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W.Va. Supreme Court rules in favor of right to obtain breath machine evidence in DUI cases

April 22, 2013|By MATTHEW UMSTEAD | matthewu@herald-mail.com

MARTINSBURG, W.Va. — Motorists charged with driving under the influence are entitled to have the state provide downloadable data that shows the working history of the breath machine used on them, according to a West Virginia Supreme Court of Appeals opinion filed Monday.

“Any citizen arrested for DUI that submits to the breath machine shall now have meaningful access to their biggest accuser, the breath machine,” said defense attorney Harley O. Wagner, who successfully argued for the right to obtain the evidence.

The high court’s opinion affirmed the decision of now former 23rd Judicial Circuit Judge Gina M. Groh, who sided with Berkeley County Magistrate JoAnn Overington in a pending DUI case, according to the 22-page ruling.

The state argued that Overington exceeded her authority by requiring it to produce breath machine data information that Wagner requested, according to court documents. And as a result, the state had also argued that Groh, who has since been appointed as a U.S. district court judge, had erred in not issuing a writ to prohibit the data requested by Wagner.

Wagner said Monday the data shows how the breath machine is functioning and ultimately points to the accuracy of the test results that are produced.

Until this decision, the state was only giving people a ticket telling them that they had cancer, so to speak, and to trust the accuracy of the results and then told them to go away, according to Wagner.

The state Supreme Court ruled that the defendant in the DUI case has a right to challenge the state’s foundation for admitting the results of a breath test as well as the right to challenge whether the test itself was in compliance with the law and state-guided protocols.

With the decision in hand, the pending DUI case now returns to magistrate court for adjudication with Wagner’s request for the breath machine data still pending, Wagner said.

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