If it was not already hard to win one of these hearing, it just keeps getting harder. The Court of Appeals has recently announced rulings that interpret our Breath Testing Statute- §16-205.1 as requiring a minimum of paperwork that has to be submitted in order to provide a prima facie case. The Sworn Certifications of the arresting and testing officers are enough- even without the test slip. The burden shifts to the driver to rebut this evidence. Well if you have a copy of a breath test result slip with less than the legal limit, you have some evidence. On the other hand, since you will not, the client loses. This law is for the benefit and protection of the public, and the Court is not going to require the MVA to provide much evidence.
In a recent case, there is an indication, that there may not be a right to an attorney in the Administrative setting. If denied a lawyer, the evidence (test or refusal) may be suppressed in the criminal case, but may come in for Administrative sanctions. There is an argument about the confusion this creates for a driver, but that is for the next case before the Court.
I watched a recently argued case on line concerning the “bad faith” issue. It seems the Court might hold that where the officer provides a bare minimum of information, the driver bears the burden of presenting the facts concerning bad faith. I won a “bad faith” case two weeks ago because I had the video-tape not only showing but proving the stop was unwarranted. There is a story behind that, but I may post about it later. It was the first “bad faith” win, and I have done a lot of these. Without the tape, the client is either walking or blowing into an interlock. The criminal case was also nol prossed. It was pretty bad what happened, but the case is not really over yet.