On March13, 2013, with the decision of Fitzgerald v. Commonwealth, the Court of Appeals clarified a rule making it easier to prosecute DUIs in Virginia.

 In upholding the defendant’s conviction, the Court found that breathalyzer results can be used at trial WITHOUT witness testimony that the breathalyzer was properly calibrated.  In deciding the matter, the Court stated that the Virginia General Assembly had no intention to require such testimony.

For many criminal defense attorneys, the Fitzgerald decision came as a shock, particularly, with the 2009 United States Supreme Court of decision of Melendez-Diaz.  There, the Supreme Court held that a witness must be present to testify about administering a breath test to a defendant before any results of that test can be introduced at trial.  The reason being that a defendant has a right to confront and cross examines any witness against him.

Frankly, I believe Fitzgerald to be flat out wrong.  It presumes an intention from the General Assembly that is simply not there.  Nevertheless, it will be a case that all criminal defense attorneys will have to address when fighting DUIs at trial.

For more information, feel free to contact me.

James S. Abrenio

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