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Keeping the Breath Test Out of Evidence
Look for Problems with the Department of Revenue Records Keep the Breath Test Results Out of Evidence
Harger’s device required the test subject to blow up a balloon
Dr. Rolla N. Harger’s
“Drunk-O-Meter” Circa 1938
Robert Borkenstein’s
"The Breathalyzer"
Circa 1950s
Breathalyzer 900/900A Smith &Wesson/Draeger Safety, Inc.
The Official “Dial-a-Drunk”
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Missouri’s Approved Breath Testing Devices • • • • • •
5000 8000 Datamaster DMT EC/IR II AS/IV
•
Source: Brian Lutmer, DHSS, Breath Alcohol Testing Program 2/18/
BAC DATAMASTER
1985
Intoxilyzer 5000
Intoximeter RBT-IV
DMT
EC/IR-II
Analyzes and quantifies breath alcohol by employing two different and independent technologies: IR spectroscopy and electrochemical cell technology.
Utilizes electrochemical sensor (EC) for quantification and infrared sensor (IR) technology for slope detection.
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Intoxilyzer 8000
Problems with DOR Records 1. No maintenance report in packet
Maintenance checks are required to be performed "at intervals not to exceed 35 days." 19 C.S.R. 25-30.031(3)
Problems with DOR Records 2. Maintenance completed more than 35 days prior to driver’s arrest. Maintenance checks are required to be performed "at intervals not to exceed 35 days." 19 C.S.R. 25-30.031(3)
Problems with DOR Records 3. Serial number on maintenance report doesn’t match serial number on client’s breath test printout
Maintenance checks are required to be performed "at intervals not to exceed 35 days." 19 C.S.R. 25-30.031(3)
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Problems with DOR Records 4. Maintenance report illegible Maintenance checks are required to be performed "at intervals not to exceed 35 days." 19 C.S.R. 25-30.031(3)
Problems with DOR Records 5. Maintenance Report incomplete E.g., Simulator solution manufacturer is not indicated on maintenance report and Certificate of Analysis is not attached to DOR records Rule: Simulator solution must have come from an approved supplier. 19 CSR 2530.051
Simulator Solution
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Problems with DOR Records • 6. Simulator solution not from approved supplier • • • •
Repco Marketing Guth Labs Alcohol Countermeasure Systems, Inc. Draeger Safety, Inc.
• Rule: Simulator solution must have come from an approved supplier. 19 CSR 25-30.051
What does a Wet Bath Simulator Look Like?
Simulator Solutions • DOH had a gas chromatograph which could be used to verify the accuracy of simulator solution shipped to Missouri. • It has been covered up with a tarp for the ten or more years and was just sold on Ebay a little over a year ago.
Wet-Bath Simulators • Simulate the temperature of human breath • Assumes breath temperature of 34.0 c • Alabama and German Studies say average breath temperature is of 34.9 Celsius and 35.0 Celsius • Every 1 degree increases breath test result by 6.5 percent [.0755 =.0800]
Dräger Alcotest® 9510
Simulators and Simulator Solutions 7. Simulator not checked using a NIST certified thermometer during 2013, and annual basis thereafter 19CSR 25-30.051 (4) provides that “Any breath alcohol simulator used in the verification or calibration of evidential breath analyzers with the standard simulator solutions referred to in sections (2) and (3) of this rule shall be certified against a National Institute of Standards and Technology (NIST) traceable reference thermometer or thermocouple between January 1, 2013, and December 31, 2013, and annually thereafter.
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Why Check the Thermometers? • • • •
Thermometers go bad Seals on jar leak Thermometers break [Montgomery Co.] FYI: Datamaster and Intoxilyzer 5000 only use wet-bath simulator solutions for calibration checks. All others can use dry gas or wet-bath solutions
Problems with DOR Records
Simulators and Simulator Solutions • Carter v. Dir. of Revenue, 454 S.W.3d 444 (Mo. App. W.D.2015) • Courtney v. Dir. of Revenue, 2015 Mo. App. LEXIS 1094 (Mo. App. W.D. Oct. 27, 2015) • State v. Pickering, 473 S.W.3d 698 (Mo. W.D. App. 2015)
Certificate of Analysis
8. Simulator solution expired at time maintenance performed.
Lasley v. Director of Revenue,
17 S.W.3d 174 (Mo. App. 2000)
Simulator Solutions
Simulator Solutions
• To my knowledge, DOH has never visited simulator solution suppliers to determine whether the solutions are being properly manufactured • DOH has (had) been testing two bottles out of each lot shipped to Missouri by pouring it into a simulator and checking it with their BAC DataMaster.
• RepCo Marketing is a drop shipping company in North Carolina that does not manufacture or test its own simulator solutions • In their certificate of analysis, they represent that they manufacture and test their simulator solutions
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Simulator Solutions • RepCo Marketing was originally incorporated as The Leather Bottle, Inc., a restaurant and lounge
Problems with Maintenance Report 9. Missing expiration date of Type II permit on maintenance report
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Problems with Maintenance Report 10. Heaters Sample Chamber Temperature not filled in. Stuart v. Director of Revenue, 761 S.W.2d 234 (Mo. App. 988)
Problems with Breath Testing Records
11. Expired Type III Permit 19 CSR 25-30.011 (3) requires that breath tests be administered only by persons holding a valid permit
Problems with Maintenance Records 12. Observation period conducted by Type II or Type III Permit Holder? 19 CSR 25-30.060 (7)
Problems with Location of Test
14. Computer Generated A.I.R. Forms
• 13. Alco-Sensor IV -Test outside patrol car
• Officer # 1 makes arrest. • Officer # 2 gives the breath test. • Officer # 1 inputs all information into a computer to produce A.I.R. form, including checklist and certification section. • Officer # 2 doesn’t sign or initial certification section on Page 3.
• Breath analyzers are to be used within buildings or vehicles used for driving-while intoxicated enforcement. • Breath analyzers are not approved for mobile use in boats or in outside areas. • 19 CSR 25-30.050 (2)
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15. Arresting Officer hand writes entire report, including checking BT boxes Hire a handwriting expert to determine if someone other than the arresting officer filled out the checklist and certification section. (Shannon County case)
16. No evidence in records that person conducting observation had a Type III or Type II permit
•19 CSR 25-30.060(7) The fifteen-(15-) minute observation of the subject, which is the second procedure on the forms in sections (1)–(6) of this rule, shall be done by a current Type II or Type III permit holder.
• 17. Machine out of calibration
18. Cal Checks #s Not filled in
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Another Problem with Breath Testing Records • 19. Client’s BrAC is on the legal limit line – and the last maintenance report indicates the machine was reading high. – Lawson v. Dir. of Revenue, 145 S.W.3d 443 (Mo. Ct. App. 2004)
20. 19 CSR 25-30.051 Breath Analyzer Calibration and Accuracy Verification Standards (2) Standard simulator solutions, used to verify and calibrate evidential breath analyzers, shall be solutions from approved suppliers. The standard simulator solutions used shall have a vapor concentration within five percent
(5%) of the following values: (A) 0.10%; (B) 0.08%; and (C) 0.04%.
• Stiers v. Dir. of Revenue, 2016 Mo. LEXIS 6 (Mo. Jan. 12, 2016) • Applies to cases where client tested between December 30, 2012, through February 27, 2014 • SB 1014
Intoximeter Alco-Sensor IV/RBT-IV
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ALCO-SENSOR IV
Alco-Sensor IV Error Code Messages
19 CSR 25-30.060(10) When using the Alco-Sensor IV with printer, the use of the Manual button shall not be allowed to obtain a breath alcohol test result from a subject.
BAC Datamaster Issues
“INVALID SAMPLE”
ERROR CODE MESSAGES TO LOOK FOR AND WHAT THEY MEAN?
“Mouth Alcohol, Mouth Alcohol, Mouth Alcohol”
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“SYSTEM WON’T ZERO.” • Serious malfunction • Kennedy v. Dir. of Revenue, 73 S.W.3d 85(Mo. App. 2002) • Professor Danny Moore’s case • 19 C.S.R. 2530.011(5)(B)(1)
• "An individual permitted to operate a breath analyzer shall ... immediately suspend use of a breath analyzer that is not functioning properly."
“SYSTEM WON’T ZERO.” • Maintenance report included with DOR records showed that the Datamaster was checked for calibration at 3:30 p.m. at roadblock on day of my client’s arrest. • Everything looked OKEYDOKEY, as usual.
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“SYSTEM WON’T ZERO.” • Datamaster had been used and checked at a roadblock the previous day near the Randolph County line after the roadblock was over. • Datamaster failed the calibration check at that time - alcohol in the air blank.
• There was no apparent communication between checkpoint officers, or decision was made to ignore it if it tested OK and 2nd checkpoint. • The next day, my client was tested…
• Always Check the maintenance reports on the DHSS Breath Testing Program Website! (6 plus 6) • http://health.mo.gov/la b/breathalcohol/
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Alcohol in the Air Blank DOH Specifications Regarding Alcohol in the Air Blank Original Specifications for Evidential Breath Testing Instrumentation are located at the end of materials in this section
Alcohol in the Air Blank • Vernon v. Dir. of Revenue, 142 S. W.3d 905 (Mo. App. 2004). (WINNER) • See 19 CSR 25-30.011(5)(B)1. • But see, Reckner v. Fischer, 121 S.W.3d 296 (Mo. App. 2003). (LOSER)
AMBIENT FAIL • SOMEONE IN THE BA ROOM REEKS OF ALCOHOL
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INTERFERENCE DETECTED
Software used to print out “USE ALTERNATE TEST”
What should the BT operator do when INTERFERENCE DETECTED error message appears?
What does Chris Silva say about INTERFERENCE DETECTED?
Defense Experts Say,
TAKE BLOOD!
Interference Detected
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“Attaining specificity in the measurement of ethanol in breath” By C.M. Bell
The BAC DataMaster (Mo 2-Filter Version – Missouri’s) cannot be used in England, Australia or New Zealand as a result of this study
BIGGEST PROBLEM WITH THE BAC DATAMASTER • THE MOUTH ALCOHOL DETECTION SYSTEM OF THE BAC DATAMASTER DOES NOT WORK! • Testing of Carl’s client
Will Burping Affect the Test?
Intoxilyzer 5000
INTOXILYZER 5000 • Missouri uses MODEL 66 SERIES. • Replaced by Model 68, Intoxilyzer 8000, and Intoxilyzer 9000. • Only Missouri still uses the 66 series. Missouri sucks! • 66 series did not meet Missouri’s specifications for breath testing instrumentation. Nobody knew!
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Invalid Test v. Invalid Sample v. Insufficient Sample on Intoxilyzer 5000: What to Do!
INTERFERENCE DETECTED • When the Intoxilyzer 5000 detects the presence of interfering substances, it should abort the test. • It doesn’t!
Results of DOH Evaluation of Intoxilyzer 5000 for Ability to Detect Chemical Interference
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Inability to Distinguish Acetone
DMT Error Code Messages
Intox 8000 Error Code Messages
EC/IR-II Error Code Messages
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Duplicate Breath Testing • All laboratories are currently performing at least two tests when analyzing blood samples in DWI cases • National Safety Council recommends two breath tests at intervals between two and ten minutes after an initial deprivation period of at least fifteen minutes • Test results must agree within 0.02 % of each other
Duplicate Breath Testing • Eliminates problems with mouth alcohol contaminated samples • Good science requires it • Collins v. Director of Revenue, 399 S.W.3d 95; 2013 (Jeff)(exerpts)
Duplicate Breath Testing • When the legislature declares that certain evidence is admissible, the courts are bound by that declaration. This rule prevails until the admission of that evidence runs afoul of the state or federal constitutions. Evidence can be so unreliable and inconclusive as to violate due process of law. – Ex parte Mayo, 652 So. 2d 201 (Ala. 1994)
Data Storage
Data Storage • DOH applied for and received grant money from the federal government to purchase a new computer and phone equipment to implement data storage program • Computer has not been used; data storage program has not been implemented
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Data Storage email from Brian Lutmer on 3/02/16
15 Minute Observation Period
• We do not store any data from the instruments, nor do we have any means to remotely access or download data from any of the instruments in the field. The Intox EC/IR II, the DMT and the Intoxilyzer 8000 all store some number of tests in memory, although it varies greatly between them. If I know my statutes and case law, what you can get on them in terms of stored data is directly related to what the LEA is willing to give you. •
19 CSR 25-30.011(2)(H) Observation period is the minimum fifteen (15) minute continuous period that ends when a breath sample has been provided into the approved breath analyzer, during which time the operator shall remain close enough to a subject to reasonably ensure, using the senses of sight, hearing, or smell, that a test subject does not smoke, vomit, or have any oral intake during the fifteen(15) minute observation period. Direct observation is not necessary to ensure the validity or accuracy of the test result
15 Minute Observation Period
15 Minute Observation Period
(J) Vomiting is the act of ejecting the solid and/or liquid contents of the stomach through the mouth, and does not include belching or burping;
• Collins v. Director of Revenue, 399 S.W.3d 95 (Mo. App. 2013) Read this case!
(K) Examination is a limited visual examination of a test subject’s mouth and/or denial by a subject that he or she has any substance in his or her mouth; and (L) Substance is any foreign matter, solid or liquid, not to include dentures, dental work, studs, piercing, or tongue jewelry.
15 Minute Observation Period • Check the times on the AIR and BA Ticket to make sure 15 minutes • Cross the BA operator/room diagram • Check to see whose name is written in on Step 2 (Observed by________) • Get Booking videos
Rising Alcohol Defense • Walker v. Dir. of Revenue, 137 S.W.3d 444 (Mo. 2004) • Kisker v. Director of Revenue, 147 S.W. 3d 875 (Mo. App. 2004)
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Rising Alcohol Defense
Absorption of Alcohol: Stomach Walls
Getting the ethanol out of the stomach and into the blood
Stomach Walls
20%
Pylorus
Stomach Walls 80%
• Average time to fully absorb alcohol is 52 minutes. • Defense works best when driver consumed alcoholic beverages within 15 to 20 minutes of stop. • Defense works best when driver has accurately reported number of drinks and time of drinking. • Under .10
II-18
2100:1 Partition Ratio Defense
2100:1 Defense
• The law provides that 210 liters of breath contains the same amount of alcohol as 100 milliliters of blood when simultaneously tested. 577.012.2 • For every 2100 molecules of ethanol in the blood there is 1 molecule of ethanol in a given volume breath. • 577.012.2 assumes all humans have 2100 times more alcohol in their blood than in their breath.
2100:1 Defense • All breath test machines overestimate the alcohol concentration of someone blowing with a partition ratio less than 2100:1 • One study has shown partition ratios ranging between 1555:1 and 3005:1. (Dubowski, 1985) • According the Dubowski study, a person with a partition ratio of 1555:1 would cause the Intoxilyzer 5000 to overestimate by 26% the breath alcohol concentration compared to that of a simultaneous blood sample. [.06 blood =.08 breath]
Factors Affecting Blood-Breath Ratio • Body temperature - Higher than normal body temperatures resulting from fevers, exercise, and menstrual cycle variations in women result in a lower blood-breath ratio than normal and overestimate of BAC. • Hematocrit level (the ratio between red blood cells and blood plasma) • The time at which alcohol was consumed in relation to the time breath alcohol is measured.
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Body Temperature
Dräger Alcotest® 9510
• Law assumes breath temperature of 34.0 C. (Celsius) • Alabama and German Studies say average breath temperature is actually between 34.9 Celsius and 35.0 Celsius. • Every 1 degree increases breath test result by 6.5 percent [.0755 =.0800] • Always get nurses’ notes from jail!
Breath Temperature
Booth v. Director of Revenue, 34 S.W.3d 221 (Mo. App. 2000)
• Dräger Alcotest® 9510 adjusts BA result down when breath temperature exceeds 34 Celsius • Data comes from thousands of actual test results where temperature was measured.
• “While Director is correct that section 577.037.2 RSMo. (1999) statutorily mandates the breath-to-blood ratio of 2100 to 1, its argument overlooks the language contained in subsection three of that very statute, which states that ‘the foregoing provisions of this section shall not be construed as limiting the introduction of any other competent evidence bearing upon the question whether the person was intoxicated.’” Booth.
Results of Blood-Breath Comparison Testing on My Client
Results of Blood-Breath Comparison Testing on My Client
• Driver’s BAC was .085 at time of breath test following his arrest • Driver’s last drink was 60 minutes before accident- no rising alcohol defense
• Driver drank 4, 12 ounce Budweiser beers in 10 minutes • Driver took breath test on BAC DataMaster every 5 minutes • When driver reached peak BrAC, blood was drawn. • Sample was sent to lab.
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Results of Blood-Breath Comparison Testing on My Client • • • • •
.079 .090 .088 .079 .078
15:32 15:37 15:41 BLOOD WAS DRAWN 15:46 15:50
BrAC vs. BAC (.088) vs. (.069) Overestimated by 21.6%
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Duplicate Breath Testing • All laboratories are currently performing at least two tests when analyzing blood samples in DWI cases • National Safety Council recommends two breath tests at intervals between two and ten minutes after an initial deprivation period of at least fifteen minutes.
Duplicate Breath Testing • Test results must agree within 0.02 % of each other • Read Collins
• Thirty-two states and the District of Columbia have adopted duplicative confirmatory testing: Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Idaho, Maine, Maryland, Massachusetts, Minnesota, Mississippi, Montana, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, North Dakota, Ohio (use of second sample depends on instrument), Oklahoma, Oregon, Pennsylvania, Rhode Island, Texas, Tennessee, Virginia, Washington, Washington DC, Wisconsin, and Wyoming.
• Thirty-seven states and the District of Columbia require a controlled sample or known solution be used to ensure that the machine is in proper working order before each individual driver is tested: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Florida, Idaho, Iowa, Kansas, Kentucky, Maine, Maryland, Massachusetts, Minnesota, Mississippi, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio (instrument dependent), Oklahoma, Oregon, Pennsylvania, South Carolina, Texas, Vermont, Virginia, Washington, Washington DC, West Virginia, Wisconsin, and Wyoming.
Duplicate Breath Testing • Eliminates problems with mouth alcohol contaminated samples • Good science requires it
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Duplicate Breath Testing, continued
Defendant’s Exhibit DD
• When the legislature declares that certain evidence is admissible, the courts are bound by that declaration. This rule prevails until the admission of that evidence runs afoul of the state or federal constitutions. Evidence can be so unreliable and inconclusive as to violate due process of law. – Ex parte Mayo, 652 So. 2d 201 (Ala. 1994)
The End
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