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Implied Consent | Intoxylizer Model 5000 | Certificate of AnalysisVirginia DUI/DWI; Breath Cases
Since driving a motor vehicle is considered a privilege granted by the state and not a protected right, the state has authority to set rules regarding the use of that privilege. One such rule is outlined within the implied consent statute. As stated below, an individual, by virtue of operating a motor vehicle within the Commonwealth of Virginia, implicitly consents to having his breath and/or blood sampled for purposes of determining
alcohol and/or drug content. For this statute to apply, §18.2-268.2 requires that an individual be operating a motor vehicle upon a "highway" and that the test be done within three hours of the alleged offense:
A. Any person, whether licensed by Virginia or not, who operates a motor vehicle upon a highway, as defined in §46.2-100, in the Commonwealth shall be deemed thereby, as a condition of such operation, to have consented to have samples of his blood, breath, or both blood and breath taken for a chemical test to determine the alcohol, drug, or both alcohol and drug content of his blood, if he is arrested for violation of §18.2-266, 18.2-266.1, or subsection B of §18.2-272 or of a similar ordinance within three hours of the alleged offense.
The term "highway" carries a much broader meaning than the colloquial definition we typically associate with it. Definition
Virginia law does not allow an individual to choose between selecting either a breath or blood sample, unlike several other jurisdictions. 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
B. Any person so arrested for a violation of clause (i) or (ii) of §18.2-266 or both, §18.2-266.1 or subsection B of §18.2-272 or of a similar ordinance shall submit to a breath test. If the breath test is unavailable or the person is physically unable to submit to the breath test, a blood test shall be given. The accused shall, prior to administration of the test, be advised by the person administering the test that he has the right to observe the process of analysis and to see the blood-alcohol reading on the equipment used to perform the breath test. If the equipment automatically produces a written printout of the breath test result, the printout, or a copy, shall be given to the accused.
In Virginia, 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. More on Refusal
The breathylizer device authorized for use by the Virginia Department of Forensic Science is the Intoxilyzer Model 5000. This device is designed to measure blood alcohol content through sampling an individual's deep lung air content. From this sampling, it is able to extrapolate the amount of alcohol within the blood. As machines are not infallible, attorneys who are thorough in analyzing breath cases will ensure:
- that the breathylizer is properly serviced and certified
- that the machine operator has been trained and certified
- that the machine operator has followed the proper breathylizer protocols
Virginia Code §18.2-268.9 provides some of these detailed requirements:
To be capable of being considered valid as evidence in a prosecution under §18.2-266, 18.2-266.1 or subsection B of §18.2-272, or a similar ordinance, chemical analysis of a person's breath shall be performed by an individual possessing a valid license to conduct such tests, with a type of equipment and in accordance with methods approved by the Department. The Department shall test the accuracy of the breath-testing equipment at least once every six months.
The certificate of analysis generated in both breath and blood cases is accorded a special status in Virginia courts. While for most documents special requirements are necessary to get them into evidence and therefore considered by the court or jury, the law makes it easy for the prosecutor to get the certificate of analysis into evidence. If the certificate contains the right language, under Virginia Code §18.2-268.9 it is considered self-authenticating and admissible.
...Any individual conducting a breath test under the provisions of §18.2-268.2 shall issue a certificate which will indicate that the test was conducted in accordance with the Department's specifications, the equipment on which the breath test was conducted has been tested within the past six months and has been found to be accurate, the name of the accused, that prior to administration of the test the accused was advised of his right to observe the process and see the blood alcohol reading on the equipment used to perform the breath test, the date and time the sample was taken from the accused, the sample's alcohol content, and the name of the person who examined the sample. This certificate, when attested by the individual conducting the breath test, shall be admissible in any court in any criminal or civil proceeding as evidence of the facts therein stated and of the results of such analysis. Any such certificate of analysis purporting to be signed by a person authorized by the Department shall be admissible in evidence without proof of seal or signature of the person whose name is signed to it...
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 presume that the individual's blood alcohol content as reflected on the certificate of analysis represents the individual's blood alcohol content while operating his/her vehicle. While this presumption can be challenged, it usually will require the help of an expert versed in the intricacies of toxicology. More on Presumptions