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 "You are aware that this model has been superseded by a new model, 68.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.