Attacking Blood-Alcohol Evidence

Click Here to Listen 

Continued from Page 4...

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.]