DUI law - Confrontation Clause Doesnt Apply to Calibration Breath Records

In Commonwealth v. Dyarman, --- A.3d ----, 2011 WL 5560176 (Pa.Super.), 2011 PA Super 245 the court was asked to decide whether the calibration records of an Intoxilyzer 5000en violated the Confrontation Clause. They ruled that the logs did not so violate.

"In this matter, unlike in Barton–Martin, the individual who actually performed Appellant's BAC analysis (Officer Gsell) testified as to the accuracy of that test and as to the specific results received with regard to Appellant. Nevertheless, Appellant claims that admission of the calibration logs for the device used to determine Appellant's BAC, without the testimony of the person who performed the actual calibration, violated her right under the confrontation clause. Appellant's Brief at 10–15. Appellant argues that the calibration logs are testimonial in nature, such that application of Melendez–Diaz and Barton–Martin should prohibit their admission through the business records exception of the hearsay rule. Id. at 13. We disagree."

"Here, the calibration logs were admitted into evidence to establish the chain of custody and accuracy of the device used to test Appellant's BAC; they were not created in anticipation of Appellant's particular litigation, or used to prove an element of a crime for which Appellant was charged. Therefore, although relevant evidence, the logs were not “testimonial” for purposes of the protections afforded by the confrontation clause, as contemplated by Crawford, Melendez–Diaz, and Barton–Martin."

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DWI Law - Texas Says "Tell the Officer Yes" is Not Coercive Breath testing

In Leal v. State of Texas, --- S.W.3d ----, 2011 WL 5223122 (Tex.App.-Dallas) the defendant, who spoke Spanish only, was arrested for DWI. Appellant Leal was videotaped as Officer Gabriel played a recording, in Spanish, of the DIC–24 statutory warnings. Before playing the tape, Office Gabriel directed appellant's attention to an enlarged copy of the DIC–24 statutory warnings in Spanish on the wall next to him and told him to follow along with the recording. Although she did not ask whether appellant could read, the recording shows appellant looking at the posted form numerous times during the four-minute recording. Near the end of the recording, the recording asks in Spanish, “Right now, we are asking for a sample of breath. Tell the officer ‘Yes' or ‘No.’ ” Officer Gabriel's practice was to stop the tape after it asked for a sample of breath, and ask the defendant herself, in Spanish, “Yes” or “No.” On this occasion, however, Gabriel cut off the tape after “yes,” so that appellant heard, “Right now, we are asking for a sample of your breath. Tell the officer ‘Yes'—.” Officer Gabriel then immediately asked appellant herself, “yes or no.” Appellant nodded yes. Thereafter, the videotape shows appellant providing two breath samples.


On appeal, the court held that the playing of the tape in the manner described did not cause the breath test to become nonconsensual. They wrote:

"Having reviewed the videotape, we conclude it supports the trial court's conclusion that appellant's consent was voluntary. The statutory warnings were on an enlarged form posted on the wall just inches from appellant. Officer Gabriel directed appellant's attention to the form and told him to follow along with the recording of the DIC–24 warnings in Spanish. Several times during the four-minute tape, appellant looked at the form as if he were reading it. Although the officer cut off the tape after “yes,” she asked appellant, “yes or no,” almost instantaneously. Moreover, appellant could see the recording was interrupted. Having just been warned of the statutory consequences of refusing to submit to the test and having just been told the officers were “asking for a sample” of his breath, we believe a reasonable person in appellant's position would have understood the recording had been cut off, and not that appellant had no choice in whether to provide a sample. Under the circumstances presented, we conclude the trial court did not err in denying appellant's motion to suppress."

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New Montana DUI Bill Requires Breath Tests Twice Daily

A bill that requires repeat DUI offenders to submit to breath tests while awaiting sentencing for a DUI arrest was signed into law by Gov. Brian Schweitzer on May 6.

The 24/7 Sobriety Bill was promoted heavily by Montana Attorney General Steve Bullock and sponsored by Rep. Steve Lavin, R-Kalispell.

“As a Highway Patrol Trooper, Rep. Steve Lavin and law enforcement across our state see the carnage that repeat drunk drivers cause on our highways,” Bullock said following the bill’s passage in the legislature.

House Bill 106, the freshman legislator’s first bill, was approved by wide margins — 97-2 in the House and 41-8 in the Senate. Republican Reps. Jerry O’Neil, Keith Regier and Derek Skees and Republican Sen. Bruce Tutvedt voted in favor of HB 106, while Republican Sen. Ryan Zinke voted against the measure.

Under the bill, offenders arrested for a second or subsequent DUI are required to submit to a breath test twice a day, seven days per week, to show they’re sober from the time of their arrest to the completion of their sentence.

Bullock tested the 24/7 concept in a pilot program in Lewis and Clark County, but a similar program had already been in effect in Whitefish for about a year for people on bail awaiting sentencing . From May 2010 to April 2011, Lewis and Clark County officials administered more than 11,400 breath tests, and 99 percent of them came in at 0.0 percent.

The governor also signed Senate Bill 42, which makes it easier for law enforcement to get a warrant for blood tests on repeat offenders who refuse to submit to a breath test. Regier, Zinke and Tutvedt voted in favor of SB 42, while O’Neil and Skees were opposed.

Several bills failed in the legislature, including a measure that would extend the time frame in which prior DUI convictions could count in court. Under the current law, courts can only use DUI convictions within the past five years when determining charges and sentencing.

Montana has long been known as a binge-drinking state, and its highways are among the most dangerous in the nation. But several setbacks affected efforts to strengthen Montana’s DUI laws this legislative session.

In mid-January, Sen. Jim Shockley, R-Victor, was cited for an open-container violation after he was caught drinking a beer while driving through Missoula. Shockley, who was ready to present his DUI bill in Helena, was forced to resign his chairmanship of the Senate Judiciary Committee.

Then in early April, Republican Rep. Alan Hale, who owns a bar in Basin, surprised many with a speech that criticized DUI reform as bad for business. The DUI bills “are destroying a way of life that has been in Montana for years and years,” he said.

Supporters of tougher DUI bills included Rebecca Sturdevant, of Kalispell, representing Mothers Against Drunk Driving. Her son, Montana Highway Patrol trooper Evan Schneider, was killed Aug. 26, 2008, in a head-on collision on U.S. 2 near the House of Mystery. He was in pursuit of a small car that was driving erratically but was never found. The driver of the pickup truck that hit his patrol car during the pursuit had been drinking. Schneider and two people in the truck died in the crash.

“I think it’s a very, very important step forward in dealing with repeat offenders,” Sturdevant said about HB 106. “One of the key things with repeat offenders is they are driving drunk many times before they are arrested. This will make a huge difference in earlier intervention for these people.”


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Governor wants crime lab in charge of Datamaster - WCAX.COM Local Vermont News, Weather and Sports-

Why does the Governor want this? Becuase all of the results in the past year were wrong! Of course, this is just one of many examples of machines improperly calibrated.

Governor wants crime lab in charge of Datamaster - WCAX.COM Local Vermont News, Weather and Sports- Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

DUI Appeal - Georgia Source Code, Per Se, and Intoxilyzer Issues

In Holowiak v. State of Georgia, --- S.E.2d ----, 2011 WL 1123539 (Ga.App.) the defendant was originally charged with both driving under the influence (DUI), and driving with a BAC over 0.08 (per se). He was found not guilty of DUI, and the jury hung on the per se. On retrial of the per se count, the defendant was convicted. The defendant appeals based on two issues: the admissibility of impairment evidence and SFSTs when the defendant is only charged with a per se violation, and the refusal of the court to issue a subpoena for the source code to the Intoxilyzer 500 manufacturer, CMI Inc.

On appeal, the Court approved of use of the evidence of impairment and performance on the SFSTs in order to establish the validity of the breath test as follows:

“Field sobriety tests are not designed to detect the mere presence of alcohol in a person's system, but to produce information” about the quantity of alcohol in the system. Kirkland v. State, 253 Ga.App. 414, 416 (559 S.E.2d 161) (2002) (officer's testimony that HGN test correlated with Intoxilyzer results was relevant and admissible). "

Additionally:

"The officer testified that, based on his years of training and experience, he concluded that Holowiak's performance on the field sobriety tests was consistent with a test result of .125 from the Intoxilyzer. Thus, the evidence of his field sobriety test was relevant to counter Holowiak's attacks on the accuracy of the breath test. Likewise, the evidence of Holowiak's impairment was relevant to establish the facts that were the basis for the DUI arrest."

The defendant also complained that the trial court erred in refusing to approve of an out-of-state subpoena to CMI to compel production of the source code for the Intoxilyzer 5000. The court discussed the relevance of the issue as follows:
In Stetz v. State, 301 Ga.App. 458, 461 (687 S.E.2d 839) (2009), this Court defined the scope of “full information” to which a DUI defendant is entitled under OCGA § 40–6–392(a)(4) when the test of a person's blood alcohol concentration is determined by an Intoxilyzer machine. We held,

Unlike the gas chromatography test, which produces data that has to be interpreted by a chemist to determine blood alcohol level, an intoxilyzer does not produce raw data but rather prints out the actual test result showing the person's blood alcohol level. In other words, the machine computes the test result. Therefore the only discoverable information from an intoxilyzer test under OCGA § 40–6–392(a)(4) is the computer printout of the test result.
Additionally, the appeals court found that the source code evidence was speculative at best:

"The information would be used, among other things, to “determine the accuracy, reliability and admissibility of the results” of Holowiak's breath test. Although Holowiak noted that there were pending allegations in other states of “problems with the Intoxilyzer 5000 breath test results based upon breathing patterns,” and that the information would be used “as applied to [his] particular health and physical issues,” he did not allege that he actually had a physical or health issue that might affect the results of the breath test, much less present any evidence about it."

Thus, the appeals court affirmed the defendant's conviction.

NOTE: The case implicitly authorizes the defense to use SFSTs and other non-impairment evidence as a defense to a breath test's validity. Additionally, it is my suspicion that the defense attorney offered many more ways that the source code was relevant, but that the appeals court seized only on the arguments that were more speculative, in order to sustain the trial court's original ruling.


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DWI Appeal - NJ Margin of Error in Alcotest Rejected

In State of New Jersey v. Miceski, Not Reported in A.3d, 2011 WL 1327436 (N.J.Super.A.D.), the defendant submitted to a breath test on an Alcotest 7110 MK-III C ("Alcotest"). The Alcotest performs two readings - one involving an infrared analysis, and the other involving an electro-chemical analysis. Here, the reading for both were 0.084, truncated to 0.08%. The court heard testimony from defense expert Gary Aramini, that the Alcotest calibrations were reading 'high'. Aramini provided a technical explanation for the readings, but conceded they were within the acceptable range of tolerance. He also stated that there is 0.005% margin of error in any Alcotest AIR reading. Aramini stated within a reasonable degree of scientific certainty that defendant's actual BAC could have been below 0.08%.

The Law Division granted in part defendant's motion to suppress the Alcotest readings. Because the calibration testing demonstrated “an unofficially high reading,” the court concluded the actual BAC could have been 0.78% or 0.79%. The Law Division remanded the matter to municipal court with an order that the Alcotest results were admissible, but could not result in a per se DWI violation. The Law Division also stayed its order and all further municipal court proceedings pending the State's appeal.
On appeal, the court held that the Alcotest has been held to be “generally scientifically reliable,” and with certain modifications, its results admissible to support a per se violation of N.J.S.A. 39:4–50. Chun, supra, 194 N.J. at 65. The expert's opinions concerning tests conducted during calibration and the solution change did not establish any flaw in the Alcotest or its readings. Instead, the expert's concession that the readings were within acceptable tolerances established that they were within “the range of any set of measurements that is accepted as being representative of a true reading.” The court held that the 0.005% margin of error is taken into consideration when the Alcotest is properly administered:

"Chun ordered the programmed Alcotest range of tolerance be revised such that the benchmark for a true reading of BAC must be set at plus or minus five percent or, in absolute terms, “0.005 percent BAC from the mean or plus or minus five percent of the mean, whichever is greater[.]” Id. at 116. This requires two calculations when setting the upper and lower limits. Id. at 116, 119. Because the Firmware version 3.11 at issue utilized a plus/minus ten percent range of tolerance, manual calculations on a worksheet developed by the Court (Worksheet A) were required to assure accuracy."

The court concluded that as long as the EC and IR readings fall within the acceptable range of tolerance, the final BAC reading shall be deemed sufficiently reliable to be admissible as proof of a per se violation, and that the margin of error of 0.005% could not be used to defeat a per se violation.


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DWI Appeal - A 25.7 Second Blow and Impossibility

In State of New Jersey v. Schworn, Not Reported in A.3d, 2011 WL 1161628 (N.J.Super.A.D.), the defendant was found not guilty of DWI but guilty of driving with 0.08 or more (breath test). On appeal, the defendant contended that there was insufficient evidence that the 20 minute pre-test observation period was performed, and that the court should have taken judicial notice that it was 'impossible' for a person to blow for 16.2 seconds or 25.7 seconds, and therefore the results of the test were not believable.

The evidence at trial revealed that the officer recorded in his report that the observation period started at 1:50 a .m. and ended at 2:10 a.m., but the report issued from the Alcotest machine indicated that the test protocol began at 2:07 a.m. When confronted about this at trial, however, the officer explained that he gauged the twenty-minute observation period by reference to his wristwatch and not by the Alcotest timer. On appeal, the court held that it was acceptable for the trial judge to believe the cops explanation.

Additionally, there was testimony that the defendant provided the Alcotest machine with two breaths within two minutes, the first of which lasted for 16.2 seconds and the second lasted for 25.7 seconds. Defendant argued that the trial court erroneously refused her invitation to take judicial notice that exhaling for those periods of time was not possible. The appeals court stated:

"[T]he precise point raised on appeal is not that the judge's finding of guilt was against the weight of the evidence but that he failed to take judicial notice of the impossibility of the extent and timing of the breaths provided by defendant. Even if it could be assumed, which we doubt, that this was a proper area for the application of N.J.R.E. 201(c), we are satisfied the judge did not abuse his discretion in refusing defendant's request."

NOTE: Judicial notice can be given to incontrovertible facts or to those that can be easily determined. The pull of gravity is one. The sun rising and falling every day is another. The ability to blow a single breath into an Alcotest for 16.2 or 25.7 seconds should have been another. Apparently though, some of the NJ justices must have met some very large blowhards in their lifetime. What is the longest one can blow into an Alcotest?

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DWI Appeal - Acquittal Reversed, But Failure to Provide Breath Test Data Causes Suppression

In State of New Jersey v. Tsoullis, Not Reported in A.3d, 2011 WL 767721 (N.J.Super.A.D.), the defendant sought a download of the data for the Alcotest breath alcohol machine from the prosecutor. After a failure to provide the download, the municipal judge, at the request of the defendant, suppressed the result. The defendant then entered a conditional plea of guilty, and sought review in the Law Division. The law division judge found that the failure to provide the download data not only violated Brady v. Maryland, but also raised a reasonable doubt as to the defendant's guilt. Hence, the judge entered a judgment of acquittal. The prosecution appealed.

On appeal, the first issue raised was whether the appeal of a judgment of acquittal violated double jeopardy. Acknowledging that, as a general rule, an acquittal cannot be appealed, the appeals court found that the law division's order was more appropriately an order of dismissal for a discovery violation, and hence reviewable.

On review, the appeals court found that the failure to provide the download was a proper basis for suppressing the test result, but that outright dismissal was not proper. First, there was no evidence that the data, if produced, would have been favorable to defendant. Hence a Brady violation did not occur (there is good case law cited for the proposition that if a Brady violation occurs then total dismissal is appropriate). Equally, since there was no evidence that the data, if produced, would have proven that the defendant was NOT under the influence, a judgment of acquittal was also erroneous. The cause was reversed and remanded to reinstate the plea of guilty.


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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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