SWORN STATEMENT OF · Sworn StatementofMichaelBarnhill MICHAELBARNHILL 6 20/ 2016 DE EXAMINATIONOF MICHAELBARNHILL: June 20 , 2016 PAGE SWORN STATEMENTOF By Mr. Bussey MICHAEL BARNHILL

SWORN STATEMENT OF

MICHAEL BARNHILL

June 20 , 2016

10 PURSUANT TO AGREEMENT the Sworn Statementof MICHAEL BARNHILL was taken at 720 South Colorado

Boulevard, Suite 1110 - N , Denver , Colordo , onJune 20 , 2016 , at 10 : 15 a . m . , before Stacy .

Armstrong, CertifiedMerit Reporter, and Notary Public

within Colorado.

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303. 832. 5966800 .525 .8490

1900Grant Street, Suite 1025

Denver, CO 80203

huntergeist. com

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Sworn Statement ofMichaelBarnhill MICHAELBARNHILL 6 20 / 2016

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EXAMINATIONOF MICHAEL BARNHILL:

June 20 , 2016

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By Mr. BusseySWORN STATEMENT OF

MICHAEL BARNHILL

June 20, 2016

PURSUANT TO AGREEMENT, the Sworn Statementof MICHAEL BARNHILL was taken at 720 South Colorado

Boulevard , Suite 1110- Denver , Colordo 80246 , on

June 20 , 2016 , at 10 : 15 a . m . , before Stacy L .

Armstrong, Certified Merit Reporter , and Notary Publicwithin Colorado .

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WHEREUPON , the following proceedings werehad:

A P P A R A C

TIMOTHY R BUSSEY , ESQ .

The Bussey Law Firm , P . .

12 East Boulder Street

Colorado Springs, Colorado 80903

* * * * *

RHIDIAN D . W . ORR , ESQ .

The Orr Law Firm LLC

720 South Colorado BoulevardSuite 1110 - N

Denver, Colorado 80246

VINCENT C . TODD , ESQ.Coloradowrits

12600 Est Colfax Avenue

Suite C400Lakewood, Colorado 80215

MICHAELBARNHILL,

havingbeen firstduly swornto state the whole truth,

stated as follows:

EXAMINATIONBYMR. BUSSEY:

Q All right. Well , let's start off . Please

tell us your name, and are you employed right now ?

A . MichaelBarnhill; go byMike. Yes, 'm

employed I ' m self-employed.

Q . Okay.

A . I have a company, M & D Enterprises, and I run

two little businesses under it, and I stay generallybusy .

Q . All right. Haveyou previouslyworked for

the ColoradoDepartmentof PublicHealthand

Environment?

A . I have.

Q . And justfor the sakeofbrevity, we'll

refer to that asyour former job or CDPHE?

A That' s fine.Q . What did you do at CDPHE ?

A . The official position was Electronics

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Specialist III. I worked in the EBAT program ,E - B - A - T . The tasks included hands- on tasks:

calibrating and repairing Intoxilyzers. The careerwas a little over five years . Iwas the work lead ofthe little lab there. And so the tasks then became

quite a bit more varied as timewent on.

Q. How long did you work there?

A . A little over five years, so -- Five years,three months.

Q. Okay. From when to when ?

A . Sure. November 2009 till very earlyMarch 2015 .

Q. Okay. Whowas your supervisor during thatperiod of time ?

A . Jeff .

Q . And what was his position ?

A . Hewas the program manager, the EBAT program

manager

Q . Okay. Foryourposition, whatwere the

qualificationsthat wererequired?

A . Electronicstechnologybackground. Thatwas

primarilywhatthey were seeking. Somemetrology

background.

Q . Whatwas your prior experience concerning

those requirements?

A . Largely training on- site from -- from thelab , from CDPHE. Went off-site to CMI for training as

well, and then annual conferences hosted by CMIwherethere are additional trainings .

Q . Okay. So yourprimaryeducatoron this

devicewasCMI? If therewas others, justletus

know .

A . Yeah , you know -- No; I think the primaryeducator was CDPHE , just because that's where you wereevery day . And so almost all of the details learned

and known came from the day -to -day experiences.Q. Okay . And with the 5000 EN there was a

pointwhere itwasdetermined that the State of

Colorado needed an updated device ?

A . Yes .

Q . Did you participate in the selection for

thatdevice?

A . Yes.

Q . Whatwasyour -- Whatpurpose-- Whatwas

your role?

A . Sure. The -- If I remember right, therewere five of us on a selection committee , three ofus

within the lab, fiscal , and -- oh, gosh , there was oneother.

Q Was there a contracts person ?

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A . Sure. I' d had 18 years of experience in theelectronics industry , repair and service, had about ayear and a half experience in the metrology

profession, working for Honeywell. That wasmy priorbackground. More than 18 years . 22 or 3 years at

that pointof electronics industry background.

Q . Whatspecialized training, just ,

haveyou had concerningelectronics?

A . Oh, gosh . Generaltradeschool--

Q Okay.

A . - - education. And then certainly just years

of experienceof this work.

Q . What was your job prior to joiningCDPHE?A . I was self- employed. I ran a small store

doing musical instrument repair.

Q . All right. And when you applied for theposition of electronics specialist for CDPHE , what did

they advise you you were going to bedoing?A . They told meitwas test and calibration of

breath alcohol instruments.

Q . Okay. So in 2009the device thatwasused

in Coloradowas the Intoxilyzer5000 EN ?

A . Sure.

Q . What training did you receive on the5000 EN ?

A . Contracts person. Thank you. Yeah .Q. Do you remember their names?A . Rick Brough was our fiscal person, contracts

person, was the man in charge of the State contracts.If you rattle off some names, I' ll recognizeit. But

it wasmyself, Bob McDuffee, and Jeff Groffwere the

three program people.Q Whowas the personprimarilyresponsiblefor

the selection ofthe device to replacethe 5000 EN?

A . Well, the way the -- the way the selectionwent, there was no single person that made a decision .Obviously , Jeff, beingthe program manager, and Rick

Brough , the finance person and the contract person,kept us separated in thatmanner so that we all did

our piece of it. And we each scored the thing on its

merits, the devices on their merits , and literallyopened the envelopes and discovered what the next --

what the choice would be.Q . You' re familiar with the requestfor

proposal?

A . Yeah.

Q . Who prepared the request for proposalA . You know , I don' t know if itwas Rick or if

it was Tim . The contracts guy was Tim . Starts withan M . I don 't know who did .

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Q . Okay . And when we talk abouta request forproposal, we' re talking aboutwhat the State ofColorado will want out of the new device , right?

A . That's myrecollection, yeah .

Q . And did you see any drafts of the request

for proposalbeforeitwas sentout?

A . Sure.

Q How was this being communicated to you

concerning the request for proposal? Was it e-mails ?A . Some, yeah . Somejust -- I ' d be atmy desk

and Rick or Tim would call and have a question , orJeff. You know , we would just talk amongst ourselves

as we developed -- as we developed the -- the various

specifications that we wanted.Q . You were looking for a particular criteria

of things that you would like to see in the nextdevice that they purchased ?

A . Absolutely , yeah.Q . Wasthereany communicationwith

manufacturersor researchfrom manufacturersas towhatdeviceswere on themarketat the time?

A . Yeah.

Q . Whatdid thatconsistof, ifyou recall?

A . Well, weknew -- Therewere four primary --I think therewere five worldwideat the time, but

devices were outthere ?A . Right. Well, what devices, but what

capabilities were out there too.

Q . During this process, when the sales teamswere coming out, was there any product thatparticularly drew your attention or the attention ofsomebody from CDPHE as standing out as a better

product than another one ?A . No. I mean, in those early stages, no,

there wasn 't. I mean -- and I guess I speak formyself . I mean , they were all just sort of - -

each oneof them had their interestingthings. I can

speak for myselfand say , yeah, there was one thatwasmore intriguing than another. But, as a group, no, Idon 't think any ofus walked around saying, ooh, thisor that.

. Did CMIdo a presentation before the request

for proposal on the Intoxilyzer 9000 ?

A . I don' t recall.

Q . Butthey had been in contactwith you

concerningsomeof their products?

A . Yeah . Yeah.Q . All right. Now --

A . May I ?

Q . Goahead, please.25

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A . Did CMI do a presentation ? No. I mean , weknew that the 9000 was in development. Did they do apresentation ? No. I mean, weknew what they weregoing to propose .

Q . How did you know that ?

A . , gosh . Just in the conversations thatwe' d had. You know , they 'd been our vendor for years .

We attended their annualusers group conference . Youjust know , you just know what s going on, so .

Q So when you attend the annualusers group

meetingsfrom CMI, arethose located throughoutthe

country?

A . Sure, they are.

Q . And they' re typically two days?

A . I think they were three days. Wewould

arrive on a Sunday, return on a Thursday. So Monday,

Tuesday , WednesdayAllright. When you went to these, there' s

other users from acrossthecountrythatarethereas

well?

A . Absolutely.

Q . So its really state representativesthat

use the Intoxilyzer?

A Yeah . There were a few from various

military bases around the world , but generally yes,

four primary thatwe thoughtwould have access to --that would bid on the job . We, from just basicInternetsearches and lookingat their products that

way, had known oftheir general specifications andcapabilities. Wehad - - Before the process startedformally , the folks from Drager had come and been in

touch with us, you know . Intox - - What was the - -What' s that company outofOhio that justmerged ?

Well, a couple of other companies and CMI. I mean ,

they all knew wewere going to be in themarket, andso they sent their sales staffs out periodically to ,you know , talk to us , that kind of thing.

Q . So theywould send out - - These variousmanufacturerswould send outkindof a sales team to

comeout --

A . Sure.

Q. -- and give you an overview of their

product -

A . Sure .

Q . -- so that you could review what they had?

A . And that wasbeforethe process formallystarted.

Q . Understood.A . Yeah

Q You were trying to get a feel of what

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Q . So it was really a networking opportunity tosee how the others could make the device work better

or implement a device better ?A . Ofcourse.

Q . So prior to the selection processfor the

9000, you hadsomefamiliaritywith theIntoxilyzer

8000, for example?

A . No. And specifically forme, and I don ' t

know about the other coworkers in the lab , but I

didn ' t go to any of the break -outsessions on the8000 .

We --My own take on it, I was going toattend the sessions on the 5000 EN, sessions on the

Guth simulator thatwe used, sessions on breathalcoholtesting in general, because that's what wedid. And it was possible that wewould select an

8000 , but I didn 't need to spend my time looking atthat untilwe'd made that choice , ifwe had .

I don' t remember attending -- They reallydidn 't have any sessions on the 9000 before itwas

actually available . So , yeah , I just didn' t attendanything other than what wewere working at.

. When these requestsfor proposalsare

gettingbouncedback and forth betweenyou, did you

haveinputon things that you as a technicianwould

state - levelpeople.

Q . And when you attended these users group

meetings, did JeffGroffnormally appear ?A Nottypically.

Q . Okay . So was itmore than one person fromCDPHE were you the primary person, or --

A . So Jeff would send all ofus technicians ,

you know , just whoever the lab people were . He

wouldn 't send Rhonda. Rhonda was the programadministrator

Q . What 's Rhonda' s name?

A . Webb

Q . Okay .A . And she' s passed away at this point. But,

yes, itwould bemyself and the other coworkers in thelab . Rick Bates, new name, wasn 't -- he was ill

duringmy early tenure at CDPHE, and so hewouldn' t

typically attend. Jeff didn' t typically attend. Jeffattended the users groups in Colorado and the one

before that in Montana, Missoula .

Q When a person attends a users group meeting,do they normally provide you with materials ?

A . Who's they ?Q . CMI.

A . , sure .

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Q . Allright. So they would give you

documentationor disksor information concerning--

A . They would -- Of course you' d get an -- Youknow , you check in , you get an agenda. Some of thepresenters would make their presentations available so

you could download it to your thumb drive if youwanted; notall did .

Q Are you aware if JeffGroff has given a

presentation at one of the users groupmeetings?

A . Sure, he did

Q . Whatwerehis presentationsabout?

A . , boy. So his presentationinMissoula- -

Did he give a presentationinMissoula? I don' t

recall, Tim

Q . Butyou do recallhim givingpresentations?

A Yeah

Q . Is thatnormalfor other state customers to

givepresentations- -

Sure.

Q -- a CMI--

A . Sure . That' s where thematerial always camefrom

Q . Did any of thematerialcome, in fact, fromthemanufacturerCMI?

A Sure.

look for for the device ?

A . Sure

Q . What s an example of some of the things ?A . Oh , gosh . Touchscreen , you know , did it

have touchscreen capability . Often - - I say often .Tim , there were probably three or four times that Rickor Tim Massingale, that' s who 'm thinking of, thecontracts man , had a question abouthow they were

crafting the RFP. And they couldn ' t reach Jeff , sothey called me. And, no , I don 't remember what those

specific conversations were, but that was the level ofmyinput.

Q What timeframeare we talking when these

conversationswere taking place ?

A . Sure . That would have -- That would havehad to have been in the three months that preceded the

actual publication of the RFP. Dates I don' t know .

Q. Okay . All right. So the basis forreplacing the Intoxilyzer 5000 EN , itwas the issue

with the technology was old at that time?A Yeah.

Q . Is that whatwas goingon ? Why did it need

to bereplaced

A . Sure. Well, itwas getting to a point wherewe were having to scavenge some instruments for parts

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Sworn Statement of MichaelBarnhill MICHAEL BARNHILL 6 /20 / 2016

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for other instruments . Wewere getting into our

loaner pool, and it just -- it just was becoming clear

that the day would arrive in five or six years wherewewould really start to deplete the fleet of thoseinstruments .

Q . Were you - - Were you ever a technician when

there was a second sample available on the 5000 EN ?

A . I neverwas . Do you mean the captured

sample ?

Q . Yes

A . No is the answer.

Q. Okay. Butyou wereawarethat thedevice

had previouslyhad a capturedsample?

A . Sure .

Q On the request for proposal, was it everdiscussed that thenew device should have a captured

sample ?

A . . Itwasn ' t an option that any of themanufacturershad.

. , to yourknowledge, CMI, for example,which previously had a sample captureoption , was not

offering that anymore ?A . That' s correct Neither were the other

vendors. Myrecollection is there was only one state ,

New Hampshire , thatwas still using a captured sample ,

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posting. And so people in the breath alcohol industry

are looking for that sort of thing, and, boom , there' san RFP from Colorado. That'smyunderstanding of it .

Q . So it's your understanding that there was a

posting; you just don 't know specifically how it' s

posted ?

A That's correct. I do know that we didn' t

send an RFP to this company or that one. We didn 't

specify who to send an RFP to , itwas just this

general posting concept that I laid out.

Q. How manymanufacturersrespondedto that

posting, if you recall?

A . Four.

Q And who werethey ?

A . Sure. CMI. Drager. I want to sayIntoximeter, and National Patent. National -- Is that

the right name?

Q . I believeit is.

A Yeah, NationalPatent. Fourresponded.

Q . And during the time frameof -- You go fromthe request for proposal now to actually setting up

how you' re going to determinewhich product the state

is going to go with . Describe what happened after youreceived responses from thosemanufacturers.

A . Sure. The very first step in the process25

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and then therewas only one vendor providingthose - -those tubes, if you will. And so noneof theother

vendors were building an instrumentthat did that, ifI recall

Q . Anddid anybodyfrom thedepartmentof

healthsaymaybeweshould considerhavinga sample

capture?

A No

Q . So for the requestfor proposal, you did

have an opportunityto reviewthe finalRFP thatwas

sentout to themanufacturers?A Sure.

. You ' ve indicatedthat there were fouror

five manufacturers. Was thatRFP sentout to all the

manufacturers?

A . Tim , I don't know exactly how the systemworks, butmybrief understandingis that when a state

puts outan RFPof thismanner, they post iton some,I don 't know , some site that -- So ifyoubuild

trucks, you 're constantly seeing who' s lookingfor --

you're constantly checking this, and you see a state

pops up, and then you -- and that s how this tended to

work. So the state, just through its own -- its

typicalprocess of posting this -- and it's an openposting. My understanding is it's just a wide-open

was we invited anybody who would bid to Colorado . I

forget what we called it, but itwas a --

(Phoneinterruption.)

THE WITNESS : Is thatmy phone ? Iapologize .

A . They had to come to Colorado on thisparticular day. There was a question and answer sort

of -- we were in a panel up in the training room ofthe lab. And four manufacturers responded. The four

that I justmentioned sent a representative. I forgetwhat the purpose of that was , but itwas a mandatory

meeting; that if you - - The basis of it was, if you

intend to bid on this project, you have to come tothis meeting and do this question and answer thing.So four of them did , all four of them did.

Intoximeter bowed out very quickly after that. They

realized thatthey weren' t going to be able to competewith the others.

Q . Doyou remember why ?A . Sure . Intoximeter used an electronic cell

for measuring breath alcohol content, and wewere

specifically wanting an infrared system .

Q. Why?

It's thoughtto be thestandardofthe

industry.

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Q . So it' s believed that there' s a higher level

of accuracy and precision and reliability on infrared ?A . Yeah

( Phoneinterruption.)

THE WITNESS : I apologize ; let me turn thesound offon this.

A . Yes, that is the case. And my recollectiontoo is Intoximeter didn' t seek interference . That 's

what I also tend to recall. , throughout -- when the selection

process begins, how is it described to you and who

described to you how this process was going to takeplace ?

concept of how we were going to do itwas described by Jeff andRick and Tim . Imean, itwas just sort of -- And it wasn 't as though we sat

down and said , "Now , this iswhat we're going to do."

This was known to usthrough the various conversations

and meetings leading up to that.And it would be a process where the

manufacturers would each submit an instrument for us

to test, if you will, and see ifitmet thespecifications on RFP. Wewere each supposed to

do our own testing and not to discuss it with one

another about, hey, this one really did this or that

for Jeff, Jeff enjoyed the ego trip that came with his

position ; dealing with sheriffs , police chiefs,

attorney generals , staff, this kind of thing. Andthatmade him moremicromanagey sic ].

So as we gotto this pointwhere thisproject was going to go forward , we were going to

actually start testing these things , and we had thesevendors now in a formal environment, we received thesethings, and Jeff started to sort of write outhow we

were going to each test these. Hekind of managedthat and leftus to do our own testing, of course , but

Jeff designed the testing of all of them , which wefollowed through .

And at the time, you know , myown thoughtwas it didn' tmatter, even today I think itdoesn 't

matter, that he designed allthat testing because wedid the tests, andwe didn 't talk to one another, and

the results were the results, you know . But that 's

how that went. It was very controlled

Q Givemean exampleofhow hewould control

that, if you can recall.

A . Sure. Wehad a white board in the lab , andwe talked about wewere going to run various valuesof

solution through it various number of times and do

that. I forgetmany of the things, but that was one

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one really did that. And so that was what the processwas .

Q . Prior to yourself or anyone else reviewingthese devices, were you given any performance studiesor any scientific studies that had been done to

determine whether or not these machines were

scientifically precise or reliable or actually did

what they were supposed to do ?A . You know , I don't recall any specific

scientific studies . At that point it was allstill

sales literature. That's myrecollection.Q . And so is it fair to say in the lab area

thereatCDPHE, you wereleftto your own to conduct

these experiments, so to speak, to determine-- Howdid itwork ?

Sure. The answer to your question is yesand no, mostly no. Okay ? Yes, the concept is each of

you guys, so me, Jeff , and Bob, just go see if itmeets these specifications, instrument A , B, C . Wehad three that we tested .

The reality was Jeff is a

micromanager, and Jeff - - I'm going to veer off track,but I'm going to come back . When I first metJeff --Jeff's a nice guy, and I' m sure he still is, very nice

man. Butthrough the course ofmyemploymentworking

thathehad written up, how many times we were goingto test each . And, I mean , there were -- there werejust hundreds -- hundreds and hundreds and hundreds

these tests performed where we would , you know , checkthe value, I don 't know , ten -odd times on each one of

these . So it stacked up to a large project, it reallydid

Q . Was there data being written down orcaptured during the evaluations --

A Yes .

Q . -- to memorialize what was occurring ?A . Uh -huh

Q . How was that done ?

A . I don' t know how others did it . I kept it

in an Excelspreadsheet.

Q. On your computer ?A . SureQ. And was there COBRA data on that?

A . No .

Q . So, for you, it wason an Excelspreadsheet.

Would you then turn thedata over to Jeffthatyou

cameupwith ?

A . No. Weweren ' t to talk to one another about

it, really , you know . So I just keptmy own -- keptmyown notes and recordsand things like that.

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What typesof communicationswere takingplace on that?

A Thatwas -- Thatwasthe biggestfiasco as

far as 'm concerned, and the mostfrustratingfiasco

formeinmyrole there.

The very earliest part of the project ,

before an RFP was even issued , Jeff had gone out to - -

sent a letter out in March of 20, Iwant to say, 11or

12, but before the RFP was issued , asking all of the

agencies that used an Intox to set aside $ 10,000 perIntox.

So you can imagine Denver, which had, I

think, four, somedang sheriff s office , one,

whatever. And that, ofcourse, created quite a fuss.And I remember itwas March of this particular year

because I had read that damn letter so many times. Sothat' s how that project started was when he gotkind

of approval to start making thingsmove forward, hefelt comfortable to send that letter out. And that --

You know, people were very upset.So we would go out and through the course

of our jobs doing facility inspections, things likethat, we were beingharangued by especially the small

town police chiefs and sheriffs -- sheriff. So itwas

very frustrating

Because knowing how thiswas going to come down do

a - - well literally a score sheet, each of the RFP

items we were to score. And so, you know , I keptmydata, I assume Bob did , Jeff did. You know , that's

how I did it, I just keptmy own .Q . Was itbecause you had used CMIas a vendor

and you had some familiarity with CMI, did thatmake

integration with the 9000 easier than the other

vendors that presented , or did it not matter ?

A . I don' t think itmattered, no. If anything,there was a familiarity with the staff. And if a

question occurred during testing, with the other

vendors you would call the salesperson and thesalespersonwould go to engineering or whoever and get

an answer and then back to the salesman and then tous. Whereaswe had already access to the engineeringstaff atCMI, and so we would short-circuit that and

get an answer to our question . So, yeah, there was anease of use in thatmanner

Q . Did JeffGroff ever indicate to you that hehad a sense of responsibility with this program taking

off? You ' ve indicated that he' s a micromanager andthere was someego issues there. How did Jeff see

this project ? Do you recall him --

A . Oh, this was going to makehis career. This

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was a career- defining project, absolutely . And hesaid it, yeah

Q . Did he say anythingelse ? Andwhen did that

comeoutwhen he said this is a career-defining--

A . , just in general conversation . You know ,we would be talking about the importance of thisproject and the importance of doing each of these

things right, and he would , you know , make a commentthatthis was something that would really define his

career. He compared it to -- Hehad apparently ,

working for the department of health , brought a labon -line up at C .U . Boulder at some point, and that was

also another career -defining project. So hewouldcompare the two .

Q . Washe concernedaboutthe criminaldefense

bar questioninghismethodsor how hewasdoingthis

duringthis time?

A Sure.

Q What did he say about that?

A Well, you know , he wanted us to be careful

to follow theRFP, just follow it very carefully, andwedid

Q . You indicated that he had communications

with law enforcementconcerningbringingthison- line?

A . Uh- huh

Later that year it came to be -- around

August or September, we came to know that a statepatrol chief, whose namewasWolfinbarger, maybe, had

agreed to fund the whole thing or themajority of it.I think we had three grants, CSP and then two other

smaller grants; that' smy recollection . And Iremember itbecause it was the day that CSP caught - -There was somebadpeople on the run from the south

and they caught them downby Pueblo. And so itwassuch a high note for CSP , and thatwas the day also

Chief Wolfinbarger had called Jeff and said, "We'regoing to solve this." So it then just needed the

governor's approval, if I remember rightwhich came inNovember of this particular year.

And the frustration -- the frustration was

Jeff, in my opinion , should have notified everybodythat we're funded , thatwe're solved . But hedidn' t .

He just keptitmum as to how these were going to bepaid for. And by --

Q . Did he tell you why?

A . Well , you know , I would say, " Jeff, whycan t we tell these people ?" He' d say, "Well, just in

case the" - - It was just " just in case ," I think ; I

don' t know . Just in case we need more money, youknow , or like Denver wants a fifth one, we need to

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have them pay for it or whatever ; that was sort ofhis -- the message heportrayed .

But it became very frustratingbecause, youknow , for -- Take a small county, Crowley County , out

on the Eastern Plains, $ 10, 000 -- to hold aside$ 10 ,000, the heck with coming up with it and spending

it, but just to hold that aside in their budgetwaspainful, and we would hear from these sheriffs .

"What s going to comeof this ? Do we need to sendthis in ?"

And I remember conversations with , indeed,

Miles Clark there and a few others, a few other small

agencies, saying, "Look, Ihavean opportunity " - - andthis was around March, because it seemsmany of thesebudgets in small counties are redone in June; that' s

kind of my recollection . And so March and April and

May they would start saying , "Look , I have an

opportunity to buy one or two used cars from Denver,but I'm holding this $ 10,000 aside. " Or there was

another agency , they wanted to hire somebody. Youknow , itjust created this nightmare for them to holdthis $ 10 ,000 out.

Q . Who cameup with $ 10,000 andwhy ?

A . I think thatwas Jeffs -- I think that --

On one hand, itwas an arbitrarynumber; on the other

us. 45 days ismy recollection , and it took far

longer than that.As I said earlier , Jeff kind of designed how

wewere going to do this. And Bob and I, we sortof,you know , had - - you know , I sort of knew how I would

test these things, but Jeff made it clear , no, we're

to each test these things the sameway . Youcomeupwith your data. Each of us was going to comeup with our own data andmake a decision.

But Jeff -- Jeff is well-known, not justfrom me, a former employee, butanybody, for doingthings at the very last minute, you know , and that' s

how this went. Heck , wewere 40 or 50 days in andwehadn' t tested a single one of these instruments.

Q . Whynot?

A . Well, we were waiting on Jeff to saywe're

going to do this, this, and this . I had started to

order a whole bunch of solutions, just guessing , we' reprobably going to test this a million times. And so I

started to order a bunch of solutions from the varioussolution vendors, and so we were pretty well- preparedwhen he finally did . But, doggone, yeah ,he just saton that. Just, you know , whatever happens in his

world , he got busy, didn't do it. He s just aprocrastinator

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And so then when itwas time to test, therewere times wewere there till all hours -- There wasonemorningI got there, I would get there between6 : 30 and 7: 30 mostmornings, and I woke Jeff up. Isaid, " You need to go home," becausehe had been thereall nightdoinghisversion of thetesting. And Irememberworking easily till 10 , 11, 12 o' clock atnightaswell, justbecause wewerethat far behind.

The project was such that -- You know , the

daily work had to bekeptup with . Plus, for myself,you know , I didn't want to have Bob or Jeff looking

over my shoulder and seeing whatever I was -- Wewere

all doing the same sort of thing, but I - you know ,the thought of, well, wewere told don' t share your

information one another. You know ,we all took

that pretty darn seriously. So , yeah, that's how thattesting went. Itwas easily a 45- day project, as it

should have been, crammed into , I bet, three weeks,three and a halfweeks.

Q . During this timeyou' reusingknown

simulatorsolutionswhen testingthesedevices?

A Uh-huh

Q . For these products that were being used, doyou know if they had been approved as a conforming

productby the U .S .Government at the timethis

hand, itwas thought that we would have each of these

units come in under $ 10,000.

Q Was that the indication from themanufacturers thatmet the RFP, that they would be

under 10 ,000A That wasn 't a requirement in the RFP ; that

was -- that was, I think , a number that we had had ,

again , arbitrarily decided on based on those pre -RFP

kind of informal presentations .

Q . Take usback to the evaluation - -

MR. TODD: Goahead.

MR. ORR: Did all three of themachinesthat

werebeing evaluatedcomeinto thatprice range?THE WITNESS: Yes. Yes, they did .

MR. ORR: Nobody was over ?THE WITNESS : Nobody was over .

Q . (BY MR. BUSSEY ) Take us back to the

evaluation process. So the criteria set up ; you ' re

each supposed to work independently on this . How longdid that process take and what was occurring duringthis time

A . Sure. That process was supposed to take , if

I remember , 45 days. And it was a specified time. Ithink it's in thatRFP. Itwas a specified time that

we ask the manufacturers to deposit an instrument with

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testingwasgoingon?

A . The solutions and simulators, things like

that ?

Q . Theactualdevices.

A . The actual instruments? They had the - - The

9000 , thatwas one of the specificationswas it had tobe approved by the timewe-- by the time we took

delivery or by the time it went on- line . Anyway, weknew hadn't been approved as wewere testing it,

but itwas -- it had to meet that criteria of havingbeen approved, and I forget what thebenchmark was,by

the time we -- I think itwasby the timewe receivedit in June of that particular year, 20, whatever year

we received it, I want to say 13.

Q . What s the significance of being on thatconforming products list as it was explained to you ?

Do you know why they needed that to be a requirement ?

A . Well, Imean, it --

Q . Or itwas just a requirement?

A . Itwas justa requirement. It shouldbe.

MR. TODD: Canwego offthe record?

MR. ORR: Can wego offtherecord, please.(Discussionoffthe record.)

MR. BUSSEY: Okay. Wecan go back on.Q . (BYMR. BUSSEY) Allright. What is the

the context--

Q. Understood. Just aboutwhat was relayed toyou as a technician.

A . Yes, it willbeon the conforming productslist.

Q . Did you ever follow up to see if itmade theconforming list?

A . Yeah, I saw that letter, the letter that was

just shared , I had seen that.

Q . What is that letter?

A . Sure. That was the letter from VolpeLabs

indicatingthatithad mettheir requirementsandwouldbeon the nextFederalRegister.

Q . And whatwas the timeframeof that letter,

do you recall?

A You know , I seem to recall that happening inAprilof that year. For some reason -- Let mework

back through this. So we received these instrumentsfor testing in January -February- ish . Maybeitwas

Aprilor so we were finishing up because the projectlasted that much longer. And, Tim , I want to say it

was April-May- June time frame that I saw that letterindicating that itwould be on the next Federal

Register. That's my recollection.Q All right. So to get back to the testing

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significanceor whatwasrelayed to you concerningthe

significanceofhavingpotentialdevicesto replace

theIntoxilyzer5000on the conformingproductslist?

A . You know , I -- I - I ' m not sure thatwe

ever had a conversation about specific significance tothat other than it just was, in myownmind,considered just an industry standard . I mean, youwould expect the car you buy to have gone through some

safety testing, and this was the same way, that the

Intoxilyzer, the instrument wewere going to choose,should have gone through its federal unbiased testingas well, so it should be on that conforming products

list. That was it to me.Q And was it represented to you that it needed

to be on the conforming products list before it was

marketed ?

A . Notbeforeitwasmarketed, no.

. Allright.

A . No, it was expected by me. And, you know ,again , was it represented to you ? I' m not sure it wasever said in actual conversation . Itwas just allof

our impression that the thing would be on theconforming products list before we bought it ,beforewe took delivery of it And that , obviously , took

place in some conversation somewhere . I don't know

processhere, it was really just testingthreedevices

at the time?

A . Yes.Q . With the RFP ?

A . huh

Q The criteriawasset up essentiallyby Jeff

Groffon whatyou were to be testing?

A . huh

And when you did do the testing, you werecollecting data , which you indicated earlier that you

kept on a Microsoft Excel spreadsheet ?A Sure.

Q . Doyou know how Jefforanyof the other

techniciansmighthavepreservedtheir data?A . No.

Q . At the time, are you familiar with the termvalidation studies ?

A . Sure.

Q . Whats a validation study?

A . I haven't worked in that in a year, a little

over a year, so I --

Q . Is itwhen you determine whether or not --

A . Yes. I mean, youmakecomparisonsto

variousvalues, and you validatewhether the thing

worksas themanufacturerrepresentsthat it works.

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0 Did Jeffever indicateto you that you were,in fact, simultaneousto complyingwith the criteria

to selectthe productconductinga validationstudyonthe device as well?

A . No, I don 't think -- I don't think that we

used that term in that formal sense, thatwe were

doing validation studies.Q . Well, during the test criteria , you were

compiling data so that essentially you had a report

card to report your findings, right?A . Sure.

Q And then you had the data underlying that

concerning what actually was going on while you weretesting , correct ?

A . Sure.

Q . Were you told to preserve any ofthatinformation , either what I llrefer to as the report

cards, which is essentially your score sheet , and theunderlying data ? What were you told concerning the

preservation of thatdata or information on both ofthose ?

A Wewere told that allofthework wewere

going to do wouldbediscarded, would be destroyed.

Q . By who ? Who told you that ?

A . You know , again , it was just brought up in

you followed the criteria, and you were told to

destroy the data at a certain point?

A . Iwas told thatwewould be asked to destroythe data .

Q . Who told you that ?, again , itwas just partof this

conversation. I kept the data for a longer periodthan that because Jeff wanted that data kept.

Q . Why ?A . I don ' tknow . Henever came and asked me

for it again . And so itwas a long time - I say a

long time; I probably had that data for another yearafter wewere - - after the end of the selectionprocess . And I thought, ah, hell , he' s never going toask for this , so then I just dumped it off. Therewere -

Q . Was it after thedevice - -

A Can I finish?

Q . Absolutely.

Becausethere'smore informationyou need toknow .

Q . Sure.

A . There were manuals from the three

instruments, that afterwe selected the CMI

instrument - - yeah. So after we had opened the report

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conversation , through Rick or Tim or Jeff . Itwas

just that was the impression we were all under wasthatyou do all this work and then we destroy thedata . That' s whatwe were told .

Q . So itwasknownto you duringthisprocess

thatyourdata at somepointwas going to bedestroyed?

A . Yes .

Q . Whohad access to thatdata ? Whohad access

to your data ?A . Justmyself. I kept it on mydesk , on my

desktop computer.

Q . That data, does it still exist?A . No

Q . Is it retrievable ?A . No. No.

Q . When was it destroyed ? Goahead .A . That's fine. When was itdestroyed ? Not

immediately . A long time after we hadselected andreceived the 9000 , I still hadmuch of that data .

Did Jeff ever indicate to you that it was

going to be represented that, in fact, you were

conducting a validation study on the device ?

A .

Q. So you had the selection element of this

cards, if you will, and determined thatit was goingto -- the CMIwas going to be selected. And thenafter CMIdelivered the instruments, it was that

summer, you know , July- August, that I destroyed themanuals for the other two instruments but was asked to

keep themanuals for the 9000, which I did . For awhile they were inmyoffice at the lab, just up onthe bookshelf. I think Jeff had his too. I' m notsure -- I think Bob -- Bob exited employment in April

of that year. There were some IT- related problems forBob. But, yeah .

- - So the documentation thatCMIhad

included with the instrument we kept around. I saw itin Jeff' s office , I had mycopy of it still. That was

retained for a long time, a long time.

Q . How long?

A Well over a year. At one point the

concern - - The defense bar was challenging us. Iforget what the nature of the challenges were , but the

concern was that Attorney General staff or anybodywould beover at the lab and would they see thosebinders ? And itwas in , you know , three -ringbinders,

CMIBreathalyzer 9000 , whatever , would they see those

in myoffice ? "Well, Jeff, I can just take themhome. " So I took them home, and they were in my

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binders because I remember -- I seem to recall itwasa couple ofbinders of just that . Whether it wasbroken out into this is for this binder and that s for

that, I don' t recall. But I think there were a couple

ofbinders ofthat kind of stuff .

There may have even been -- And you pose an

interesting question . Did the data find its way to

paper and in those binders ? I don' t think itdid . I

don 't think I ever printed any of that . I don 't think

0

basement for a longtime. And the samewith the data .There came a timewhere I wasn't referring to them

anymore, because there were some schematics in therethat every now and then I needed to refer to to make

repairs or whatever , and the - - you know , also therewas a time where Jeff didn' have any more information

thathe needed from them . So I brought them back oneday and shredded them , as, frankly, should have been

done a long time before that.Q . Shredded themanuals or the data ?

A . Well, the data was electronic .Q . Okay .

A . So thatwas just a matter of finding the

file anddeleting it. So, boom , itwas gone. Themanuals were paper. I kept the bindersbecausethey're binders, you know , and there was a -- there 's

a locked bin, locked, you know , shred bin there. So I

just went and opened itup and put it all in there .MR. ORR: If youhad to guesstimate, how

many pages do you think these three-ringbinderscontained?

THE WITNESS: Oh, goodness. A couplehundred

MR. ORR: Andhowmany binderswere there ?

THEWITNESS: I wantto say therewere two.

Q (BYMR. BUSSEY) So the - - You' refamiliar

with the fact thatMr. Groffthen cameup with hisown

usersmanualforimplementationhere in Colorado?A Yeah . Yeah . The users manual that we

shared with law enforcement ?

Q . Yes.

A . You bet. Yeah, wehad to comeup with that.

Q . Why?

A . Well, CMI, for their part, doesn' t actuallyprovide a users manual for their instruments. AndI Each state is different, so there really isn't

a -- You know , the way they built that Intoxilyzer,it s a platform , that's all it is is a platform . Andeach state customizes it to their own needs.

The 9000, the intriguing thing about the

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There mighthave been a third, buttwo, definitelyMR. ORR : Operational repair is one, and

then usage another ? Orhow did they break out?THE WITNESS : One binder - - The thick

binder - - CMIput it together so that each RFP item ,1.1, 1.2 , 1. 3, et cetera , had its own ,where underTab 1. 1, they would repeat theRFP requirement and

then state how their instrumentmetthat requirement.

So, truly, when we talk about a page, we' re talkingabout a few lines of text; not talking about an entire

page of useful information. So page after page ofeach line item of the RFP. So that took up a largeportion of that.

There was an operator manual, and itwas

just sort of a quick - put-together thing that CMIhad

had . CMI, of course , for their part, knew our

program , our test sequence . And, you know , the othervendors also had our test sequence because we wanted

them to provide an instrument that matched that .

And so CMI, for their part, put together alittle operator' smanual on that. There were some

schematics of the various assemblies in there ,exploded drawings , things like that, of that nature .

Like I say , itwas a couple hundred pages

I'm sure. And I do seem to recall itwas a couple of

9000 , to me, was that it was very modular. Thesoftware was very modular.

Q . Whatdoes that mean ?

A . Well, by that Imean , you know , Colorado -

it's notenough that each state has its own testsequence, that's a given , thatwe could, for ourtest sequence, ask for an air blank that lasted this

long, or we could in our test -- well, in our

software , ask that instructors be given this level of

access, operators that levelof access , andtechnicians that level of access ; that wehad asignature pad on the -- an external signature pad or

right there on the screen . You know , wecouldcustomize this thing very finely , f- i- n- e- l- y . Very

finely we could customize it . And that's how CMI

builtit andmarketed it, to be, frankly, a prettydesirable instrument, for, among other reasons, that.

Q You ' ve indicated that there was two manualsthatwere provided to you by CMI, and that had

those in your office for some time. Why was there anyconcern that somebody from the Attorney General' s

office might see those manuals ?

A Well, as theprocess-- Afterwehad

selectedthe 9000 andthe defensebar- - you know , the

challengesbecamemore andmore, youknow, various

PO

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people from the Attorney General's officewereat our

buildingmoreand moreas questionsarose.

And it wasn 't as though they were traipsingthrough the lab looking for this and looking for that.

But there was just a thoughtthat, heck, these peopleare here more often , and it just became uncomfortableforme.

MR. ORR : In your opinion, Jeff didn't want

them being seen by the AGsthatwere coming through ?THE WITNESS : Absolutely .

MR. ORR: Because it' s possible --

THE WITNESS: Because we had already said wedidn't havethem , Rhidian .

I'm not comfortablewith this whispering andsecrets.

MR. BUSSEY Wecan go off the record.

(Discussionoff the record.)

(Recess taken , 11:15 a. m . to 11:31a .m .)

Q . ( BY MR. BUSSEY) All right. I want to go

through the issue with the manuals just to kind oftalk about that a little bit . So you recall receivingthese two three- ring , to the best of your

recollection , from CMI?A . Itwas at least one, and the other

three-ringbinder, I don't know how it came to be,

selection , when we'd received allthe instruments.

You know , the selection ended in whatever,

April orMay of that particular year, and then it wasup to them , the vendor, to build , shoot, 200

instruments before June of that year because thefunding was only there until June 30 of that year .

And so there was some concern , and legitimate concern ,that CMImay not be able to come through and deliver200 instruments .

And so we kept all the data , all that stuff ,

at least until then, because , gosh , if we'd had tojust cancel the contract, at leastwe'd have someof

thatwork product still in hand.

Butthen long after that, long after June 30of that particular year, you bet, Jeff and I both knew

we had that. Jeff had his, I had mine. I don 't knowwhatever became of Jeff' s and when hedestroyed it.

ButJeff knew I had mine; Jeff knew I took mine home.Imean, it was a conversation. "Hey, Jeff , you know ,

I stillhave this." " Yeah , I know . I' m not ready tothrow that away." " Hey , Jeff , youknow , there' s a lot

of people walking through the lab ." " Yeah, probablyshouldn' t be out there visible." "Well, Jeff, maybe

I' ll just take it home." "Yeah , that' s a good idea."

And I'm paraphrasing, but that's -- itwas those

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but, yes, I' m sure there were two.

Q . And were you aware that the contract calledfor CMIto produce a manualfor every machine that

Colorado purchased ?don 't remember so much details aboutthat.

They produced certainly enough of an operationsmanualfor us to get through our testing. And ifthat wouldhave met a criteria in the RFP -- I think we were

always under the impression that we would be writing

our ownmanualjustbecause itwas our ownprogram .Q . So youkeptthe three -ringbindersin your

office for sometime?

A . Some time.

Q . Did JeffGrofftell you that you shouldn' t

have thosemanuals? How was that presented to you ?A . Well, Jeff kepthis for some time too, and

we both knew that we shouldn 't have them , for heaven'ssake.

Q . Why ?

A . Weboth had conversations that we shouldn 't

have them .

Q . Why?

A . Because itwas understood thatwe weresupposed to destroy all that stuff at the end of

our -- at the end of the RFP testing - - or at the

conversationsin passing; it wasn't a dedicatedmeetingthatwehad. Wedidn' t have a meetingabout

this. Itwasjustconversations in passingthatthatwasthe resolutionwe arrived at: I' d take them home.

When I stoppedhearingaboutthem , when I stoppedreferringto the technicalinformation, I broughtthem

back and destroyed them . Kept the binders.. When was that?

A . I don' t remember. I' m sure I had those in

my basement - - I 'm sure I had those for well over a

year after we' d received the instruments .. So well past June of 2014 ?

A . Oh , I would think , yeah .

Q . Andtherewas a concern because-- You' re

familiar with OpenRecordsActrequests?

A .

Q . Doyou recallgettingOpenRecordsAct

requestsfrom personsrequestingcopies of themanuals?

A . You bet, and wehad them , in that capacity ,

either sitting in Jeff' s office ormyoffice or by thetime I' d taken them home, itdidn 'tmatter, butwe' d

had them , yeah .

Q . Okay. Andhow wereyouaware that these

requestswerebeingmade?

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A Oh, Jeff always letmeknow that there was anew CORA request.

Q . So when thoserequests weremadefor themanuals, Jeff was awarethat, in fact, themanuals

werestill there?

A . Sure, hewas.

Q . Were you aware of how Jeff was responding tothese Open Records Act requests for the manuals?

A . Sure, I was.

Q . How wereyou awareand how washe

responding, to yourknowledge?

A . Well, I mean , we had conversations that, youknow , we still had this stuff ,but, you know , weweren 't supposed to have it. Weboth knew we weren ' t

supposed to have it, for heaven' s sake.And whether that was bad because , if we had

it , then you guys would haveit, or itwas bad

because, ifwe had it, then we didn't follow thisconceptof destroying everything. Who knows whattrouble begat that; I don' t know . But, yeah , we wereboth aware we still had it, you bet, and I was well

aware of Jeff's response .

Q So you wereawarethatJeff was responding

to the attorneysrepresentingthe governmentthat you,

in fact, didn't have those?

upfront with our own lawyers, you know , with Ann Hauseand others. And where he was, he was, but -- you

know , I speak of a specific thing, and I hopewe' lltalk more about it later, but that Weld County

instrument. Jeff -- I' m certain that to this day

LarryWolk and legal staff are under the impressionthat I was a technician thatmade thatmistake; that

Jeff - - You know , there's a lot to that episode, andthere'llbe time for that later.

Q . No, we can talk aboutthatrightnow .

A . SureQ . I think it' s time to talk about that. When

you refer to the Weld County episode, what is the Weld

County episode?A . I m referring to the serial number ending in

381or 380 , I forget. This is an Intoxilyzer that wasinstalled at Weld County Southwest Services .

The Intox was at some point found to nothave a valueset. So the calibration check valuewas supposed tobe set at .10, and that was supposed to have been doneduring the initial validation . That was the term we

used, the initial validation .

And the act of setting it at then causedthe software internally to monitor that value for is

it 10 over or 10 under , and it's a pass/ fail test ,

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A . Say that onemoretime.

Q. You wereaware that Jeff was telling hislegal representation he didn' t have the manuals?

A . Yeah. Yeah.

Q . And thatwasn' t true?

A . Thatwasn' t true.

Q . Are you aware of any other untruths that

Jeff has told his legal staff ?A . You know , Jeff -- I' m trying to think of

specifics, time. Legal staff -- Well, regarding thismatter or othermatters ?

Q . Othermatters.

A . Sure.

Q . Orthismatter, whatever.

A . Sure . I think so . I mean , we' re jumping

way ahead, but, yeah , I think I' m aware of others.Andfor Jeff's -- a large part of -- of this -- Ithink I used the term with you in my initiale -mail to

you ,wrangling. large part of this wranglingrevolved around don 't let any lawyer know this

information , because if CDPHE lawyersknow this, then

they have to disclose this.And so , you know, Jeff lefta lotof

informationoutof - -Well I guess I can 't say

specifically, but I always felt like Jeffwasn 't

go /no go . However, if you set no value or the value

was left at zero -- And that's how they all came fromthe factory , the value was set at zero . If that wasset at zero , then there was no pass/ fail capability ;

it didn't have a number to work with . Get it?

So this particular instrumentdidn 't havethat number set at zero. And itwas discovered ,

actually , through another incident, and then a quickquery was done, and we actually stumbled across the

Weld County instrument quite by accident. And when we

did, that was what the brouhaha actually became, notthis other temperature problem thatwas the initial

source ofwhat caused us to look into it. Anyways --Describetheproblem just generally, you

know, when you talk aboutthese --

A . Sure. So the Intoxilyzer, as it s goingthrough its sequence, it takes an air blank , and thenitdoes a calibration check. And I need to specify it

is just a check. When itruns that cal checksolution, it doesn't set or adjustor do anything.

It' s a nonactive thing. It' s just a check.Allright? And that valuehas to landwithin 10

counts of the value that' s been set into it, 10.The -- And 10 counts, for any number ofreasons, but

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things that happen that soak up, you know , four or

five counts that are pretty legitimate , and then you

alwayshave to have somevariability beyond that .The Weld County instrument without that

value being set allowed tests to proceed, and I thinkthere were 33 tests, to proceed even though the cal

check value came in at 087, 08 -- you know , just somelower-than -normal number. And , of course, you know ,cops, for their part, didn 't notice it or didn' t take

heed of it, whatever. It doesn' t matter at this

point, you know , because the Intox should have stoppeditsprocedure, but it didn 't .

Q Yeah. So ifit s beyond that 10 countup or

down, themachineshouldn' t even run?

A . Right; it should stop.

Q . And the Weld County machine was still

testing ?A . Yeah . Yeah. And it performed 33 tests.

And , you know , honestly, it really doesn 't - - it

really doesn 't affect the outcome of the tests , of thebreath tests, but it's not a legitimate breath test,

right, because itshould have failed at that point.So whether the that the subject provided was

rightor wrong is insignificant.

I think the Van Schoyck case is a similar

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relationship , you know , the obvious question is, who

did that? Who madethatmistake ? Well,my ID numberwas on that, so Imade that mistake. And Iremember -- I remember the day -- Oh , I was so angry .

I remember the day Jeff cameback from hismeetingwith Larry Wolk . You know , at this point this problem

had elevated allthe way up to Larry Wolk , and Larry

probably was talking to Governor Hickenlooper aboutit, you know . This had becomea bigdamn deal.

Hecameback, and I went down to his office

and said , So,you know , what happened ?" Jeff and Ihad a decent relationship, and a pretty openrelationship, you know . And hetold me all about, you

know , Larry Wolk hammering on him , and they were goingto file -- they . Larry Wolk andhis other executive

staff, wanted a corrective action filed, andhow Jeffand Laura said , " No, if you do that, then it' s just

going to throw a wet rag on all testing," you know ,that' s what they said . And I said to Jeff, I said ,

"Do youknow who did that, Jeff ?" Because I knew Iknew what the story was. He said , " Yeah , itwas you."

And I said , "No, it wasn 't, Jeff. My ID number is on

every oneof those instruments because youmade

everybody use my ID number." And he sat back in his

chair, because hehad forgotten that, apparently . And

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one , you know . The facts don 't matter , just that this

test shouldn 't have proceeded . The test shouldn 't - -The test shouldn ' t matter . Those 33 shouldn 't have

mattered .

At any rate, you know , we get to looking

into this, discover how it happened; oh , dang, youknow , and - - good lord . Had two coworkers there ,Anthony Mistich and Andrea Dakan . They had -- You

know , they didn't likeme, and that' s all right, but

they had become quite - - quite , you know ,back - stabbing, sabotage --

Q . Who are they ?A . Huh?

Q Who are they ?

Andrea and Anthony; technicians in the lab .

And so the workplace relationship becamehorrible and lasted for a year and a half until I

left. But at that point, in June of 14, ithad

really started to ramp up . And Jeff, for his part,would say, " I' m going to bring the hammer down ; I' mgoing to fix this and " -- you know , whatever. Jeff

and his empty promises, you know , hewas always goingto fix it. I was still getting good reviewson my

work. I was told - - That' s probably anothermatter.But, at any rate , because of this

56

then he remembered: "Oh, yeah." And I thought, " Areyou shittin'me?"

I was -- I was, in the eyes of executive

staff, LauraGillim -Ross, who was our lab director who

I saw every day, Rick Brough , the fiscal director, Iwas, in the eyes of them , that guy. I was thrownunder the bus, and I never comfortable with that.

I took that one for the team , though .And I remember Jeff tellingme, too, that in

that conversation with Dr. Larry Wolk -- Jeffwas,

obviously , paraphrasingLarry 's words, but thequestion was posed to Jeff, " Are there any otherskeletons that are going to come out of this ?" As if

to say , "Now, Jeff, you' ve told us everything, right?This is the whole box of turds, and we can box itup

from here?" And I remembersitting there thinking,yeah , butLarry doesn ' t know about that, that, you

know , there were a bunch of people doing thosecertifications. They weren ' t me; they weren 't even

employed by the department, you know .MR. : Could you elaborateon that?

THEWITNESS: I will in a minute.

MR. ORR : Thank you .

A . So it iswith that story that I wrap back to

your question of, did Jeff ever lie to legal staff or

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anybody else ? Well, in that fashion, yeah . Heknewwhat was the truth was on that deal, buthedidn't --

hedidn't tell it, you know . Was he specificallyasked , "Jeff , did somebody else do this ?" No, I doubt

it. Jeff knew what the score was. Yeah .Rhidian, to your question, yes , I' ll

elaborateon that.

So this -- this period of time, April

through May of that year, 2013 I'm goingto say, wherewe rolled those things out, wehad - - You should know ,

leading up to that, you know , the initial -- theinitial roll-out date was -- what was it February 1

or somethinglike that? Andwe missed that. You

know , there were someproblemswith the Intoxilyzerandwehad to have somemodifications madebyCMI. So

they allwent back to CMI, and they fixed them and

sent them allback to us, you know . So wewere

missing -- we were missingthat deadline. Jeff wasunder quite a gun from Dave, you know , under the gun,

theoretically , from DaveButcher, and whoever elseabove. You know , Jeff had pressures ; I get it.

I remember, though , a little before that,when we decided we better send all these back to CMI,

Jeff was ready to release these things ; I think therewas an initial date of December something, you know .

9000.

So I was developing this - - And it's an

access-based database; just a dumb old thing thathelped us keep track of this stuff. So I' m developing

that. And now we' ve got this May 1deadline looming;

we' re screwing around trying to get our SOP together.I don't know how many versionsof the SOP had been - -

And it' s funny. Jeff put -- Weput Andrea Dakan incharge of writingthe SOP because she came from a

chemistry background. And, I swear, every revision

she'd send up to Jeff, Jeff would rewrite it and send

itback. And, you know , that SOP is a JeffGroffSOP,and I' m sure Andrea would say the same.

So, finally , April 1 we have this SOP, andnow we got 30 days to get 160-odd Intoxes out in thefield. We' re still even receiving them back from CMI;

we stillhadn't received them allback . Wewere

sending them in waves, I think , of 20 or 25 at a time.So while this is happening, CMIhad, you know , made a

commitment to us they would send out staff to help usget these things certified

Wehad a temp employee, a good kid from the

valley. Hehad previously - - I ' m going to diverge,but I'm going to get back. So Adam had - - His name is

Adam , and I expect you know that; you said you put in

6058

And Jeff was driving back from somewhere , and wewereon the phone. I said , " Jeff, I 'm not going to shipany one of these out, I'm just not." And so I stoodmy ground there , and I said , you know , period. Andthat 's what prompted us to then send them all back .

So we' re receivingthese things back, andMay 1 is the date, by gum , and itwas a nightmare.You know , it was most poorly planned large project I' d

ever seen . It just was. Imean, this is a big dang

project. Not just the validation and studying thisand that, butjust the logistics of it. Right?Truly, even after you get past should we have chosenthe 9000 or whatever, even after you getpast that,the size of sending all these out in the field , of

developing databases and other things to manage the

program once these things all switch on, that washuge. And Jeff never saw the -- And I always referredto it as the infrastructure. Jeff never saw the need

for the infrastructure.

So simultaneousto this being developed, I

was trying to develop a database , because we' d alwayshad a database called AlcoholLab that managed the

5000s coming in and out, you know , and that kind of

thing. So itwasn' t compatible with the 9000 . You

know , there s just too much more information with the

a CORA request for this, right? So Adam had come to

us one or two summers before that, just helping withrecord requests. You know , he was a college kid just

looking for a summer gig , so we kept him busy .And there was a period of time after Bob was

let go that I was the only person in that lab . It was

meand Rhonda, and Rhonda had plenty of other thingsto do, you know . And so I was pretty well swamped,and I asked Jeff, I said , " Jeff, can I have Adam

certify some of these 5000s?" These were the 5000s.

And he said , "No, no, thatwouldn' t be appropriate. "I said, "Well, at the very" - - I knew where I was

going too because I knew wouldn't fly . I said ,"Well, here ' s what I want. Can I at leasthave Adam

bring them in, tear them down, clean them up , and

leave them in a pile ? That shaves off 45 minutes perinstrument." Jeff agreed to that. So that's

ultimately what Adam ' s job became. So I tell you thatinformation to get back to this era of the 9000, thisApril era.

So, suddenly , it becomes acceptable for Adamto certify - 9000s . And I thought, " Ahh, just a

minute ." And I think I even mentioned something toJeff about it. And Jeff said - - You know , we wereunder this incredible time crunch .

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Sworn Statement of MichaelBarnhill MICHAEL BARNHILL 6 /20/2016

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And , rest assured Adam is a smart, smart

guy, you know , good kid, smart guy. Otherpeople

certifying the Intoxilyzers were Alan Triggs from CMI,Tom Settles from CMI. Neither one of those guyshas

any technical experience, you know ,no more than Adamdid . Adam probably had more than them just by virtue

of hearingus talk around the lab aboutthese things.Hejust sort ofknew what the score was. Butthat was

CMI' s commitment was " Don' t worry , you' re going to getyourMay deadline."

And so Anthony Mistich was certifyinginstruments . Jeff Groff was certifying instruments .I had certified a few instruments. Andrea Dakan was

on maternity leave. So that was gang, the six of us.

Now , myprimary role duringthat period oftime was stilldevelopingthis sort of rickety

database . I mean, ittakes a lot of time, and Iwasn' t -- I' m not a database guy, right ? I 'm - -

Frankly , I' m screwdriver operator. Let' s just putthat where itbelongs; I'm a technician . But I' m a

pretty goodmanagerof logistics things, so that wasmyother job was to manage the logisticsofall thisGet the right serialnumber to the rightagency ;make

sure the last software update isloaded and all that.I was in a warehouse mostof those days or running

I'd be willing to bet - I'd bet dollars on

nickels that I probably didn' t certify a dozen of

those damn things, yet there were 162 of them thatwent outthere with my ID number attached to them ,

sometimes mysignature, sometimes other people signingmysignature. There were a couple that went outwith

my ID number and other people -- like Jeff Groffwouldhave signed Jeff Groff, but ithasmy ID number on it.

So when it came down to this whole Weld

County incident, itwas pretty quick for Anthony and

Andrea to say, " Yeah , Mike did it." I mean, because ,you know , they 'd been on my butt for a long time, you

know , bringing up -- god , I couldn't blow my nose the

wrong way without getting a frickin ' e-mail about it.But, at any rate -- yeah . I mean , that's how thatwent.

And so Jeff portrayed to Larry Wolk and

legal staff and Dr. Laura Gillim -Ross that , yeah , that

ID number, 467497 , or whatever it was, that 's Mike

Barnhill . So that's how that went .

MR. ORR : Sincewe'reon signatures, I' mgoingto sort of segue into twothings. And I doapologize; I may haveto step outat 1 o 'clock becauseI have court

David Butchers signature and Laura

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aroundthe lab just tryingto makesure everybodyhad

enough supplies, material, equipmentto do the

certificationjob.

So the process was we were able to certifyfour instruments at a time. And itwas slick , man.Wehad set it up to where the would finish here,

itwas due there , you know , the and it was slick .

So you' d get through four.They would use my ID and password to log in ,

and we' d get through four. And then they would - -whoever was doing the certification would callmewherever I was, and I' d come up to the lab and sign

all four signature pads. So it worked pretty good.There came a point atwhich it was decided

that was kind ofwasteful, and could just somebody

else sign myname? Well, okay . You know , even before

that Iknew this was wrong. I remember having a

conversation with Jeff that I didn' t want everybodyusingmynumber. I suggested we use a --Wehad atest technician ID number, which was just that, for usto test various procedures, processes. And I said ,

" Use that." And Jeff said, no hewanted it to be,you know , an actual individual' s ID number, and thenhe chose mine because I was the senior guy in the lab .

So that' s how mynumber was chosen .

Gillim -Ross -- Dr. Laura Gillim -Ross's signature show

up on this certificate validating or saying that thismachine has gone through allthe validations and such .

THE WITNESS: Sure.

MR. ORR : I 've had the opportunity to talkto Mr. Butcher under oath , and he said he's not sureabout who put his signature on there. Was that

something that you guys did , or who did that ?THE WITNESS: Dave never signed all those

certificates. That would be too cumbersometo every

time- - every time we certified one to run a littlecert in there.

So I had Dave sign just a piece of paperthat I scanned and clipped and stored it in theaccess

database. And so wheneverweprinted a cert, it would

plop Dave' s signaturerightonto there.MR. ORR : Mr. Butcher said that he hadn't

seen the underlying data , the validation studies. Toyour knowledge, is that a correct statement ?

THE WITNESS: I don't know thatanswer, but

I betthat to be factual

MR. ORR: Okay. Mynext segue question ison these histogramsfor themachine. We' ll comeback

to signatures and such. Was there discussion abouttraining officers on how to understand the histograms?25

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THE WITNESS: Yeah, there was. I mean, we

were caught guard by that,bythe goofy situation

where it s a double sample, you know . But, yeah. Imean, as we started our trainingof officers, sure, we

tried to talk to them abouthow to read thatand, youknow , whatthat s going to look likeand how tointerpret that if they were asked. Youbet.

MR. ORR : And was it determined by someone

in the department to stop training them on thehistograms ?

THE WITNESS : No , not that I remember .

MR. ORR : So in the video training that goes

out to the policeofficers, there is no discussion

about histograms and what is a good one, what is a badone, to your knowledge ?

THEWITNESS: No. AndI don't know about

video traininggoingout to policeofficers. Weneversent video trainingout.

MR. ORR : The on-line training.

THE WITNESS : There's an on -line training.MR. ORR : That ' s what I meant. Sorry .

THE WITNESS : Yeah, there was that on - line

training . Boy , now , you're taxing mymemory . So whatdid we do ? Yeah , everybody had to do a little on - linesegment, because all the -- That 's right. All the

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back to - -

MR. ORR: Signatures

Q (BY MR. BUSSEY ) --well, the signatures,butyou ' ve indicated that you were the person whosenumber was being inputted , you know , at the timethesewere being certified for use, that there were multiple

people that were doing the certification procedurebefore the devices went out because there was a time

crunch .

A . Sure

Q . How did it comethatemployeesfrom CMIwere

being broughtin to certify thedevices? How did that

work

A . Well, Imean itwas - it was an arrangementthat wasmade. I mean , wewere under this time

crunch , andwe, in large part, looked at CMIas being

a part of that cause, you know , and so we imposed onCMIto send us staff members to help , and that' s who

they sent.

Q Were- - There's a specificprotocolto

certify thesedevices for usebeforethey're placed

intothe field , right?

A You bet

Q . Ifthatcriteria is not done correctly, can

it impact the value that is reported?

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5000 EN operators , wejust had to have them do thatlittle on - line segment, and then, boom , you 're a 9000operator. That'smy recollection . That' s right. Sothatmight be the video training you' re referring to .

MR. ORR: Sorry. I said video; I meant

on-line.

THE WITNESS: Thats fine. Because

subsequent training of an officer who is not acertified Intox operator is quite differentthan thatinitial 5000 to 9000 upgrade training, and that's kindof how we referred to it.

So the histogram , yeah , I don' t remember ifthat was much included - - and I apologize. In thatupgrade training, I don' t remember if the histogram

was included in that. It certainly was included in

the operator training that was, you know , the fulltraining, and that' s how I was answering your question

earlier. So , yes, it is included in that, butnotin -- I don't think it was in that upgrade training .

MR. ORR : And itwas in that original manual

you got from CMI, descriptions of what they are ?THE WITNESS : I don 't remember that . I

don' t remember yes or no.

MR. ORR: Okay. That' s fine.

Q . (BYMR. BUSSEY) I havea questiongetting

A No. And let' s break this up into two

pieces. No, notnecessarily. The certification piece

is really just the verification of any adjustmentorrepairsthat were made.

Now , adjustments and repairs, sure ; if thatwas done incorrectly , that could affect a finalresult. But if the certification piece is done - -Well, in theory - - So, in theory , that' s why the

certification piece is done is to make sure anyadjustments or repairs were done correctly .

Now , could certification be - - could stepsbe circumvented by a technician or a person running

this to pass through an Intox that shouldn' t have beenpassed through ? No, not really with the 9000. That

was possible with the 5000 , but not so with the 9000.Q . Well, with this Weld County issue, somebody

did it incorrectly, the certification ?A Somebodydid it incorrectly, and it was --

yeah .. Doyou know who thatperson was?

A . I don 't know . I can tell you who I think ,

and I can -- ifyou have all the documents from that,I can tell you why I think that. But the reality is I

don' t know who - - They 're allmynumber; there's noway to know who did what . So, no, I can't tell you .

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Q . When the problem was discovered , there was a

concern that, if an after- action reportwas created ,

that it may impact the perception of the reliability

of this device that s being brought on - line; is thatcorrect ?

Yeah. I mean, any - - any -- And that was

always the concern. Any errors that were made wouldalways call into question not only the lab , but its

procedures, its personnel, its instrumentation. Yeah .I mean, the defense bar, for its part, is - -

and this ismyopinion -- is hypersensitive to everysingle thing like that. And whether that's rightor

wrong isn 't forme to judge. I think it's partly

rightthat you are. But, indeed, thatwas thethought, you know , there' s this hypersensitivity that,

ifwe do even the slightest thingwrong, it's goingto , perhaps, be blownout of proportion , taken out of

context. And so, you know , we certainly made everyeffort to do things right.

Q . In the Weld County case, who madethedetermination that there should be an after -action

report?A . I think Jeff did .

Q . Okay.

that right? Gee, I think itwas Jeff. I

issues

(Phone interruption . )

THE WITNESS : I need to say, I have to leaveat 1; I have an engagement with my son . Is that

all right?

MR. ORR: Absolutely.

THE WITNESS: And wecan stop there and pickup another day, but I want you to know that 1 o'clockismy amount of time today.

MR. ORR: Why don' twe say 12:50 then ?

THEWITNESS: That' s fine.

Back to your question .Q . (BY MR. BUSSEY) With the Weld County

situation , when it cameup, and we've discussed the

importance of transparency in science , was the

department completely transparent concerning therelease of information ?

A . . Do you remember the news report that anemployee hadbeen disciplined ? There was no employee

disciplined. You know , I was never disciplined .That's how they made it sound, that the screwdriver

operator that did that, you know , had a good

finger-wagging. That didn 't happen, you know .Now , did Jeff have to sit in thehot seat

and answer somequestions from Dr. Larry Wolk ? Yeah.

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mean, that wholething, thatwasa swirlingtornado

thathappened so fast. WhetheritwasJeff orLaura

orLarry, I don' t know .

Q . Prior to the after- action reportbeing

prepared, was there e-mail or documentation betweenJeff , yourself, Laura , anybody, concerning what theunderlying problem was? Was there communication

taking place as to what had occurred ?

A . Oh, sure . I' llrefer to them as the bosses.

SoLaura, Larry . They were intermediate . So therewas a lady at themain office who hated Jeff,actually , Joanie ; lastnameescapesme. She didn 't

like Jeff . And so -- Yeah . I mean, they were allharanguing us for how the hell did this happen ? And

, sure, explanations were given ; this is how this

happened, you know , that this number was left out, orthis number was notentered , and so the instrument

just had no reference point.You ' re familiar with the importance of

transparency - -A . Yeah

Q . - - in science ?A . Sure.

Q . Concerning -- We' ll just talk specifically

aboutWeld County, and then we' ll talk aboutother

Is that discipline ? It' s not formal discipline. So,

to me, no, an employee -- The way that report read,and that s whatput the bad taste in mymouth, was

that an employee had been disciplined.There was a -- There was a time some other

employee in one of the other programsapproachedAndrea and said, "Who did that?" You know , becausethat's all the talk around the lab , which one of those

EBAT idiots did that? Right? And , of course, you

know , in the eyes of Anthony - - You know , Andrea

wasn't -- she wasn' t there during that initialcertification push; she was on maternity leave. She

may not even know this. Although her and Anthony weretight, so, youknow , who knows. And the amountof

sabotage they employed on me I have no doubt --Anthony has the memory of an elephant -- he remembered

how these things were certified . Heknew . But, yeah,that release of information that I read, yeah , there

was no employee ever disciplined.Q . You'refamiliarwith the fact I had

filed an Open RecordsAct requestconcerningthissituation?

A . I think -- Did you tellme-- You toldme

you had already asked for a request requesting

temporary employees during the time. That's the only

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thing I know .

MR. TODD : Stop for a second.

(Discussion off the record .)Q . (BY MR. BUSSEY) I want to ask you just some

questions concerning this Weld County . Could youdescribe, you know , what your investigation revealed

concerning that and talk aboutwhat the department was

doing to resolve this issuewith the Weld County ?

A . That's a broadquestion.

Q . Yeah . Therewas a problem with Weld County;whatwas the problem ?

A After we had discovered what had happened?Jeff had to explain that to Laura Gillim - Ross, and,

ultimately , all the way up to the executive staff atCDPHE. Jeff described a meeting in Larry Wolk 's

office regarding this . And I had a -- itwas more of

a personal than a professional conversation ; itwas apersonal conversation with Jeff that day or the dayafter, butupon his return from that, where Jeff

described that he was on quite the hotseat. LarryWolk asked if there were anymore skeletons. I knew

in the back ofmymind what the skeleton was. I askedJeff, "Do you know who did that?" And Jeff pointed at

meand said, " Itwas you, " and I reminded Jeff of the

details ofhow we initially certified allofthese.

Q . What did you discover there?

A . So it was April of this year, 2014 , where I

had discovered this error, and madethe corrections,and there' s a paper trail that should indicate allofthat. But it didn' t -- it just didn ' t strikeme,

unfortunately, that there could have been testsimpacted where that value was below . I don't know

why, it just didn 't. And so nomention was evermade

of it by me.And then when the Weld County instrument

came to light in June or so of that particular year is

when it struck methat, dang it, I wished I had dugdeeper into it. So I think I let the program down inthat regard atthat instance.

Q . And what happened after that?A Well, yeah, I mean, itwas at thatpoint

that wediscoveredthe error in June that itmade the

news. And so that' s when this whole Jeffbeingput on

thehotseat and thatultimate newsreport took place

Q Whoprepared the after- action report?

A . Jeff, probably.

Q . Okay. And in there it indicated that there

was going to be changesmadeto the firmware, do you

recall?

A Wewere still -- I 'm going to answer that in

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And, you know , he did look likehe had then recalled

that, that - - Whether he knew that all along andkeptthat from Larry Wolk or whether he just simply forgotthat until I him , at that point, at that

point, he allowed that ruse to continue, that Mike

Barnhill was the guy that did that, and it wasnever -- you know , as far as Jeff andLaura wereconcerned , itwas swept away. I don' t think Jeff ever

told Laura it either. I think thatwhole piece ofknowledge ends at Jeff.

Q. So there was a press release that indicated

an employee was disciplined ?

A . That's right.

You don' t have anyknowledgeofany employeebeing disciplined?

A . I wasnotdisciplined.

Q . Nor did you ever hearof anyoneelse being

disciplined?

A . I never heard of anybody else beingdisciplined other than Jeff describing this

contentious meeting with Larry Wolk and others in theroom .

Q . Now , you actually did a facility inspectionat the Weld County ?

A . Yes

just a second . Wewere still updating various pieces

of that firmware allalong. I 'm sure you all haverecords of fouror five revisions .

So ifa comment had been made about " and

we're going to update the firmware, well , thatwouldhave been a legitimate comment either way . Whether we

were going to update the firmware to solve that or notdoesn 't enter into it. Wewere constantly revisingthat firmware .

Q. Whatis firmware?

A . Sure. Frankly, in this context, it s a veryloose term . Firmware is actually -- Well, firmware is

software that can't be accessed . It' s embedded into amachine, in this case the Intoxilyzer instrument.

So in the Intox 9000 , look at this as having

two different pieces of software in it. There ' s the

software that is the core , the DNA ofthe Intox 9000 .

Right? How itlooks at a sample , what wavelengths,its calculations, and it spits out a number. That we

never had any controlof, no . I mean , that's what CMI

sold , for heaven' s sake, that's their product.

So firmware as we loosely referred to it is

the button pushes, if you will. What of itwecontrolled. So when this screen popped up, what

buttons were on there, when we pushed this function

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how did that functiondo, that was the firmware; justthe operator- - I guess I' lluse that term , theoperationalfirmware, how we operated the Intoxilyzer;how we operated it, nothow the Intoxilyzeroperated.Is that clear ?

Q Yes.

A Okay . So how we operated it .

Q . So, after that point, the after-action

reportdoes come out, you' re not awareof anydiscipline. How was itmonitored to ensure that this

wasn' t going to happen again ?A . Sure. So severalquerieswere written.

Anthonybecamepretty adeptat writingsequelqueries

SQL

Whats that?

A . So a sequel query , as I refer to it,

sequel - - SQL, structured query language, is a

language used to query databases. Okay ? It can becryptic , you know . It' s not an easy -to - learn thing,but a layperson can learn it. I picked up a littlebit of it , you know . But Anthony sortof appointed

himself that guy , that COBRA guy. And, to hiscredit,he really became very knowledgeable about it.

So on theheels of this, Anthonywrote

severalof thesesequel queries thatresulted in

conversations about, you know , Mike doesn t even have

to come up and sign his name. And Jeff did a --My

namewas always M . D . Barnhill. That's how I signed,M .D . Barnhill. So Jeff did that, you know . Itwasjust one ofthose - - one of those evolutions, you

know . Itbecame cumbersomefor meto always find --

get this phone call, oh, crap , I've got to go up and

sign these four signature padsat a time. And so itjust becamepart of the conversation: "Let' s just do

this." " All right, fine, do that." And in my mind it

was already a farce -- maybe that' s too strong of aword, but, youknow , whatwewere doing anyways,

having non-CDPHE people using a CDPHE person's IDnumber to do work that, frankly, a technician should

be doingQ . Was Jeff the first one to sign your

signature?A . I don't know if he was the first. I think

in that conversation in the lab he -- you know , itwasa jovial conversation , and hesaid , " I could do that."

" Yeah , you can ." And so he did on a piece of paper,

or something like that. Whether he signed mynameonan Intox or ifhe signed his name to my ID number on

an Intox, I don' t know , but the recordswould -- You

know , Jeff s signature -- Ifyou looked at Jeff's

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weekly monitors that hewould run. And I want to saythere were a few of these . I don' t know that therewere six or seven ,but three or four,maybe five , of

these weekly monitors. And I don' t recallthe details

of them , butthey had to do with temperature , and wewere also trying to monitor - - oh , what else were wetrying to monitor? Boy, I'm not going to remember any

of that, but temperature was the biggestthing becausethat' s actually what sparked this whole affair. At

any rate, Anthony wrote several of these monitors . He

would run a report once a week, and Jeff would review

it. I mean, thatwas -- It was pastme; it didn't go

through me, so .Q . How long did those continue? Untilyou

left?

A . Yeah. Those were runningup untilwheneverI left. Yeah .

Q After the -- Well, I want to talk to youjust briefly about the - - You indicated during the

certification process that employees of CMIcameoutand actually helped with that process. How did you

determine that they were actually using your numberand signing your name? How did you know that ?

Well, I mean, they had access to the Intox

technicianmode; that's how they did that. Therewere

80

signature ofhis J. Groff, and you lookedat an M . D .Barnhill, itmayormay notmatch sort of Jeff'shandwriting. And I don't know that answer ifheeversigned M .D . Barnhill, butotherpeople signed M . D .Barnhill, 'm sure of that. And Jeff mayhave -- Ibelieve Jeff did . I would have to review all those totellyou

MR. ORR: In your tenure at CDPHE, while the

9000 was being certified , do you remember being sickor outof the office any period of time ?

THE WITNESS : Oh, gosh . No. I mean, thatwas such an incredible project there was no timefor

being sick or out of the office .MR. ORR: What I'm looking for is days that

you wouldn ' t be there that somebody would have signed

your nameTHE WITNESS: You know , gosh, we were

working sevendays. Sure, it' s very conceivable. Idon' t know that answer.

MR. ORR: Okay .

Q . (BYMR. BUSSEY) To follow up on that, Jeffwas -- he wanted confo

talked about it. Hewanted one technician to sign offon all of these ?

A . Hewanted it to look like one technician did

o

o

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83

all of these. That's a very importantpoint.Q. Why ?

A . For that conformity and uniformityBut I have to make clear I did not sign off

on all ofthose . I signed many of those because that

was the system that had been put in placebased on the

time crunch we were under. So this concept of me

signing off on any ofthat, no. I signed off on theones that I did . And if I had stood over there and

watched Adam or Alan Triggs or anybody actually doone, yeah, I'd stand good for that too. But that'snothow that worked .

Q You' reaware, obviously, thatweended up

havingto litigatethe Open RecordsAct issuewhere I

was the petitioneron thatandMr.Groffwas namedasa defendant?

A . I don' t know.

Q . Were you aware of that, that wehad to go to

court on this matter?

A . Tim , there havebeen so many --

Q. Letmeask you this : Did Jeff have a name

or a nicknamefor defense attorneys that would askquestions of his program ?

A . Well, yeah. We loosely referred tomanyin

the defense community as the -- and itwas Jeff' s

other labs that were not EBAT. I think they all had

QA programs or some form of it, but the EBAT lab never

had a formal QA manualorprocess ; it was just all ofour SOPs.

And , to that point, you know , it' s my

opinion , you know , QA manuals aren 't needed as long as

everybody does everything above board all of the time.

But, really , that's not a possible thing to happen .

MR. ORR : When you said to Tim 's questionearlier that there wasuniformity for one person - -

one ID number, let' s use that, that was because, inyour opinion ormaybeyou can express youropinion onthis, thatMr. Groff wasworried about the defense bar

comingback and attacking the program ?THEWITNESS: Absolutely. That was the

reasonwhy. BecauseI proposedweuse the test

technician ID .MR. ORR: So a blank ID ?

THE WITNESS: Yeah. The number was five

fives: 55555. So Jeff was concerned, andlegitimately, that, you know , they could never --

they, the defense community , could never questionthatperson, that person didn 't exist, so how would we ever

explain that ? Okay , that' s legitimate, fine. But

then it just becamethis necessity . Jeff just - -he

82 84

actualterm , thedirty dozen. You know, therewere a

handfulofattorneysaroundthe state that gave Jeff

more heartachethan others.

Q . Who were they?

A . Well, Gary , Rhidian, Tim . There was a guydown in Durango , a guy over in Glenwood . Names escape

me, frankly . A guy in Junction . There were probablya couple others along the Front Range here. But,yeah , you know , that . . .

Q . Did the QA officer know about the signature

issue?

A . , no.

Q . Who was the QA officer, if you know ?

A . During that time?Q . Yes

A . I' m not sure that wehad a QA officer. Notfor the EBAT lab. I mean , the lab itself is a

scientific lab and, sure, there was QA programsfor

the science programsthatwere there , butwe didn'thave a QA program at thattime, wemeaning EBAT.

MR. ORR: So notconsideringtheEBAT

program as a science program ?

THE WITNESS : Right. You 're right. When Isay science program , Imean themicrobiology lab , the

chemistry lab , the newborn screening lab, all of the

wanted one person 's ID . I don' t know . I protested,

but -- Rhidian , you know , Jeff and I had a veryfriendly working relationship .

MR. ORR: And hewas your boss.

THE WITNESS : And he wasmyboss , you know .And , honestly , the -- . We had a friendly

relationship and hewas my boss. And if I had takenitany further than that, itwould have destroyed , in

mymind, both of those, and I wasn 't prepared at that

point to upmyjob. Itwasn 't until later on

that I thought, oh , the heck with this, I just have todo this. So , yeah , at that point I was still a

go-along guy, we' ll just go alongwith this.Q . (BYMR. BUSSEY ) We' ve talked about - - You

mentioned the dirty dozen and Jeff was mindful of thedefense community . Were you ever awareof him , you

know , telling you notto putsomething in writingconcerningan investigation or not communicating with

CMIin writing or doing things via telephone orverbally ?

A . Yeah

Q . Can you give us someexamplesof that?

A . Oh, goodness . Boy, no , I can't give

specific examples ofthings, butthere was anatmosphere of be careful what you put in an e-mailto

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85 87

� �

CMI, becausewehad e-mailsthat would stay aroundfor I think 60 days, which was the retention limiton things like that, if I remember right. And so Iwas pretty careful to -- If I had a question that

mightbe-- that mighthave caused us someproblemsdownstream , I would have just called CMIon the phoneand talked to them about it. I remember talking to

one of the engineers atone point and I said , "Well,don' t e-mail that to me; letme just write it down,"

you . And so there was that kind of activity thathappened.

Q . Was Jeff theonethatwas behindthat? Did

hewantyou not to do thator how did - -

A . Jeff always reminded ushow difficult itwas

dealing with the defense bar and how we were to becareful aboutwhat we said in an e-mail. We were to

be careful aboutwhat could be subpoenaed , you know ,

and e -mails were , obviously , on that list, certainlyin mymind. So we were allcareful

MR. ORR : And there' s obviously no questionwhatsoever in yourmind that Jeff knew that theseresults and these things would come into court ?

THE WITNESS : That these results, like --

MR. ORR : Broadcasting results - -THE WITNESS : Yeah , absolutely . Yeah . We

wemake a record request for a device or multiple

devices, is that the department doesn ' t to

disclose identifiable information on the person , their

name, their date ofbirth .

A . Sure.

Q . How difficult is it -- Because I' m gettingbills; the last one I did I think was for over $ 4500

to actually print this out and then redact the

person ' s identifiable information. How difficult is

it to set up a field so that we could have that

information without, effectively a redaction , butrather a production where it's eliminated from thefield ?

A . I 'm going to take a - - I'm going to get toyour question. So back to that request aboutwhat

data was available from COBRA. When I told CDPHElegal and the AttorneyGeneral s office thatwecould

retrieve this in CSV format all fields, alldata ,exported to CSV , and I was asked to identify whichfields should be redacted ,myrecollection is it' s

just a matterofhow you write the query.Forinstance, I could have written a query

that asked for allthe tests performed April 1 toMay 1, 2013, with a particularsubject nameor no --

who cares, just all the tests, doesn't matter to me,

�

� �

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�

allexpected these results to comeinto court.

( Phone interruption .)THE WITNESS : Excuse me.MR. ORR : Let s go off the record.

( Discussion off the record . )MR. BUSSEY Let go back on the record.

Q . (BYMR. BUSSEY On the Intoxilyzer 9000,

could you describe the storage of data and theretrieval of data and how it could be provided to thedefense ?

A . Yeah. I mean, every piece of input to the1- 9000, when the officer or the technician types in aname, that's , of course , stored. Every test resultso every air blank result, every calibration check ,

breath sampleresult, is stored in the 9000 . Every

signature . The officer s signature is stored in the- 9000. The histogram is created in the 9000 and

stored as a graphic file , the format of which escapes

me, but I think it' s a simple one, like a JPEG , but Idon 't know for sure . That is stored in the 9000 .Allof that information, including the graphicalimages of the signature and the histograms, are

subsequently downloaded to the departmentof health ,periodically , and they residewithin the COBRA tables.

Q . One of the issues that we' ve run into , when

and include the -- I don 't know , the time of it,

include the signature of it, the histogram of it. I

mean,whatever. Yeah. I mean, you could pick - -that' s thepointofwriting a sequelquery is you canpick and choose those fields which you want to includeand exclude, and that's why I provided that list tothe legal staff of all the tables, all the fields.And I think I put in red the onesthat should be

redacted or something like that. I mean, it was

obvious. But, yeah , that s what a query is. A query

is this data butnot that. Butthat' s only providedin CSV. Well, I guess they could have printed it into

a paper report, I suppose. I don' t know . I don 't

know their processes at this point.

Q . Who from the legalstaffwas awareof that ?A . Well Ann Hause. I mean, I showed Ann and I

think Alisa Campbell that day . And, again, I' ll say,

Jeff did notwant them to know that. And I' m sure itwould have made their job easier to be able to respond

to you, no, there' s no way to get data outofCOBRA.But, as soon as thathappened, that opened a giant can

ofworms, right, of, oh, crap, now the defense bar is

going to be requesting all this data all the time;it' s just going to be like a weekly request. And, I

mean, wewere dreaming up all kinds of - - and I was

�

�

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89 91

REPORTER' S CERTIFICATE

STATE OF COLORADO.

CITY AND COUNTY OF DENVERI STACY L . ARMSTRONG , Certified Merit

Reporter and Notary Public ID 20004025637 State ofColorado , do hereby certify that the within

proceedings were taken in machine shorthand by me atthe time and place aforesaid and was thereafterreduced to typewritten form that the foregoing is a

true transcript of the proceedings had .

I furthercertifythat I am not employedby

relatedto, nor counselfor any of the partiesherein,

nor otherwiseinterestedin the outcomeof this

litigation.

dreaming up all kindsof things too just thinking how

is this going to hurt us ? You know , I knew the

repercussions, but I felt itwasmore important thatlegal staff knew whatwe had the capability of doing

than -- than - - The concern for mewas and the reasonI spoke up at thatmeeting was this information is

going to get outthere some day, and we' ll allbe in aton more trouble if this information gets out there

afterwe told them , them , CDPHE legal, thatitwasn'tavailable .

So I took -- I remember, I took Alisa and

Ann into the lab , and we stood there atthe COBRA

computer. And Anthony and Andrea thought , sureenough, this is the end ofMike, which was to their --

much to their pleasure, quite frankly . Butitwasn 'tthe end . But Jeff was definitely -- I think livid is

probably the right word . Hewas very, very angry.

Q . Why would it be the end of you and why wouldJeffbeangry ?

A . Well, Jeff was angry because he didn' t wantCDPHE legalto know that we had the ability to extractall this data. And why would itbe the end of me?

Well, Anthony and Andrea were , at that point, just --

you know , seemed like every week they were complainingto Jeff about something else that Jeff should fire

IN WITNESS WHEREOF , I have affixed my

signature this 28th day of June, 2016 .

My commission expiresAugust 31, 2016.

Readingand Signingwas requested

Reading and Signing was waived.

and is not required.

90

Mike over. So, whatever itwas justanother thing.Q What typesof informationis out there that

you believethedefensebar should ask for and hasn' t

askedfor ?A For -

Q . What are we missing here? For us, we're

working in a vacuum here, trying to obtaininformation .

A . Well, it depends what you're trying to

achieve . So, for instance, ifyou were to seekfurther information about who certified theIntoxilyzers, that initialrun of Intoxilyzers, well ,

you would wantto know -- you would want to requestall the data for those tests between April 1 andMay 1. In fact, through aboutMay 3. I think wewere

stilldoing someMay 2 and 3. Thatwould includesignatures and ID numbers.

Q . And is that informationeasily queried?A . Yes, it is.

MR. BUSSEY: I don't have anymore questionsat this point

WHEREUPON , thewithin proceedingswere

concluded at the approximatehour of 12:56 p .m . on the20th day of June, 2016 .

* * * * *

23 (Pages 89 to 91)


MICHAEL BARNHILL

REPORTER ' S CERTIFICATE

STATE OF COLORADO) .

CITY AND COUNTY OF DENVER

I STACY L . ARMSTRONG Certified Merit

Reporter and Notary Public ID 20004025637, State of

Colorado, do hereby certify that the within

proceedings were taken in machine shorthand by me at

the time and place aforesaid and was thereafter

reduced to typewritten form that the foregoing is a

true transcript of the proceedings had.

I further certify that I am not employed by

related to , nor counsel for any of the parties herein,

nor otherwise interested in the outcome of this

litigation.

IN WITNESS WHEREOF, I have affixedmysignature this 28th day of June, 2016 .

My commission expires August 31, 2016 .

Reading and Signing was requested.

Reading and Signing was waived .

Reading and Signing is not required .

Stacy ArmstrongCertificate of Merit

Sworn Statementof MichaelBarnhill MICHAEL BARNHILL 6 / 20 / 2016

Page 92

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SWORN STATEMENT OF · Sworn StatementofMichaelBarnhill MICHAELBARNHILL 6 20/ 2016 DE EXAMINATIONOF MICHAELBARNHILL: June 20 , 2016 PAGE SWORN STATEMENTOF By Mr. Bussey MICHAEL BARNHILL