DETERMINING BLOOD ALCOHOL CONCENTRATION

Unlike some states, Virginia law does not allow an individual to choose between selecting either a breath or blood sample. Instead, the statute requires a breath sample unless the breath machine is unavailable or the individual is physically unable to submit a breath sample. In this situation, the individual will be required to provide a blood sample. Before giving a breath sample, the statute requires that the test administrator:

• advise the individual of the right to observe the analysis process
• allow the individual to see the blood-alcohol reading on the machine
• provide a copy of any printout result from the breath test to the individual

If an individual refuses a breath and/or blood test, the person will be charged with the separate offense of refusal as well as DUI, but not be forced to provide a blood sample.

A common breath test device currently authorized by the Virginia Department of Forensic Science is the EC/IR II. This device is designed to measure blood alcohol concentration through sampling an individual's deep lung air. As the name suggests, it uses both an infrared sensor (IR) and electrochemical fuel cells (EC) to extrapolate blood alcohol concentration from the breath sample provided. As machines are not infallible, attorneys who are thorough in analyzing breath cases will ensure:

• that the breath test device is properly serviced and certified
• that the machine operator has been trained and certified
• that the machine operator has followed the proper protocolsRecent court decisions have changed the legal landscape with respect to the admissibility of certificates of analysis by the prosecution in a criminal case before the court. While it used to be the certificates were afforded a fast track towards admissibility into evidence, the prosecution is now required to lay a foundation through witness testimony for their admissibility, unless that procedure is waived by the accused.

It is important for the attorney to challenge the admissibility of the certificate of analysis before it is admitted into evidence by the prosecutor. If the certificate is admitted into evidence, the judge or jury may then infer that the individual's blood alcohol concentration as reflected on the certificate represents that concentration while operating his/her vehicle. While this inference can be challenged, it usually will require the help of an expert versed in the intricacies of toxicology.

There are instances where the officer may elect to have a blood sample drawn as opposed to a breath sample. Often times, in more serious accident cases where the individual is taken to the hospital, a blood sample may be drawn with the purpose of identifying blood alcohol concentration. Virginia requires very specific procedures be followed when blood samples are taken for evidence.

Once the blood has been drawn, additional specific requirements relate to the blood’s handling and transportation to the Department of Forensic Science for analysis. Each procedure must be followed to ensure the integrity of the blood sample to include:

• placement of the blood within approved vials
• the vials being properly sealed
• the completion and attachment of certificate of blood withdrawal forms to each vial
• each vial properly identified with the individual's name, the name of the person taking the blood sample, the officer's name, and the date and time the sample was taken
• the vial being placed in approved containers and properly sealed
• the prompt delivery of the vial by the arresting or accompanying officer to the Department of Forensic Science

After the blood has been tested, the Department of Forensic Science will generate a certificate of analysis. This certificate will contain the individual's blood alcohol or drug concentration, identifying information for the individual and a recitation of the procedures used to test the blood. Once completed, the certificate of analysis will be attached to the withdrawal certificate and transmitted to the clerk of the court where the case is pending.