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Following new case, judge tosses DUI charge

Following a new U.S. Supreme Court case, Fairfax Circuit Judge Jane Marum Roush on Friday dismissed DUI charges against a man who allegedly had a BAC of 0.11.

The reason: In June, the high court decided Melendez-Diaz v. Massachusetts, a case generally holding that lab analysts must appear in court rather than merely submit their findings in a written certificate of analysis. The Sixth Amendment gives a defendant the right to confront witnesses against him.

In the Fairfax case against Diego Machado, the commonwealth had the officer who ran Machado’s breathalyzer test in court and available to testify, but he was not called. But the hearing was being held the day that Melendez-Diaz was handed down. Roush continued the hearing, giving both sides a chance to digest the import of the case.

On Friday, the prosecution again didn’t call the officer; Roush threw out the certificate and dismissed the charges against Machado. David Bernhard of Fairfax was Machado’s lawyer. Sources at Fairfax Circuit Court told Virginia Lawyers Weekly this morning that Roush did not write an opinion in the case and has no plans to do so.

Fairfax Commonwealth’s Attorney Ray Morrogh told the Washington Post that it’s “Christmas in July for criminal lawyers who defend drunk drivers.”

Sen. Ken Cuccinelli, the Republican nominee for Attorney General, has called for a special session of the General Assembly to deal with this problem. Gov. Tim Kaine and his advisors apparently are mulling such a move, but Kaine has made no decision yet.

- Paul Fletcher

4 comments

  1. Michael J. McNamara

    Was the prosecutor so arrogant that s/he believed the judge would not dare to dismiss or was s/he aware that there were real problems with the testing device (most likely the Intoxilyzer by CMI) , the testing officer, or the
    testing procedure? There is no logical explanation for failure to call the officer except one of the foregoing.

  2. Michael J. McNamara

    Was the prosecutor so arrogant that s/he believed the judge would not dare to dismiss or was s/he aware that there were real problems with the testing device (most likely the Intoxilyzer by CMI) , the testing officer, or the
    testing procedure? There is no logical explanation for failure to call the officer except one of the foregoing.

  3. Yes it seems to me that the Defense did not win because of Melendez; the defense won because of an incompetent prosecutor.

  4. Yes it seems to me that the Defense did not win because of Melendez; the defense won because of an incompetent prosecutor.

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