Articles Posted in Breath testing

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Annie Dookhan, a former forensic chemist at a state forensic laboratory in Massachusetts, pleaded guilty to 27 counts of falsifying test results, misleading investigators, and tampering with evidence. She was sentenced this week to 3-5 years in prison. followed by 2 years of probation. In the course of her career she filed reports in approximately 40,000 criminal cases, which are now under review.

This is an extreme case, but it highlights the need for defense lawyers to carefully scrutinize state police laboratory results and methods to uncover mistakes resulting from incompetence, negligence, and fraud in criminal cases. Newpaper stories are replete with cases of laboratory mistakes that have resulted in erroneous convictions.

The amicus brief filed by the National Association of Criminal Defense Lawyers and the National College for DUI defense in Bullcoming v. New Mexico, co-written by Leonard R. Stamm said:

“Forensic evidence is not uniquely immune from the risk of manipulation.” Melendez-Diaz, 129 S. Ct. at 2536. The recent report by the National Research Council of the National Academies, Strengthening Forensic Sciences in the United States: a Path Forward (2009) (NAS Report), confirmed what defense lawyers have long known: because forensic analysis is a product of human discretion, it is vulnerable to incompetence, error and sometimes even fraud. See also Solomon Moore, Science Found Wanting in Nation’s Crime Labs, N.Y. Times, Feb. 5, 2009, available at http://www.nytimes.com/2009/02/05/us/05forensics.html (last visited Dec. 1, 2010). As the NAS Report revealed, forensic analyses “are often handled by poorly trained technicians who then exaggerate the accuracy of their methods in court.” Id. The NAS Report verifies that forensic science is anything but infallible, and is instead fraught by very human errors leading to problems such as sample contamination and inaccurate reports. Id.

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The National College for DUI Defense (NCDD) just completed its 3 day summer session, held in Cambridge, Massachusetts in the facilities of Harvard Law School. The College’s mission is to educate lawyers to become more proficient in defense of persons accused of drunk driving. The College’s motto is “Justice Through Knowledge.” The session was attended by some of the most skilled lawyers in the country, and featured presentations and workshops of the highest quality. The session exemplified what is best about the legal profession.

The session featured presentations by Robert Hirschhorn on jury selection, Leonard Stamm and Peter Gerstenzang on the Top 20 Guidelines for Bench Trials, Mimi Coffey on trial strategy and breath testing, Gary Trichter on the Bill of Rights, Erin Gerstenzang on Ethics, Tyrone Moncrief on the Art of Persuasion and Closing Argument, John Webb and Felipe Plascencia on closing argument, Dr. Sunwolf on Innovations in Jury Selection: Harvesting Skewed Venires; Juiced Jurors; Mental Blind Spots and Perfecting a Challenge for Cause, Michael Hawkins on Cross-Examination – A Performance, Justin McShane on Basic Gas Chromatography for Blood Alcohol Content, and Stephen Jones on The Real Field Sobriety Tests. Workshops were conducted on jury selection and closing arguments. The keynote address was delivered by the Honorable Joseph Johnson.

The session was conducted under the auspices of Dean George Stein who turned the reins over to Troy McKinney, the incoming dean, at the culmination of the session. The current slate of officers includes Peter Gerstenzang, Assistant Dean, Stephen Jones, Secretary, and Leonard R. Stamm, Treasurer.

Over 160 lawyers were in attendance including Regents not mentioned above James Nesci, Bill Kirk, Don Ramsell, Virginia Landry, Andrew Mishlove, Paul Burglin and Doug Murphy and Fellows James Campbell, F.K. Whited, Les Hulnick, Tommy Kirk, Phil Price, George Bianchi, Doug Cowan and Steven Oberman.

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Yesterday the Supreme Court announced its opinion in Williams v. Illinois. The decision was anxiously awaited by those of us who have followed the Supreme Court’s recent Confrontation Clause cases, namely Melendez-Diaz v. Massachusetts and Bullcoming v. New Mexico. Melendez-Diaz had held that the chemist in a drug case must be brought to court by the government for cross-examination, and Bullcoming held that another chemist in a lab who had nothing to do with a test cannot take the place of the actual analyst who reported a blood alcohol reading in a DUI case.

In Williams v. Illinois, Williams was convicted of rape based on a DNA match. DNA was collected from semen found during the victim’s rape exam and the profile identified at Cellmark Laboratories in Germantown, Maryland. A different lab analyzed William’s DNA and identified a genetic profile. Illinois did not call anyone from Cellmark to testify, but rather called an expert who testified that the two samples were a DNA match.

The Supreme Court decided in an unusual plurality – 4-1-4 – that the expert could give the opinion of a match, even though no one from Cellmark testified to the underlying profile that was the basis for the opinion. What is unusual about the opinions issued in the case is that the five justices who voted to affirm the Illinois Supreme Court (and the rape conviction) did not agree why and that a majority of five agreed the plurality’s reasoning was wrong.
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Criminal defense lawyers are fond of making analogies to explain themselves to non-lawyers. Analogies can be very useful in closing argument and I intend to discuss some of those analogies in a future blog. Today I want to discuss the DUI defense lawyer as a DUI mechanic or technician.

Every DUI case has component parts. The prosecutor must know how these parts fit together in order to build a successful case. The defense lawyer must also know how these parts are supposed to fit together in order to dismantle the State’s case. This is an integral part of our criminal justice system, and the defense lawyer acts as a check on the government to make sure the prosecution follows all of the rules and regulations, statutory and constitutional provisions before the fact-finder – a judge or jury – concludes the defendant is guilty.

It’s as if you brought your car into the shop for the mechanic to repair or rebuild your car. The defense lawyer is like a competing mechanic watching the actual mechanic. The judge is a supervisor. When the actual mechanic tries to take a short-cut, and skip a part he has in short supply, the defense lawyer/opposing mechanic objects, and the judge/supervising mechanic can rule that the prosecutor/mechanic cannot complete the repair without doing it 100% correctly.
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Maryland jurisdictions have slowly been replacing their 10 year old breathalyzers – affectionately called “breathaliars” by some – Intox EC/IR with the new breathalyzers – the Intox EC/IR II. This machine, manufactured by Intoximeters, Inc. in St. Louis, Mo. has a few improvements over its predecessor, according to the manufacturer.

In a letter dated July 6, 2006, M.R. Forrester, Chairman of Intoximeters, Inc., wrote the following about the newer EC/IR II:

One of the main reasons the EC/IR II was developed was certain parts of the EC/IR I were becoming obsolete, which made them harder to find and more expensive to replace. The primary difference concerns the Microprocessor on the motherboard and the case set. The analytical module in the EC/IR II is very similar to the one used in the EC/IR I in that we are using the same Fuel Cell sensor and sampling system. The microprocessor change is necessary because the EC/IR I microprocessor has been made obsolete since it is a state of the art device, which works at a far higher processor speed.

As often occurs with technological advances, the shortcomings of old technology are highlighted by the developments of new technology. For example, the higher flow of the new purge fan “is capable of opening [a] stuck mouthpiece.” The implication here is that the mouthpiece on occasion can get stuck, resulting in the machine recording insuficient breath. Additionally, the case set notes that there is higher “R[adio][]F[requency] immunity.” Although there is a claim that “RF immunity is adequate” in the EC/IR I, the need for higher RF immunity in the EC/IR II suggests otherwise. Other improvements made in the EC/IR II with serial numbers over 10,000 include modifications incorporating “additional test memory capacity, additional hardware to allow recirculation of a wet bath simulator, and enhanced EMC and RFI immunity.”
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An article with the above title caught my attention this morning. “Innocent often fall victim to DUI laws” was published in the Picayune Item in Mississippi on August 24, 2011. The article makes many excellent points.

Police, in their anxiousness to enforce the drunk driving laws, arrest many people who are not impaired, but who have been drinking, and may exhibit some of the clues police associate with impairment. The article points out the 2/3 of Americans enjoy drinking on occasion. It notes:

There were 33,153 Mississippi DUI arrests last year, an astounding number. If DUIs were randomly distributed, every driver in the state would get at least one during his lifetime. A Colorado study showed that 20 percent of those arrested for DUIs had legal blood alcohol levels. The problem is that residual alcohol in your mouth can distort the results of the unreliable portable breathalyzers police often use to make an arrest.

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Title 16 of Maryland’s Transportation Article contains licensing requirements and license offenses. Included in this section is Maryland’s implied consent law (section 16-205.1), which requires drivers detained on suspicion of drunk driving to submit to an alcohol test and face license penalties for failing or refusing the test. The sections in Title 16 tend to have one thing in common: a license is only required to drive on “a highway or private property used by the public in general.” In other words, you can drive on purely private property without a driver’s license.

In the case of Loane v. Motor Vehicle Administration, the Court of Appeals considered the following sentence from section 16-205.1:

“[a]ny person who drives or attempts to drive a motor vehicle on a highway or on any private property that is used by the public in general in this State is deemed to have consented … to take a test if the person should be detained on suspicion of driving or attempting to drive while under the influence of alcohol….”

Despite what appears to be the plain language of the statute, the Court construed this section to apply on private property.

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Once a driver has been arrested for a DUI or DWI in Maryland by state, not federal, police, the arresting officer is required to read a form to the driver, called the DR-15 Form. This form explains the penalties for failing or refusing a breath or blood test. Of course if the driver passes the test, i.e. produces a result below .08, there is no penalty. Unfortunately, very few people have even the foggiest clue of what they will blow.

The penalty for failing the test is a 45 day suspension on a first offense or a 90 day suspension on a second or subsequent offense if the driver blows .08 or higher but less than .15. If it is a first offense within five years the driver may be eligible for work, school, medical, or alcohol education restricted driving privileges. If it is a second offense within five years the driver may only obtain a restriction allowing the driver to drive only vehicles equipped with an ignition interlock system.

If the driver blows .15 or higher the penalty is a 90 day suspension on a first offense or a 180 day suspension on a second or subsequent offense. In lieu of the suspension, the driver may be allowed to drive with an ignition interlock restriction for one year.

If the driver refuses the the penalties are a 120 day suspension for a first offense and a one year suspension for a second or subsequent offense. Again, the driver may be allowed to drive with an ignition interlock restriction for one year. A refusal may also be considered as evidence of guilt in court and may also subject the offender to an additional 60 days in jail.

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In the past year it has come to light that the Intoxilyzer 5000 ENs used in the District of Columbia provided false high readings, and that a number of defendants were convicted, and even sent to jail, as a result of these flawed tests. See 400 drunken-driving convictions in D.C. based on flawed test, official says, Washington Post, June 10, 2010. This experience simply illustrates the dire need for a check on governmental incompetence with respect to scientific evidence in general and breath testing in particular. According to letters written by Igmar Paegle, who assumed control of the Metropolitan Police Department (MPD) testing program, two fundamental mistakes created this problem. The first was the improper calibration of a number of Intoxilyzer 5000 ENs by the officer assigned to this task to read 20 to 40% higher than the correct value. The second problem was the failure of the MPD to perform accuracy checks. As a result, the problem went unnoticed for a significant period of time. Compounding this error, government officials reacted by attempting to withhold relevant information. To make matters even worse, complaints were filed against whistleblower officers. See D.C. to forgo breathalyzer testing for the time being, Washington Post, February 15, 2011.

MPD attempted to replace its Intoxilyzer 5000 ENs with a different make and model breath test unit, the EC/IR II. However, due to overwhelming problems the use of these units has been discontinued in D.C. The test strips for the EC/IR II in both DC and Greenbelt formerly provided:

I CERTIFY THAT THE SAMPLE(S) ANALYZED ABOVE WERE TAKEN ACCORDINGLY [sic] TO GUIDELINES SET BY THE DISTRICT OF COLUMBIA’S CHIEF TOXICOLOGIST (OR HIS/HER DESIGNEE); THAT THE SAMPLE(S) WAS (WERE) TESTED ON EQUIPMENT USED ACCORDING TO THE MANUFACTURER’S SPECIFICATIONS AND APPROVED FOR THE EVIDENTIAL MEASUREMENT OF BREATH ALCOHOL BY THE CHIEF TOXICOLOGIST (OR DESIGNEE); THAT I AM LICENSED BY THE CHIEF TOXICOLOGIST (OR DESIGNEE) TO CONDUCT SUCH TESTING; THAT THE INSTRUMENT WAS CERTIFIED AS ACCURATE WITH THE PAST 3 MONTHS; AND THAT THE TEST RESULTS ARE ACCURATE.

More recent test strips in both DC and Greenbelt omit this certification.
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