Virginia Appeals Court rules that Commonwealth need not prove accuracy of blood alcohol tests
The Virginia Court of Appeals ruled recently in Fitzgerald v. Commonwealth that trial judges in DWI cases must admit into evidence the results of blood alcohol breath tests even when the Commonwealth has offered no other evidence to establish that the breath test machine is functioning accurately. This has been a bone of contention since 2009, when the United States Supreme Court ruled that prosecutors must produce live witnesses who can be cross-examined by the defense when the prosecution uses forensic science to convict a defendant.
The Virginia Code makes documents proving the maintenance and accuracy of breath test machines admissible in a prosecution, but it was also unclear whether those documents would violate the constitutional right of defendants to confront the witnesses against them, since the machines were maintained and calibrated by state employees.
The Court of Appeals has rendered those questions moot by ruling that the Virginia Code creates a presumption that breath test devices are accurate and that a defendant must introduce evidence to rebut that presumption.
The Court of Appeals did not explain how this presumption of accuracy and the accompanying burden-shifting to the defendant is constitutional in light of Yap v. Commonwealth and a long line of Virginia cases which hold that presumptions in prosecutions violate a defendant’s right to a fair trial by essentially requiring them to prove their innocence.
We expect the Supreme Court of Virginia to weigh in on this issue within the next year, as the opinion of the Court of Appeals seems to contradict – at least in theory – several well-established legal precedents.