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."

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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.