On July 17, a judge in Fairfax County Circuit Court threw out a breathalyzer certificate in a DUI case based on a precedent set by a June Supreme court ruling that says that prosecutors must make the officer who performed the breath test available for cross-examination.

Judge Jane Marum Roush determined that Diego Machado allegedly had a blood-alcohol content of 0.11, which exceeds the legal limit of 0.08. However, he performed well on the field sobriety tests. She then dismissed the charge against him.

Roush’s ruling seems to be the first such dismissal by a Circuit Court judge in Northern Virginia. It was not a written opinion and is not binding on the lower traffic courts. However, a phalanx of defense attorneys who watched the trial exited the courtroom quietly jubilant and congratulated their colleague, who first tried to use the new ruling on the same morning it was issued. In response, Roush quipped, “You’re going to make me read Justice Scalia before lunch?”

The opinion was written by Justice Antonin Scalia in the recently reviewed Melendez-Diaz v. Massachusetts case. In that case, the court ruled that the Sixth Amendment right for a defendant “to be confronted with the witnesses against him” was not satisfied just by a lab sheet. Scalia said that the lab analyst who determined the white powder in the Melendez case to be cocaine had to testify too.

The ruling also extends to breathalyzer certificates, DNA analyses, and all manner of documents previously used by prosecutors to aid in proving a case against a defendant.

In December, Machado, 29, was charged with his second offense of DUI within the past five years and among his 10 traffic convictions in Virginia since 2001, he has three convictions for reckless driving. In April, he was convicted in Fairfax General District Court and filed an appeal to Circuit Court.

The trial was held in June, but Roush’s ruling was not issued until July 17. Assistant Commonwealth’s Attorney Kathryn A. Pavluchuk noted that the Fairfax officer who performed the breath test was present and available for testimony in June. However, Pavluchuk did not call him and the defense objected to the breathalyzer certificate being admitted after being handed the Melendez-Diaz case, merely two hours after it was issued.

Bob Battle
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100% of my practice is devoted to serious traffic defense and criminal litigation in state and federal courts
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