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Editor: Bob Battle
Profession: DUI Defense Lawyer

Category: Recent Wins

ALBEMARLE GENERAL DISTRICT COURT- A DUI defendant in Albemarle, Virginia, whose vehicle was found off the road and facing in the wrong direction in a ditch by the investigating police officer, was allowed to plead to a charge of reckless driving despite a .13 BAC.

FACTS: Client, a college student, was following a friend to a party on an isolated road outside of Charlottesville, Virginia. Client informed the investigating police officer that she swerved to avoid a deer which ran in front of her car, and was forced to drive off the road. The officer found her in her car in a ditch by the roadside. She was arrested for DUI and later blew a .13 on the Intoxilyzer 5000 breath machine.

Client's family initially retained a local, experienced trial attorney. This attorney admittedly does not focus or concentrate his practice on DUI defense. During discussions with the prosecutor, the prosecutor informed this attorney that he was not willing to consider reducing the charge from a DUI unless he thought that the breath result might not come into evidence.

Three weeks prior to trial, the initial attorney contacted the client's parents and suggested that they hire someone who focuses his practice on defending DUI cases. This attorney recommended Richmond DUI Lawyer Bob Battle.

DEFENSE: After being placed under arrest, client was was taken to the jail and ordered by the officer who was operating the breath machine to sit for 20 minutes prior to taking the breath test. After taking the breath test and upon leaving the breath test operator's presence, client informed the arresting officer that she had burped about 2 minutes before the observation ended. Client, clearly intimidated by the breath test operator's demeanor, asked the arresting officer not to tell the breath test operator that she had burped. The arresting officer informed client that he was required to take her back to the breath test operator. The breath test operator told the arresting officer that it was too late since client had already taken the breath test which registered a .13 BAC.

The Breath Test Operator Instructional Manual issued by the Department of Forensic Science in Virginia for the Intoxilyzer 5000 lists clear procedures that must be followed when a subject burps/belches and the reason for these procedures at Page 16 of the Manual (attached):

Residual mouth alcohol contamination of the breath sample could occur in several ways other than from drinking an alcoholic beverage. First, the subject, who has alcohol in his/her stomach, could vomit and thus bring alcohol-bearing solids and liquid into the mouth cavity, producing residual alcohol. Second, a subject, who has alcohol in his/her stomach could belch, bringing alcoholic vapor into the mouth.

Rinsing the mouth with water is not effective in eliminating mouth alcohol. Thus, when a drinking-driving subject has recently taken a drink, vomited, belched, or otherwise come in contact with alcohol, another 20-minute observation must be performed for the effects of any residual mouth alcohol to dissipate before a valid breath sample can be taken.

The regulations are clear that the breath test operator "must" begin another 20 minute waiting period and that Client's breath test was not considered a "valid breath sample."

Virginia DUI Lawyer Bob Battle filed a motion to exclude the breath test results using the above argument. The prosecutor read the motion an agreed that he had a potential problem with the breath test and remained true to his statement to the prior attorney that, if he had a problem with the breath result, he would consider reducing the charge. Client was allowed to plead to Reckless Driving.