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Lucy, Esq.
Lucy, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 30168
Experience:  Criminal Justice Degree, JD with Criminal Law Concentration. Worked for the DA and U.S. Attorney.
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Post trial and conviction for a DUI in Virginia, I discovered

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Post trial and conviction for a DUI in Virginia, I discovered that the instructional manual that comes with the breathalyzer clearly states that a minimum of two breath tests must be administered. I was only given one which the arresting officer admitted during trial. Can I use this new evidence? I was on the cusp and a second test might have exonerated me

My name is XXXXX XXXXX I'd be happy to answer your questions today. Please note that you are asked to rate my courtesy and professionalism, and not whether the answer supports your legal position. I only receive credit when rated 3 or higher. If for any reason you feel that a low rating is appropriate, please first give me the opportunity to address your concerns by clicking the "reply" tab.

There may be a slight delay in response time, as I may be helping with other questions or I may be away from the computer. I will answer any follow-up questions as soon I can.

You wouldn't be able to appeal based on this information, if it wasn't raised during the original trial, because the Appeals Court isn't able to accept new evidence. In some cases, a person can file a Motion for New Trial, if additional information is discovered that could not have been discovered prior to the trial - that's an important qualifier. If you had the manual before the original trial, or you never thought to ask for it, then a judge would likely not grant a new trial on that basis. If there was some reason that you couldn't have obtained the manual before the original trial, then you might have a shot.

Keep in mind, though, that a person can be convicted of a DUI even without a breathalyser, if the testimony establishes that the person was probably driving under the influence. A person can be found to be under the influence even if below the legal limit (although he cannot, as a matter of law, be found NOT to be under the influence if over that limit). So, even if the second test might have been lower than the first, it's possible that you still would have been convicted, if the officer testified re: things such as slurred speech, red eyes, alcohol on breath, and bad driving. If you're going to try to get a new trial, you'll need to be prepared to address and refute that argument.

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