On March 5, 2013, West Virginia DUI attorney Jason Glass appeared before the West Virginia Supreme Court of Appeals to present a case which could impact hundreds if not thousands of DUI cases across the entire state of West Virginia.
The case dealt with whether or not the State has to produce the data which is downloaded from the breath machine, the Intoximeter EC/IR II, in any DUI breath test case. It was argued that requiring the state to produce said evidence is the only way that a defendant can meaningfully challenge the results of the breath machine, most times the only piece of evidence use in a DUI case. The data is not burdensome for the state to produce, it can be done in less than 20 minutes and put on a disc for defense counsel. Moreover, most states that have litigated this issue have found that the defendant has a constitutional right to said evidence. States such as South Carolina and Washington even place the download data online where any defense attorney or expert can view it.
There is really no good reason or argument for the state NOT to provide this evidence in a criminal case where a person’s liberty, job, home, etc. is in jeopardy.
We are hopeful that the West Virginia Supreme Court of Appeals will agree with our position and grant an Order requiring the State to produce all download data, maintenance records, and machine manuals in every DUI breath test case. Stay tuned in the coming months for the decision.