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One of the most common ways for the government to prove a person is driving under the influence is through the use of Virginia Code 18.2-266(i). See: https://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-266  This section criminalizes operating a motor vehicle while having a blood alcohol concentration (“BAC”) of 0.08 or more.  If the BAC of the driver is 0.08 or more then Virginia Code 18.2-269(A)(3) provides “it shall be presumed that the accused was under the influence of alcohol intoxicants at the time of the alleged offense.” See: http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-269

This “permissive inference” allows the judge to infer you were impaired and puts the burden on you, the defendant, to prove you were not.  As you can imagine, this is a difficult task. So often one of the most important tasks of a good DUI defense is to find a way to invalidate or exclude the Certificate of Analysis (which is the evidence used in court to establish your BAC) from ever being presented to the judge for consideration. This article will focus on one of the ways to attack and hopefully prevent the Certificate of Analysis from being considered as evidence.

The Virginia Department of Forensic Science (specifically the Breath Alcohol Section) oversees the training and licensing of breath test operators, responding to requests for records, providing testimony in courts of law, and maintaining/certifying the Intox EC/IR II breath test equipment. The Intox EC/IR II is the breath test used in Virginia for determining your BAC.

It is essential for a DUI defense attorney to have a working knowledge of the Intox EC/IR II and the regulatory and statutory requirements that govern its use. One of the most important tools for attacking the BAC result listed on the Certificate of Analysis is to know the intricacies of the Intox EC/IR II Instructional Manual. See: http://www.dfs.virginia.gov/wp-content/uploads/2013/07/InstructionalManualIntoxECIRII.pdf

Virginia Code Ann. 18.2-268.9 requires breath tests to be performed in accordance with DFS standards, including, among other steps, that a subject be observed for 20 minutes prior to blowing. Essentially, the officer needs to be present with the defendant the entire 20 minutes to ensure that person did not have anything in his/her mouth, vomit, burp, drink, etc. to prevent their from being residual mouth alcohol contamination of a breath sample. If the officer failed to follow these procedures it calls into question the accuracy and reliability of the BAC result.

Often when this type of procedural failure is challenged, the prosecution will argue that their officer need only “substantially comply” with these “procedural regulations.”  See Virginia Code 18.2-268.11 http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-268.11.   “Substantial” is not specifically defined in the code and so it can be argued that the courts must apply its ordinary and plain meaning.  Smith v. United States, 508 U.S. 223, 228-29 (1993).  “Substantial” is defined as being “of considerable importance, size or worth” and “concern[s] the essentials of something.” Oxford Dictionaries http://www.oxforddictionaries.com/us/.  Clearly, the common sense meaning of the term suggests that something must be done, albeit imperfectly to meet the standard of “substantial.”  So arguably, if the officer failed to monitor a defendant all during the 20 minute observation period they did not “substantially comply” under Virginia Code 18.2-268.11.

About the Authors:

Stephen Pfeiffer 114X143Stephen P. Pfeiffer  has been published as a coauthor in the in the nationally recognized “Inside the Minds” series by Aspatore Books on ­The Legality of Search and Seizure in DUI Cases “A Practitioner’s Everyday Insight Into DWI/DUI Defense in Virginia”. Stephen has an AV® Preeminent Rating – the highest rating available from Martindale-Hubbell, the leading independent attorney rating entity. An AV® Rating signifies that the lawyer has reached the heights of professional excellence. Stephen was selected as a member of the National College of DUI Defense Attorneys and has been recognized as one of the top 100 DUI attorneys in Virginia by the National Advocacy for DUI Defense. Additionally, Stephen is consistently recognized as one of Virginia’s Legal Elite by Virginia Business Magazine as well as being selected as a “Rising Star” by Virginia Super Lawyers.  Recently Stephen was selected as Top 40 Under 40 Criminal Defense Lawyers for Virginia by the American Society of Legal Advocates. Stephen is a founding member of the American Association of Premier DUI Attorneys.  Stephen was the American Bar Association’s 2007 National Champion in Legal Negotiations and serves as an adjunct professor at Regent University School of Law. 


Adammcarroll Wrg 114X143Adam M. Carroll has been practicing in the Hampton Roads area for his entire career. Originally, as a prosecutor, but transitioned to private practice and now he represents a variety of clients finding themselves involved in the legal system.  In criminal court, he defends people charged with everything from DUIs to complex white collar federal cases.