We are lucky to have members who ferret away materials, any materials, that may be of help to the defender of a DUI Case. Recently, George Bianchi wanted to update me with the 2016 IACT newsletter. When I asked if he had others, he sent me over 30 of them, dating back to the 1990's. He also included an ASCLAD report or the American Society of Crime Laboratory Directors, or in reality, the police officers lab excuse machine. However, when they concede a point helpful to us, it's awfully hard for them to continue to deny the problem.
Such is the case on their 2004 180 Day Study Report. They looked at what was needed in crime labs. One point I found helpful was the comment regarding duties of lab directors. "Lab directors have a responsibility to the public to develop and maintain efficient, high quality laboratories. Laboratory managers . . . are responsible for developing sound scientific practices." P.10. Find it in the Virtual Forensic Library here: https://drive.google.com/file/d/0B8rbj7RPFLobSjNYMkJWUjRTdms/view?usp=sharing
Digging through these articles can result in great cross-examination gems. When the lab has failed to maintain high quality labs or sound scientific procedures, their own people call into question its validity. If their own people question its validity, then why should the jury rely on it beyond a reasonable doubt.
As we head into the weekend, many of you are preparing for trial. A number of you have a blood case and are trying to pin down problems. One area that may bear fruit is in the blood draw process itself. What has the person collecting the blood done to protect the integrity of the sample? Usually, it's all the things they haven't done to protect the sample. The Virtual Library has an article that can help you.
In the library, you will find Procedures for the Collection of Diagnostic Specimens by Venipuncture. The article is from the Clinical and Laboratory Standards Institute. What better source for determining if the test was collected correctly, and therefore reliable.
Take a look, and if you need it, print it out or link it on your tablet for impeachment. You can find it here.
Let me know if there is anything I can do to help as you look through our virtual library. You can find help in accessing the library here:
Police always say they smell the odor of alcohol, and even worse, the odor of intoxicants. What the heck does this mean and why does it help to establish Reasonable Suspicion or Probable Cause?
It sounds like it shouldn’t. In Police officers’ detection of breath odors from alcohol ingestion by Moskowitz, Burns and Ferguson, Accident Analysis and Prevention 31 (1999) 175-180, found here: https://drive.google.com/file/d/0B8rbj7RPFLobVlpERWtPdzlQLUU/view?usp=sharing they point out that the smell is not all that helpful. And in fact, in optimum conditions, only twothirds of the time was it detected in BACs below .08 and 85% of the time in excess of .08.
The results were worse after food consumption. BAC guesses based on odor were no better than guessing. The study found breath odor detection was unreliable. Where you have a case with odor alone and where SFST’s are considered a search,
When I see a breath test is given, I always hear, “keep blowing” or “blow harder”. These commands make the subject keep blowing long after they need to, and it helps the police ensure the breath test is higher than the true BAC. Especially in close cases, to the legal limit, or the enhanced limit, it can result in the difference between a not guilty and a guilty verdict. The police have no concern about inflating the number when they are rewarded for making more DUI arrests and citations. But we know this practice is wrong. It’s not just anecdotal but based on a study of this phenomenon. In Varying Length of Expiration Blow and End Result Breath Alcohol, found in the virtual library here: https://drive.google.com/file/d/0BxbLCAZZvzl3eVV1Q0pFb19ZM1U/view?usp=sharing
Western Michigan conducted a study to determine the impact of this phenomenon. What they found, is exactly what we have been saying, “the longer you blow, the higher you go”. When the police manipulate the results to increase the reading, it is wrong. With this study, the practitioner can show how the police do it, and why it matters. Next time the officer makes your client blow longer, make sure the jury knows the result is unreliable. Let them send a message to the police to conduct the test properly and reliably, so next time, they aren’t the ones sitting at the defendant’s table.
I assume that my breath test operators are like many of yours. They do not know anything about what they are doing, and frankly, they don’t care. They believe that by burying their heads in the sand, they are able to rely upon their lack of knowledge about breath testing as a defense to your cross-examination.
While the officers may try to hide behind ignorance, they should still be cross-examined on the scientific requirements for reliable and accurate breath testing procedures. Either they acknowledge the absence of the procedure, or they demonstrate they do not know the procedure, and therefore, their claim of a reliable test is worthless.
In preparing for your cross, the virtual library provides numerous studies related to breathing testing and quality assurance. Dubowski’s Quality Assurance in Breath-Alcohol Analysis is a good start and may be found here: https://drive.google.com/file/d/0BxbLCAZZvzl3OG5hczRKVmlPQ1k/view?usp=sharing
Print out a copy and send it to the maintenance officer. Either she will read it, and she will have the foundation to answer that “yes” is the standard and “no” we don’t do it. In the alternative, she will have to acknowledge that she did not read it, did not determine the standards necessary for reliability, and her opinion about the reliability of the test is questionable, at best.
Relying on scientific articles to demonstrate the witness's lack of training, experience, and ability to opine about the reliability and accuracy of a breath test result is just one more arrow in our quiver, and the virtual library can assist in filling it.
© 2021 Island Law Office, PC, LLO All Rights Reserved, The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. Address: 1428 10th Street, Gering, Nebraska 69341 Toll Free (844) 236-3440 Tel: (308) 633-4040 Fax: (308) 633-4044 | Gering, Nebraska based attorney practicing in Nebraska and surrounding areas which include the cities of Alliance, Bridgeport, Chappell, Chardon, Gering, Gordon, Harrisburg, Harrison, Hyannis, Kimball, Rushville, Scottsbluff, Sidney, Oshkosh and the communities that make up Banner, Box Butte, Cheyenne, Dawes, Deuel, Garden, Grant, Kimball, Morrill, Scotts Bluff, Sheridan, Sioux counties in Nebraska.