Will the survivors of the next VA DUI victim be able to sue the state for depraved indifference?

Maybe even Billy Martin…

+1. Regular calibration is needed. Issues regarding motors and software are a side issue. The whole system needs testing.

In medical parts testing, a calibration failure results in re-testing of all lots tested between good and bad calibrations.

Data from regular calibrations is also a useful tool for determining when to replace equipment.

You’d think the state would have good calibration records showing that these machines measured correctly.

Seriously?!? That’s the actual name? It sounds like something that Billy Mays would be selling. And if you order within the next 20 minutes (’cause we can’t do this all day) you get a free stick of Mighty Putty!!!!

You have a field test (results not admissible in court), then go to the station for a real breathalyzer test.

That is largely true throughout the United States.

Although I don’t think someone at .073 and .085 are more drunk than the other, the difference in penalties in considerable. 5 days in jail, $1000 in fines, etc. And you can’t visit Canada again, although some people consider than more of a bonus than a penalty. Oh, and forgot about renting a car for the next five years.

So, yes, minor calibration errors play a role.

Also, Virginia doesn’t have a diversion program for first time offender. Yes, you can maybe cut a deal for reckless driving. But that is after spending $3000 for an attorney.

This case isn’t that interesting; it sounds like a marginal case the prosecutor was willing to throw away. I doubt any judge in Virginia will ever rule on it. You would have to be insane to NOT take that plea deal. There was another Fairfax Judge who was throwing out DUI cases as well, perhaps something in the water there. I know at Law school in VA the local judge would throw out a case on any excuse, as he was mad at the police for his own DUI.

It sounds like something out of Robocop, doesn’t it?

In Ontario they take you to the station and give you another breathalyzer which you can refuse. The roadside unit is not legal.

With the trillions of dollars made off of DUIs they should be using top notch equipment for this.

Good Lawyer, he vigorously defended his client and easily saved his client 15-20 grand in court costs, insurance premiums, fines, classes, etc.

On the down side his client was probably DUI or at least impaired. He could have injured or killed someone out there. Now he high fives the attorney and heads to a bar for a celebration.

In the end the lawyer is correct that a defendant deserves an accurate machine. In this day and age the authorities have a responsibility to take some of that “fine” money and keep up with technology. Or at least calibrate them regularly.

Not everywhere. In Ontario this seems to be the case** but it’s not a given, especially where budgets are thin.

** (I know I’ve blown a positive on the breathalyzer after using mouthwash very shortly before and getting pulled over on the way to what was a hopeful date, but ended up with me waiting at the station to get blood drawn)

Fix the problem with Decals.

Remember the radar gun what was proven inaccurate because an officer could aim it at something else, the example used in court was shaking car keys in front of it, to get it to register?

They solved that problem with a decal that read “Do not shake car keys in front of antenna when measuring vehicle speed.”

No, blood is not automatically drawn that way. In most cases it’s just the word of the breathalyzer as proof.

In King County (Washington State), just before the last election cycle, a judge announced he would no longer allow results from the breathalyzers being used. How convenient it was just after a high female politico was arrested for DUI running for re-election after blowing a pretty ugly number on one.

Man how the state did howl at that!

It took a lot of courage in the face of a lot of heat from every direction but he held his ground. It wasn’t too much later all the problems with the machines started pouring out.

You can only call this a textbook case of an equipment supplier claiming high conformance to doing what it was designed to do then delivering a product easily proven to be at wide variance doing what was promised.

What you have to remember is that the machine can’t be cross-examined like a live witness can. For the results of such a machine to be admissible, the State has to prove to a scientific certainty that the results in a particular case are valid. It’s a process of eliminating possible variables that would cast doubt upon the results. It could well be that the replacement motor specs were sound, but the State got caught with its pants down and couldn’t prove it at trial. And it sounds like Virginia would rather not open up this particular can of worms regardless of what the results would be. I can’t say that I blame them.

The motor supplier is not as important as the motor specifications that it was purchased against. This smells (!) a little like the defense is casting doubt on the machine’s performance simply because the manufacturer can’t tell exactly who produces the motor. I am doubtful of their claim, but that is the job of lawyers.