Our firm regularly teaches DUI defense law to other lawyers in Virginia. This page is the draft for a chapter we wrote for a book titled "Effectively Defending DUI and Other Serious Traffic Offenses." Click here to buy the book! For a less technical, "layman" overview of Virginia's DUI laws, click here. For frequently asked questions, click here.
In addition, this page includes a copy of our notes from a recent lecture we gave on legislative and judicial "updates." Please note that this area of the law moves very fast. This section does not list all technical defenses; and some listed may no longer be useful.
This page (and all the information on this web site) is copyrighted. All rights reserved (2012).
Albo & Oblon lawyer, David Oblon, regularly lectures and writes on Virginia DUI defense law. Here he talks about the science of DUI.
A. The Science of Driving Under the Influence of Alcohol.
Unlike in most criminal cases, alcohol impairment cases often turn on scientific evidence. The government supports arrests with field sobriety tests to determine probability of impairment. These tests are distracted attention tests from which an officer extrapolates alcohol impairment. It wins convictions based on complicated chemical breath or blood tests to determine the level of impairment. Indeed, one of the elements of the offense – the blood alcohol level – is, itself, directly the result of scientific evidence.
Practitioners must know the science and assumptions behind such tests in order to assure their veracity and identify flaws. This chapter reviews the science of all these tests.
1. Field Sobriety Testing.
There are no standards in Virginia governing field sobriety testing. Officers receive training that includes field sobriety training, but it appears that such training is clumsy and haphazard at best. Indeed, experienced practitioners will quickly learn that individual officers use a wide variety of tests different from one another – and they conduct each test rather differently. This is true even among officers of the same department. The most common tests administered in Virginia are the “Walk and Turn” test, the “One Leg Stand” test, the “Nose Touch” test, “the Finger Touch” test, the “Alphabet” test, the “Numbers” test, the “Horizontal Gaze Nystagmus” (“HGN”) test, and the preliminary breath test. Usually, an officer will offer three of these tests, plus the preliminary breath test.
The National Highway Traffic Safety Administration (“NHTSA”) has studied and approved a battery of field sobriety tests. Practitioners should use these tests as a baseline from which to critique different versions of the tests offered by an arresting officer. The NHTSA battery consists of the “HGN” test, the “Walk and Turn” test, and the “One Leg Stand” test. According to a study adopted by NTHSA in 1998, the combination of the three tests accurately predicts a blood alcohol content level of 0.08 or greater 91% of the time. The study indicated that, used alone, the HGN test was accurate in such prediction 88% of the time, the “Walk and Turn” was accurate 79% of the time, and the “One Leg Stand” test was accurate 83% of the time. See Development of a Standardized Field Sobriety Test, Appendix A, NHTSA (available online at http://www.nhtsa.dot.gov/people/injury/alcohol/SFST/appendix_a.htm) (hereinafter “NHTSA Study”).
There do not appear to be any studies confirming the veracity of the myriad of versions of this battery used by police in Virginia. This results in numerous defenses to the tests. One should think about flaws in a particular test and point these out to the court. In every instance, the tests should be “expanded” so that the judge balances the good along with the bad. For example, if the officer testifies that, on the “Stand on One Foot” test, that the accused put his or her foot down at count number 21, point out that he or she successfully kept his foot up for count numbers 1 to 21 and 21 to 30, did not sway, did not hop, did not use arms for balance, did not miscount, did not forget to count by thousands . . . Don’t stop until the judge tells you to shut up!
a. Blanket evidentiary objection.
No matter which test an officer uses, one should never permit the officer to testify as to the correlation between an accused’s performance on a test with a level of alcohol impairment. While it is acceptable for an officer to testify that he instructed an accused to stand on one foot for 30 seconds and to further testify to what the officer saw, it is improper for an officer to summarily conclude that the accused performed the test “poorly,” or that he concluded as a result of the test that the accused was impaired by alcohol.
b. “Walk and Turn.”
According to NHTSA, the accused is directed to take nine steps along a straight line, as if walking a tightrope. After taking the steps, the accused must turn on one foot and return in the same manner in the opposite direction. There are 8 “indicators” of impairment: (1) the accused cannot keep balance while listening to the instructions, (2) the accused begins the test before the instructions are finished, (3) the accused stops while walking to regain balance, (4) the accused does not touch heel-to-toe, (5) the accused steps off the line, (6) the accused uses arms for balance, (7) the accused makes an improper turn, and (8) the accused takes an incorrect number of steps. If the officer identifies two or more indicators, the studied reliability percentage applies.
Virginia practitioners will commonly see this test offered with only an imaginary line. Is this more difficult? Without studies, it is difficult to tell. Practitioners will also commonly see clients who were ordered to stand heel to toe while the instructions are delivered. Standing in this unnatural pose for a minute while listening to important instructions from a police officer may be more challenging than intended. It is very common for an officer to identify one (and only one) clue which, to the unsophisticated, would seem to indicate probable impairment. For example, police commonly will say that an accused “stumbled on the turn.” However, according to the NHTSA Study, this amounts to only one indicator of impairment and does not show that the accused is probably impaired.
c. “One Leg Stand”
NHTSA prescribes that, for this test, an accused must stand on one foot with the other foot six inches off the ground. He or she should also count by thousands to 30. There are four “indicators” of impairment: (1) the accused swayed for balance, (2) the accused used arms for balance, (3) the accused hopped to maintain balance, and (4) the accused put his or her foot down early. The officer must identify two or more indicators to conclude that the accused is impaired.
In Virginia, police will commonly conclude that one is impaired if he or she puts his or her foot down early. However, this is but one indicator and should be insufficient for establishing probable cause. Some Virginia police will not tell the accused that he or she should count to 30, rather the instruction is to count until the officer says to stop. Does this uncertainty make the test more difficult?
d. Horizontal Gaze Nystagmus.
Horizontal Gaze Nystagmus (“HGN”) test measures the involuntary jerking of the eye when a person is impaired by alcohol. According to NHTSA, normal, sober people have a nystagmus at high peripheral angles (i.e., when they are looking to the extreme left or right). However, the studies seem to show that those who are impaired by alcohol have exaggerated jerkings that can be observed at less extreme angles, such as 45°.
In conducting this test, the officer tells an accused to keep his or her head still and follow a pen that the officer waves horizontally across each eye. The officer looks for three indicators of impairment: (1) the eye cannot smoothly follow the pen; (2) there is distinct jerking at maximum deviation, and (3) the jerking’s angle of onset is within 45° of center. If and officer can identify 4 or more clues, then the officer can conclude that the accused is probably impaired.
This may be reliable in theory, but this test seems so facially absurd that few Virginia judges ever allow this testimony at trial. How does the officer really measure the angle? What is the difference between a natural nystagmus and a “distinct jerking at maximum deviation?” How can the officer eliminate the consumption of seizure medications, phencyclidine, a variety of inhalants, barbiturates, and other depressants that also cause a nystagmus? How does the officer’s flashing overhead service lights affect this test? Why does every officer who ever does this test always find all six indicators on every test? If one appears before one of the few judges who take this test seriously, one should be prepared to cross-examine the officer on these items. Argue to the judge that your client does not object to the officer testifying that he or she asked the client to follow the pen with his or her eyes; nor does your client object to the officer testifying that he or she saw a lack of smooth pursuit, a jerking at maximum deviation, or a jerking onset at 45°. Rather, state that your client objects to the officer concluding that alcohol caused those reactions without expert witness testimony. Of all the field sobriety tests, the HGN is the most rooted in scientific evidence.
e. The preliminary breath test.
The preliminary breath test (hereinafter, “PBT”) is somewhat of a quagmire. If admitted and given weight, it alone can provide grounds for probable cause. However, it is very difficult for the Commonwealth to get results admitted to evidence, so it is usually not a big issue.
The PBT is simply a hand-held breath test. The following devices have been approved by the Division of Forensic Science: The Alco-Sensor, Alco-Sensor II, Alcosensor III, and Alco-Sensor IV, manufactured by Intoximeters, Inc., St. Louis, Missouri; The CMI SD 2 and CMI SD 5, manufactured by Lyon Laboratories, Barry, United Kingdom; the Intoxilyzer 400PA, manufactured by CMI, Inc., Owensboro, Kentucky; and the Lifeloc PBA 3000 and Lifeloc FC10, manufactured by Lifeloc Inc., Wheat Ridge, Colorado. 19 Va. Regs. 1913 (2003).
There are administrative agency rules governing the use of the PBT. For example, the devices cannot have a systematic error exceeding 10%. 6 VAC 20-190-170. This, of course, calls into doubt any reading of 0.08. In addition, the test must be maintained pursuant to the manufacturer’s instructions and procedures. 6 VAC 20-190-200. Always ask the officer what these procedures are. Ask what type of PBT was used. If the officer doesn’t know (and the officer truly doesn’t know) then how can government comply with this rule? There is no shortcut to getting the PBT into evidence as there is for the Intoxilyzer test back at the station. Compare Va. Code ann. § 18.2-268.9 (evidentiary rule exception for “official” breath test results); Va. Code ann. § 18.2-268.7 (evidentiary rule exception for blood test results).
The Virginia Code bars the use of the PBT results “in any prosecution” for DUI. Va. Code. § 18.2-267. Many novice attorneys are shocked to learn that a pre-trial motion is not a “prosecution.” Stacy v. Commonwealth, 22 Va. App. 417 (1996). As a result, the PBT may be used in the pre-trial Motion to Suppress. However, there are still a great number of defenses to the PBT.
First, Stacy does not set forth an evidentiary exception to basic rules of evidence – this was simply not an issue before the court. While Virginia created an evidentiary shortcut for the admission of the “official” breath test results, and of the blood test results, there is no corresponding procedure for the PBT. Therefore, a prosecutor should be unable to offer this scientific evidence without an expert witness. Many courts take the position that the rules of evidence are relaxed for Motions to Suppress and that PBT results can be offered in the context of such a motion. This, however, is not the law. See, e.g., Bryant v. Commonwealth, 39 Va. App. 465 (2002) (implicitly indicates that hearsay is inadmissible at a Motion to Suppress). It should be very difficult to lay an evidentiary foundation for the admission of a PBT.
Second, Stacy does not address the laying of a statutory foundation. Virginia Code § 18.2-267 requires an arresting officer to advise an accused of his or her rights under that section. This means that an officer must tell the accused (1) that he or she can request to observe the process of analysis and to see the blood alcohol reading on the equipment used to perform the breath test; (2) that he or she can refuse to permit his or her breath to be analyzed and his or her failure to permit such analysis shall not be used as evidence in any “prosecution;” and (3) that the results of the breath analysis will not be used in any “prosecution.” Id.
Many times, an officer will simply tell an accused to “blow here.” Certainly, this does not meet the three requirements of the PBT statute. Other common omissions include the officer not showing the PBT result to the accused and the failure of the officer to state that it – both – won’t be used in a prosecution and won’t be used if he refuses. Understandably, many officers misunderstand the meaning of “prosecution” and will say that the test results “cannot be used in court.” And, some officers will read the Implied Consent law to an accused before the PBT, leading an accused to believe that if he declines the test that he is subject to penalties for Refusal to Submit under Va. Code § 268.2 and 268.4. In these instances, the court should not receive the PBT evidence.
f. The other tests.
Since there is no identifiable standards or science to back up the many other tests administered by Virginia police, it is important to point out the flaws. For example, on the Nose Touch” test, make sure it is clear that the officer told the accused to touch the “tip” of the nose as opposed to the “top.” Ask the officer why some officers do this test with the accused’s eyes closed and others with the eyes open. Ask why some ask for one touch each from the right and left arms, while others make a game of it asking for a right or left arm touch at the officer’s command, with the officer sometimes switching up the sequence. On the “Alphabet” test, ask why the officer didn’t ask the accused to simply say the alphabet from A to Z, but insisted on an alphabet subset, such as from C to T? Almost invariably, the officer will say that it was they way he was taught. When pressed, the officer will concede that he did the subset to make the test more challenging.
2. The Intoxilyzer 5000.
Virginia prefers breath tests. The statute directs police to use a breath test and to use a blood test only if the breath test is unavailable or if the accused is physically unable to submit to a breath test. Va. Code § 18.2-268.2. As a result, almost all cases involve breath testing.
All Virginia jurisdictions have been using for some time the Intoxilyzer 5000 for breath testing. Not all “Intoxilyzer 5000s” are the same. Virginia’s model was specifically designed for Virginia. The Division of Forensic Science claims it is the Intoxilyzer 5000CD/FG5 model. Many other states use a version of the Intoxilyzer. It is important to know both how the machine works and the proper operation procedure in order to spot testing irregularities, inaccuracies, and flaws.
a. Scientific principles.
The Intoxilyzer is an infrared device. It works by passing an infrared light beam through a breath sample and measuring the amount of light absorbed by alcohol. The more alcohol, the more light is absorbed, the higher the corresponding result.
The scientific theory behind this sort of test is based on the appropriately-named Beer-Lambert Law and Henry’s Law. According to the Beer-Lambert law, if a light is directed through a container, the amount of light detected on the other side of the container is decreased by any substances in the container in proportion to their absorption coefficients and concentrations, and is also decreased in proportion to the distance across the container. In English, this means that molecules absorb light. (Anyone who stands outside on a hot, sunny day in a black shirt knows this). If you shine a light through a box with “stuff” (molecules) in it, some of that “stuff” will absorb some of that light. If you know how much light you directed at the “stuff” and can measure how much light comes through the other side, you can identify the amount of the “stuff.”
All “stuff” (molecules) will absorb light at different wavelength patterns. Thus, if you know the pattern for alcohol, and scientists claim that they do, and you see the light absorbed in the “alcohol” pattern, you can conclude that the “stuff” absorbing the light is alcohol. The Intoxilyzer uses five filters to identify “ethyl” alcohol wave patterns, and is supposed to differentiate between ethyl alcohol and methyl, isopropyl, or butyl alcohols.
According to Henry’s Law, the weight of any gas that dissolves in a definite volume of liquid is directly proportional to the vapor pressure that the gas exerts above the liquid. In English, this means that a certain temperatures, there will be a definite ratio between the concentration of alcohol in lung air and in body fluids, such as blood.
The Intoxilyzer combines these two scientific principles. It takes a breath sample, which should contain a constant alcohol/liquid ratio with the subject’s alcohol/blood, shoots light through it, knowing how much light should be absorbed, looks for the alcohol wavelength “signature,” and translates the results via an algorithm to be grams per 210 liters of breath.
b. Operating procedures.
An operator begins a breath test by starting the machine, swiping his or her credit card-style license, and entering the correct PIN number. The machine will confirm that the operator is licensed. The operator will then enter the accused’s name, birthday, and sex; and then enter the operator’s license information and trial location.
The machine will then conduct a series of internal checks: (1) a “Prom” check, which tests the validity of the computer program; (2) a “RAM” check, which tests for memory failures; (3) a “Temp” check, which tests the temperature of the sample chamber; (4) a “Processor” check to locate the computer processor; (5) a display of the software version and serial number; (6) a “Printer” check; a (7) a “RTC” check, to confirm the time and date of the computer; and (8) a standards test to test the internal standards.
Assuming the checks are negative, the machine will then test the simulator temperature. The result must be between 33.8° and 34.2° Celsius. It will then conduct an “air blank,” which is essentially a breath test without anyone blowing into the machine. If there is alcohol in the air, this air blank should detect it.
The machine next runs, automatically, an artificial simulation to test itself. Basically, it artificially simulates the breath sample of a person with an artificial breath sample that has a known alcohol concentration. In the simulation, the machine pumps a pre-measured, heated solution of alcohol and water into the machine. This solution is supposed to be between 0.090 and 0.105 grams per 210 liters of air. The machine then conducts, essentially, a single-sample breath test on that artificial sample. If the results are within the machine’s range of tolerance, then the machine assumes that it is working accurately.
Next, the machine conducts a second air blank test and requests a breath sample from the accused. The accused blows one time and the operator takes the breath tube off the device while the machine analyzes the sample. The machine conducts a third air blank test, the operator puts the tube back on the machine and the accused blows a second time in to the machine. Finally, the machine conducts a fourth air blank test and displays the result. If the difference between the two samples exceeds 0.02, then the machine will request a third breath sample. The reported result is the lower of the two (or three) breath samples with the third digit truncated (neither rounded up nor down).
The Intoxilyzer is not a perfect device. For example, it unfairly assumes that that human breath is 34° Celsius (93.2° Fahrenheit) when leaving the mouth. At this temperature, it assumes that the ratio between the concentration of alcohol in the blood and in the lungs at equilibrium is 2100:1. However, people are all different and if an individual’s temperature were higher than this assumption, then ratio should be different and the corresponding breath test result will show a higher alcohol concentration than the actual alcohol concentration. If, for example, one has a fever, the Intoxilyzer result will be unnaturally high. This problem could be abated if the police were to take the subject’s temperature prior to the test. It also assumes that one does not have a measurable amount of endogenous alcohol.
The device also has various error margins that could result in the reported test result being inaccurately high. For example, the machine takes two samples for a completed test and has a tolerance of 0.02 between the samples. This, then is the machine’s “official” margin of error.
Some other sources of error could include the detection of substances other than alcohol. Recall that the machine has five filter wheels for interfering substances, such as acetone and toluene, and other forms of alcohol. These filter wheels are designed to detect interfering substances and, if the amounts exceed 0.01 grams per 210 liters of breath, it should cancel the test and report an “Interferant Detected.” However, while the simulation test confirms that the machine detects alcohol, there is no test – ever – that confirms that the filter wheels are really working. Also, if a substance for which there is no filter is detected, the machine will report the substance as “alcohol,” and incorrectly report a subject’s breath test result as higher than reality.
The machine runs the risk of detecting alcohol that is concentrated in the mouth and not contained in deep lung air. This is aptly called “mouth alcohol” and causes the Division great concern – so much concern that the Division bolded and made repeated references in their operation manual the requirement that a test be cancelled if the operator sees an accused burp before the test. Recall that the Henry’s Law ratio of 2100:1, discussed above, assumes that the breath sample consists of deep lung air. With a mouth air breath sample, this ratio would be different.
All breath test operators must watch an accused for 20 minutes prior to the administration of the breath test. 6 VAC 20-190-110 (2). This is to confirm that the accused has not ingested fluids, regurgitated, vomited, eaten, or smoked. Id. It is also to confirm that the subject has not burped or belched. While the Intoxilyzer is supposed to recognize that mouth alcohol will cause a spike in breath reading that should trigger an automatic cancellation of the test, the emphatic requirement of the 20-minute observation period indicates that the Division itself is not entirely confident of this fail-safe device. Some expert witnesses (and some breath test operators) will tell you that if mouth alcohol is breathed at a steady rate into the machine, the machine will not notice a “spike” in the reading and may report an inaccurately high reading. This is most problematic in cases where the accused has alcohol-impregnated food particles or other foreign objects in the mouth.
There are potential problems with the simulation test. Defense attorneys are never provided a copy of the certification the simulator solution. This is very important because, if the solution is inaccurate and the test misidentifies the sample, then the machine is obviously broken. By analogy, this is akin to a police speeding radar device that is tested by tuning forks. Defense attorneys in speeding cases always check to see if the radar was properly calibrated and that the tuning forks used to test the device were also calibrated. This important safeguard is absent in breath tests.
It is always important to learn the results of both breath samples, the results of the simulator test, and the results of the test conducted back when the simulator solution was first used. These are always different numbers. If one adds up the discrepancy between the four numbers, one may be able to demonstrate that the reported breath test result is inaccurate.
Aside from error margins, there are operational defenses to the Intoxilyzer. For example, if the accused does not blow enough air into the machine, the machine will cancel the test and report a “deficient sample.” This is often confused with an “invalid sample,” which occurs when an accused has residual alcohol in his or her mouth. Commonly, a breath test operator will see a reading of “invalid sample,” confuse it with “deficient sample,” and get mad at the accused for “not blowing hard enough.” Many times, such an accused is charged with Refusal to Submit to a Chemical Test! Certainly, these cases should be dismissed.
c. Statutory compliance issues.
Virginia law sets forth a “fast track” evidentiary path for the admission of breath test results as an exception to the hearsay rule. The United States Supreme Court has probably invalidated this scheme through its recent decision in Crawford v. Washington, 124 S. Ct. 1354, 2004 U.S. LEXIS 1838 (2004), which holds that the Sixth Amendment constitutional right to confront and cross examine witnesses trumps evidentiary rules. The lower courts have not carved out a “DUI exception” to the Crawford rule as of this writing, but eventually either judicial or legislative action will “cure” this difficulty. In this event, it remains necessary to know the Virginia statutory scheme for breath tests.
Before a police officer even administers a breath test, the officer must advise an accused that he has already consented to the test under a theory of “implied consent.” Va. Code § 18.2-268.2. However, this “implied consent” only applies to offenses that occur on a “highway.” This means,
“The entire width between the boundary lines of every way or place open to the use of the public for purposes of vehicular travel in the Commonwealth, including the streets and alleys, and, for law-enforcement purposes, the entire width between the boundary lines of all private roads or private streets that have been specifically designated “highways” by an ordinance adopted by the governing body of the county, city, or town in which such private roads or streets are located.”
Thus, for example, implied consent does not apply to most private property. The offense must also be committed within three hours of the arrest. Va. Code §18.2-268.2.
If the officer errs and informs an accused of Virginia’s implied consent law when it doesn’t apply, the remedy is suppression of the test. Thomas v. Town of Marion, 226 Va. 251 (1983).
After the police inform an accused of the “implied consent law,” and the accused does not refuse, then the breath test begins. The Virginia Code requires that the breath test operator must (1) possess a license, (2) use equipment and protocol approved by the Virginia Division of Forensic Science, and (3) issue a certificate. The certificate must indicate (1) that the test was conducted per the Division’s specifications, (2) the equipment was tested and found to be accurate within the past six months, (3) the name of the accused, the date and time of the test, the name of the operator, and the test result, and (4) a statement that the accused was told of his or her prior right to observe the process and see the blood alcohol reading on the machine. In addition, the operator must attest to the document. Va. Code § 18.2-268.9.
Furthermore, the breath test operator must complete a checklist and fill in a log. These items are available from the Division to defense counsel on request for a nominal fee. Among other things, these reports show the results of the second breath sample. The police must also file a copy of the test with the clerk of the court at least 7 days before the trial. Va. Code § 19.2-187. The clerk and/or the Commonwealth must mail a copy of the test to an accused’s lawyer if he or she requests a copy 10 days or more prior to the trial date. Id. Failure to comply wit this law results in a suppression of the test results. Bottoms v. Commonwealth, 20 Va. App. 466 (1995). To make a request, counsel should use the form supplied by the Supreme Court and serve it on both the clerk and the Commonwealth.
Statutory and regulatory procedural requirements are not necessarily required, however, so long as the test is “substantially compliant.” Va. Code § 18.2-268.11; 6 VAC 10-190-20. Substantial compliance applies to the “taking, handling, identifying, and disposing” of breath samples. The appellate courts in Virginia are famous for rejecting challenges to testing protocol. See, e.g., Anderson v. Commonwealth, 25 Va. App. 26 (1997) (test operator’s testimony that he didn’t know the facts behind the attestation clause that he signed on the breath certificate did not invalidate a test because he still signed the certificate); Reynolds v. Commonwealth, 30 Va. App. 153 (1999) (test operator’s failure to have 40 hours of training, as then required by the Virginia Code, did not affect admissibility of test results); Rollins v. Commonwealth, 37 Va. App. 73 (2001) (breath test conducted in direct contravention to the administrative rules still admissible).
The code lists those who can serve as breath test operators – the arresting officer, anyone helping him or her, and anyone with him or her at the time of the arrest (as long as they are properly licensed). Va. Code § 18.2-268.9. In most jurisdictions, officers who had no connection to the arrest usually administer the breath tests. This paragraph would seem to exclude them. However, legislative history suggests that this is a remnant from the days when officers connected to an arrest were specifically barred from administering breath tests.
There was once a time in Virginia when an accused could choose between a breath and blood test. Commonwealth v. Gray, 248 Va. 633 (1994). However, those days are over. Now, the accused shall submit to a breath test; blood is tested only if the accused is physically unable to submit to a breath test or such a test is unavailable or drug use is suspected. Va. Code § 18.2-268.2. The government bears the burden of proving unavailability of the breath test and must provide a reasonable explanation for this unavailability. Herring v. Commonwealth, 28 Va. App. 588 (1998). The remedy for the government’s failure to meet this burden is dismissal of the case, not just suppression of the test. See, e.g., Breeden v. Commonwealth, 15 Va. App. 148 (1992). The rationale is that the chemical test could have been exculpatory.
d. “Relation back.”
The breath test is rebuttable, even for the “per se” application to those accused with blood alcohol concentrations over 0.08. Va. Code § 18.2-266 (i); Va. Code § 18.2-268.10; Davis v. Commonwealth, 8 Va. App. 291 (1989). However, the defendant needs to affirmatively supply the evidence for the rebuttal. Id. After all, the test results are presumed indicative of the blood alcohol level at the time of the alleged offense. Basfield v. Commonwealth, 11 Va. App. 122 (1990). And, the argument that one’s “great” performance on field sobriety tests, by itself, rebuts the test is rarely successful.
One of the best defenses is the argument that one’s blood alcohol concentration increased during the time it took for the officer to seize an accused and test him or her. Due to the nature of how the body processes alcohol, it is possible to have alcohol in the body that has not yet been absorbed into the blood. As a result, one with unabsorbed alcohol in the body will have his or her blood alcohol concentration increase over time even though he or she has stopped consuming more alcohol. If the person’s blood alcohol concentration was below 0.08 at the time he or she was driving, but rose over this level by the time he or she was tested, there may not be a violation of law. An expert witness can review an accused’s body size, the time and types of alcohol he or she consumed, and the time and types of food he or she consumed. Using this information, the expert can determine the blood alcohol level of the accused at various points in time. However, be aware that, most of the time, an accused’s blood alcohol concentration is declining not rising.
3. Blood tests.
Ever since the accused lost the right to choose between blood and breath tests in 1995, the number of blood test cases has declined. Nonetheless, they are a staple in accident cases. The procedural requirements are considerably more extensive than those for breath tests, which makes blood cases more defensible than breath cases.
The law relating to blood tests changed dramatically in 2003. Practitioners accustomed to the “old” rules must carefully review the new procedures.
Like breath tests, and as discussed in the breath test section of this chapter, implied consent and substantial compliance applies to the procedures of blood testing. Therefore, problems with the test protocol is not necessarily fatal to the Commonwealth’s case.
a. Statutory compliance issues
The person drawing the blood must be either a physician, registered professional nurse, a graduate laboratory technician, or a technician or nurse designated by order of a circuit court acting upon the recommendation of a licensed physician (hereinafter, “Nurse”). Va. Code § 18.2-268.5.
The Nurse must clean the accused’s arm with soap and water, polyvinylpyrrolidone iodine or benzalkonium chloride, and use either a disposable syringe, a steam sterilized syringe, or a syringe that is sterilized in a manner that will not affect the test. Id.
The Nurse will put the blood samples into two vials, supplied by the Division of Forensic Science, seal them, and complete two prenumbered certificate of withdrawal forms. Va. Code 18.2-268.6. The forms must contain the name of the accused, the name of the person taking the blood sample, the date and time the sample was taken, and the name of the arresting officer. Id. The Nurse puts the vials with the attached certificates in a Division-supplied container, seals the container, and gives it to the arresting officer. Id. The officer must then transport or mail the samples to the Division. Id.
When the Division receives the blood samples, it shall analyze the blood for the alcohol content. Va. Code. § 18.2-268.7. The Division’s director shall execute a certificate of analysis that contains the following: (1) the name of the accused; (2) the date and identity of the person who receives and examines the blood; (3) a statement that the seal on the vial had not been broken or otherwise tampered with; (4) a statement that the container and vial were provided or approved by the Division; (5) a statement that the vial was one to which the completed withdrawal certificate was attached; and (6) the sample’s alcohol concentration. Id. Most of these items are pre-printed on the certificate and shouldn’t give counsel any confidence as to the veracity of those statements.
The Director next removes the withdrawal certificate, attaches it to the certificate of analysis, and must state on the form that the withdrawal certificate was so removed and attached. Id. The certificate of analysis with the withdrawal certificate on it, is then filed with the clerk of the court.
If the state’s results get lost, the remedy is dismissal of the case, not a mere suppression of the test results. Wendel v. Commonwealth, 12 VA. App. 958 (1991). The same result occurs if the independent sample is lost. Kemp v. Commonwealth, 16 Va. App. 360 (1993).
The Division holds the second vial for an independent blood test. Id. The accused has 90 days from the date the blood was drawn, with notice to the Division, to file a motion in court for an independent lab test by an accredited lab. If ordered, the Division must then transmit the second vial to the independent lab. Id. The Division can destroy the second vial after the 90 days has elapsed. Id. Since this is a new provision in the law, there is no guidance as to whether a court could decline to order an independent blood test and under what circumstances. Some labs have indicated that, over a period of time, the alcohol in a blood sample can decline. This, of course, would benefit the accused.
Just like the case for breath test results, the Commonwealth can “fast track” into evidence the blood test results on the certificate of analysis. Id. The accused enjoys the same privilege for the independent sample. Id. This means that the neither the person who drew the blood nor the person who analyzed the blood need appear to testify in court.
b. Variations between the two blood samples.
While one would expect that a large difference in the results between the state’s blood test and the independent blood test would invalid both tests, this is not the case. In Bush v. Commonwealth, 205 Va. 312 (1964), the state’s result was 0.19 and the independent result was 0.14 – a 25% discrepancy. The Court held that this went only to the weight. Both results were admitted with the lower one rebutting the higher one.
c. Lab problems.
Unlike breath tests, there are no administrative rules governing the testing of blood. Counsel must subpoena the person who did the blood analysis and, along with an expert witness, cross examine the lab technician to test the scientific reliability of the blood test and its methods.
4. Use of expert testimony.
An expert witness is helpful in many cases and is necessary in all scientific challenges. Appropriate experts can help challenge field sobriety tests, breath tests, and blood tests.
Practitioners should make certain that their expert is appropriate for the defense. It does not help to have a forensic toxicologist testify as to field sobriety tests, for example.
While the procedure for qualifying an expert and eliciting expert opinion testimony is beyond the scope of this chapter, it is important to note that experts make their opinions based on hypothetical facts. If the underlying facts are changed, the opinion should change. Be careful not to forget that trial testimony can be different than expected.
 Additionally, the government may offer the fact that police offered a PBT to the accused at the trial. The prohibition is only on the results. Woolridge v. Commonwealth, 9 Va. App. 339 (1999). Va. Code § 18.2-268.9. Va. Code § 18.2-268.7. This author is a lawyer with no scientific training beyond a good high school chemistry class a long, long time ago. The information from this section is derived from the Breath Test Operator’s Training Manual for the Intoxilyzer Model 5000, prepared by the Department of Criminal Justice Service’s Division of Forensic Science along with years of work with expert witnesses. The Division must select a device on the National Highway Traffic Safety Administration’s Conforming Products list. 6 VAC 20-120-80. The exact model used in Virginia is not really on this list. However, the Court of Appeals has never taken this issue past the petition for appeal stage. These are scientific laws, not statutory or common law. According to Va. Code § 4.1-100, “alcohol” means “ethanol.” As a result, the machine does not actually take 210 liters of breath. It takes a much, much smaller sample and extrapolates. This is necessary for the assumptions in Henry’s Law. This is alcohol that develops naturally in the body. But see, Nelson v. Commonwealth, 16 Va. App. 266, 269 (1993) (“merely proving the margin of error in a particular breathalyzer test, without more, does not as a matter of law, negate its reliability. Proof that an inherent margin of error exists in breathalyzer tests is not sufficient evidence to overcome the presumption that the measurement of .10 percent or more blood alcohol concentration accurately reflects the blood alcohol concentration at the time of driving.” However, this “does not preclude a defendant from contesting the reliability of blood alcohol concentration test results by proving in an appropriate case that the margin of error of a particular device was in excess of the margin deemed scientifically acceptable.”).  Acetone can be found on diabetic persons approaching a coma. Toluene is a solvent used in paints, glues, and adhesives. It can be inhaled unintentionally and intentionally. Taken from pages 31-32 and 55-56 of the Breath Test Operator’s Training Manual for the Intoxilyzer Model 5000, prepared by the Department of Criminal Justice Service’s Division of Forensic Science. However, “private property” is a term of many meanings. Compare, e.g., Mitchell v. Commonwealth, 26 Va. App. 27 (1997) (private road in mobile home complex not designated by ordinance to be a ‘highway’ is still covered by implied consent) and Roberts v. Commonwealth, 28 Va. App. 401 (1998) (7-11 parking lot is not covered by implied consent). The licensee must have completed a training program. Va. Code § 18.2-268.9 The test must be tested for accuracy at least once every six months. Id. See 6 VAC 20-190-110 for agency procedures. See also, 6 VAC 20-190-30. 6 VAC 20-190-160. 6 VAC 20-190-150. In effect, test procedures are presumed accurate and reliable, even in the absence of any proof. For example, in Snider v. Commonwealth, 26 Va. App. 729 (1998), the evidence failed to show what substance the test operator used to cleanse the accused’s arm prior to drawing blood. The law mandated one of three substances. For all we know, the operator used alcohol to cleanse the arm! The Court held that without evidence of contamination, the government substantially complied with the blood testing procedures. However, in Hudson v. Commonwealth, 21 Va. App. 184 (1995), the evidence showed that the test operator used “benadine” to clean the accused’s arm. In this case, substantial compliance did not cure the mistake, despite the lack of evidence that benadine contaminated the sample.  As of July 1, 2004, this law will be amended to replace “registered professional nurse” with “registered nurse, phlebotomist, or LPN.” There is no such thing as a “registered professional nurse.”
DUI LAW UPDATE
David A. Oblon
ALBO & OBLON, L.L.P
2200 Clarendon Boulevard, Suite 1201
Arlington, Virginia 22201
(703) 312-0411 (tel.)
(703) 312-0415 (fax)
I. Statutory Changes
Virginia’s DUI laws change dramatically every year and this year is no exception. The new laws are the product of four “tensions” – legislative constituencies that demand attention. These “tensions” are (1) the “tension” between a gaining Republican majority and a shrinking Democrat minority; (2) the “tension” between money and good law; (3) the “tension” between the legislature and the judiciary; and (4) the “tension” between punishment and mercy.
A. “Tension” between the Gaining Republican Majority and the Shrinking Democrat Minority.
· Generally, Republicans support tougher criminal law penalties (e.g., elimination of parole).
· The Courts of Justice Committee’s Criminal Law Subcommittee now has 3 former prosecutors.
· Under the Democrats, many tough DUI bills, such as those including mandatory jail, were not taken seriously. Today, mandatory jail for first time offenders exists under certain circumstances.
B. “Tension” between Money and Good Law.
· The legislature passed a bill years ago that requires felony-related bills that increase penalties to provide an appropriation to cover the cost.
· This year, this rule was extended to misdemeanors.
· Money now drives penalties. This is very controversial as it shifts power to the Appropriations Committee. It is also a great way to kill a bill.
C. “Tension” between the Legislature and the Judiciary.
· A majority of the General Assembly believe that sentences are too light.
· Over the years, mandatory minimums have been instituted. This trend may continue. Some judges, reacting to the Republican majority, may become heavier sentencing judges in order to aid their re-appointment.
· Judges are on the “spot.” Few judges want to be the only one who imposes jail on first offense DUI defendants. Judges need support of numbers (e.g., in Fairfax, Judge O’Flaherety began giving jail sentences to speeders exceeding 90, other judges quickly followed suit).
D. “Tension” between Punishment and Mercy.
· There are more people in the legislature pushing for tougher criminal penalties. There are few advocates of defendant’s rights.
· MADD is very politically active.
E. Specific Changes.
· 18.2-271.1 – Continuing Jurisdiction – Gives a trial court continuing jurisdiction over a defendant during the course of any license revocation. The main purpose is to permit more intensive ASAP supervision. This is effective immediately.
· 18.2-268.6 – Independent Blood Sample – Places burden on defendant to, within 90 days of arrest, move the court for an order transmitting a second blood vial to an independent lab. Defendant pays for the lab report. May need an expert witness to use the report. Practice issues: Is one lab better than another? Can you get two or more independent labs? Does this give us a reliable continuance? Is the independent blood analysis mandatory if requested?
· 18.2-268.11 – Substantial Compliance – Among the independent blood test amendments, this has a provision eliminating a variance between the two blood tests from substantial compliance.
· 18.2-270 – Mandatory Fines -- $250 for first offense; $500 for second offense; $1,000 for third or subsequent offense. Mandatory 5 days in jail if defendant has passenger in car 17 or younger (but no community service).
· 18.2-268.8 – Court Costs – Increases DUI court costs by $100.
· 18.2-266.1 – Baby DUI – Provides 7 day OL suspension upon arrest;
· 16.1-278.9 – DUI SIS – Permits a judge to refuse an SIS for a DUI by a juvenile.
F. Future Changes:
· 18.2-266.2 – DUID – Would create a new law that criminalizes driving with any detectable amount of Schedule I or Schedule II drugs.
· 18.20-270 – Increased Penalties “Greatest Hits” – Would permit an officer to arrest one for a DUI not committed in his presence; would remove the 10 year grace period on DUI felonies; Mandatory 30 days for 3rd offense in 5 years; Mandatory jail of 5 days per passenger (10 per juvenile); Mandatory jail of 5 days for accident with personal injury; all minimums consecutive.
II. Judicial Changes.
The Virginia Court of Appeals is very hostile to DUI defenses. As a practical matter, one cannot assume that the law on the books means what you think it means. This section explores some of the recent cases and defenses.
A. Double Jeopardy/Multiple Offenses.
1. Involuntary Manslaughter & DUI: Dalo v. Commonwealth, 264 Va. 431 (2002). The Court held that double jeopardy principles did not bar the conviction of involuntary manslaughter following the conviction of driving while intoxicated, adopting the reasoning of the Court of Appeals. Interestingly, since the Commonwealth conceded at trial that the Blockburger v. United States, 284 U.S. 299, 304 (1932) test did not apply, the Court could not consider it and looked to the issue of whether “the General Assembly has ‘clearly indicated its intent to impose multiple punishments.’ Not surprisingly, by looking at other statutes, it found that the Assembly had done so.
2. HO & DUI: Commonwealth v. Lloyd, Jan. 28, 2003 (Warren Cir. Ct.).
The defendant was charged with DUI Felony, Refusal, and Driving on Habitual (“HO”). He argued in a Plea in Bar that he couldn’t be convicted of both DUI and HO because HO was a lesser-included offense. After all, to raise the DUI to a felony, one must prove that there were at least two prior DUIs; to raise the HO to a felony, one must prove that there was at least one prior DUI.
Judge Hupp ruled that the Assembly intended punishment for both the DUI and the HO (it would never have raised the HO to felony for a DUI violation and given the defendant a break on the DUI).
The Circuit Court followed Dalo v. Commonwealth, 37 Va. App. 156 (2001) and ruled that the General Assembly never intended to increase HO penalties and give a break on the DUI charges.
3. DUI Enhancement, Pre-Adjudication Offenses: Williams v. Commonwealth, _____ Va. _____ (2003).
Defendant was convicted of a DUI in 1994. In 2000, he was charged with a second DUI. While awaiting trial, he was charged with a third DUI. For the third DUI, he argued that he was never convicted of a second DUI when he committed his third DUI and, therefore, could not be convicted of DUI felony.
The Supreme Court wrote that the statutory language was “unambiguous.” The Assembly intended to punish as a felony a third DUI offense.
The law in 2000 read,
“C. Any person convicted of three or more offenses of § 18.2-266 committed within a ten-year period shall be guilty of a Class 6 felony, and the sentence shall include a mandatory, minimum sentence of confinement for ten days that shall not be subject to suspension by the court. Any person convicted of a third offense committed within five years of an offense under § 18.2-266 shall be guilty of a Class 6 felony, and the sentence shall include a mandatory, minimum sentence of confinement for thirty days that shall not be subject to suspension by the court.”
The Supreme Court held that the statutory use of the terms “offenses” and “committed” in the first sentence means that a conviction on a second offense is unnecessary for a conviction on a third offense (felony). It did not discuss the word “convicted.”
The statute was amended, in 2002, after Williams, to read:
“C. Any person convicted of three or more offenses of § 18.2-266 committed within a ten-year period shall upon conviction of the third offense be guilty of a Class 6 felony, and the sentence shall include a mandatory, minimum sentence of confinement for ten days that shall not be subject to suspension by the court. Any person convicted of a third offense committed within five years of an offense under § 18.2-266 shall upon conviction of the third offense be guilty of a Class 6 felony, and the sentence shall include a mandatory, minimum sentence of confinement for thirty days that shall not be subject to suspension by the court.”
4. DUI Enhancement, Proof of Priors: Commonwealth v. Fitzgerald, April 2, 2002 (Franklin GDC).
The defendant was charged with DUI Felony and murder relating to a motor vehicle accident. The General District Court dismissed the DUI Felony because one of the prior offenses lacked a check mark in the spot saying that the defendant was found to be guilty. Because the murder charge relied upon the DUI being a felony, the murder charge was dismissed, too.
5. Direct Indictment After Dismissal: Neff v. Commonwealth, 39 Va. App. 13 (2002).
A General District Court judge dismissed a DUI on procedural grounds. (The judge had denied both a continuance and nolle prosequi motion from the Commonwealth). As a result, the Commonwealth direct indicted the defendant in the Circuit Court for the same charges. The defendant argued double jeopardy and res judicata.
The Court held that, because the district court heard no evidence, neither doctrine barred the Circuit Court from hearing the case. It ruled that a District Court dismissal is the same thing as a nolle prosequi. Practice Point: Call a witness if a judge denies a nolle prosequi.
6. New Warrant After Dismissal (Nolle Prosequi): Kenyon v. Commonwealth, 37 Va. App. 668 (2002).
The Commonwealth took a nolle prosequi in Circuit Court and, instead of seeking a direct indictment to the Circuit Court, issued a new warrant in the District Court. (The defendant had 4 trials!).
B. Evidentiary Issues.
1. Three Hour Rule: Williams v. Commonwealth, _____ Va. _____ (2003).
Defendant was charged with DUI, and the case was discharged by a nolle prosequi. The Commonwealth direct indicted him several months later. He argued that the new indictment was not issued within 2 hours (now 3) of the offense. See 18.2-268.2 (implied consent). The Court held that consent relates back to the date of the offense.
2. Blood Tests – Independent Lab: Commonwealth v. Kenny, March 2002 (Henrico Co. GDC) (oral opinion).
Defendant was given a blood test, pursuant to which, he was told to select an independent lab. 18.2-268.6. The state form, however, only provides for a choice of one lab – MCV Hospital in Richmond. The defendant argued that a choice of one lab is no choice.
The GDC seemed to agree, but wanted the case to go to the appellate courts, so it denied the motion to suppress.
This is a good issue – while it lasts. The law has already been changed to eliminate the second lab offer. A better argument – but one not raised in this case -- is the argument that MCV is not, itself, independent.
3. Blood Tests – Unconscious Defendant: Oliver v. Commonwealth, _____ Va. App. _____ (2003).
Defendant was unconscious. He couldn’t submit to a breath test and the arresting officer never offered a blood test. Therefore, he was convicted without the benefit of the potentially exculpatory blood test. Ironically, the officer had the right to have drawn the blood for testing.
4. Involuntary Intoxication. Commonwealth v. Moore, February, 2003 (Fairfax Co. GDC).
Defendant was on Paxil, an anti-depressant drug, and had a few drinks after playing golf. He was arrested and charged with DUI after weaving through traffic. He was “obviously impaired” according to his lawyer. “The worst I’d ever seen in 25 years.”
An expert testified that Paxil, taken with alcohol, has an “additive effect” in some people. The Defendant was never told about this. The Court acquitted the Defendant because to self-administer an intoxicant, one must be aware that they are consuming an intoxicant.
5. “Operating.” Floyd v. Commonwealth, _____ Va. App. ____ (2002).
Defendant’s car was broken down and stopped on the road. The defendant was outside the car, looking at it when the officer arrived. The officer asked if the car would start and the defendant said “no.” The officer, not realizing that the defendant was intoxicated, asked the defendant to try to start the car. He did so, and the car still wouldn’t start. It would only “click.”. However, the Court held that this action was “operation.”
6. “Invalid v. Deficient.” Various.
A defendant submitted to a breath test, but the result was “invalid.” The defendant was charged with DUI and Refusal.
Most courts agree that this is wrong; the remedy for an “invalid” sample is a blood test.
C. Roadblock Issues. Archer v. Commonwealth, ____ Va. App. _____ (2002).
In a roadblock, the defense proved that the supervisor had earlier (before the Defendant’s arrest) deviated from the roadblock plan by opening up the checkpoint without trying an alternate approach. At the time of the stop, however, the plan was being exercised literally. The earlier deviation – permitting traffic to clear – was permitted by the plan. The fact that the alternate approach was not tried was chalked up to the supervisor’s experience and opinion that doing so wouldn’t have helped.
D. License Issues.
1. DUI, Second Offense reduced to First Offense: Richardson v. Commonwealth, April 16, 2002 (Roanoke Cir. Ct.).
A defendant was convicted of a first offense DUI; but it was really his second. The DMV suspended his license for three years for the second violation. He objected, arguing that this was a “manifest injustice.” A Circuit Court agreed. It also found that the DMV’s order was inconsistent from the DUI conviction.
 The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.