Keeping the Breath Test Out of Evidence

3/3/2016
Keeping the
Breath Test
Out of Evidence
Look for Problems with the
Department of Revenue
Records
Keep the Breath Test Results
Out of Evidence
Harger’s device required the test
subject to blow up a balloon
Dr. Rolla N. Harger’s
“Drunk-O-Meter” Circa 1938
Robert Borkenstein’s
"The Breathalyzer"
Circa 1950s
Breathalyzer 900/900A
Smith &Wesson/Draeger Safety,
Inc.
The Official “Dial-a-Drunk”
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3/3/2016
Missouri’s Approved
Breath Testing Devices
•
•
•
•
•
•
5000
8000
Datamaster
DMT
EC/IR II
AS/IV
•
Source: Brian Lutmer, DHSS, Breath Alcohol Testing Program 2/18/
BAC DATAMASTER
1985
Intoxilyzer 5000
Intoximeter RBT-IV
DMT
EC/IR-II
Analyzes and quantifies breath alcohol by employing two
different and independent technologies: IR spectroscopy and
electrochemical cell technology.
Utilizes electrochemical sensor (EC) for quantification and infrared sensor
(IR) technology for slope detection.
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Intoxilyzer 8000
Problems with DOR Records
1. No maintenance report in
packet
Maintenance checks are required to be
performed "at intervals not to exceed
35 days." 19 C.S.R. 25-30.031(3)
Problems with DOR Records
2. Maintenance completed
more than 35 days prior to
driver’s arrest.
Maintenance checks are required to be
performed "at intervals not to exceed
35 days." 19 C.S.R. 25-30.031(3)
Problems with DOR Records
3. Serial number on
maintenance report doesn’t
match serial number on
client’s breath test printout
Maintenance checks are required to be
performed "at intervals not to exceed
35 days." 19 C.S.R. 25-30.031(3)
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Problems with DOR Records
4. Maintenance report illegible
Maintenance checks are required to be
performed "at intervals not to exceed
35 days." 19 C.S.R. 25-30.031(3)
Problems with DOR Records
5. Maintenance Report incomplete
E.g., Simulator solution manufacturer is not
indicated on maintenance report and
Certificate of Analysis is not attached to
DOR records
Rule: Simulator solution must have come
from an approved supplier. 19 CSR 2530.051
Simulator Solution
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Problems with DOR Records
• 6. Simulator solution not from
approved supplier
•
•
•
•
Repco Marketing
Guth Labs
Alcohol Countermeasure Systems, Inc.
Draeger Safety, Inc.
• Rule: Simulator solution must have come from
an approved supplier. 19 CSR 25-30.051
What does a Wet Bath Simulator
Look Like?
Simulator Solutions
• DOH had a gas chromatograph which
could be used to verify the accuracy of
simulator
solution
shipped
to
Missouri.
• It has been covered up with a tarp for
the ten or more years and was just
sold on Ebay a little over a year ago.
Wet-Bath Simulators
• Simulate the temperature of human
breath
• Assumes breath temperature of 34.0 c
• Alabama and German Studies say
average breath temperature is of 34.9
Celsius and 35.0 Celsius
• Every 1 degree increases breath test
result by 6.5 percent [.0755 =.0800]
Dräger Alcotest® 9510
Simulators and Simulator Solutions
7. Simulator not checked using a
NIST certified thermometer during
2013, and annual basis thereafter
19CSR 25-30.051 (4) provides that “Any breath
alcohol simulator used in the verification or
calibration of evidential breath analyzers with the
standard simulator solutions referred to in sections
(2) and (3) of this rule shall be certified against a
National Institute of Standards and Technology
(NIST)
traceable
reference
thermometer
or
thermocouple between January 1, 2013, and
December 31, 2013, and annually thereafter.
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3/3/2016
Why Check the Thermometers?
•
•
•
•
Thermometers go bad
Seals on jar leak
Thermometers break [Montgomery Co.]
FYI: Datamaster and Intoxilyzer 5000
only use wet-bath simulator solutions
for calibration checks. All others can
use dry gas or wet-bath solutions
Problems with DOR Records
Simulators and Simulator Solutions
• Carter v. Dir. of Revenue,
454 S.W.3d 444 (Mo. App. W.D.2015)
• Courtney v. Dir. of Revenue,
2015 Mo. App. LEXIS 1094 (Mo. App.
W.D. Oct. 27, 2015)
• State v. Pickering,
473 S.W.3d 698 (Mo. W.D. App.
2015)
Certificate of Analysis
8. Simulator solution expired at time
maintenance performed.
Lasley v. Director of Revenue,
17 S.W.3d 174 (Mo. App. 2000)
Simulator Solutions
Simulator Solutions
• To my knowledge, DOH has never
visited simulator solution suppliers to
determine whether the solutions are
being properly manufactured
• DOH has (had) been testing two
bottles out of each lot shipped to
Missouri by pouring it into a simulator
and checking it with their BAC
DataMaster.
• RepCo Marketing is a drop shipping
company in North Carolina that does
not manufacture or test its own
simulator solutions
• In their certificate of analysis, they
represent that they manufacture and
test their simulator solutions
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3/3/2016
Simulator Solutions
• RepCo
Marketing
was
originally
incorporated as The Leather Bottle,
Inc., a restaurant and lounge
Problems with Maintenance Report
9. Missing expiration date of Type II
permit on maintenance report
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3/3/2016
Problems with Maintenance Report
10. Heaters Sample Chamber
Temperature not filled in.
Stuart v. Director of Revenue,
761 S.W.2d 234 (Mo. App. 988)
Problems with Breath Testing Records
11. Expired Type III Permit
19 CSR 25-30.011 (3) requires that
breath tests be administered only by
persons holding a valid permit
Problems with Maintenance Records
12. Observation period conducted by Type II
or Type III Permit Holder?
19 CSR 25-30.060 (7)
Problems with Location of Test
14. Computer Generated A.I.R. Forms
• 13. Alco-Sensor IV -Test outside patrol car
• Officer # 1 makes arrest.
• Officer # 2 gives the breath test.
• Officer # 1 inputs all information into
a computer to produce A.I.R. form,
including checklist and certification
section.
• Officer # 2 doesn’t sign or initial
certification section on Page 3.
• Breath analyzers are to be used within
buildings or vehicles used for driving-while
intoxicated enforcement.
• Breath analyzers are not approved for
mobile use in boats or in outside areas.
• 19 CSR 25-30.050 (2)
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15. Arresting Officer hand writes
entire report, including checking BT
boxes
Hire
a
handwriting
expert
to
determine if someone other than the
arresting officer filled out the
checklist and certification section.
(Shannon County case)
16. No evidence in records that person conducting
observation had a Type III or Type II permit
•19 CSR 25-30.060(7) The fifteen-(15-)
minute observation of the subject, which is
the second procedure on the forms in
sections (1)–(6) of this rule, shall be done by
a current Type II or Type III permit holder.
• 17. Machine out of calibration
18. Cal Checks #s Not filled in
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3/3/2016
Another Problem with Breath Testing
Records
• 19. Client’s BrAC is on the legal limit
line – and the last maintenance report
indicates the machine was reading
high.
– Lawson v. Dir. of Revenue, 145 S.W.3d
443 (Mo. Ct. App. 2004)
20.
19 CSR 25-30.051 Breath Analyzer
Calibration and Accuracy Verification
Standards
(2) Standard simulator solutions,
used to verify and calibrate
evidential breath analyzers,
shall be solutions from approved
suppliers. The standard simulator
solutions used shall have a vapor
concentration within five percent
(5%) of the following values:
(A) 0.10%;
(B) 0.08%; and
(C) 0.04%.
• Stiers v. Dir. of Revenue, 2016 Mo.
LEXIS 6 (Mo. Jan. 12, 2016)
• Applies to cases where client tested
between December 30, 2012,
through February 27, 2014
• SB 1014
Intoximeter Alco-Sensor IV/RBT-IV
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ALCO-SENSOR IV
Alco-Sensor IV Error Code Messages
19 CSR 25-30.060(10) When using the
Alco-Sensor IV with printer, the use of
the Manual button shall not be allowed
to obtain a breath alcohol test result
from a subject.
BAC Datamaster Issues
“INVALID SAMPLE”
ERROR CODE MESSAGES TO
LOOK FOR AND WHAT THEY
MEAN?
“Mouth Alcohol, Mouth
Alcohol, Mouth Alcohol”
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3/3/2016
“SYSTEM WON’T ZERO.”
• Serious malfunction
• Kennedy v. Dir. of
Revenue, 73 S.W.3d
85(Mo. App. 2002)
• Professor Danny
Moore’s case
• 19 C.S.R. 2530.011(5)(B)(1)
• "An individual
permitted to
operate a breath
analyzer shall ...
immediately
suspend use of a
breath analyzer
that is not
functioning
properly."
“SYSTEM WON’T ZERO.”
• Maintenance report included with DOR
records showed that the Datamaster
was checked for calibration at 3:30
p.m. at roadblock on day of my
client’s arrest.
• Everything looked OKEYDOKEY, as
usual.
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3/3/2016
“SYSTEM WON’T ZERO.”
• Datamaster had been used and
checked at a roadblock the previous
day near the Randolph County line
after the roadblock was over.
• Datamaster failed the calibration
check at that time - alcohol in the air
blank.
• There was no apparent
communication between
checkpoint officers, or
decision was made to
ignore it if it tested OK
and 2nd checkpoint.
• The next day, my client
was tested…
• Always Check the
maintenance reports on
the DHSS Breath Testing
Program Website! (6 plus 6)
• http://health.mo.gov/la
b/breathalcohol/
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3/3/2016
Alcohol in the Air Blank
DOH Specifications Regarding
Alcohol in the Air Blank
Original Specifications for
Evidential Breath Testing
Instrumentation are located at the
end of materials in this section
Alcohol in the Air Blank
• Vernon v. Dir. of Revenue, 142 S. W.3d
905 (Mo. App. 2004). (WINNER)
• See 19 CSR 25-30.011(5)(B)1.
• But see, Reckner v. Fischer, 121
S.W.3d 296 (Mo. App. 2003). (LOSER)
AMBIENT FAIL
• SOMEONE IN THE BA ROOM REEKS OF
ALCOHOL
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3/3/2016
INTERFERENCE DETECTED
Software used to print out “USE
ALTERNATE TEST”
What should the BT operator do when
INTERFERENCE DETECTED error message appears?
What does Chris Silva say about
INTERFERENCE DETECTED?
Defense Experts Say,
TAKE BLOOD!
Interference Detected
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3/3/2016
“Attaining specificity in the measurement of
ethanol in breath” By C.M. Bell
The BAC DataMaster (Mo
2-Filter
Version
–
Missouri’s)
cannot
be
used in England, Australia
or New Zealand as a result
of this study
BIGGEST PROBLEM WITH THE BAC
DATAMASTER
• THE MOUTH ALCOHOL DETECTION
SYSTEM OF THE BAC DATAMASTER
DOES NOT WORK!
• Testing of Carl’s client
Will Burping Affect the Test?
Intoxilyzer 5000
INTOXILYZER 5000
• Missouri uses MODEL 66 SERIES.
• Replaced by Model 68, Intoxilyzer
8000, and Intoxilyzer 9000.
• Only Missouri still uses the 66 series.
Missouri sucks!
• 66 series did not meet Missouri’s
specifications for breath testing
instrumentation. Nobody knew!
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3/3/2016
Invalid Test v. Invalid Sample v. Insufficient Sample
on Intoxilyzer 5000: What to Do!
INTERFERENCE DETECTED
• When the Intoxilyzer 5000 detects the
presence of interfering substances, it
should abort the test.
• It doesn’t!
Results of DOH Evaluation of
Intoxilyzer 5000 for Ability to
Detect Chemical Interference
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3/3/2016
Inability to Distinguish
Acetone
DMT Error Code Messages
Intox 8000 Error Code Messages
EC/IR-II Error Code Messages
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3/3/2016
Duplicate Breath Testing
• All laboratories are currently performing
at least two tests when analyzing blood
samples in DWI cases
• National Safety Council recommends two
breath tests at intervals between two and
ten minutes after an initial deprivation
period of at least fifteen minutes
• Test results must agree within 0.02 % of
each other
Duplicate Breath Testing
• Eliminates problems with mouth
alcohol contaminated samples
• Good science requires it
• Collins v. Director of Revenue,
399 S.W.3d 95; 2013 (Jeff)(exerpts)
Duplicate Breath Testing
• When the legislature declares that
certain evidence is admissible, the
courts are bound by that declaration.
This rule prevails until the admission
of that evidence runs afoul of the state
or federal constitutions. Evidence can
be so unreliable and inconclusive as to
violate due process of law.
– Ex parte Mayo, 652 So. 2d 201 (Ala.
1994)
Data Storage
Data Storage
• DOH applied for and received grant
money from the federal government to
purchase a new computer and phone
equipment to implement data storage
program
• Computer has not been used; data
storage program has not been
implemented
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3/3/2016
Data Storage email
from Brian Lutmer on 3/02/16
15 Minute Observation Period
• We do not store any data from the
instruments, nor do we have any means to
remotely access or download data from any of
the instruments in the field. The Intox EC/IR
II, the DMT and the Intoxilyzer 8000 all store
some number of tests in memory, although it
varies greatly between them. If I know my
statutes and case law, what you can get on
them in terms of stored data is directly
related to what the LEA is willing to give you.
•
19 CSR 25-30.011(2)(H) Observation period is
the minimum fifteen (15) minute continuous
period that ends when a breath sample has
been provided into the approved breath
analyzer, during which time the operator shall
remain close enough to a subject to reasonably
ensure, using the senses of sight, hearing, or
smell, that a test subject does not smoke,
vomit, or have any oral intake during the
fifteen(15) minute observation period. Direct
observation is not necessary to ensure the
validity or accuracy of the test result
15 Minute Observation Period
15 Minute Observation Period
(J) Vomiting is the act of ejecting the solid and/or
liquid contents of the stomach through the mouth,
and does not include belching or burping;
• Collins v. Director of
Revenue, 399 S.W.3d
95 (Mo. App. 2013)
Read this case!
(K) Examination is a limited visual examination
of a test subject’s mouth and/or denial by a subject
that he or she has any substance in his or her
mouth; and
(L) Substance is any foreign matter, solid or liquid,
not to include dentures, dental work, studs,
piercing, or tongue jewelry.
15 Minute Observation Period
• Check the times on the AIR and BA
Ticket to make sure 15 minutes
• Cross the BA operator/room diagram
• Check to see whose name is written in
on Step 2 (Observed by________)
• Get Booking videos
Rising Alcohol Defense
• Walker v. Dir. of Revenue, 137 S.W.3d
444 (Mo. 2004)
• Kisker v. Director of Revenue, 147 S.W.
3d 875 (Mo. App. 2004)
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3/3/2016
Rising Alcohol Defense
Absorption of Alcohol:
Stomach
Walls
Getting the ethanol
out of the stomach
and into the blood
Stomach
Walls
20%
Pylorus
Stomach
Walls
80%
• Average time to fully absorb alcohol is
52 minutes.
• Defense works best when driver
consumed alcoholic beverages within
15 to 20 minutes of stop.
• Defense works best when driver has
accurately reported number of drinks
and time of drinking.
• Under .10
II-18
2100:1 Partition Ratio Defense
2100:1 Defense
• The law provides that 210 liters of
breath contains the same amount of
alcohol as 100 milliliters of blood when
simultaneously tested. 577.012.2
• For every 2100 molecules of ethanol in
the blood there is 1 molecule of
ethanol in a given volume breath.
• 577.012.2 assumes all humans have
2100 times more alcohol in their blood
than in their breath.
2100:1 Defense
• All breath test machines overestimate the
alcohol concentration of someone blowing
with a partition ratio less than 2100:1
• One study has shown partition ratios
ranging between 1555:1 and 3005:1.
(Dubowski, 1985)
• According the Dubowski study, a person
with a partition ratio of 1555:1 would cause
the Intoxilyzer 5000 to overestimate by
26% the breath alcohol concentration
compared to that of a simultaneous blood
sample. [.06 blood =.08 breath]
Factors Affecting
Blood-Breath Ratio
• Body temperature - Higher than normal
body temperatures resulting from fevers,
exercise, and menstrual cycle variations
in women result in a lower blood-breath
ratio than normal and overestimate of
BAC.
• Hematocrit level (the ratio between red
blood cells and blood plasma)
• The time at which alcohol was consumed
in relation to the time breath alcohol is
measured.
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Body Temperature
Dräger Alcotest® 9510
• Law assumes breath temperature of
34.0 C. (Celsius)
• Alabama and German Studies say
average breath temperature is actually
between 34.9 Celsius and 35.0
Celsius.
• Every 1 degree increases breath test
result by 6.5 percent [.0755 =.0800]
• Always get nurses’ notes from jail!
Breath Temperature
Booth v. Director of Revenue,
34 S.W.3d 221 (Mo. App. 2000)
• Dräger Alcotest® 9510 adjusts BA
result down when breath temperature
exceeds 34 Celsius
• Data comes from thousands of actual
test results where temperature was
measured.
• “While Director is correct that section
577.037.2 RSMo. (1999) statutorily mandates
the breath-to-blood ratio of 2100 to 1, its
argument overlooks the language contained in
subsection three of that very statute, which
states that ‘the foregoing provisions of this
section shall not be construed as limiting the
introduction of any other competent evidence
bearing upon the question whether the person
was intoxicated.’” Booth.
Results of Blood-Breath Comparison
Testing on My Client
Results of Blood-Breath
Comparison Testing on My Client
• Driver’s BAC was .085 at time of
breath test following his arrest
• Driver’s last drink was 60 minutes
before accident- no rising alcohol
defense
• Driver drank 4, 12 ounce Budweiser
beers in 10 minutes
• Driver took breath test on BAC
DataMaster every 5 minutes
• When driver reached peak BrAC, blood
was drawn.
• Sample was sent to lab.
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3/3/2016
Results of Blood-Breath
Comparison Testing on My Client
•
•
•
•
•
.079
.090
.088
.079
.078
15:32
15:37
15:41 BLOOD WAS DRAWN
15:46
15:50
BrAC vs. BAC
(.088) vs. (.069)
Overestimated by 21.6%
23
3/3/2016
Duplicate Breath Testing
• All
laboratories
are
currently
performing at least two tests when
analyzing blood samples in DWI cases
• National Safety Council recommends
two breath tests at intervals between
two and ten minutes after an initial
deprivation period of at least fifteen
minutes.
Duplicate Breath Testing
• Test results must agree within 0.02 %
of each other
• Read Collins
• Thirty-two states and the District of
Columbia
have
adopted
duplicative
confirmatory testing: Alabama, Arizona,
Arkansas,
California,
Colorado,
Connecticut, Florida, Georgia, Idaho,
Maine,
Maryland,
Massachusetts,
Minnesota, Mississippi, Montana, Nevada,
New Hampshire, New Jersey, New Mexico,
North Carolina, North Dakota, Ohio (use of
second sample depends on instrument),
Oklahoma, Oregon, Pennsylvania, Rhode
Island,
Texas,
Tennessee,
Virginia,
Washington, Washington DC, Wisconsin,
and Wyoming.
• Thirty-seven states and the District of
Columbia require a controlled sample or
known solution be used to ensure that the
machine is in proper working order before
each individual driver is tested: Alabama,
Alaska,
Arizona,
Arkansas,
California,
Colorado, Connecticut, Florida, Idaho, Iowa,
Kansas,
Kentucky,
Maine,
Maryland,
Massachusetts,
Minnesota,
Mississippi,
Montana, Nevada, New Hampshire, New Jersey,
New Mexico, New York, North Carolina, North
Dakota,
Ohio
(instrument
dependent),
Oklahoma, Oregon, Pennsylvania, South
Carolina,
Texas,
Vermont,
Virginia,
Washington, Washington DC, West Virginia,
Wisconsin, and Wyoming.
Duplicate Breath Testing
• Eliminates problems with mouth
alcohol contaminated samples
• Good science requires it
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3/3/2016
Duplicate Breath Testing, continued
Defendant’s Exhibit DD
• When the legislature declares that
certain evidence is admissible, the
courts are bound by that declaration.
This rule prevails until the admission
of that evidence runs afoul of the state
or federal constitutions. Evidence can
be so unreliable and inconclusive as to
violate due process of law.
– Ex parte Mayo, 652 So. 2d 201 (Ala.
1994)
The End
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