DUI Appeal of the Day (DAD) - Margin of Error Defense Rejected

In Borger v. Dep't of Motor Vehicles, --- Cal.Rptr.3d ----, 2011 WL 541131 (Cal.App. 2 Dist.), the driver challenged his suspension after giving two breath tests on an Intoxilyzer 5000 of .09 and .08. His expert, Jay Williams, testified that all “Intoxilyzer 5000” machines have an inherent margin-of-error of plus or minus .02 percent. He said that respondent's BAC could be “anywhere between a .06 and a .10” and could not say with reasonable scientific certainty that his BAC was .08 percent or higher. The DMV hearing officer did not credit Williams' testimony and found that respondent was lawfully arrested for DUI and driving with a BAC of .08 percent or more. (§ 13557, subd. (b)(2).) However, the trial court credited Williams' testimony. It impliedly found that respondent's BAC was less than .08, granted the writ petition, and ordered DMV to set aside the suspension of respondent's license. This appeal followed.
Rejecting the defense, the appeals court stated:

The trial court's terse analysis does not inspire confidence. Williams testified that an “Intoxilyzer 5000” that is in working order meets “the Adams requirements” ( People v. Adams (1976) 59 Cal.App.3d 559) but has an inherent margin-of-error of “plus or minus .02” percent. There is no disagreement that the “Intoxilyzor 5000” is an “approved instrument” within the meaning of Title 17, article 7, section 1221.3. Williams did not examine the machine used to test respondent's BAC on March 18, 2009, and he offered no opinion that the machine was not in working order. The trial court inexplicably credited Williams' theoretical lowest possible BAC and ignored the theoretical highest possible BAC. The logic of the trial court ruling concerning an impossibility to determine respondent's BAC is unknown. In reality, Williams' conclusion would “overrule” every “Intoxilyzer 5000” reported result unless it is .10 or more. This would change the California Code of Regulations, title 17, article 7, sections 1221 through 1221.5 and effectively remove this breath testing device from the Department of Motor Vehicle's “approved instrument” list. Other than testifying that he owned “Intoxilyzer 5000” machines, Williams offered no reasoning to support his conclusion. He offered no evidence of any scientific tests that he conducted with any such machine let alone the one used here. The record does not show that any other experts in the scientific community have reached similar conclusions or that any scientific literature supports Williams' conclusion. To say that his conclusion is bald is an understatement.

Further unnecessary ripping of the expert then occurred:

“Where an expert bases his conclusion upon assumptions which are not supported by the record, upon matters which are not reasonably relied upon by other experts, or upon factors which are speculative, remote or conjectural, then his conclusion has no evidentiary value. [Citations.] In those circumstances the expert's opinion cannot rise to the dignity of substantial evidence. [Citation.]” ( Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135.) ‘ “ ‘ “The chief value of an expert's testimony in this field, as in all other fields, rests upon the material from which his opinion is fashioned and the reasoning by which he progresses from his material to his conclusion....” ‘ (Quoting Carter v. v. United States (D.C.Cir.1957) 252 F.2d 608 617 [102 App. D.C. 227].)” ( People v. Coogler (1969) 71 Cal.2d 153, 167.) Williams' bald conclusion is speculative and cannot be fairly characterized a “substantial evidence.”

Editor's note: Obviously, this was a political decision - not an evidentiary one. Although couched in scientific terms (i.e. "how do we know that the expert really knows what he is talking about unless he teaches us to know it too?") the judges on the appellate court were simply unwilling to accept a simple unrefuted proposition, that the machine has a margin of error of =/- 0.02. Normally, case law states that the trier of fact cannot disregard unrefuted testimony. And sometimes, a scientific proposition is so simple, that nothing further need be said. An example might be that "two objects of the same shape will fall to earth at the same rate." Even though a judge might not know that to be true until it is told to him by an expert, the law doesn't require that Galileo re-climb the Tower of Pisa all over again, just to placate the ignorant and/or obstinate.


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Breathalyzers Read 20-40% Higher in DUI Cases; Cover-up Revealed

DC Breathalyzer Calibration Questioned

WASHINGTON - A man hired to supervise the Breathalyzer unit of the D.C. Police Department is blowing the whistle on what he says are a decade of questionable test results.
Writing in a memo to the D.C. Attorney General he said the officers running the program rarely, if ever, performed accuracy tests on the machines used to measure the blood-alcohol content of drivers suspected of D-W-I.
Two and a half months after taking over the Breath Alcohol Testing Program, Ilmar Paegle, a retired U.S. Park Police officer, wrote a detailed four page memo in which he claims the protocol to ensure the machines were properly calibrated has not been followed since at least 2000. That’s a claim the D.C. Attorney General Office calls just an "opinion."
But Paegle lays out his case in a memo now in the court file of a man convicted of D-W-I. That man wants a new trial.
In the memo addressed to Assistant Attorney General Kimberly Brown, Paegle wrote,
"From my inspection of the instrument files (the machines) have never been checked for accuracy even though an accuracy test is the only legal requirement a breath testing instrument must meet in the District of Columbia."
Paegle continued, "The calibration has to be verified by accuracy tests, and these legally mandated tests of (the machines) apparently have never been done."
David Benowitz represents Sultan Epaye, the man who wants a new trial.
"The ramifications are enormous,” said Benowitz in an interview Tuesday outside D.C. Superior Court. "It goes back for years, there are plenty of people who served jail time based on what may very well be false tests or inaccurate tests, the civil liability could be huge, it just has a huge impact on the integrity of the entire criminal justice system."
Included in the court case jacket are internal D.C. Police documents showing no accuracy tests were performed on the machines after they were calibrated. Those records go back to at least 2006.
But Sarah Branch, the Prosecutor in the case, takes issue with Paegle's claims, writing in a motion for dismissal of conviction, "Mr. Paegle's opinion is based on a review of documents that were created and kept by his predecessor, Officer Kelvin King, the former Chemical Testing Program Manager for MPD. Therefore, Mr. Paegle's opinion consists of nothing more than conjecture and assumptions."

"We strenuously disagree with that characterization," said Benowitz, "It's clear what Mr. Paegle's is saying is based on fact."
In the memo, Paegle also criticizes D.C. Police for the lack of oversight and supervision.
Back in February the Attorney General admitted his office was looking into dozens, if not hundreds of cases, after learning from Paegle the machines were improperly calibrated in the fall of 2008 and were not tested for accuracy.
What Paegle is saying today raises questions about test results as far back as 2000 or longer.
Paegle declined to comment, as did D.C. Police Chief Cathy Lanier.
Attorney General Peter Nickles referred us to the motion filed in court.



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