When you are arrested for drunk driving an officer has a right to request that you submit to a chemical test[1], including a breath, blood, or urine.  The most common request is for a subject to submit to a breath test on a DataMaster (often referred to as a breathalyzer), which is typically because it is an easier option for the officer.  However, in other cases whether by obtaining a warrant or voluntary consent a blood draw is requested.  It is often considered that a blood test is more reliable, but it is absolutely necessary that your attorney understand how a blood test works and how it is analyzed in order to fully represent the interests and rights of someone charged with drunk driving.  The following is a summary of that process:

First, it is important to understand that it truly is not “blood” that is analyzed but rather a comparison of known and unknown volatiles.  Further, it is important to understand that the State “expert” does rather little in the analysis of a sample, and understanding and ultimately cross-examining the witness is grounded in understanding Headspace Gas Chromatography and the Chromatograms.

The Michigan State Police (MSP) Forensic Lab will receive a specimen of a subject’s blood contained in 2 separate 10 ml gray stoppered tubes, which will be contained within a sealed kit[2] that should have been mailed via first class mail by the officer who participated in the blood-draw.  The kit is received by MSP, documented by a lab tech, and stored in their temperature controlled storage room.  The tubes are also presumed to contain a known amount of preservative and anti-coagulant[3] both in an effort to maintain the integrity of the sample.  Therefore, even at this stage, the State does not have your blood but a mixture.

A Lab Analyst will obtain this mixture when they are prepped to run it through a Head Space Gas Chromatograph, and again alter the mixture to something new.  First, the Lab Analyst will take some of the mixture and pour it into a new vessel or tube.  Then the Lab Analyst will use a pipettor (like a syringe) that will withdraw an amount of that mixture and put it into a new vessel while also introducing another new volatile, which in Michigan will be n-propanol and t-butanol[4], which are both types of alcohol but will be introduced in separate vessels or tubes.  The reason for two separate tubes is because the sample will be run through two identical yet separate machines.  Now there will be two tubes, each including the mixture plus a new volatile, which will act as an internal standard.

The next step is to heat this mixture.  The mixture of the blood, the two chemicals from the original tube, the volatile internal standard, are heated in order to reach a partition or equilibrium wherein it is theorized that the amount of analyte in the gas above the liquid represents a known correlation of the analyte in the mixture.  The purpose of this exercise is for the chromatograph to analyze and more specifically separate the gas as it travels throughout the machine.

In Michigan, the process is automated, which means that a pipettor automatically withdraws or siphons an amount of the head space, or gas, from the heated mixture and will inject it into the gas chromatograph through the injection port[5].  Once injected a carrier gas is needed in order to move the volatile gas through the machine.  In Michigan, Helium is utilized to force the gas through, which must be done at constant pressure and flow rate.  This gas, or two gases, will pass through what is called a column[6], which is used to separate in order to measure the volatile.  The column is located in the oven of the machine, which will be heated to a constant temperature[7].  The column is to slow down certain analytes wherein there will be an expected time the analyte will exit the column.  At the end of the column, the volatile is introduced to an FID or a Flame Ionization Detector, wherein the FID passes the sample and carrier gas (and whatever is coming through the column) through a hydrogen air flame.  The FID burns the organic compounds that pass through which create increased ions.  A polarizing voltage attracts these ions to a collecter located near the flame.  The current produced is proportional to the amount of the sample being burned.  This current is sensed by an electrometer, converted to digital form, and sent to an output devise, which ultimately creates the chromatograms that defense counsel have an opportunity to review.

The chromatograms, specifically the subject sample, will indicate the two peaks that have been created.  One peak will be the known volatile, the internal standard, wherein there is an expected time it will pass through the machine and also a known amount that will be measured by determining the area contained under the peak.  The other peak will be the believed ethonal alcohol, wherein the level will be determined by measuring the area under the peak.  Again, this is a comparative analysis.  The calculation that is ultimately made is based upon the software attached to the machine, which is unknown, even to the State, but will result in a measurement of ethanol alcohol in units of grams alcohol per 100 milliliters of blood.

Therefore, this process is assuming the blood was drawn properly, transported and stored properly, that it is mixed properly with an internal standard, that the volatile sample is heated properly, the correct amount of gas was siphoned and then injected, that the carrier gas is at a constant flow, and the oven is held at a constant temperature, and column is the correct length and width and separates the analytes passing through, the FID burns properly, and the detection system detects the correct charges and charts is properly.

This is merely a summary of the events that transpire in analyzing a sample of your blood believed to contain ethanol alcohol, and clearly, to simply accept the result without an educated and experienced attorneys review of the process is mistake that may result in a life changing event.  Therefore, if you have a case that involves the analysis stemming from a blood draw you must be confident that your counsel is confident in understanding this complex process.

[2] Tri Tech Forensics: company contracted with Michigan State Police to provide kits for blood specimen collection.

[3] According to Kit components, each tube contains 100 mg of sodium fluoride and 20 mg of potassium oxalate.

[4] These are internal standards for the gas chromatograph.

[5] Note that the septum is typically replaced once per week and will be recorded in the maintenance records, and may need replacement from cracking, seal issues, and leaks.

[6] Michigan uses Resteck column 30m x .53mm ID

[7] Michigan oven temperature is to 45 degrees C.

Only Blood Alcohol Intoxicates

One of the main scientific underpinnings of breath testing is this thing called “partition ration.”  This refers to the difference in breath alcohol verses blood alcohol.  this is an important subject because testing the breath can only tell you how much alcohol is in the breath.  And, there is always less alcohol in the breath than there is in the blood.

But breath alcohol does not impair or intoxicate.  For that to happen the alcohol must get into the brain, and this of course requires that the alcohol be in the blood.

Because of this, in order for breath alcohol to have any relevance it must be converted to blood alcohol.  To do this a ratio of breath and blood alcohol must be used.  This is where partition ratio comes in, and this is one of the dirty little secretes of breath testing.

All breath testing machines everywhere in the United States “assume” that your breath blood partition ration is 2100/1.  This means every molecule of alcohol in your breath is multiplied by a factor of 2100.   But, not everyone has a partition ratio of 2100/1.  Some people have a partition ration as low as 1784/1 to as high as about 3400/1, and anyone who has a partition ration that is different has a breath test score that is either too high or too low.

Because of this many scientists have recommended that a “safety factor” be applied to breath test scores.  The idea is that this will cause there to be fewer false convictions. For example, Kurt Dubowski suggested this “safety factor” because data from his own research showed that at least 14% of the subjects had blood breath partition ratios less than 2100:1.[i] Dr. Dubowski also stated that for states using the two decimal system, (such as Michigan), a 0.025 deduction would round off to 0.03.  This would make a .10 breath test score actually a .07 – below the legal limit!

Another top expert, A.W. Jones recomends a 0.015 g/210 liter reduction from the mean of two subsequent breath tests.  This is less than Dubowski, but can still be significant.  The highest recommendation is from Dominick Labianca who suggested a 0.055% reduction from the raw result.  This would make a .13 at .075, again, below the legal limit!

Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (616) 365-5780 , or filling out this consultation request form. Call now, there’s no obligation!

Trial of the DUI Case

Tonight President Obama is likely to talk to nation about the economy and what he intends to do to fix it. I suspect that he’ll say something like that fixing the economy is his number one priority.  Like someone else said a long time ago, it’s all about the economy, i.e., “it’s the economy – stupid.”

And so it is with wining a DUI trial.  Just substitute the word “preparation” for the word “economy.”  You want to know how to win a drunk driving trial?  “It’s the preparation –.”  Before you start spending lots of time figuring out exactly what you’re trying to prepare you need to understand that your preparation is for one purpose and one purpose only – to identify the theme of your case.  Everything else goes follows from there.

Let me say this differently.  Let’s say you’re handling a murder case and you learn that the state’s eye witness made a written statement that the perp had only one ear.  You know your client has two ears.  Do you cross examine the witness on this obvious mistake?  It depends on your theory of the case.  If your theory is self-defense then who cares if the witness is wrong about the ears?

The same is true of a drunk driving case.  Yes, in most DUI cases you will ask the jurors if they are members or contribute to MADD, if they drink, if they keep and/or serve alcohol in their home, do they allow people to leave their house after drinking, have they have consumed alcohol and driven, do they agree that it’s possible to do this and still drive safely, etc., etc., but these questions may not applicable, and certainly may not be the most important.

The first thing you must do, and this requires a great deal of preparation, is to figure out your theme.  Everything else, from voir dire, to opening statement, to direct (if any) to cross to closing is all based on this theme.  You use your voir dire to set up your opening statement which sets up your cross examination which sets up your close; and all of this is wrapped around a theme.  If the voir dire or cross-examination question doesn’t fit into your theme, then no matter how tempting, don’t ask it.

Ok, having said all this, we all use various sources to figure out how to approach different cases and witnesses and so forth, and Patrick T. Barone’s book Defending Drinking Drivers has lots of sample cross-examination in it and there are several detailed sections on voir dire, opening, closing and so forth.  Larry Taylor’s book is a must-read, and is simply excellent.  There are dozens of DUI defense books on the market these days, but in my very biased opinion James Publishing has several of the leading books on DUI defense, including Kapsack’s book, and the book on defending chemical tests.

With proper preparation and a powerful theme and some good story telling nearly any DUI case can be won at trial.  But, if you lose the preparation and you’ll surely lose the case!

MOGG v. State
Ind: Court of Appeals, 2009

Here is a summary of the case:

On January 16, 2007 Appellant pled guilty to operating a vehicle while intoxicated.  Her jail time was suspended pending successful completion of a probationary term.  One of the conditions of probation was that she consume no alcohol.  On August 27, 2007, the state alleged that Appellant violated her probation by consuming alcohol.

Upon admission of the violation, the trial court extended Appelant’s probation and imposed an addition condition, which was the continuous wearing of the SCRAM bracelet. 

In January, 2008 Appellant was placed on a SCRAM II bracelet, an updated version.  March 17, 2008 Appellant admitted violating her probation as part of an agreement that extended her probation by four months and required her to remain on the SCRAM II.  

On June 20, 2008 the State filed a new information of probation violation, alleging violation by consuming alcohol “as evidenced positive SCRAM events.” On November 1, 2008 the State filed another information of probation violation alleging Appellant consumed alcohol four days prior, as evidenced by positive readings for alcohol while on SCRAM. 

The trial court held an evidentiary hearing on both information’s and revoked Appellants probation on the finding that she had consumed alcohol.  Appellate continued to deny consuming any alcohol.

Appellant appealed on whether the trial court abused its discretion in admitting evidence of Appellant’s alcohol consumption generated by the SCRAM system. An additional question before the court was whether there was sufficient evidence to support the revocation of Appellant’s probation. 

The Court of Appeals concluded the trial court did not abuse their discretion based on the uncontroverted expert testimony and evidence before them in determining the SCRAM readings as evidence of alcohol consumption.   Finding that they were sufficiently reliable to be admissible as for purposes of a probation revocation.

What follows is a discussion of breath testing source-code challenges that have been brought in New Jersey.  It was written by one of the nation’s top DUI defense lawyers, Evan Levow.

New Jersey was the last to get rid of the antiquated Draeger-Smith & Wesson Breathalyzer®, replacing it with a computer-chip based machine, the Draeger Alcotest MKIII-C®.  The Alcotest is a dual measuring device, using both fuel cell and infrared technology to assess a breath sample.  No other company uses this dual technology, and the combination of the measurements, at first glance, made the machine and the process sound too good to be true.

Other jurisdictions are currently implementing the Alcotest, including Massachusetts and Connecticut, although they are using the 9510 model, which is a Windows® type format, but is essentially the same as the 7110.  Washington is about to purchase the 9510, as well.  New York State Police and some counties in California have been using the 7110 for a couple of years now.

Without the computer chips in the Alcotest®, Intoxilyzer®, DataMaster®, or Intoximeter®, the machines would be useless.  The machines run based on computer language or “source code”. 

Defendants in several jurisdictions, including Arizona, Florida and Minnesota, sought the source code from CMI, the manufacturer of the Intoxilyzer®, but actual litigation to obtain the code has not been successful.  DataMaster® has, with a non-disclosure agreement, allowed its code to be reviewed, but no litigation resulted from the review.

Only New Jersey, has undergone full source code litigation, both to obtain the code and a court based challenge on the reliability of the code.

In 2002, a pilot program was started in one New Jersey town, testing over 300 defendants on the Alcotest 7110.  Litigation was instituted in a single county, resulting in authorization to use the machine in that one county, only, in a case called State v. Foley, 370 N.J.Super. 341, 851 A.2d 123 (Law Div., 2003).  Foley resulted in some software changes to the machine.

However, appellate approval was required to use the machine state-wide, and the State failed to certify the case to the Appellate Division.  Not realizing its mistake, the State began to roll-out the machine county by county in 2005.  Several defendants began making discovery requests for the source code, and the State again certified a group of cases in a county level court, in State v. Chun.  That court declined to grant judicial notice of Foley, and the issue was eventually picked up, sua sponte, by the New Jersey Supreme Court.

The Supreme Court appointed a Special Master to conduct a state-wide reliability hearing on the machine.  The ensuing litigation lasted over three years, produced over 10,000 pages in testimony and almost 300 exhibits.  National and international experts testified for the parties, including Michael Hlastala, Ph.D., and Gerald Simpson, Ph.D.

Initially, Draeger declined to get involved in the litigation, and would not grant any realistic access to the source code.  After the Special Master issued his first of two findings of fact, Draeger intervened in the litigation because it did not like some of the Master’s rulings.  As a party to the limitation, the Supreme Court then ordered Draeger to disclose its source code under protective order

The defense team, which included Evan Levow, hired a source code analyst that found several errors and issues with the code.  Each one of these errors was opined to be enough to determine that the code is not scientifically reliable:

• The Alcotest® software would not pass U.S. Industry standards for software development and testing.  The software was not developed to any known standards, or, according to Draeger’s software engineer, no guideline standards at all.
• Actual proof of incomplete software testing.
• Catastrophic error detection in the program is disabled.  As a result, the machine would not know if critical processes failed during its operation.
• Design lacks positive feedback.  The machine cannot tell if the program is functioning correctly, and that each of the processes or calculations are occurring during operation of the program.
• Diagnostics adjust or substitute actual readings.
• Flow measurements adjust and substitute
•  No error detection logic
•  Software does not insulate/protect modules or data
• Timing problems

The most significant issue with the reliability of the Alcotest® actually came up during the cross-examination of one of Draeger’s software designers, who testified that the fuel cell measurements were actually tied in to and calibrated by the infrared measurements.  If the machine sensed an error with the fuel cell reading, it basically brought the fuel cell reading in line with the infrared reading and did not report any error.  The designer testified that, due to fuel cell drift, there was up to twenty five percent error in the fuel cell measurement.

This revelation directly contradicts Draeger’s claim that the Alcotest® is the only machine available that tests breath with two independent sources, fuel cell and infrared.

In March 2008, in State v. Chun, 194 N.J. 54 (2008) the New Jersey Supreme Court disregarded these errors and held that the machine, with certain safeguards, was reliable.  The machine tolerance between acceptable fuel cell and infrared readings was reduced by fifty percent, and the volume of air required to be emitted by women aged 60 years or older was reduced.  A twenty minute observation period prior to the breath testing was mandated.

An appeal was filed to the United States Supreme Court on confrontation issues under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).  Certiorari was denied, Chun v. New Jersey, 129 S.Ct. 158, 172 L. Ed.2d 41 (2008).

Despite the errors and issues present in the Alcotest 7110 MKIII-C, it is now used throughout New Jersey.

The case involving the lead defendant, Jane Chun, was ongoing at press time.  Ironically, the breath test results in Ms. Chun’s case were excluded from evidence, due to failure to follow protocol procedures for breath testing.  Field tests were administered while Ms. Chun was wearing high heeled shoes.

Massachusetts has also begun a scientific reliability challenge to the Alcotest.

Ignition Interlock Device in Car

MADD is at it again, this time the goal is to put an ignition interlock device into every drunk driver’s car. A bill has been introduced to make such a law mandatory in every state.

They intend to do it the old fashioned way – by withholding federal highway money. This is the same insidious method that was used to make 0.08 blood-alcohol content the law in every state. MADD intends to use this method to compel states to require alcohol ignition interlocks for all convicted drunk driving offenders.

The threat of losing federal highway funds has proven to be a powerful inducement to pass increasingly draconian drunk driving laws. Recently, two U.S. senators, Frank Lautenberg of New Jersey and Tom Udall of New Mexico, joined MADD representatives Monday to announce their bill will use this tactic for ignition interlocks.

Accordingly to OHSonline:

Lautenberg wrote the law that lowered the legal blood-alcohol limit to 0.08 from 0.10 in all 50 states and also the law that set 21 as the legal minimum drinking age. He said U.S. House Transportation and Infrastructure Committee Chairman James Oberstar, D-Minn., has included language to accomplish the bill’s goal in the transportation reauthorization bill. Lautenberg and Udall serve on the Senate Commerce, Science, and Transportation Committee.

In passing the super drunk law, Michigan recently joined ten other states that currently have laws that require an ignition interlocks for all drunk driving offenders. The other states include Alaska, Arizona, Arkansas, Hawaii, Louisiana, Nebraska, New Mexico, New York, Utah, and Washington. Michigan’s law will go into effect on October 31, 2010.

For more information on ignition interlocks see:

• Drunk Driving Traffic Stops and Interlocks
• Will Ignition Interlocks End Drunk Driving?
• Ignition Interlocks – BAIID

Blood tests in drunk driving cases are often thought of as the “gold standard.” Some judges, prosecutors and even defense attorneys believe that blood tests are so accurate that DUI cases based on them are not defendable.

In Michigan the forensic scientists at the state lab have testified in numerous cases that every one of their several hundred thousand DUI blood tests have been spot-on, with no mistakes made ever.

This belief and these opinions expressed by Michigan law enforcement are not supported by a new finding that hundreds of DUI blood tests from a Colorado lab are faulty. As a result more than a thousand blood tests are being redone.

Agilent 6850 Series II GC System

According to the Associated Press reporter P. Solomon Banda, the errors were discovered through the labs own quality assurance program. This leaves open the question of whether such self-checks are sufficient to protect the public from the possibility of wrongful conviction of drunk driving.

The tests were performed using head space gas chromatography on an instrument manufactured by Agilent Technologies. The article suggests that this instrument has been ruled out as a cause, which leaves human error or contamination.

According to Sandy Mullins, the executive director of the Colorado Criminal Defense Bar, “we take a lot of these tests as fact, when in fact these are being administered by people and systems. Just like any system they can be faulty. Of greatest concern is where people couldn’t afford to challenge the test and pleaded guilty.”

Furthermore, in a typical drunk driving case, the client is saying “I know I was not drunk but the machine says I was and the machine doesn’t lie. Well, this proves that tests sometimes do lie.”

One of the nation’s top DUI defense lawyers, William C. Head, has just written an article that chronicles the history of drunk driving laws; and describes what aggressive drunk driving defense lawyers have done in response to these laws.  This article is entitled The Mobilization of the DUI-DWI Criminal Defense Bar to Help Citizens Fight Impaired Driving Charges and can be viewed in its entirety on the AVVO web site.

In this article Mr. Head talks about how much influence MADD has had on the formation of these DUI laws, and how the current style of DUI laws and the modern day prosecution of these DUI laws started in 1979 – 1983 under President Reagan.

One of the first things MADD wanted was a .10 law.   Prior to that time the legal limit was .15.  Currently, all states have a uniform .08 legal limit.  The .08 law was championed by Hillary Clinton.

In response to these tougher more uniform laws the defense bar began to become organized.  According to Mr. Head:

In 1983, a multi-city, national tour was organized by the late Richard Erwin, the late Reese Joye, Lawrence Taylor, Richard Essen, John Tarantino and Donald Nichols (to name a few) in order to share their knowledge of how to defend drunken driving cases in this exploding new segment of criminal defense law. Before the Internet made communications instantaneous, efforts included phone calls, facsimile messages and “snail mail” to each other. Don Nichols started a monthly newsletter, followed by another newsletter launched by John Tarantino. About half dozen new treatises were written between 1980 and 1987, followed by even more books (including the author’s) in 1991. Seminars were launched to spread the word & train more criminal defense lawyers.

Later, the College for DUI Defense was formed, and continues to be the preeminent training ground for defense attorneys wishing to become the absolute best at defending citizens wrongfully accused of drunk driving.

Here is a brief introductory video by Mr. Head talking about the importance of this kind of advanced training:

If you’ve been charged with DUI in Michigan, call me today for your FREE case evaluation.

For almost two decades Grand Rapids area drivers arrested for drunk driving have had their breath tested by an instrument called the DataMaster.  This is all about to change as Grand Rapids area DUI law enforcement will begin using the DataMaster DMT.

Almost all of the approximately 250 DataMasters in service in Michigan were placed into service in either 1993 or 1995.  This includes the DataMasters in the greater Grand Rapids areas. These DataMasters were all manufactured by National Patent Analytic Services (NPAS), located in Mansfield Ohio.

A new DataMaster had been developed by NPAS, and is about to go into service for DUI enforcement in the greater Grand Rapids area.  It is called the DataMaster Transportable (DMT) and it contains a lot of new features and updates.  

Michigan DUI Lawyer Patrick T. Barone recently lectured on this topic to the Criminal Advocacy Program for Wayne County, and some of the information in this article is taken from his lecture.

DataMaster DMT

As can be seen in this photographs, the new DMT is smaller than the current model.  This is due in part to the shorter optical path.  It also has a large windows type display screen using a window’s based user interface. This increases the functionality of the device.

The DMT also has increased computing power and uses a 32 bit, 520 MHz processor.   The full color graphics touch screen and the sampling system allow the display of a subject’s breath flow and alcohol absorption curve in real time.  Michigan has elected not to incorporate this feature. 

This is unfortunate because the blow pattern would allow an operator to determine a driver’s level of cooperation during the breath test.   Obtaining the graphic print-out from this function would might benefit the defense in some types refusal cases.

Another difference is that the new DMT uses an external printer. There is also a serial (RS-232) port to allow communication with digital simulators. As with the current DataMaster, NPAS will use  single point factory calibration and it appears that Michigan will adopt a dry-gas simulator rather than the wet bath currently used. 

Another big change with the new DataMaster DMT is that it appears that in Michigan there will be simulators between breath tests rather than just once per week as is currently the case.  This means that a driver’s evidence ticket containing his or her test results will also contain the results of a simulator test run at the same time 

The new Michigan DataMaster DMT will use two optical filters at 3.44 and 3.37 microns. This two-filter system ostensibly only allows a limited frequency range of infrared energy.  The idea here is that it increases the unit’s overall specificity to ethanol.

Although the new DMT is undoubtedly an improvement over the old DataMaster, it won’t change the face of DUI defense in the greater Grand Rapids area all that much, and the DMT has not eliminated any of the defenses previously available to anyone charged with drunk driving.