1. In a June 28, 2006, email, the Department of Forensic Science (DFS) admits that the breath testers used to convict Defendants are failing. Ms. Lohmann, head of DFS’ breath alcohol section attempts to minimize such failures.
Instrument failure and repair rates are increasing Increasing difficulty in obtaining parts and technology changes dictate that replacement must be scheduled.
2. Earlier in an August 31, 2005 email from Lohmann admitted:
We need to obtain and implement new equipment because some Intoxilyzer units are already 10 (almost 11) years old. The manufacturer is no longer making all the same parts. The motors the instrument currently uses no longer last very long (due to changes in manufacturing).
3. The motor problem is apparent in a September 1, 2005 email to Lohmann and the head of DFS. Aside from the reliability issue, the technology used in the Intoxilyzer is obsolete.
The motors are another issue; the current motor will be discontinued as of January 1, 2006. The “replacement” motors are currently in short supply and have jumped from $5 to $80-$100 per motor…I believe CMI doesn’t want to continue to support the 5000 line since they have 2 generations of instruments produced since that time.
4. In furtherance of its obligation to ensure adequate tests, DFS has kept a trouble call log for all the breath testers in the state.
5. The relevant trouble call log was begun in 1997 when the evidentiary breath tester was placed at the Rockingham County Sheriff’s Department.
6. In late February or early March, 2007, in the face of failing technology, this log was discontinued without notice or explanation for the local breath tester. The fact this log was discontinued at a time this breath tester was failing is exculpatory. The state’s refusal to provide a credible reason why only this tester’s log was discontinued in the state is exculpatory.
7. DFS has manipulated the trouble call log in the past to make this breath tester seem reliable.
8. This manipulation was done despite the fact the trouble call log is a public record. Making such alterations is illegal and improper.
9. On July 27, 2006 the breath tester displayed DVM (Differential Voltage Measurement) values and processor failure.
10. In response to this serious problem, the relevant technician initially wrote her response was to “check all vitals via modem and found no problem.” However, DFS has “limited ability to troubleshoot from Richmond” and the technician cannot check all vitals via modem.
11. DFS then altered the technician’s response to “contacted instrument via modem. Instrument functioning properly.”
12. DFS has consistently failed to note this alteration or any other alterations to the trouble call log in responding to subpoena duces tecum or FOIA requests.
13. The relevant breath tester suffered electronic instability on July 28, 2007 and DFS made no trouble call record of this incident.
14. The relevant breath tester suffered electronic instability on December 23, 2007 and was unavailable until December 27, 2007. DFS made no trouble call record of this incident.
15. Article 1, Section 11 of the Virginia Constitution provides that “no person shall be deprived of his life, liberty, or property without due process of law.” Due process of law is also required by the Fourteenth Amendment of the United States Constitution. “A fair trial in a fair tribunal is a basic requirement of due process.” Billips v. Commonwealth, 48 Va. App. 278, 630 S.E.2d 340 (2006), quoting, In re Murchison, 349
U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955).
Due Process represents “a profound attitude of fairness between man and man, and more particularly between the individual and government.”
Joint Anti-Fascist Refugee Committee v. McGrath, 341
U.S. 123, 162, 71 S.Ct. 624 (1951).
In fact, “fair play…is the essence of due process.”
Galvan v. Press, 347
U.S. 522, 530, 74 S.Ct. 737 (1954).
“A citizen has the right to expect fair dealing from his government.”
S & E Contractors, Inc. v. U.S., 406
U.S. 1, 10, 92 S.Ct. 1411 (1972).
16. Illegally altering records to hide problems with the government’s case is not fair dealing. 17. Discontinuing the trouble call log for the government’s evidentiary breath is not fair dealing.18. Refusal to provide exculpatory evidence is not fair dealing.
19. Refusal to provide truthful, accurate and complete responses to subpoena duces tecum and FOIA requests is not fair dealing.
We represent people charged with DWI/DUI, reckless driving, speeding tickets and people injured in car crashes. If you have questions about any of these topics please look on our site for the information E-Books: http://www.bobkeeferlaw.com. Attorney Bob Keefer has been practicing in the Shenandoah Valley area of Virginia for over 25 years. He routinely goes to court in Rockingham County VA; Harrisonburg VA; Augusta County VA; Staunton VA; Woodstock VA; Shenandoah County VA; and Waynesboro VA. His other sites are http://www.keefercard.com; http://www.duidriver.net; http://www.recklessdriving.net
