The West Virginia Supreme Court has just upheld a DUI discovery request in the case of State of West Virginia v. Games-Neely, D.N. 11-1648 (2013). At issue is whether or not a Defendant is entitled to the records of a DUI breath machine. Specifically, the Court held that a Defendant has the right to challenge the State’s foundation for admitting the Intoximeter results, as well as the right to challenge whether the test was in compliance with the statute and the protocols approved by the department of health.
In layman’s terms, this ruling grants Defendant access to the download data from the machine as well as its maintenance records. It’s been my experience that these machines are not as accurate as they are purported to be. A proper expert witness has the ability to explain to a jury that these machines often give unreliable blood-alcohol (BAC) samples, and depending on any number of variables, can give false positives for BACs above the legal limit.
Furthermore, the machines, to my knowledge, are not certified by their respective manufacturers to be accurate to any certain extent, only to operate as advertised. Now, armed with this new discovery information, a defense attorney has the ability to impeach what is often the only eyewitness against a DUI defendant, the machine. If you or anyone you know suffers from a DUI in West Virginia, I am available to review the case and determine if the machine used may have a problematic record.