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DWI Trial Report-- Superbowl Sunday; .13 BAC Dismissed after Alcosensor Ruling

Since graduating from George Mason University School of Law in 1988, I have had over 20 years of trial experience, defending citizens accused of a wide variety of misdemeanor and felony offenses in Northern Virginia.   Since 1999, my practice has been almost exclusively focused on the Fairfax County Courts, allowing me to gain an increasing familiarity with the Courts, Prosecutors and Judges here in Fairfax County, Virginia.  

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Paul Liam McGlone
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I've written before on the importance of pivotal alcosensor evidence in Fairfax County DWI cases.

In this recent case, the Court  file contained a .13 breath test, but the Judge never considered the breath test because we had the case dismissed at the Probable Cause phase of the trial, before the Commonwealth was able to get the breath test into evidence.   Alcosensor (PBT) evidence is pivotal at the Probable Cause phase of the trial, and this case is a great example of a winning Fairfax County DUI trial.   

(Note that the details disclosed on blog are only the facts actually offered in open court, so that no confidential client information is revealed.   Further, we try to avoid mentioning prosecutor or judge by name, since every case has different facts and nobody can predict that the next case will have a similar result).  

Here are some details of how this one unfolded:

Client was stopped on Superbowl Sunday-- more specifically, it was about 1:30 Monday morning.   The officer actually testified that he was out on Fairfax DUI patrol because of the increased scrutiny after the Superbowl.   Officer described weaving within the lane, which he actually called "straddling the lane markers" but on questioning he described it specifically as "tires touched the white lane divider lines on 3 or 4 occasions over a 1 mile stretch".    The officer also testified that the license plates came back as "not in system", suggesting that they were not valid.   In fact, it was a new car and the DMV records were not reflecting the issuance of these tags by the dealer.    So, that was the basis for the stop, and we objected to the stop, asking the Court to dismiss the case for an invalid stop, based on standards applying caselaw to the Fourth Amendment.   

This is often the first opportunity for the defense to ask for a dismissal of the case during a Fairfax County DWI trial, and if the Court finds that the initial traffic stop violates the Fourth Amendment, then the whole Fairfax County DUI case will be dismissed.   This isn't going to happen very often, but it is an important part of the trial, since it forces everybody to take a look at the case from the earliest point, without hearing about roadside tests or the final BAC reading. 

The Court was interested in the limited evidence about driving behavior, but ultimately denied the motion to suppress the stop.  This early ruling was based on the fact that the DMV did not have the tags in the computer, so the officer had a good faith belief that something was wrong when he made the stop.   The judge did indicate that "it was close" and that would help as we moved to the next phase of the trial. 

Next up, the Fairfax County Police Officer testified about the Field Sobriety Tests that he administered to my client.   The tests had a few indicators that are generally seen as signs of impairment, but he also did well on several aspects of the tests.   This is where the officer has to make a decision to make a warrantless arrest, and that decision has to be based on whether he has sufficient evidence to establish "probable cause" that my client was driving while intoxicated (DWI).  

In order to assist the officer in the Probable Cause Decision, Virginia law requires the use of a Preliminary Breath Test (PBT) device in the field, prior to the arrest decision.   The law on the subject (Virginia Code Section 18.2-267) spells out very specific procedures for the use of this device in the field, and generally prohibits the use of it in the Courtroom.

Caselaw, including the Stacy case, allows use of the alcosensor (PBT) evidence in very limited situations, generally when the defense has raised questions about probable cause.   In this Winning Fairfax County DUI trial, the government tried to get in evidence that my client blew .11 on the PBT, but the judge did not allow it because the officer had not complied strictly with the requirements of Virginia Code Section 18.2-267.    Without the alcosensor evidence, it was a short leap for the Defense to argue that there was no probable cause for the arrest.   Without proof of probable cause for the arrest, there would be no way that they could use the final breath test (.13 BAC)  in evidence, and so the Defense gets a dismissal--- Not Guilty! 

Category: DUI and DWI

Paul Liam McGlone
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DWI and Criminal Defense Attorney and Founder of McGlone Law Firm

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