Keeping the Breath Test Look for Problems with the … Testing...Breathalyzer 900/900A Smith &Wesson/Draeger Safety, Inc. The Official “Dial-a-Drunk

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Keeping the Breath Test

Out of EvidenceLook for Problems with the

Department of Revenue Records

Keep the Breath Test Results Out of Evidence

Dr. Rolla N. Harger’s“Drunk-O-Meter” Circa 1938

Harger’s device required the test subject to blow up a balloon

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 DATAMASTER1985

Intoxilyzer 5000 Intoximeter RBT-IV

DMT

Analyzes and quantifies breath alcohol by employing twodifferent and independent technologies: IR spectroscopy andelectrochemical cell technology.

EC/IR-II

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 beperformed "at intervals not to exceed35 days." 19 C.S.R. 25-30.031(3)

Problems with DOR Records2. Maintenance completed more than 35 days prior to driver’s arrest.


Problems with DOR Records3. Serial number on maintenance report doesn’t match serial number on client’s breath test printoutMaintenance checks are required to beperformed "at intervals not to exceed35 days." 19 C.S.R. 25-30.031(3)

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Problems with DOR Records4. Maintenance report illegible


Problems with DOR Records5. Maintenance Report incomplete

E.g., Simulator solution manufacturer is notindicated on maintenance report andCertificate of Analysis is not attached toDOR records

Rule: Simulator solution must have comefrom an approved supplier. 19 CSR 25-30.051

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

Simulator Solutions• DOH had a gas chromatograph which

could be used to verify the accuracy ofsimulator solution shipped toMissouri.

• It has been covered up with a tarp forthe ten or more years and was justsold on Ebay a little over a year ago.

What does a Wet Bath Simulator Look Like? 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 aNIST certified thermometer during2013, and annual basis thereafter19CSR 25-30.051 (4) provides that “Any breathalcohol simulator used in the verification orcalibration of evidential breath analyzers with thestandard simulator solutions referred to in sections(2) and (3) of this rule shall be certified against aNational Institute of Standards and Technology(NIST) traceable reference thermometer orthermocouple between January 1, 2013, andDecember 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 5000only use wet-bath simulator solutionsfor calibration checks. All others canuse dry gas or wet-bath solutions

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)

Problems with DOR Records

8. Simulator solution expired at timemaintenance performed.

Lasley v. Director of Revenue, 17 S.W.3d 174 (Mo. App. 2000)

Certificate of Analysis

Simulator Solutions

• To my knowledge, DOH has nevervisited simulator solution suppliers todetermine whether the solutions arebeing properly manufactured

• DOH has (had) been testing twobottles out of each lot shipped toMissouri by pouring it into a simulatorand checking it with their BACDataMaster.

Simulator Solutions

• RepCo Marketing is a drop shippingcompany in North Carolina that doesnot manufacture or test its ownsimulator solutions

• In their certificate of analysis, theyrepresent that they manufacture andtest their simulator solutions

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Simulator Solutions

• RepCo Marketing was originallyincorporated as The Leather Bottle,Inc., a restaurant and lounge

Problems with Maintenance Report

9. Missing expiration date of Type IIpermit on maintenance report

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Problems with Maintenance Report10. 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 IIor Type III Permit Holder?

19 CSR 25-30.060 (7)

Problems with Location of Test

• 13. Alco-Sensor IV -Test outside patrol car

• 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)

14. Computer Generated A.I.R. Forms

• 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 certificationsection.

• Officer # 2 doesn’t sign or initialcertification section on Page 3.

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15. Arresting Officer hand writes entire report, including checking BT boxes

Hire a handwriting expert todetermine if someone other than thearresting officer filled out thechecklist 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 isthe second procedure on the forms insections (1)–(6) of this rule, shall be done bya 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 limitline – and the last maintenance reportindicates the machine was readinghigh.– 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 VerificationStandards

(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 testedbetween December 30, 2012,through February 27, 2014

• SB 1014

Intoximeter Alco-Sensor IV/RBT-IV

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ALCO-SENSOR IV19 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.

Alco-Sensor IV Error Code Messages

BAC Datamaster Issues

ERROR CODE MESSAGES TO LOOK FOR AND WHAT THEY

MEAN?

“INVALID SAMPLE”

“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. 25-30.011(5)(B)(1)

• "An individual permitted to operate a breath analyzer shall ... immediately suspend use of a breath analyzer that is not functioning properly."


• Maintenance report included with DORrecords showed that the Datamasterwas checked for calibration at 3:30p.m. at roadblock on day of myclient’s arrest.

• Everything looked OKEYDOKEY, asusual.

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• Datamaster had been used andchecked at a roadblock the previousday near the Randolph County lineafter the roadblock was over.

• Datamaster failed the calibrationcheck at that time - alcohol in the airblank.

• There was no apparentcommunication betweencheckpoint officers, ordecision was made toignore it if it tested OKand 2nd checkpoint.

• The next day, my clientwas tested…

• Always Check the maintenance reports on the DHSS Breath Testing Program Website! (6 plus 6)

• http://health.mo.gov/lab/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?

Defense Experts Say, TAKE BLOOD!

What does Chris Silva say about INTERFERENCE DETECTED?

Interference Detected

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“Attaining specificity in the measurement of ethanol in breath” By C.M. Bell

The BAC DataMaster (Mo2-Filter Version –Missouri’s) cannot beused in England, Australiaor New Zealand as a resultof this study

BIGGEST PROBLEM WITH THE BAC DATAMASTER

• THE MOUTH ALCOHOL DETECTIONSYSTEM OF THE BAC DATAMASTERDOES 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 testinginstrumentation. 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)


• When the legislature declares thatcertain evidence is admissible, thecourts are bound by that declaration.This rule prevails until the admissionof that evidence runs afoul of the stateor federal constitutions. Evidence canbe so unreliable and inconclusive as toviolate due process of law.– Ex parte Mayo, 652 So. 2d 201 (Ala.

1994)

Data Storage Data Storage

• DOH applied for and received grantmoney from the federal government topurchase a new computer and phoneequipment to implement data storageprogram

• Computer has not been used; datastorage program has not beenimplemented

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Data Storage email from Brian Lutmer on 3/02/16

• We do not store any data from theinstruments, nor do we have any means toremotely access or download data from any ofthe instruments in the field. The Intox EC/IRII, the DMT and the Intoxilyzer 8000 all storesome number of tests in memory, although itvaries greatly between them. If I know mystatutes and case law, what you can get onthem in terms of stored data is directlyrelated to what the LEA is willing to give you.

•

15 Minute Observation Period

19 CSR 25-30.011(2)(H) Observation period isthe minimum fifteen (15) minute continuousperiod that ends when a breath sample hasbeen provided into the approved breathanalyzer, during which time the operator shallremain close enough to a subject to reasonablyensure, using the senses of sight, hearing, orsmell, that a test subject does not smoke,vomit, or have any oral intake during thefifteen(15) minute observation period. Directobservation is not necessary to ensure thevalidity or accuracy of the test result


(J) Vomiting is the act of ejecting the solid and/orliquid contents of the stomach through the mouth,and does not include belching or burping;

(K) Examination is a limited visual examinationof a test subject’s mouth and/or denial by a subjectthat he or she has any substance in his or hermouth; and

(L) Substance is any foreign matter, solid or liquid,not to include dentures, dental work, studs,piercing, or tongue jewelry.


• Collins v. Director of Revenue, 399 S.W.3d 95 (Mo. App. 2013)Read this case!

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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Absorption of Alcohol:

Getting the ethanolout of the stomachand into the blood

StomachWalls Stomach

Walls

StomachWalls

Pylorus

80%

20%

II-18

Rising Alcohol Defense

• 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

2100:1 Partition Ratio Defense• The law provides that 210 liters of

breath contains the same amount ofalcohol as 100 milliliters of blood whensimultaneously tested. 577.012.2

• For every 2100 molecules of ethanol inthe blood there is 1 molecule ofethanol in a given volume breath.

• 577.012.2 assumes all humans have2100 times more alcohol in their bloodthan in their breath.

2100:1 Defense

2100:1 Defense• All breath test machines overestimate the

alcohol concentration of someone blowingwith a partition ratio less than 2100:1

• One study has shown partition ratiosranging between 1555:1 and 3005:1.(Dubowski, 1985)

• According the Dubowski study, a personwith a partition ratio of 1555:1 would causethe Intoxilyzer 5000 to overestimate by26% the breath alcohol concentrationcompared to that of a simultaneous bloodsample. [.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 consumedin relation to the time breath alcohol is measured.

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Body Temperature

• Law assumes breath temperature of 34.0 C. (Celsius)

• Alabama and German Studies sayaverage breath temperature is actuallybetween 34.9 Celsius and 35.0Celsius.

• Every 1 degree increases breath test result by 6.5 percent [.0755 =.0800]

• Always get nurses’ notes from jail!

Dräger Alcotest® 9510

Breath Temperature

• 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.

Booth v. Director of Revenue, 34 S.W.3d 221 (Mo. App. 2000)

• “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

• 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

Results of Blood-Breath Comparison Testing on My Client• 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 15:32• .090 15:37• .088 15:41 BLOOD WAS DRAWN• .079 15:46• .078 15:50

BrAC vs. BAC(.088) vs. (.069)

Overestimated by 21.6%

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• All laboratories are currentlyperforming at least two tests whenanalyzing blood samples in DWI cases

• National Safety Council recommendstwo breath tests at intervals betweentwo and ten minutes after an initialdeprivation period of at least fifteenminutes.


• Test results must agree within 0.02 % of each other

• Read Collins

• Thirty-two states and the District ofColumbia have adopted duplicativeconfirmatory 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 ofsecond sample depends on instrument),Oklahoma, Oregon, Pennsylvania, RhodeIsland, Texas, Tennessee, Virginia,Washington, Washington DC, Wisconsin,and Wyoming.

• Thirty-seven states and the District ofColumbia require a controlled sample orknown solution be used to ensure that themachine is in proper working order beforeeach 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, NorthDakota, Ohio (instrument dependent),Oklahoma, Oregon, Pennsylvania, SouthCarolina, Texas, Vermont, Virginia,Washington, Washington DC, West Virginia,Wisconsin, and Wyoming.


• Eliminates problems with mouth alcohol contaminated samples

• Good science requires it

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Duplicate Breath Testing, continued

• When the legislature declares thatcertain evidence is admissible, thecourts are bound by that declaration.This rule prevails until the admissionof that evidence runs afoul of the stateor federal constitutions. Evidence canbe so unreliable and inconclusive as toviolate due process of law.– Ex parte Mayo, 652 So. 2d 201 (Ala.

1994)

Defendant’s Exhibit DD

The End

Documents

Keeping the Breath Test Look for Problems with the … Testing...Breathalyzer 900/900A Smith &Wesson/Draeger Safety, Inc. The Official “Dial-a-Drunk