On Monday, April 22, 2013, The Wagner Law Firm, West Virginia’s premier DUI defense firm, owned and operated by West Virginia DUI defense attorney Harley Wagner, received a telephone call from the West Virginia Supreme Court, advising that State of West Virginia ex rel. Pamela Jean Games-Neely v. The Honorable Joann Overington, Magistrate, Berkeley County, West Virginia, had been upheld by our state’s highest court, 5-0 unanimous.
The significance of this landmark ruling is that any citizen who gets arrested and accused of driving under the influence anywhere in the state of West Virginia, shall now and forever, upon request, have meaningful access to what is often the citizen’s biggest accuser in a DUI case: the breath machine.
This includes all the download data from the machine one year prior to the instant breath sample, and up to one year after the citizen’s provided breath sample. This also includes all accompanying maintenance records associated with the particular breath machine and any court-ordered protected copies of the applicable training and operations manuals associated with the machine.
The significance of this data and accompanying records and manuals is that it provides a citizen a meaningful review of the breath machine used in their case in which to truly ascertain the machine’s accuracy and proper functioning, and therein the credibility of the alleged breath result in his or her case. A faulty machine can lead to an acquittal.
Until this landmark ruling by our state high court, the only thing that a citizen in West Virginia accused of DUI that submitted to the breath machine post-arrest received from the state was a printed ticket that basically just said, “All is working fine, just trust us, plead guilty and go away.”
Not only are the EC/IR II breath machines used throughout West Virginia designed to produce this data, each and every time state personnel do diagnostics on the machines, they too download the data in which to have a meaningful review of the machine’s proper functioning.
Until this landmark ruling from the West Virginia Supreme Court, the state was the only party allowed access to this data.
Regardless of what anyone may say or think, these breath machines are not remotely foolproof, nor above error or the production of inaccurate breath samples. There are indeed occasions when these machines appear to be working properly but the data tells us otherwise, such as in the District of Columbia in 2010 where hundreds of breath samples from EC/IR II machines were ultimately suppressed due to the download data revealing samples coming in 20, 30, 40 and in some cases 50% too high!
Caveat: Any citizen or DUI defense counsel who receives this data and accompanying records and manuals will need to obtain the expert services of a breath test scientist, who will conduct a thorough examination of the provided data, records, and manuals. This expert witness will then give an expert opinion as to the credibility of the breath sample result presented by the state.
The Wagner Law Firm salutes and congratulates its founder, Harley O. Wagner, co-counsel, Jason Glass, Esq., and Wisconsin-based breath test scientist Mary C. McMurray for their tireless hours and work invested in making this two-year battle a success on behalf of the citizen accused.
A proud day for the citizen accused indeed!