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Parkway driver wins breathalyzer challenge

A driver who admitted drinking before watching a race at the Martinsville speedway and who blew a .12 beat a charge of DUI on the Blue Ridge Parkway because the government could not prove the accuracy of the Intox EC/IR II breathalyzer used to test him.

Traffic lawyers with questions about breathalyzer machines have seen some success in state courts in recent years, and the state legislature wrestled with proving breathalyzer reliability in the wake of Melendez-Diaz.

Lawyers looking to challenge the Intox EC/IR II, a newer model in use in state and federal courts, may want to review U.S. v. Foster, a Nov. 4 decision by Roanoke U.S. District Judge Michael F. Urbanski.

David Foster was pulled for speeding on April 3, 2011, after a park ranger’s laser gun clocked him traveling at 50 miles per hour in a 35-mile zone. Foster admitted to the ranger that he and his passenger had been “pre-gaming” before the race, but Foster said he had nothing to drink since the race started.

Foster had no trouble pulling into a parking space but his performance on field sobriety tests was a “mixed bag,” Urbanski said. It was clear he had been drinking, not clear he was impaired.

Urbanski faulted the government for not laying a proper foundation under federal evidence rules for admission of a certificate of instrument accuracy for the Intox EC/IR II breathalyzer. He rejected as insufficient a certificate of instrument accuracy signed by Melissa Kennedy, section supervisor for the Virginia Department of Forensic Science, who certified the machine’s performance as of March 10, 2011.

There was no declaration from the DFS records custodian, or another qualified person, verifying the authenticity of the certificate of accuracy, Urbanski wrote.

The trooper who performed the breathalyzer test could testify about how he administered the test, but he could not vouch for the accuracy of the machine, according to Urbanski. The certificate showing .12 grams per 210 liters of breath could come in, but questions about the accuracy of the machine on the night in question affected the weight of the evidence, the court said.

Foster admitted to drinking earlier in the day. The ranger noted Foster had watery, bloodshot eyes and an odor of alcohol, and he showed some signs of intoxication on field sobriety tests. But there was no evidence to establish how much Foster had to drink and when; his driving was not erratic. He was oriented, focused and able to follow the ranger’s instructions and able to maintain his balance on the dexterity tests.

Calling it “a close case,” Urbanski said the government did not meet its high burden of proof.
By Deborah Elkins

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