WV Supreme Court Grants Extended Breath Test Discovery

An opinion was issued in the case in which West Virginia DUI attorney Jason Glass appeared before the West Virginia Supreme Court of Appeals back in March, which grants extended breath test discovery in all DUI breath test cases in West Virginia.

Yesterday the state’s high Court released an opinion in State ex rel Pamela Jean Games-Neely v. Joann Overington, Magistrate.  In a 5-0 per curiam decision by the Court, the Court ruled that in cases where the State intends to use test results of the Intoximeter EC/IR II to establish the defendant’s blood alcohol content, then the defendant has the right to challenge the State’s foundation for admitting the results, which includes the download data from the machine itself.

The magistrate in the case below granted a myriad of extended discovery for the breath machine used on the case, including the download data, complete maintenance records, user and operator’s manuals, and information concerning how the simulator solutions were manufactured and tested.  The Supreme Court held that all of this information is relevant and material in a DUI case where the State seeks to introduce the results of the Intoximeter.

Why is the download data and other information important in DUI cases?  Because the download data is a procedural history of sorts of the breath test machine where defense experts will get to take a meaningful look at the calibration inspections, when they’ve exchanged their dry gas tanks, and a look at the fuel cell information of the machine itself.  One gets to look at every aspect that goes into the breath test so when the state hands you that printer ticket with the results on it and say “trust us” you get a scrutinized and meaningful review of, often times, the most critical piece of evidence in a DUI case.

With this ruling West Virginia now comes into line with several other states who use the Intoximeter EC/IR II, all of which allow for expanded breath test discovery.

This ruling is the culmination of a long fight in which the state has opposed defense attorneys around the state in every attempt to gain access to the download data of the breath machines.  And for what reason?  What are they afraid it will show?  It could result in one of two things, either we look at the data and it shows nothing improper and it helps the state’s case, or it can show glaring problems with the state’s breath testing program.  We don’t know what it will show, because we have never been allowed access to this information before.  What I do know, is that when this information was disclosed in Washington D.C., it resulted in shutting down their entire breath testing program because of the errors that was found, impacting hundreds of DUI prosecutions.

Its hard to say what a meaningful review of this information will show in West Virginia, but, the days of the state saying, “here’s your results, trust us, its correct” are over.

If you have any other questions regarding breath testing in West Virginia, or just DUI’s in general, make the CLEAR choice and call the Glass Defense Firm today!

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