Attorney Blog

Great DWI Trial - Use of Alcosensor Evidence by the Defense

I saw 3 interesting DWI trials this week, and the defense won all 3.   The second trial was my own case, but first I'm going to blog about the trial that came first.

Use of Alcosensor Evidence by the Defense!

This DWI trial was handled by a friend of mine in Fairfax County General District Court.

The client was stopped by the officer because the officer claimed that he was weaving within his lane and that he was following too closely.

Counsel first asked the Court to suppress the stop on the grounds that the Commonwealth did not show suspicion of any criminal activity.   The Court heard argument on that, and counsel emphasized that it is not illegal to drive down the road, staying within your lane.   Further, on the issue of following too closely, it was noted that the officer did not offer any testimony about the speed of the defendant's vehicle.

The Court decided to allow the stop because it could be inferred that they were not going "too slow" for the road or else the officer would have mentioned that.   This seemed a bit of a stretch to me, but the Defense had only just begun.

Next, the officer testified about his encounter with the driver once the car was stopped.   The officer smelled alcohol, and there was the usual discussion about "a few drinks".   The field sobriety tests were not too bad.  In fact, the officer's description of the tests was lacking in details.

Then, Counsel asked the Court to review the decision to make a warrantless arrest, and defense counsel asked a few questions of the officer.   This is when he asked the officer about the Preliminary Breath Test (PBT), where his client had blown a .07.

In most cases, defense is objecting to any use of the PBT because it is considered an unofficial breath test, and under Virginia law, it is only used by the officer to make the arrest decision and should not be used in Court to show that somebody is intoxicated.    However, in this case, defense was able to use it to show that the person was not intoxicated, at .07, and ultimately, the court dismissed the case.

In fact, it seemed that there was a later result on the official breath test, but the Court never heard testimony on that result, because the case was dismissed upon suppression of the arrest!   (Nice work, Feragi!)