High Court Ruling Voids Va. DWI Case Over Lack of Breathalyzer Testimony

By Tom Jackman
Washington Post Staff Writer
Saturday, July 18, 2009

A Fairfax County Circuit Court judge threw out a breathalyzer certificate in a drunken driving case yesterday, ruling under a new Supreme Court precedent that prosecutors had to make the officer who performed the breath test available for cross-examination.

Diego Machado allegedly had a blood alcohol content of 0.11, well over the legal limit of 0.08, but he performed well on the field sobriety tests, Fairfax County Circuit Court Judge Jane Marum Roush determined. She then dismissed the drunken driving charge against Machado.

Roush's ruling appears to be the first such dismissal by a Circuit Court judge in Northern Virginia. It was not a written opinion and is not binding on the lower traffic courts. But a phalanx of defense lawyers who watched the hearing left the courtroom quietly jubilant and congratulating colleague David Bernhard, who first tried to use the new Supreme Court ruling on the same morning it was issued. That caused Roush to crack, "You're going to make me read Justice Scalia before lunch?"

Scalia wrote the opinion in the recently reviewed case of Melendez-Diaz v. Massachusetts. The court ruled that the Sixth Amendment right for a defendant "to be confronted with the witnesses against him" was not satisfied by a simple lab sheet. The lab analyst who made the determination that the white powder in the Melendez case was cocaine had to testify too, Scalia wrote.

The ruling extends to breathalyzer certificates, DNA analyses and all manner of documents that prosecutors previously used to help prove a case against a defendant. "What Justice Scalia has said," Bernhard argued yesterday, "is that trial by affidavit is at an end."

But the prospect of bringing lab technicians and breathalyzer operators to court in every case has sent shock waves through prosecutors' offices across the country. In Fairfax, most police officers are not trained to use the breath machines. Blood alcohol tests are done in the county jail by a smaller number of officers and civilians, and prosecutors are trying to figure out how to get them to court for the more than 4,000 DWI cases that churn through Virginia's busiest courthouse every year.

"It's Christmas in July for criminal lawyers who defend drunk drivers," Fairfax Commonwealth's Attorney Raymond F. Morrogh said Friday. Even if Virginia changes its law to require defense attorneys to provide notice that they want to challenge the breath test technician, Morrogh said defense attorneys would always do so. He said he disagreed with Scalia's comment that his ruling wouldn't cause an upheaval because so few cases go to trial.

"Down here in the mud, that's not how it works," Morrogh said.

Virginia Gov. Timothy M. Kaine (D) has been discussing the issue with legal advisers, his spokesman Gordon Hickey said, including the option of calling a special session of the General Assembly to amend the law. But he said the governor had not decided what action to take.

Machado, 29, was charged in December with his second DWI offense in five years, and he has three reckless driving convictions among his 10 traffic convictions in Virginia since 2001. He was convicted in Fairfax General District Court in April and appealed to Circuit Court.

The trial was held in June, but Roush did not issue the ruling until yesterday. In June, a Fairfax officer who performed the breathalyzer test was present and available to testify, Assistant Commonwealth's Attorney Kathryn A. Pavluchuk noted. But Pavluchuk did not call him, and Bernhard objected to the breathalyzer certificate being admitted after being handed the Melendez-Diaz case, issued two hours earlier.

Roush took a recess to give both sides a chance to digest the decision. But still, the prosecution did not summon the officer, with Pavluchuk arguing yesterday that Bernhard could have done that. Yesterday, Roush cited Scalia's ruling that the Sixth Amendment's confrontation clause "imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court."

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