxication are not felt until the alcohol actually gets into the brain, and to get there, it must first process through the digestive system, through the lining of the stomach and into the blood stream, only then can it flow into the brain to affect the central nervous system. This takes time. How much time? Well, it varies from person to person, and upon other variables such as food intake, speed and volume of alcohol intake, fatigue, metabolism, etc.
The reason why this is so important is that it is entirely possible for an individual to consume some amount of alcohol and then operate a vehicle with a BAC that is slowly rising, but never exceeding 0.08. This individual could be stopped on suspicion of DUI with a BAC of say, 0.07 (but still rising). By the time they get to the police station, that BAC could be drastically higher (and well above 0.08). In North Carolina (because of the "per se" statute), it makes no difference that the BAC at the time of the breathalyzer was higher than it was at the time of operation of the vehicle. But in Virginia, a skilled DUI attorney can demonstrate to the judge or jury through scientific evidence that the BAC could have been much lower at the time of operation of the vehicle than it was at the time of the breathalyzer; thereby rendering the breathalyzer result essentially meaningless. This is where things like performance on the field sobriety tests and testimony of witnesses to the individual's drinking can be absolutely essential, along with an understanding of the science of blood alcohol and it's effect upon the central nervous system.
The bottom line is that DUI litigation is a tremendously complicated field. If you are the kind of person who can't have a DUI on your record, you need to contact our office. Our rates are reasonable, but we know the law and the science of DUIs, and can apply both to winning your case! |
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| April 04, 2011 |
| DUI loopholes? |
| Posted By Shawn Cline |
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Many people simply assume that because they are charged with a DUI, they will ultimately be convicted and that there is nothing to be done to fight the charge. For this reason, they often hire the least expensive attorney they can find and plead guilty as quickly as they can. While there are times when taking a plea agreement is the right course of action for a DUI, there are many other times where aggressively attacking the charges is the right approach. You need a lawyer who is able to recognize the difference, and knows how to do both.
Recent changes in the Virginia Code with respect to DUI have created a uniquely favorable set of conditions for a skilled DUI defense attorney. Virginia Code 18.2-268.9 was redrafted in response to a ground-breaking series of United States Supreme Court cases, beginning with
Crawford v. Washington in 2004 and ending most recently with
Melendez-Diaz v. Massachusetts in 2009. These cases arose from the premise in the
6th Amendment that "an accused... shall enjoy the right to be confronted with the witnesses against him". This seems like an innocuous concept, but the reality is much more burdensome upon prosecuting attorneys. The number of people that are involved with a simple DUI stop is far more than you might initially think. You may only see the officer that stopped you, but what about the officer that conducted the breath test? What about the technician that made sure the breathalyzer was working properly? If your case involved a blood draw, how many people were involved in the drawing, handling, and testing of that sample? If your case involved a DUI checkpoint, who set it up, and who authorized the checkpoint?
For years in Virginia, prior to Melendez-Diaz, courts would routinely admit into evidence "Certificates of Analysis" which contained statements from various individuals who were not present at trial, but who played a part in the analysis or handling of breath and blood samples. This practice has been substantially limited, by and large because of
Melendez-Diaz and also due to changes in the Virginia Code. But the Code has not evolved as quickly as the caselaw, and there are highly technical avenues for an aggressive DUI attorney to fight for exclusion of documents that would result in a conviction.
You must ask yourself what you are paying for when you hire a DUI lawyer. If you just want an attorney to show up to court and help you plead guilty, then there are plenty of attorneys for that purpose. If you want an attorney who will explore every possible avenue of acquittal, and make the government work for every inch of ground, then CONTACT US... We aggressively attack every DUI charge, and you deserve nothing less. |
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| March 15, 2011 |
| DUI law in Virginia and Melendez-Diaz |
| Posted By Shawn Cline |
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Many people, and unfortunately many attorneys, consider a DUI to be a simple charge. To the uninitiated, it may appear that there is no way to beat a DUI. The defendant generally had been drinking, and the breathalyzer usually indicated as much. Is that the end of the story? Not hardly.
Among the myriad of tools that an aggressive DUI defense has in his tool box is the recent Supreme Court decision in United States v. Melendez-Diaz. At first blush,
Melendez-Diaz has nothing to do with DUI litigation. In fact, the case deals with the requirement in drug cases that the state produce live testimony from technicians from the laboratory instead of printed laboratory reports to show the chemical makeup of suspected narcotics. The basis for this holding is that every American has the right under the
6th Amendment to "confront witnesses against him" in a criminal prosecution. Essentially, the state cannot print out a report from a mysterious lab technician and then present that report as evidence at trial without the defendant having the opportunity to cross examine the technician who conducted the actual testing. That being said, for decades previous to
Melendez-Diaz, that is exactly what was done.
So what does all this have to do with DUI law? Well, if you have recently been charged with DUI, you should have in your possession a green piece of paper with "Department of Forensic Science" printed at the top of the page. There is a complex series of statutes that governs the admissibility of this document, most of which have been recently enacted in response to Melendez-Diaz. An aggressive and informed criminal defense attorney knows that there are ways to fight the admissibility of this document based upon the 6th Amendment and
Melendez-Diaz, depending upon the circumstances. Do not accept the admission of this document as a foregone conclusion. Hire a lawyer who is willing to attack this document to keep it out of the court's consideration.
Contact us right away. We are here to help! |
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| January 28, 2011 |
| Do I have a choice between a blood and breath test during a DUI stop? |
| Posted By Shawn Cline |
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The short answer is "no". Several years ago, Virginia motorists arrested for DUI had the option of either a blood or breath test to determine their blood alcohol content (BAC). The conventional wisdom at the time was that it was better to request a blood test because it took longer to have the blood drawn than it did to give a breath sample, so there was more time to sober up and hopefully slip under the legal limit. This was generally good advice, as long as you weren't terrified of needles.
But the legislature took away this option in 1995, so now the vast majority of DUI cases involve a BAC result produced through a breathalyzer. But there are still times where DUI charges will include blood evidence of intoxication. One such case is where the individual suspected of DUI is involved in an accident and is unable due to injury to submit to a breathalyzer. In these cases, the officer will typically subpoena the blood work from the hospital to send to the laboratory in Richmond for testing.
Another less common source of blood results in DUI cases come in cases where the arresting officer suspects that the person may be under the influence of some sort of narcotic. The breathalyzer machine only tests for breath alcohol, and cannot detect any narcotics that may be in the individual's system. A blood sample, however, can be tested for virtually any type of narcotic.
The bottom line in terms of DUI defense is that cases involving blood testing instead of breath testing offer far more avenues for acquittal. For one thing, if the sample is taken for medical purposes at the hospital, the forensic precautions involved with a police blood draw are not followed, opening up a myriad of possible defenses. In addition, the procedural mandates for processing blood samples are specifically laid out in the Virginia Code, Section 18.2-268.5 to 18.2-268.7. Because these procedures are statutory, unlike the breath sample procedures which are
regulatory, non-compliance will likely result in suppression of the results, and in many cases dismissal of the charge.
An experienced DUI attorney will not treat a breath test the same as a blood test. The issues are completely different, and attacking each requires a different approach. Hire a lawyer who understands the difference, and is ready to defend your case accordingly! We are ready for your call. |
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