Demolishing the State's Test Results
Through Cross-Examination

Note: the following lecture was presented by Mr. Taylor in 1997 at a national seminar in New Orleans entitled "Mastering Scientific Evidence in DUI/DWI Cases."

Click Here to Listen 

Like Jess Paul said yesterday, you know, he got a phone call from Bubba — I got one three or four months ago — and Bubba said, "Can you talk at this seminar in New Orleans" and I said "Sure."

Bubba always throws great seminars. You never say, "No." And he said, "Well how 'bout if you talk about cross-examining the blood-alcohol expert." I said, "Okay." And about two months later in the mail I got the brochure and I learned that after my one hour presentation here, you are going to know how to "demolish" the State's blood-alcohol case. Uh, maybe not, maybe not, but I think, I hope to be able to at least point you to a few areas that you may not be familiar with and also to suggest to you some tactics, some techniques that have been useful in the past.

Initially, before we get started. I'd like to suggest and, for those of you who've heard me talk about cross-examining the police officer before, it's the same, essential, overall strategy. Not about the officer, but the overall case. You've got to have a uniform approach to the case — a theory of the case — a way to approach the prosecution's case. And the approach I have used successfully in the past is simply that you put the machine on trial — or the blood test or the urinalysis and in the vast majority of cases this should be the machine.

Put the machine — and by the way again — notice and I always say this, it is not an instrument. Don't ever call it an instrument. It is a machine. Juries understand machines. They don't understand instruments. Instruments have a scientific aura to them. Washing machines, fruit blenders, whatever, they understand those and this is a machine and it does make mistakes. It does break down.

Put that machine on trial. You do it by attacking it at every opportunity. Long before the jury gets there you have attacked it with discovery motions, suppression motions. You've attacked it in voir dire. You've attacked it in your opening statement, on cross-exam of the officer, of the expert, if there is one. You've attacked it if you've got the luxury of a defense expert. In your closing argument. In your instructions. You are constantly attacking that machine and three things happen.

Inevitably, invariably three things happen and the first is the prosecutor takes the defense in attempting to defend his beloved blood-alcohol analysis. And you cannot win by defending. The prosecution is not going to win by defending. So, you've redefined essentially the rules of the game.

Secondly and most importantly, by the end of the trial you have re-focused the trial. That is, the focus of the trial has changed. The focus at the beginning of the trial, the issue was, was your client under the influence and/or over .08 beyond a reasonable doubt.

At the end of the trial when the jury goes in the deliberation room, the focus, the issue should be and will be, if you've done your job: Was that machine reliable and accurate and working correctly beyond a reasonable doubt? And I don't care if you're talking about the .08 or the DUI count.

And lastly the officer's testimony is de-emphasized, perhaps even overlooked in this focus on the machine.

Okay, how do you accomplish this? Who do you cross-examine? Well, first of all you cross-examine the officer to the extent that you can. He is the one, presumably, who operated the machine. If not, then you're dealing with cross-examination of an operator and it's going to be very limited. And you want to make sure that that jury understands why it's limited. This guy is not qualified. Don't assume they realize that a police officer doesn't know a thing about a machine. You've got to demonstrate that for them. He is not qualified. Doesn't have the slightest idea what he's doing. He is checking off boxes on a list. But you can establish certain things. Certain areas. One of the most critical — and we'll talk about this-is the 15, or in some states, 20 minute observation period. If you're dealing with the urine, the urine void. If you're dealing with blood, his observations of the withdrawal of the blood. We'll get into those.

In the vast majority of cases, of course, you're gonna be dealing with the state's forensic expert and that's what we're going to primarily concentrate on here. In some few states, apparently the State is not required to produce an expert and you might consider subpoenaing that expert and you calling him — the analyst — the person who's in charge of calibrating the machines — whatever — you subpoena that person and, of course, make sure the jury understands that you were the one who produced that witness and then cross-examine him. This is not only helpful in the specifics of the case, it is a conduit for you to get in information from a number of scientific journals, articles that you're going to want the jury to know about.

How do you know he's read those articles? Because you mailed them to him two weeks before he testifies. And you have a cover letter saying you're going to cross-examine him about these articles. And, of course, if he plays cute and says I didn't bother to read them or whatever, you make sure the jury understands that this so-called expert in his field is not interested in keeping up with the scientific literature put on his lap in his field.

The third person who you could not cross-examine, but examine if you have the luxury, certain of the public defenders here may not. Others of you, whose clients may not, if you have the luxury, certainly hire an expert. I would strongly recommend people like Dick Jensen, Rick Swope and so on, but I understand again the financial limitations. You might consider looking at your local college faculties for possibilities for witnesses. Professors of physiology, chemistry, whatever, medical schools.

Return to Lectures

Demolishing #1

Demolishing the State's Test Results
Through Cross-Examination

Note: the following lecture was presented by Mr. Taylor in 1997 at a national seminar in New Orleans entitled "Mastering Scientific Evidence in DUI/DWI Cases."

Click Here to Listen 

Now, what to cross-examine about? We've considered who. What do we cross-examine about? There are basically two theories you're interested in. The first is the theoretical. That is, areas that will always be relevant in cross-examination of a breath, or blood, or urine. There are always, intrinsically, sources of problems with the machine, no matter what happened in the specific case. Examples might be, um, the 2100-to-one partition ratio. Bearing in mind, I understand, those of you from California and a few other states; the legislation, the legislatures have passed laws against science and banned you from talking about those subjects.

So you have two different areas. You've got the generic, the theoretical and then you have the specific. The specific is the case—the facts that exist in your particular case. Rising blood-alcohol concentration, for example, in attempts to retrograde extrapolate. Blood in the mouth as a result perhaps of an accident. Specific to your case.

Alright. Just a few words of advice of strategy, tactics, whatever. First, I would strongly suggest don't shotgun. Rick mentioned just a few moments ago you shouldn't try to convince the jury that this machine is totally a piece of junk and everything's wrong with it and so on. Don't shotgun. Use a rifle instead. Pick a few specific areas, particularly if they're relevant to your case and your facts and focus on those in depth, in detail. Never shotgun. Now, I have shotgunned. There are cases—maybe you don't have any facts to work with in your case. Maybe your position is going to be: this machine is just inherently unreliable and you shouldn't - uh, consider it in attempting to reach a verdict beyond a reasonable doubt. But, generally, don't shotgun.

Secondly and I believe Ed yesterday, Ed Fitzgerald yesterday mentioned this. Make it understandable to the jury. You're dealing with a lot of scientific terminology that you have become, or will become, used to using. And partition ratios—very familiar; everyday language to many of you. It is not to the jury. Make it understandable. Make it understandable in your questions, your arguments and so on, but also with your witness.

Ed was talking about in the defense expert, to make sure he, he makes it understandable to the jury and make it look like you're the one who doesn't understand. I absolutely agree, but do it with the prosecution's expert too, but there is a different approach there. Make it look like he's trying to talk over their heads. "For those of us, Mr. Jones, who are a little slower, can you please tell me what you mean by a partition ratio or so on?" You know, force him to come down to your level, i.e. the jury's level. Force him to speak English. Also, analogize and this is part of the same thing, analogize everyday things if you can. Draw analogies to things that the jury is going to be able to understand.

And finally and I'm not terribly good at this, but some of the guys are really experts and that is use visuals. Use visuals whenever possible. Graphics, demonstrations, toys. Good comedy. They have some great toys to play with and I'll show you. Anybody who hasn't seen Phil play with his police car with the lights turned off just hasn't really realized the potential of what can be done in a jury [court] room.

Okay, let's talk about a few specific techniques. And, again, I've got one hour in which you are supposed to demolish the case so I'm going to skip over a whole lot of areas fairly superficially just to get you pointed in the right directions and to suggest to you a few possible tactics.

First off and this was covered somewhat quite a bit yesterday by Ed and that is as to the expert—the qualifications of the expert—and I would add, now that we're dealing with the State's expert, the bias and just a few things. You obviously have his resume. You've done some background checking. You may have worked with this guy in the past. And, as Ed said, publications—there are approximately 50 blood alcohol experts in the Los Angeles and Orange County area where I practice, depending on which crime lab you're dealing with. Each one's got a staff. In all the years I've been practicing there, I know two of those—these guys are technicians, they're not experts—two of these guys who have written articles, in both cases for the State Criminalistic's Association. So by all means, establish and make sure right up front these guys have not published a thing and contrast that with your own expert if you have one.

Secondly, in most of the cases that I have encountered, well, in almost all of them, they have bachelors degrees. They have a bachelors degree from Long Beach State College in chemistry. Major in chemistry. Well, you know, I have a bachelors degree from Berkeley in history, does that mean I can go out and become a Professor of History? No. Does that mean I'm an expert in history? Absolutely not. That's why I had to go to law school. I am not an expert. Make sure they understand that he has majored in chemistry or biology or whatever and he has a bachelors degree.

Now, an awful lot of cases I've had—in the qualifications of the expert by the prosecutor—the expert will say that, "Yes, I have a bachelors degree and I'm working on my masters degree." How many times have you heard that? "I am working on my masters degree." I hear it over and over again. What he means usually is he got his bachelors degree 12 years ago and he took a couple classes eight years ago. Find out through discovery or whatever—of course, you don't ask questions you don't know the answers to. Many times I'll say, "Well, Mr. Jones, you say you're working on your masters degree. How close are you to it? When was the last class you took?" And usually they question [answer] like, "Well I'm not really sure, some time ago." He will go around and around. You nail him. He'll say "Well, uh, eight years ago." Now the jury resents that. They resent being hoodwinked. He is not working on his masters degree and it shows insecurity. Has not completed his education and he's getting one today.

Demolishing #2

Demolishing the State's Test Results
Through Cross-Examination

Note: the following lecture was presented by Mr. Taylor in 1997 at a national seminar in New Orleans entitled "Mastering Scientific Evidence in DUI/DWI Cases."

Click Here to Listen 

Job description. Go back and check out what the job description is. When he took the job. When he got hired. What is it today? You find out some interesting things. Maybe the job description was that he was supposed to assist law enforcement. Assist law enforcement, not arrive at the truth, not be objective. Not to analyze evidence and come up with accurate results. Not calibrate; assist law enforcement.

A number—in California, in particular, but, in a number of states, these technicians are classified by law as law enforcement officers. Some of them carry badges to show other officers when they get stopped on speeding tickets. Find out. Find out. Is this person categorized as a law enforcement officer? Imagine what you can do with that on cross-examination with this "objective" scientific expert. Is he carrying a badge? Ask him, if you know. Ask him to take his wallet out. Show the jury.

"How many times have you testified, Mr. Jones?"

"Well, 672."

"How many of those times did you testify for the prosecution against the defendant?"

"Uh, 672."

"You have never testified on behalf of the defendant in a criminal case?" Sometimes he'll say, "Oh yes I have, oh yes."

In every case it will be because he was subpoenaed by the defense attorney against his will.

Now let's talk about the two areas that I discussed in terms of specific issues and specific areas. First, the generic, the theoretical. And by this I mean really the general reliability of this machine. And I'm going to suggest a few specific approaches. Not all of it should be appropriate for you. Not all of it should be used in a given trial, but I put them out there for your consideration.

The first is what I call the "smart machine." A lot of this is in your materials—your written materials that you have. This expert is going to testify that that Intox 5000 or the Intoximeter 3000 or the BAC Datamaster, Verifyer, whatever, is a state-of-the-art machine. It is—it has fail-safe devices. It's got an RFI detector. It's got a slope detector. It's got an acetone detector. Why, this thing self-diagnoses. It diagnoses itself. It corrects its own problems. We can do it 10 miles away by modem and diagnosis it. This is an incredible machine.

What I would call the smart machine approach. And approach; "Officer—not officer—Mr. Jones." You might, by the way, make that mistake a couple of times with him. Accidentally on purpose.

"Mr. Jones, as of four years ago, this jurisdiction used the Intoxilyzer 4011A, correct?" Or the Breathalyzer 900A or whatever.

"Yes sir."

" Have you testified in court in DUI cases with the Intox, with evidence from the Intoxilyzer 4011A?"

"Yes."

"Do you—don't you now, after seeing this marvelous machine that you've been testifying about, don't you consider the 4011 a relatively primitive device?"

"Well, it was okay for its time. You know."

" But compared to this it was a machine that really wasn't quite as accurate or reliable, isn't that true?"

"Well, yes, that's true."

"When you testified in court on those cases, Mr. Jones, did you tell the jury it was a dumb machine?"

"No."

"Did you, in fact, testify that it was state-of-the-art, accurate, reliable and not a problem? Just as you have done today with this machine."

"Yes, sir."

Okay, another tactic is one that John Tarantino uses. John's one of the Regent's at the College. He's at Providence, Rhode Island. Publishes a DWI letter. Um and by the way, these, all these different ideas, I hope you realize they're not my brilliant concoctions and inventions. You know, I go to these seminars partly to steal from some of the other speakers and put 'em in my book and talk about 'em. What I'll do—it's the only way really you spread the knowledge and learn. John Tarantino has an approach called "The Spiked Aspirin". And you ask the expert, "Mr. Jones, this machine does make mistakes, doesn't it?"

"Well, not very often."

"Well it's not dead accurate 100% of the time, is it?"

"Um maybe not 100%."

"90%?"

"No, more than that."

Demolishing #3

Demolishing the State's Test Results
Through Cross-Examination

Note: the following lecture was presented by Mr. Taylor in 1997 at a national seminar in New Orleans entitled "Mastering Scientific Evidence in DUI/DWI Cases."

Click Here to Listen 

"95%?" I'd say, you know, you narrow, you get him down. No expert is going to claim 100%. They lose credibility. The worst will say 99%. Okay 99%. Now John drops it and come time for argument to the jury, he brings in a clear plastic bottle of aspirins. And he tells the jury, "Ladies and gentlemen, in this bottle are 100 tablets. 99 of the tablets are aspirin. One is strychnine. If you had a headache...."

All right. "The Defective Warranty." I claim this one. Read these manuals. You—get a manual. Get it through discovery. Get court orders. Whatever you have to do. Get the manuals. Pay the Xerox costs if they're not going to turn the original over to you. Get the operator's manuals, get the supervisors or technicians manuals, if you can and read them. Don't just read the obvious stuff. Read the not so obvious stuff.

A couple [of] years ago I was reading through and I was looking at this page and there was just very, you know, this boilerplate warranty. With the fancy borders and the whole thing and it had the standard boilerplate warranty and I thought to myself, okay I'll read it. And I read it and it had all the standard stuff. It had, for example, the following language halfway through it: "There are no other warranties, expressed or implied, including but not limited to, any implied warranties of merchantability or fitness for a particular purpose."

The manufacturers of the Intoxilyzer 5000 do not warrant this machine to be fit for testing blood-alcohol on the breath?!

I've had a lot of fun with this warranty on cross-examination with various experts. "Mr. Jones, do you have a toaster? Does that $19 toaster have a warranty?"

"Yeah, I think so."

"Is that $19.95 toaster warranted to toast bread?"

"Yeah, I think so."

Go on. "Repaired components are warranted for a period of 90 days from the date of repair and that warranty is subject to the same limitations as this warranty." In other words, if this machine falls apart, when it falls apart, we've got to patch it back up again. It's only good for three months.

"Mr. Jones, how long is that toaster warranty good for?"

"Not longer than 90 days."

Okay, now you've attacked, with some techniques, the general reliability of the machine, the theoretical reliability, the precision. Now you contrast that. You contrast it with the need for precision. You contrast it with, among other things, emphasizing the very tiny invisible amounts of alcohol that this machine is required to analyze. What I call the Invisible Breath Sample approach.

The Intox 5000 captures about 50 ccs of breath. This is equivalent to about one 30th of one cc in the blood. Remember the partition ratio. We're actually testing blood, not breath, except in California. That amounts to about half a drop. Half a drop. If you have a reading of say .20, give them the benefit of the doubt. You got a real high reading. Lots of alcohol involved. You have a .20 reading, that is, the amount of alcohol represented in the blood is one tenth of one percent of half a drop. That is an amount invisible, for all intents and purposes, to the human eye. That is the amount of alcohol that is being analyzed by this machine.

There are visual ways to demonstrate this. One—I forget who I stole this one from, but it is the "55 Gallon Drum" approach. I wouldn't recommend bringing a 55-gallon drum in, but you can use slides or diagrams, or whatever. It just so happens—a happy coincidence—that 55 gallons is roughly the same volume as 210 liters of breath. I'm sure you all recognize that figure. 210 liters of breath. Let's say you got a .20 reading again. You get .20 grams of juice or something in a tiny eyedropper or a baby spoon. Something small; a tiny amount. That represents the guilty amount of alcohol in that 55-gallon drum. Now, contrast that with the actual size being analyzed of the breath; 50 ccs.

If that tiny amount of alcohol in the eyedropper is the amount being measured in the 55 gallon drum, imagine how tiny the amount must be if the amount of breath analyzed is only 50 cc's. You have—what you've done is—now let the jury visualize and see concrete examples of what you're talking about.

Point: It requires incredible precision for accuracy in these tests. So how precise are these machines? Close enough for government work, is what I say. Close enough for government work. Inherent error recognized by the worst of experts is one percent. That is .01. They say—they will say—that, "Even if the machine is working absolutely correctly, correctly calibrated, simulator solutions, everything is operating correctly, it still has inherent error of .01%."

That means, let's say we've got a .10, for purposes of easy math. A .10 blood-alcohol. That means it can be a .09 or a .11 and still be operating correctly and accurately in, within that range of inherent error. Well now think about that. We got a range of .02. What percentage is that of the 1 percent, of the .10, it's 20%. There's a 20% fluctuation here. A 20% fluctuation is considered by the State to be scientifically accurate and precise. But, even if everything is working right, it is going to have a 20% fluctuation.

Now in a lot of states, some states, California for example, has sort of codified this further in its regulations and it may require duplicate analysis. Meaning there's got to be two tests—usually 30 seconds apart or so. And the two test results have to be within .02 of each other. If they're not, cop keeps testing and testing and testing until he finally gets two that are within .02 together.

Demolishing #4

Demolishing the State's Test Results
Through Cross-Examination

Note: the following lecture was presented by Mr. Taylor in 1997 at a national seminar in New Orleans entitled "Mastering Scientific Evidence in DUI/DWI Cases."

Click Here to Listen 

So, again, here you have it codified for you. This, these two tests have to be within .02, which is a 20% variation. As long as you get within 20% of each other, that is sufficiently precise. 20%.

Now there are different ways of bringing this down. Is this okay for brain surgery? Is it okay for reasonable doubt? Develop; what does 20% mean? Get the uh, scientist, before you get into this area, to define what he considers to be acceptable scientific accuracy. 98%? If the Judge will let you, he probably won't, what does he consider to be sufficient for—his opinion—beyond a reasonable doubt or moral certainty or whatever the terminology you use in your jury instructions? It's going to be a whole lot less than 20% range of error.

All right. The next area is the area of non-specific analysis and we're talking here about the breath machine again. The point here is and I can't express this too strongly—make sure this is driven home to the jury through the expert—this machine does not analyze alcohol. The prosecutor was lying to 'em, the expert was lying to 'em. It does not measure alcohol. As Dick Jensen has said over and over again in his lectures, "It measures compounds in the methyl group. Of which alcohol is one."

This machine is not so smart. There are literally hundreds and hundreds of compounds in the methyl group that this machine will tell you is alcohol. It has no way of differentiating. They do have their filters and screens and they try to cut it down, but it still measures the methyl group. So what does this mean? Well, there are so far, there are all kinds of studies. You can see them in my book, Ed's book, Ed Fitzgerald. There are all kinds of studies and it appears that there are somewhere in the neighborhood—at least so far they detected—over 200.

Very quickly, on urinalysis. How many people, by the way [in] their States have urinalysis besides California? So, maybe a third. Yeah. The AMA, the National Safety Council—everybody says it doesn't work. It's not worthwhile. It is not reliable. Don't use it. Don't do it. But, of course, in California we still do. Of course in California we still haven't discovered NHTSA standardized field sobriety testing either, but we still use urine.

Partition ratio. Even in California you can attack the partition ratio with urine. And it varies, just as it does with breath, it varies wildly in urine and it will directly impact it. The biggest problem is the void. If there is an insufficient void, you're going to have old alcohol, old urine. Give you an example. I drink a pint of Jim, uh, Jack Daniels right now. This evening I'm going to be pretty high still. At my peak I may be a .30. What's going to happen tomorrow morning when I wake up? I'll probably be a 0.0. If I give a urine sample, I will be a .30, even though I have nothing in my system. So we void, right, we void. That means you urinate, get it all out of your system and come back 15 minutes later.

Problem: It's impossible to void. No matter how hard you try, you're generally gonna have 10 cc's roughly, give or take, of urine in your bladder. Over the next 15, 20 minutes, you're going to secrete about 20 cc's, give or take, of fresh new urine. Figure it out. Real simple math. One third of the sample, assuming complete void, is going to be contaminated by old urine/alcohol.

The second problem with the void is the cop who, very commonly, cops hate urine. They don't want to deal with urine. I had a story I've told some of you, about a case I had two or three months ago. That a cop would never give 'em one before and couldn't figure out how to get the urine—this is a true story—see my client was handcuffed to the bathroom. We had a very interesting suppression motion and a very embarrassed police officer. But, what is common is the officer will tell, because he hates doing this, he'll tell the suspect, "Alright. You chose the urine test. I just want to tell you though you gotta void now, you gotta, you gotta urinate in that toilet bowl—I'm comin' back in 15 minutes and if you can't urinate, I'm puttin' it down as a refusal."

Well, what do you think your client does? Holds back. Saves a little bit and makes sure he can produce—cause he doesn't know anything about voiding and bladders and ccs and all this stuff. All he knows is: if he comes back and that guy with a nightstick and gun comes in and he can't urinate, he is in deep trouble.

California has mandatory jail sentences, one-year loss of license, all kinds of nasty things which they have told him in their implied consent advisement, assuming they gave it. Rarely do. He is gonna save some urine.

Last thing and its real quick. Candida albicans. Candida albicans. What is Candida albicans? Candida albicans is a yeast. It is a yeast commonly found, not always, but commonly found in the human body, particularly in the bladder and in the intestine. So what?

Well, this Candida albicans has an interesting property about it. It combines with glucose, carbohydrates, whatever, to produce alcohol. In other words, if you give a urine sample and you've had Candida albicans in the intestine, which of course joins the alcohol, the uh, the—anything that's being sent from the stomach and alcohol into the system is going to have the yeast with it. Right into the bladder. Right into the bladder. Sitting there pumping away alcohol for the next two weeks it takes to, uh—for the lab to analyze it. Same thing with the bladder. Candida albicans in there and—I was talking to Dick yesterday, Dick Jensen—and he says that they're having a problem in hospitals because Candida albicans is in the air. It's airborne and it gets into the samples. So, let's consider this.

We have just touched on a few of the areas that I wanted to discuss and I can't do it in one hour. You're gonna have to do a whole lot of reading and listen to the other lecturers and so on. We haven't gotten into a whole lot of areas that can be very productive. But hopefully some of these areas that I have pointed you to you will find productive and I hope you have a lot of fun with them uh next time you face this so-called expert. Thank you very much.