Attacking Blood-Alcohol Evidence

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The National Association of Criminal Defense Lawyers and the Information and Resource Center of National Cassette Services present this audio transcript. Recorded in Las Vegas, Nevada at the American Bar Association national seminar titled "Defending DUI Cases — Insights From The Masters".

You could probably tell from that last demonstration, this is not a prosecutor's seminar since there was some humor in this one. Let me turn serious. Drunk driving is a political crime. Unless you understand that and I mean a political crime as we know it today. I see lots of nods out there. Unless you understand that, unless you have that perspective; that you are dealing with a political crime, you are not going to be able to effectively defend a client. You are not going to be able to effectively approach the so called "scientific evidence" either the magic box or field sobriety tests or horizontal gaze nystagmus or anything else. You must develop that perspective. Many of you sense that there's something wrong—that this particular offense is a little different from other criminal offenses, but you still approach it as a criminal defense attorney, rather than as a DUI attorney.

Let's take — what I mean by political crime — let's take the evolution of a political crime. Many years ago and this will be a little bit different chronology than Dr. Burns gave you this morning. Many years ago there was a law passed, "Thou shalt not drive under the influence of alcohol". It was a good law. It was needed. It was just. Don't drive while you're impaired by alcohol. Problem is a lot of people who were arrested were being acquitted because of these criminal defense lawyers. So an inventor came along with a little gizmo, a little box. He called it a "Breathomatic" and he said this is really neat. You breath into the one end and out the other end tells you how much alcohol is in your system. Well, that was pretty neat and the AMA helped out by saying we've done studies. The AMA, I assume you all know, is not a scientific organization, rather political, but we've done studies and we found that if you're over .15 percent, you're probably impaired, so now, the prosecution had the magic box and medicine and science on their side: .15 or higher you're probably under the influence, but there were still criminal defense lawyers in the land and there were still people being acquitted and there was a growing group of concerned mothers out there who created an organization. And do not, by the way, ever take them lightly. They are an extremely powerful, well-organized, well-financed group that is at the seat of most of your problems in this field. And so a law was passed. It's not just evidence that you're under the influence. We're going to legally presume you were under the influence if you're over .15. That should take care of it. So juries were told, you were to presume and there was a lot of hassles about whether that was rebuttable or conclusive. Ended up, constitutionally, thank God, being rebuttable. We're going to presume you're under the influence. Okay, but, surprise: there were still jury acquittals. There were still criminal defense lawyers in there. So they went back to the AMA and they said you want to reconsider that .15? So the AMA reconsidered the .15 and lo and behold it was dropped to .10. Now had the human body changed over that period of time? No. So now prosecutors had it dropped to .10 percent with a presumption. You know the story. They were still — juries were still acquitting because there were these nasty little defense lawyers running around questioning the evidence.

Well, the next step was if .10 doesn't work we'll drop it to .08 and the law was changed again. The body was not changed, the law was changed and it was dropped to .08 and in some states it has been dropped further to .05 and it was still not working and so they passed new laws and the new law was: Okay, if the juries don't believe the person was under the influence over .08, how about if we change the law and make the crime having over .08. What a terrific idea. The crime becomes having over .08, whether you're impaired or not. Not only that, it gives the DA two shots — the prosecutor two shots at you. If he doesn't get you on the .O8, he'll get you on the DUI. Notice, by the way, how increasingly we are getting further and further away from the evil we're trying to resolve and that is: driving while impaired. Well, criminal defense lawyers being very adaptable continued — their attacking continued with acquittals. They pointed out things like, well this is all very interesting, .08 and all, but we got this problem called partition ratio, 2100-to-one. My client may not have been 2100-to-one, so your numbers are meaningless and so MADD, with the assistance of the Federal Government, passed new laws. Supreme Courts and the country started passing new decisions, most notably the Bransford Supreme Court decision in California. Basically they said, "Well, partition ratio isn't really relevant because we're now interested in the amount of alcohol on your breath, not in your blood. We'll re-phrase the statute to say .08 as measured on the breath. We're not concerned about blood anymore". Now in the Supreme Court decision, if California mentioned Bransford, there was a dissenting, lone dissenting justice, Justice Joyce Kinard and she pointed out the obvious (ha) and that is, "My brother Justices, haven't we just created a whole new crime of driving with alcohol on your breath?" Yes, that's exactly what they did. So now we have arrived to the stage where if you are driving with alcohol on your breath, over .05 or .08, or if the DA can get you with another version, they can get a conviction. What does this have to do with truth? What does this have to do with driving while impaired? Less and less and less and you've got to understand that.

Now the second development or series of developments that you must understand, not just intellectually, but understand how this affects your perspective in defending the case, is that not only has science been perverted and by the way, after listening this morning to our first speaker, NHTSA contracting with an organization to just (ha) field sobriety, it's sort of like contracting the American Tobacco Foundation, deciding to give a contract to an organization to determine whether tobacco causes lung cancer, isn't it? I mean it is not — the organization, NHTSA — and anybody here who is familiar with NHTSA knows where NHTSA is coming from. They are not an objective governmental group. They are there for law enforcement purposes. But we have the constitutional problems in DUI. What many of the more experienced of you out here refer to as the DUI exception to the Constitution. Maybe you haven't noticed it, but think about it. Roadblocks, they can stop you, with absolutely no probable cause, according to the United States Supreme Court in Michigan vs. Sitz. No probable cause — they determine if you're committing a crime, okay; they can't do that — if this — if they're trying to find out about drugs or weapons or fugitives or anything else. They can only do it in DUI. Notice, however, when the Sitz case went back to Michigan, Michigan said, "Okay if you're not going to protect our citizens, we will under our State Constitution". And four or five other states now have followed suit.

What about the presumption of guilt? In most states now when the person is stopped, the police officer finds him guilty on the spot, takes his license, suspends it and now you can appeal that suspension. You are presumed guilty and you are punished on the spot by the police officer. We find out, however, constitutionally, that's not presumption of guilt. That's remedial. That's administrative. That's not punishment. What about right to counsel? Is there a right to counsel in a DUI case? No. Not until after they've arrested you, taken you to the station and run you through possibly incriminating chemical tests. Do you know any other offense where that situation exists, where you can be arrested and kept in incarceration for an hour or two while they conduct incriminating tests and you have no right to an attorney, except in four or five states under their State Constitution? No. What about if you refuse to take the tests? Isn't there a Fifth Amendment right against comment on that refusal in Court? South Dakota State Supreme Court thought so until the U.S. Supreme Court reversed them and said, "Oh, no, DUI cases are different." Like Sitz, by the way, it went back to South Dakota and South Dakota said, "Alright we're going to rely upon our own State Constitution then." You can't mention refusals, or the Fifth Amendment right, or the equivalent for South Dakota citizens at least.

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Attacking Blood-Alcohol Evidence #1

Attacking Blood-Alcohol Evidence

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Can we destroy evidence in DUI cases? Yes, according to Trombetta vs. California. Is it double jeopardy for the officer to take the license, suspend it and then in court, in a separate proceeding, suspend it again, or impose additional criminal sanctions? Is that double jeopardy? No, again, because the first suspension was remedial; the second suspension was punitive, so there's no problem. No double jeopardy.

It's important for you to understand and have perspective on what you're dealing with when you go into a DUI case. Alright, we've talked about the development of the crime itself. We've talked about the Constitutional projections and, by the way, what happens in the DUI field—and this is where we are losing our rights—I don't want to sound too much of a zealous advocate, but I feel this very strongly—this is where we're losing our rights. What happens today is going to happen tomorrow in other types of offenses. Roadblocks today for DUI. Roadblocks tomorrow for everything else. It's called precedent.

So we've talked about those two, now let's talk about the third area that I'm supposed to talk about today. That is the area of scientific evidence. I use the term scientific very advisedly. Scientific evidence. Science, evidence, law. What is science? Science is the pursuit of truth. The systematic pursuit of objective truth. Law. Law is society's mechanism for imposing order. Okay. Is science concerned with imposing order? No. In fact, quite the opposite, if you understand quantum mechanics, science has determined that is quite the opposite. It is chaotic, the nature of the universe. Is law concerned with the pursuit of truth? No. They are concerned with the pursuit of order. Of predictability. Public confidence. Of a number of things, but not of truth. There are different goals in science, in law and you've got to understand that when you're dealing with the so-called scientific evidence.

Let's go back a few centuries. There was a time when, according to the Vatican and the civilized world, the earth was flat and the sun rotated around it, so a gentleman named Galileo came along and said "Objection, I've got evidence here that shows the earth is round." Objection overruled and he was [almost] executed. The universe had order. It was not true, but it had order. It was predictable.

Let's fast-forward now. We know that the partition ratio assumed is 2100-to-one. We know that's the presumption, we also know—everyone knows—that it varies anywhere from about a thousand to thirty-five hundred. But, we don't permit anyone to mention it. It is assumed to be twenty-one hundred-to-one. Is that true? Is the Bransford decision and other decisions in other parts of the country true? No. It is false to science. Dick Jensen and any other reputable scientist will tell you that it is a lie, it is false science, but from it comes order. And you have to understand that.

Okay, so to attack DUI scientific evidence, you have to understand what you're dealing with. When you're dealing with these quasi-scientific field sobriety tests and these magic boxes, you're talking about the difference between truth and expediency or imposition of order. The system, the legal system, is not concerned with truth. The defense, now here's where we come to the important point, you must understand what I've just said and from it comes a very important point and that is, when you are defending a DUI case, when you are attacking specifically the subject I have—attacking scientific evidence, what is the strategy, what is the tactic, what is the approach, what is the perspective? The defense is truth. It's truth. What a mind-boggling concept to a criminal defense lawyer! Think about it. You're criminal defense lawyers. The other side, you know, they've got the eyewitnesses, they've got the fingerprints, they've got the cop-out confession. What are you there for? To blow smoke and raise reasonable doubt, right? You have been trained that way. That's how you pursue and defend your cases. DUI isn't like that. DUI is different. What's different is they're the ones who are blowing smoke. They're the ones that are palming off false science. They're the ones that are palming off this field sobriety crap. You are the ones who are trying to point out to the jury what the truth is. That these—this is not science. This is not true, it is false.

This is difficult for some of you to comprehend, that you are interested in bringing truth to the jury in a DUI case. And that is a pretty darn important perspective. I think it's a pretty neat thing. A lot of people ask me why the heck do you defend drunk drivers and nothing else? And I've been doing it for a long time now. Because, two real reasons, one; I firmly believe we are the people at the dam with our fingers in that crack in the dike when it comes to constitutional protection. This is where we're losing it. Two; I like, I really like the feeling that I'm trying to bring the truth to a jury. Long ago I got tired of trying to blow smoke and raise reasonable doubt. I like truth. You've got to understand that is what you are trying to do. You are trying to develop truth. You're trying to get the jury educated to what really is happening. To debunk this false science.

Okay, what is their truth? What is the prosecution's truth? The truth and we'll focus now, because John Henry dealt with field sobriety tests. I'll talk to you about the machine. I'm just going to talk about how you bring the truth out about this box, this metal box, this machine. And many of you heard me speak before, you know I have this thing—don't ever call it an instrument—it's a machine! Juries understand machines. It's not an instrument. Does not have that scientific aura. Does not deserve that aura that the word instrument imposes, it is a machine. And, by the way, I now, since a few months ago, I no longer talk about the other—refer to the other attorney in trial as the Deputy D.A. or the City Attorney or the prosecutor. I found this very effective. I found this out just a few months ago at a trial. I called them the government's lawyer. As in, "I'm here from the government and I'm here to help you and don't worry because I'm a lawyer." I started doing it about, probably about three months ago in Orange County and this Deputy D.A., it actually drove her to tears. I mean she asked the Judge to instruct me to refer to her as a Deputy D.A. You know and it really rattled her. Since then I've been using that and what's in a label? Well, machine versus instrument, I guess. The government's lawyer, versus the prosecutor.

Attacking Blood-Alcohol Evidence #2

Attacking Blood-Alcohol Evidence

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In any event, what is their truth? How good is this machine? Well let's look at the warranty. You didn't know it had a warranty? Got a warranty. Look in the manual. Should have gotten through in discovery. Try to. Just read something from the Intox as the Intoxilyzer 5000, "There are no other warranties, express or implied, including, but not limited to, any implied warranties of merchantability or fitness for a particular purpose." Okay, you got the expert up there on cross. "So what is the particular purpose, Mr. Jones, of this machine?" "What do you mean, what –." "Isn't the purpose of the machine to measure alcohol in the human breath?" "Yes." "The manufacturers say this isn't warranted to do that." That's what it says. "Mr. Jones, do you have a toaster?" "Yeah." "Does it have a warranty? Is it warranted to toast toast? Toast bread?" Repaired components are warranted for a period of ninety days from the date of repair and that warranty is subject to the same limitations as this warranty. This machine breaks down. When it does fall apart and IS shipped back to the factory, it goes back parts and labor for ninety days. Your toaster has a better warranty than that. Bring it down to the understanding of a jury. They understand machines, they understand warranties, they understand things breaking down. They understand ninety days parts and labor.

Okay, well, how critical is it this machine has to be scientifically precise? You want to explain to them what an unreliable machine this is and you also want to point out how critically important precision is in this case. One way to do it is to try to graphically get the jury to understand what we're dealing with. The Intox 5000 captures about, I believe it's around 70 cc's of human breath. On the partition ratio, we're talking about a very tiny amount. About a half a drop of blood in equivalency. Yeah, it's trying to measure the amount of alcohol in a half drop. You know, how much alcohol is that? Well, let's take a, for example, a .10 reading. Five one-hundredths of one percent for the sample. An amount that is invisible to the human eye. This machine is trying to measure an amount of alcohol equivalency invisible to the human eye. Now the jury is beginning to get the picture of what has to be done and what this is.

So how accurate are these machines? Well, in almost every jurisdiction they recognize something called inherent error in dealing with these machines. The expert, if you want to call him that, person from their crime lab or whoever gets up there to lay the foundation will admit, as he must, that there is something called inherent error. In many states this has been recognized by statute and/or case decision. In California, for example, its .01. In most states it's going to be .01. Any credible scientist will recognize at least .01 percent in inherent error and Hawaii is a .015 and so on and so on. Well, let's take it. What does inherent error mean? And you've developed this through your cross-exam, assuming you've got an expert up there. If not, you should have subpoenaed them and/or gotten your own defense expert. Inherent error means if everything is working perfectly, if it's calibrated, maintained and it's operated correctly. If everything—and there are no problems—none in your client with his physiology or with the machine, there's still going to be a .01 range of error. That means if you have, for example, a .10, it could be anywhere from .09 to .11 and still be deadly accurate. Think about that on cross-exam. "Are you telling me, Mr. Jones, that with this machine functioning perfectly, accurately, if everything is right, no problems—in this case it could have been anywhere from an .09 to a .11?" "Yeah." Okay, break that down mathematically. What is that? 20% range of error. From a .09 to a .11 at a .10. Now change the numbers according to your situation. 20% range of error if everything is working correctly. "Mr. Jones, would you get in an airplane, a 747, if the pilot had a 20% range of error in his flying?" "No."

Now it can actually get worse. In most states, there is duplicate analysis. There are still some that have only a single breath sample analyzer. Most require two. In those states almost always the two have to be within a certain range. Typically, as in California, it is .02 percent. That is if you come up with a .10, the next test has to be either .08, .09, .10, .11, .12. Alright? Wow! Now we have 40% range of error! You bring this out for the jury. The prosecution is offering evidence which, if everything is working correctly, has a recognized and acceptable range of error of 40%. And we're talking about proof beyond a reasonable doubt.

One method I kind of like—I don't use it—John Tarantino has something he calls a spiked aspirin. John is up from uh, Rhode Island, a very well-known DUI defense attorney and author in the field. John will get the expert to admit that there is—that these things are not foolproof. And his method is, "Well, you know Mr. Jones, it's—it—this is really, is only about 90% accurate, isn't that correct?" "No, no, better than that." "95%, 97?" Almost always the guy—he has to admit that of course it's not 100% or he wouldn't—he'd lose credibility as a scientist. So he'll say its 99% effective. 99% accurate. So then what John does, he leaves it alone and then in closing argument he gets a little bottle of aspirin. There are 100 white pills in this bottle of aspirin and he shows it to the jury. He says, "Ladies and gentlemen you've got a headache. I've got a bottle of aspirin here. There are 99 tablets of aspirin and one of arsenic. You've got a headache. Are you going to take it?" See, again, you have brought to the jury, graphically, some way they can understand, what we're talking about. Let's take that inherent error, for example. You want to bring it down to the jury's level. Ten, uh, we've got a 20% error factor here. With a .10 to .09 to .11. You go to a car mechanic. The guy says the bill's going to be $100 to fix your car. You come back ready to pay the bill and he gives you a bill for $110. "Wait a minute! Wait a minute! This bill’s $110. You told me it was going to be $100." The car mechanic says, "Hey, inherent error." Juries understand $110 versus $100.

Okay, this is the kind of machine that we've got and by the way, understand something else that is critically important for you to impart to the jury. Not only are these things inaccurate, not only does the manufacturer have no confidence in them, but they don't measure alcohol. Right. They don't measure alcohol. Please, by a show of hands, how many people here know what I'm talking about? Ladies and gentlemen, this machine does not measure alcohol! What it measures is any compound that has the methyl group in it. It's a stupid machine, okay? Their expert will call it a smart machine—state-of-the-art. Smart, meaning it's self-diagnostic and so on. It's a stupid machine. It does not recognize alcohol when it sees it. It does not measure alcohol. It measures any chemical compounds that contain the methyl group. Dick Jensen has a really neat little way of explaining that for juries. He has little models of molecules, atoms and so on. A very graphic way of doing it. There are thousands of compounds out there in the universe that contain the methyl group. More importantly, there are a lot of studies that have been done and you can see them in the various DUI books that deal with the subject. One study finds 102 compounds on the human breath that contain the methyl group. Another study, almost 200 compounds on the human breath that contain the methyl group, meaning the machine will record it as alcohol. What's worse, it is cumulative. If you have 14 different compounds, it's gonna, machine's gonna add them up, because if you know the concept, is there's a breath chamber, infrared light shoots through, the more infrared light that's absorbed by the methyl group, the less gets through on the receptor and the higher the blood-alcohol level goes, right? It is cumulative. The machine adds all those up and reports it as alcohol.

Attacking Blood-Alcohol Evidence #3

Attacking Blood-Alcohol Evidence

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Ah, but the expert says "We've got interferent detectors." They've also got—by the way, got RFI detectors, acetone detectors and everything else and none of them work, or at least work predictably or effectively. The simple fact is objects, compounds such as toluene which are found in paint products, cleaning solvents, petroleum products—you breath it in while you're painting a room—you'll still have it in your system, possibly two to three days later. And that machine will not only register alcohol, the detector, or the interferent detector, will not detect toluene, among other interferents.

So this is what we've got. This is the machine. So how do you develop this? You develop through, hopefully, cross-exam of their expert. If he doesn't show up, I guess then you subpoena him. And, by the way, send him articles. The articles, scientific articles you can rely on—I mail them ahead of time to the guy. You know, I'm going to be cross-examining about this. This is current scientific literature in your field" and when he takes the stand, if he says, "Yeah I read it." Fine, you can develop it and get that into evidence, because he's now relied upon it in his opinion. If he does not, you can develop what kind of an expert is this. He ignores the scientific literature when it is laid right in his lap! So it's a no—no lose scenario. He's going to testify it's a fail-safe machine, it's a smart machine, it's state-of-the-art. This same guy was testifying how wonderful the Breathalyzer 900A was 15 years ago. And you bring that out. How wonderful the 2000 was. How wonderful the Intoxilyzer 4011AS was and now he's testifying the Intoxilyzer 5000 is the state-of-the-art, the finest machine in the world. And you ask him, "You know, Mr. Jones, when you were here three years ago testifying for the Intoxilyzer 4011, did you tell the jury it was a relatively primitive device? That it was not state-of-the-art? That there were problems with it?" "No." He's going to go in and whatever he has to deal with is going to be state-of-the-art. Now maybe he'll say, "Well, we've got the Intoxilyzer 5000 now and now it's state-of-the-art." You're probably not going to have a model 68, you're probably going to have a 64, maybe a 66 and you bring that out. "Well, Mr. Jones, I notice this is the model 66." "Yeah." "You are aware that this model has been superseded by a new model, 68. That the new model has a five-filter system and it has more detectors," etc., etc. Again, what you want the jury to understand is this guy is not telling them the truth. This is a model that has been superseded. It's an old model. It's a discontinued model. If you're dealing, for example, with an Intoximeter 3000, that isn't even being manufactured any more, even though Los Angeles Police Department uses it exclusively. That should tell you something. Oh and by the way, when you're dealing with labs, a lab technician, one question I always ask them now is, "Are your laboratories up to the same standards as the FBI laboratories are?" You do have to stay—keep up to date with current events in these things. Okay, I didn't...


May I have your attention, please, may I have your attention, please, we are currently testing Harrah's life safety system. Please disregard all audible tones. I repeat, we are currently testing Harrah's life safety system. Please disregard all alarm tones.

How appropriate. 15 minutes, okay. Yeah.

Okay, just a couple points about cross-exam. Most of the people in this audience are pretty sophisticated and I think are fairly familiar with trial tactics, if not necessarily DUI sophistry. But don't shotgun, you know, don't throw everything at the prosecution. Pick a few specific areas that are relevant to your case or that you're comfortable with or they're relevant to your jurisdiction. If it's mouth alcohol, focus on mouth alcohol or two or three other things. Okay. You know what happens to juries when you're attacking everything. When you're throwing mud and hoping some of it sticks. Secondly, you've got to make it understandable to the jury. A lot of scientific stuff here. You know, you've got to bring it down. And, third, something I never do, but absolutely believe in and that's to use, use visual—you know, use audio-visual techniques and so on. Okay, let's talk about some specifics.

Mouth Alcohol. You know what the problem is with mouth alcohol. That is, if there is alcohol in the oral cavity or the esophagus and you breath it in the machine, to put it simplistically, the machine is going to multiply anything it sees by 2100 times. So it doesn't take much to send that machine up to a .14, whatever, with a minuscule amount and the jury's got to understand this, a minuscule amount in the mouth. How does it get there? Well, for starters, you should be questioning your client real carefully. Does he have dentures? Does he have loose caps? Does he have periodontal disease or he's bleeding in the gums? Did he have an accident? If there's an accident, you should be looking for blood in the mouth. Does he have a hiatal hernia so that he's getting a reflux that is like gases from the stomach up into the throat. Any of these and a number of other things. Mouthwash, Listerine, Binaca, breath spray. Any of these things are going to put alcohol in the mouth and it's going to go into the machine. What's going to happen? Methyl alcohol and you're going to have a real indeterminately, unpredictably, but higher blood-alcohol result. Well, the officer says, "You know, I—uh—there was a 15 minute observation period and I stared at him for 15 minutes and he never burped or belched." Well, two things wrong with that. We all know that there's never been an officer on this planet who stood there and watched a DUI defendant for 15 minutes to make sure he didn't burp or belch. And there are such things as silent burps and belches and there are all kinds of other problems and causes of methyl alcohol.


May I have your attention, please, may I have your attention, please, we are currently testing Harrah's life safety system. Please disregard all alarm tones. I repeat. We are currently testing Harrah's life safety system. Please disregard all alarm tones.

The life safety system. Is that another scientifically, credible device?

Okay, so the prosecutor is going to put his expert on and redirect and say, "Hey, if there was mouth alcohol, the mouth alcohol detector would have detected it, right?" "Yes". And you on re-cross point out something that the expert probably knows, but the D.A. probably doesn't. And that is that the mouth alcohol detector does not work reliably. There's a real simple reason. Professor Michael LaScalla, who is a professor of the School of Medicine at the University of Washington. A specialist in pulmonary medicine and he explained it on the Internet about a year ago. A real good explanation of the problem. The mouth alcohol detector is called a slope detector. Not very complicated. It simply detects if there is a rapid rise and rapid fall in the amount of alcohol coming into the system, okay. Because if there's mouth alcohol and you breath out, it's going to be a huge rush of alcohol and then a real quick dissipation. It's not going to be a steady flow of alcohol and the vapors such as in a long expired breath, so this little device detects when there is a rapid—usually it's the negative slope—a rapid decline. If there's a rapid decline, it will "Bing!", we've got mouth alcohol here. Problem. Problem. The things are calibrated and set up by using alcohol-free subjects or simulator solution. The most typical way they do it is the technician swashes some alcohol—some alcohol in his mouth and breaths in the machine and if the thing goes off, it's working. Problem. He has introduced alcohol that goes like that. But what if your client is a .05, .06, legal? You don't have two different things happening. You have two sources of alcohol, but you don't have two different analyses. You have one analysis of both sources. What happens? You have one superimposed on the other. The other is going to be a more gradual rise and a tapering off. Superimpose the two together, what do you have? And the negative slope is not sharp anymore. It has been attenuated by the existing plateau or a much more gradual slope of the normal breath and so it does not detect. So the mouth alcohol detector with a person who is not alcohol-free is not going to work.

Attacking Blood-Alcohol Evidence #4

Attacking Blood-Alcohol Evidence

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We talked about simulator solution, just in case someone is not aware. Well, let's talk about partition ratio for a second. Talk about 2100-to-one. What does it mean if you have, let's say, a 1300-to-one ratio. First, we'll never know. We'll never know. You can have your client tested. You can test for partition ratio, but not only does it vary among people, it varies within a person from time to time—from moment to moment.

I repeat we are currently testing Harrah’s–

If I was really paranoid—I remember those two cops standing back there (laughs)?

If it’s 1300-to-1, very roughly you can say for every 200 less it’s going to be a .01 differential. So 1300-to-1 figure out 800.04.

That means if your client was a .07, the machine will say he was a .11. What was his crime? His crime, was not being average. So understand what we mean by partition ratio and the importance of it and how tragic that we have statutes now, in Supreme Court decisions, that tell you—the defense attorney—you will be held in contempt if you even mention the word partition ratio, which is the situation in California.

Okay. Simulator solution, another major problem. Approach to this basically is what the computer people say, "G-I, G-O"—Garbage In, Garbage Out. That machine is no better than the calibration. How do they calibrate it? They use a simulator solution. Most commonly .10% alcohol. They’ll put alcohol in a jar of water, heat it up to body temperature and then test it. And it’s supposed to come out. 10—or give or take some error. Always there is error that is permissible in these cases. Well, there are a lot of problems with that: the mix itself can be inaccurate, it could have been mixed inaccurately; it could be at the improper temperature, in California we’re required—they’re required to tell you what the temperature is. Most states don’t even know what the temperature is. If it’s down from the temperature it is supposed to be at uh, from 34 degree—centigrade—down to 33 degrees, you’re going to have about a 6-7% higher blood-alcohol read inaccurately high blood-alcohol, simply because the temperature was one degree a centigrade off in the calibration. In a lot of states, I repeat, the person doing the calibrating does not know what the solution temperature was for sure.

Another problem: shelf life, or other sources, cracked jar lids whatever, where there is evaporation, condensation. Alcohol will evaporate faster than water! If there has been evaporation of alcohol, then the end result of the calibration is going to be, it’s going to read high. There’s a lot of ways it can happen: one is shelf life. People here, how many people from Ohio? Does Guth Laboratories ring a bell to you people? OK. (laugh) Guth Labs supplies probably a majority of the states today, that do not make their own—uh—solutions and we’re talking about something like—25 or 30 states. They only warrant their solutions for 9 months. But, the Ohio State Troopers told them, "We want a label put on it that says one year." Guth says, "Hey, (chuckle) it’s your product, you’re buying it, you put on whatever you want on it , or we’ll put whatever you want on it. One year." One year. And then it turns out, ahmmm, some of the brighter defense lawyers in Ohio looked into it through discovery and found out they were using two year-old solution in Ohio in some cases. OK. What’s the result going to be? Pretty predictable.

Well, we’ve only got a couple of minutes left, ah, we’ve got a lot of other areas, I haven’t even touched blood and urine. Ah, anybody who’s using urinalysis, you know, ah, that is about as unreliable as any process you can imagine for blood-alcohol. Retrograde Extrapolation, uhm, don’t have a whole lot of time to get into that, except that basically they’re always going to testify that your client had a ri—a falling blood-alcohol, therefore, it was a .11 at the time of the test, it must have been a .14 at the time of the driving. Well, it can be the other way around too, you can have a rising blood-alcohol. So the Retrograde Extrapolation is a real problem.

Last thing I just want to—touch on in the last minute or two—I’ve been lecturing on this—on this one thing for well over 15 years and people still don’t utilize it and that’s Radio Frequency Interference—R-F-I! And I know why. Because we’re lawyers, right? The phrase, it’s like "horizontal gaze nystagmus" or "retrograde extrapolation," you know, it scares the hell out of us! We’re lawyers, went to law school. We flunked science and physics and chemistry. It scares us, just like it scares the prosecutors and it scares the jurors. Understand what RFI—more importantly un—get the jury to understand it. "Mr. Jones, you’ve seen a microwave before?" "Yeah." "You’ve seen ‘em in restaurants, you notice the sign, ‘Warning microwave in use.’" OK. Now you’ve got the jury to understand what RFI is. They’re telling people with heart pacemakers "Watch Out!" This microwave will send out radio waves. EMF, RFI whatever you want to call it. It will interfere with your pacemaker. Other items will too. Any source of RFI—will interfere.

Now, this is most effective in the states that have single analysis, by the way, rather than duplicate. You then establish, you’ve already done that through your discovery, all the sources of RFI in the environment, the police station, the environment where that machine is sitting. It is surrounded, by powerful radio transmitters, transmitter-receivers in the—in the cars—in the police cars out in the lot, electric—ah—jail door locks, television sets, walkie talkies, ah, microwaves, fluorescent lighting. It is—that is, the environment is incredibly rich in radio frequency interference and right in the middle of it is this breath machine. Ah, but if—you’ve got one of those super state-of-the-art machines it’s got an RFI detector, right? Yes! And like all these fail-safe designs it doesn’t work when you understand it. They’re little gizmos they add like when you go into a car dealer and they start adding all these options. These things don’t reliably function. What’s wrong with the RFI detector? Number of things: for one thing there is a blind section of the spectrum that it will not detect. A blind section and if any of these hundreds of sources of RFI are in that range and it’s likely, this detector will not catch it. Secondly, how is it calibrated? Nine times out of ten, this is how it’s calibrated: your technician goes out to the field once every few months, he takes a walkie talkie or a mobile phone and he goes in the room where the machine is and he turns it on. Turns the machine on, that is the breath machine and turns on his radio or his walkie talkie. Did the RFI detector go off? No. Then he’ll walk to a different part of the room and do it again. OK. It went off. OK. It works. Now, what’s wrong with that? Well, a number of things. One; he only used one source of RFI. We don’t know about any of the other wavelengths. Okay? Two; and most importantly, he turned the power on the breath machine on, but he did not run an analysis. In other words there was power, but the circuitry that actually analyzes the breath was not functioning! So we have no idea if that was being impacted by the radio frequency interference.

I’ve just given you a few examples, a very few examples, to get you—to get the idea to you, what you’re dealing with when you’re dealing with blood-alcohol analysis and also standardized field sobriety tests—whatever the heck that means! Horizontal gaze nystagmus, whatever! You’re dealing with a so-called "scientific evidence," understand it is not scientific, it is not the pursuit of truth. It is the pursuit of order. It is expediency. You are the ones, who are trying to bring the truth to the jury. To put it another way, understand when you’re dealing with a DUI case, when you walk into that courtroom the earth is presumed to be flat. And your job, you’ve got to convince the jury, that it’s really round. Thank you. (Applause).

Emcee: All right, 1:45—1:45 this afternoon...

[Note: The tape ends at this point.]