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LESSON PLAN

Course: Basic Breath Test Operator

Class Title: Courtroom Testimony and Hearing

Effective Date: April 21, 2014

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COVER PAGETIME: 240 MinutesCOURSE : Basic Breath Test OperatorCLASS TITLE: Courtroom Testimony and HearingCLASS LEVEL: Basic RecruitOBJECTIVES: See page 3

METHOD OF INSTRUCTION: Facilitation/PracticalMETHOD OF TESTING: WrittenTRAINING AIDS: Courtroom Props

REFERENCES: See page 4COMPLETED BY: Darrell CookDATE: July 20, 2007REVISIONS BY: P. DavidsonDATE OF REVISIONS: February 8, 2008REVISIONS BY: Danny DaileyDATE OF REVISIONS: April 21, 2014

APPROVED BY (signature):DATE APPROVED:

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OBJECTIVES:

AT THE END OF THE SESSION EACH LEARNER WILL BE ABLE TO:

1. With reference, testify to questions during cross examination by describing the characteristics of a person under the influence of alcohol/drugs, as discussed in class.

2. With reference, testify to questions during cross examination by explaining in chronological order the steps taken to show the Intoxilyzer 5000 EN/8000 was operating properly, as discussed in class.

3. With reference, testify to questions during cross examination by explaining the established guidelines for proper maintenance, storage, and environment for the Intoxilyzer 5000 EN/8000, as discussed in class.

4. With reference, testify to questions during cross examination by explaining the correct operating procedure in relating to the actual steps taken by the operator of the Intoxilyzer 5000 EN/8000, as discussed in class.

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REFERENCES:

“Breath Test Operator’s Course” Student Reference Guide, Basic Training, Department of Criminal Justice Training

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During the next four hours we will be having a serious look at a Mock Court, where the actors in the system will be the instructors and the students. That is, the judge, jury, prosecutors, and defense attorneys.

Each witness will face a typical scenario that an officer may face in the court system. A critique will be made after each case is decided by the jury.

At the end of this training, you will be better equipped to answer typical defense objections and questions in the courtroom.

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Prior to starting Moot Court, one instructor will take the selected witnesses to a separate room to brief them on what to expect. They will be told that a selected scenario has been assigned to them and it is one they may actually face in court.

Further, the experience may represent the worst case scenario because the judge will be pro-defense and the prosecutor will be less than enthusiastic.

They will be told that there will be two juries: Jury A and Jury B. They will take turns playing that role.

After each person testified, a jury member will be selected to act as the Jury Foreman.

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TIME: 2 MINUTES

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TIME: 5 MINUTES

Presentation – continued:

Using the laminated Courtroom Information to the Entire Class, the instructor will go over the following points:

1. There are two purposes for this exercise: first, to practice testifying; second, to review the knowledge learned during the week.

2. Do not open course materials or notes during court. Do feel free to take notes on blank paper.

3. Instructors will rotate the class. The instructor will also play the role of defense attorney.

4. The testimonial evidence will be breath test only; no roadside information will be used.

5. Prosecutor is weak and will allow witnesses to be qualified and their evidence admitted into court.

6. Each scenario will be 20-30 minutes from the defense standpoint only. A discussion will follow.

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Another instructor will stay in the classroom with the selected jurors. The instructor will hand out to each juror the Operator Preparation & Courtroom Testimony Critiqueand go over this form with them.The specific questions that the jurors are to answer on each witness are:

1. List any incorrect or non-factual statements made by the witness.In this situation, the juror is to draw from his/her knowledge learned in the class during the week of instruction in Breath Testing.

2. Could you understand the testimony as presented by the witness? If not, why?If the juror clearly describe what happened? In this situation, and in most of your role as juror, would you have understood the testimony as a civilian.

3. Describe the demeanor of the officer during his/her testimony (attitude, body language, speech, eye contact with the jury, confidence, believability, etc.)Did the officer come across as competent? Reliable? Honest? Efficient? Have good posture? Make eye contact with the jury?

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LEC 4. Did the witness testify beyond his/her area of expertise? If so, what areas?From the knowledge you gained this week, did the officer go beyond what he/she knew,or had been trained on in class?

5. Was the breath test evidence complete? If not, what was inadequate? Self-explanatory.

6. Did the officer’s testimony help or hurt thecase? Explain your answerRemind the jurors that they are dealing withonly a “snapshot” of time, not a completetrial; thus, they are to base their decision onwhat they have seen and heard from thatofficer in the short amount of time he/shewas on the witness stand.

7. Would you have found the defendantguilty or not guilty of the charge basedsolely on the testimony presented on thewitness stand? Why?Strongly remind the jury members that theyare not police officers while on jury duty.They know nothing about the instrument noranything about police work. In the event theymaintain their identity as police officers whileplaying civilian jurors, this will not be a worthwhile experience.

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LEC 8. Other comments.The witnesses will now be returned to the classroom and be seated in the designatedarea.The prosecutor will qualify the witnesses, asking questions from the laminated sheet:Qualifying Questions to be asked by theProsecutor.

The questions are:

1. Please state your name for the record.2. What is your occupation?3. How long have you been so employed?4. Were you employed on ________?5. Have you attended any special schools

connected with your work?6. Will you please name some of the specialized

schools.7. When did you attend the Basic Breath Test

Operator’s Course?8. Who was in charge of this course?9. What was the duration of this course?10.What did the training consist of?11.Were you required to operate the Intoxilyzer

5000 EN/8000 while in attendance at this school?

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12. Were you tested in any manner to determineyour degree of proficiency in the operation the Intoxilyzer 5000 EN/8000?

13.Did you successfully complete this course ofinstruction?

14.Were you issued a certificate, diploma or other evidence of your having successfully passed this course?

15.Can you advise the court as to approximately how many breath tests you have administered since your completion of this course?

16.Have you testified previously in a court of record concerning your operation of the Intoxilyzer 5000 EN/8000?

17.Did the test you administered for evidence show a reading?

18.Was the test given in strict conformity with the accepted instructions you received it he Basic Breath Test Operator’s Course?

Once the prosecutor is finished qualifying the witness, and the judge has accepted, the first person will be called to the witness stand.

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For each case the judge will ask the defense attorney if he/she is ready for the next witness. After calling the witness, the judge will swear that student in by reciting the oath. The judge will then assign either Jury A or Jury B to the case. After the student is seated, the defense attorney will begin questioning.

After the defense rest his/her case, the judge will ask the jury for a decision by selecting a foreman to speak, answering each question on the jury critique.

After the foreman explains whey he/she decided the way he/she did, the judge asks for a show of hands from the other jurors for guilty or not guilty.

The judge will then ask if any of the other jurors have anything additional to add. Then a discussion will ensue, led by the instructor who acted as the defense in that particular case. He/she will critique the entire case and answer any final questions.

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During the courtroom testimony of students the instructors should use the below questions as a guide for questioning of students in relation to their understanding of the proper operations of both instruments. Not all question need to be covered during this block of instruction.

What principle does the Intoxilyzer 5000EN/8000 operate on? Infrared Absorption Principle

How many sample chambers does the instrument have? one

What size is the sample chamber of the 5000 EN? 81.4 cc or ml

How long is the warm-up period from a cold start? 30 minutes

How many tests can the 5000EN run before the memory needs to be downloaded? 120

What test numbers will the 5000EN instrument indicate on the scrolling digital display “Memory Near Full”? 116 through 120

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What indication will you see in the scrolling digital display when you attempt to run the 121st test on the 5000EN? Memory Full

What are the four parameters that must be met before the instrument will accept a breath sample and give you a reading?

•Time – minimum of 4 seconds; •Pressure >.15 Liters per second; •Volume – 1.1 Liters; •Slope – Homogeneous concentration of alcohol -Invalid Sample, Subject test .XXX)

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What are the four purposes of the start test button? 1. To start a test; 2. to invalidate a test; 3. It is the first operational procedure by the

operator should an instrument error occur; 4. It brings the instrument out of the standby mode,

which takes 2 ½ minutes on the 5000EN and 1 minute on the 8000 to become operational.

How many filters are on the filter wheel? 5

What do those filters identify? Ethanol, Methanol, Toluene, Acetone, and Water Vapor

What is the testing sequence of the Intoxilyzer(s) according to the KAR’s?

Air Blank - ACalibration Check – CAir Blank – ABreath Test – BAir Blank – A

What is the purpose of the air blanks?To purge the mouthpiece, breath tube (external tube),

internal tube and the sample chamber.

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How does the instrument use infrared light to generate a breath alcohol reading? It measures the light intensity prior to alcohol being introduced into the sample chamber and after alcohol is introduced into the sample chamber and compares the two readings.

How does the Lambert – Beers Law apply to breath testing, in relationship to the Intoxilyzer 5000 EN/8000?

Alcohol molecules use (rob) energy from the infrared light to bend at it’s bonds.

What are the three phases of alcohol in the human body?

Absorption, distribution and elimination.

Where does most of the elimination of alcohol molecules from the body take place and what percentage is eliminated?

Liver, 90%

Where does most of the absorption of alcohol molecules from the body take place and what percentage is absorbed?

80% of alcohol absorption takes place where in the body? Small intestines (first 10-12 inches)

The other 20% of alcohol absorption takes place where in the body? Stomach

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Certification of a breath test operator is good for how long?

Two Years

If your certification expires, the breath test operator has how long to re-certify before having to take the 40-hour course again? 6 months

True or False: If the breath test operator is expired, but not “terminated”, he/she can still administer breath tests during that first six months. False

According to KRS 189A.220, there are five elements under a “Refusal”. Name one of the five:

1. The person was – operating or in physical control of the motor vehicle;

2. Charged and arrested for violation of KRS 189A.010 (1);

3. Advised on the implied consent law (KRS 189.103);

4. Requested to take a test(s) by the officer;

5. Refused one or all of the tests offered.

What temperature does the Intoxilyzer 5000 EN operate?

• 46 degrees, plus or minus 1 degree C

What temperature does the 8000 operate?

• 47 degree C

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If a breath test operator accidentally left his/her portable radio on while administering a breath test, could that “in itself” affect the results of the test?

No, only if transmitting.

If someone transmits from a radio near the Intoxilyzer during a test and the signal is strong enough to interfere with the operation of the instrument, what indication would the operator get?

Invalid test, inhibited – RFI (This is an example of an incorrect operational procedure or condition.)

At what temperature does the simulator operate, and why?

34 degrees Centigrade, temperature of normal, exhaled breath.

What temperature is the breath tube heated to?

Unknown, warm to the touch only.

Why is the breath tube heated?

To prevent condensation from forming.

If the slope parameter were activated by residual mouth alcohol, what would the card read?

Invalid Sample, Subject Test .XXX

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The Intoxilyzer 5000EN measures a drop of Grams of alcohol in an amount of time when the slope parameter is activated. What are the numbers of Grams of alcohol and the time this drop must occur?

.006 of a Gram in 6/10th of a second.

True or False: When entering your ORI number on the 5000EN you must type in the KY first. False

True or False: When entering your ORI number on the 8000 you must type in the KY first? True

Where are the two places the Intoxilyzer serial number can be found by the operator?

Back of the instrument and the evidence card.

By law, what is to be done with a subject prior to a breath test being administered to ensure that the test is accurate?

20 minute observation period by a certified breath test operator.

True or False: If you get a “Deficient Sample” the breath test operator should wait another 20-minute observation period and run another test. False

What should a breath test operator do if he/she gets a card indicating a “Deficient Sample”?

Take the subject to he site where blood or urine is to be taken and re-advise of the implied consent.

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Name at least three ways a breath test operator will know if the Intoxilyzer 5000 EN is operational prior to pushing the start test button.

1. Scrolling digital display is on, the power LED is lit

2. The paddle in the simulator is turning and the light (s) are on

3. The breath tube is warm to the touch

If the subject does not provide any breath sample during the “Please Blow” mode, what kind of evidence card will you get? No sample given.

What is the primary purpose of the PBT in Kentucky as trained by the DUI Enforcement Section of DOCJT?

To show the presence of alcohol.

Which button activates the display on the PBT?

The “Read” button.

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During this time we have learned to testify to questions during cross examination by describing the characteristics of a person under the influence of alcohol/drugs.

In addition, we have learned to testify to questions during the cross-examination by explaining in chronological order the steps taken to show the Intoxilyzer was operating properly.

We have also learned to testify to questions during cross-examination by explaining the established guidelines for proper maintenance, storage and environment for the Intoxilyzer 5000 EN/8000.

Finally, we have learned to testify to questions during cross-examination by explaining the correct operating procedure in relation to the actual steps taken by the operator of the Intoxilyzer 5000 EN/8000, as discussed in class.

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AFQ

TIME: 240 minutes

Conclusion