Standardized Field Sobriety Tests: Voluntary, Unfair, And Designed For Trickery.
In 2006 I attended the 24 hour course that all law enforcement officer’s attend to teach them how to “Detect DUI’s.” The training was invaluable. I have used it dozens of times to demystify and deconstruct the process for clients and juries alike.
This month I attended the full course again. A refresher course would have sufficed, or perhaps I could have done the instructor course thus allowing me to teach others, but I choose to refresh with the entire course. As I spend my 24 hours immersed in the curriculum I saw the course differently the second time around for what it really was. A course designed upon some generic studies that “appear” to validate the roadside tests, but really it is a course designed to instill into the minds of law enforcement that almost any behavior is indicative of a DUI. In fact, there is a published paper on the issue that concludes these tests are designed for failure.
The course breaks down as follows: observation of vehicle in motion, personal contact and pre-arrest screening. From the moment an officer sees a vehicle he is trained to believe it is a DUI, he is trained to understand that there are 25 “clues” of driving that are said to reliably indicate that the driver is DUI. They are told that the accuracy of these driving clues is somewhere between 50-100 percent. The reality is, however, these are simply lazy driving habits that person does perfectly sober, or when distracted by a cell phone, radio, or passengers. As a result the officer is trained to prejudice his mind, his observations, and interactions with the driver rather make objective observations that lead to a conclusion that is not already predisposed. Despite the clear objectives of the course that state this phase is about answering whether “the vehicle should be stopped,” the training clearly encourages a stop for any reason at all, with a predisposition to believe the officer is dealing with a DUI.
The officer is trained to make contact and make decision based upon contact. The training goal at this stage is based upon what is seen, heard, and smelled “do I have the driver exit the vehicle?” What is said by the driver, how the driver acts, and all other variables are added to the mix, but what s/he Sees, Smells, and Hears, is what they are to rely upon. Guess what?; Almost everything said when coupled with the admission to drinking or the odor of alcohol is labeled as a reliable clue of “possible intoxication. However, the training emphasis minimization of what was done right and only focusing on what was done wrong in the officer’s opinion, because the Detection has but only a singular goal in mind; DUI arrest based upon less than reliable facts. Officers are trained to prey upon a driver’s nervousness and deference to their apparent authority. Upon contact the officer is trained to confuse, distract, and in essence “bully” a driver; the officer is trained to ask simple but intentionally distracting questions: questions by the way that a Washington driver is under no obligation to answer. Training begins seeking the driver’s typical papers that are not always easily found, while the driver searches the training encourages officers to interrupt and distract a driver. For instance, the materials specifically directs an officer to ask odd questions during one task, to start another, and yet another, never really caring what the answer is, but only to establish confusion, to be able to point to facts that they can rely on to justify an exit order. Funny thing is, officer’s will often repeat the same question and expect to get a different answer, yet, when a person repeats the answer, the observation factored into their justification for exit, or arrest is “repetitive speech!” This all plays into the course objective of answering the roadside question presented of “should I have the driver exit,” yet at the training to this point focuses on issues that lead up to this goal, as well as the next.
By the time the driver is out of the car, the third phase sums it all up, as it is called “Pre-Arrest Screening” Really? Yes, really, the phase itself implies the inevitable just like the training as a whole. Pre-Arrest screening is the stage of Standardized Sobriety Tests that are in line with the training curriculum, confuse the mind and place a person in the most unbalanced positions where natural reactions become clues to base an arrest upon and in cases where the breath test is under the legal limit or refused, have the state prosecute a person for having failed these tests. Furthermore, the tests are not to be administered upon certain people (over age 65, or 50 lbs overweight), and for those that have some actual physical disability (hip arthritis, injury, inner ear condition, etc.) the officer is trained to assure the person that the issue will be “taken into consideration.” The problem is this: there is no training that teaches or even addresses what consideration can or should be made. As result the officer’s are trained to lie to the subject and count clues that when totaled tell them to arrest, but without any criteria to separate the clues due to physical injury/impairment from that of possible alcohol impairment.
The tests themselves conceptually are not that hard, but the reality is it takes students of the tests 16 of the 24 hour course to learn how to administer them and also learn the tricks they don’t teach the driver to make the tests easier; easier to demonstrate for a subject and jury. The officer may need to demonstrate the tests in court, and failing them in front of a jury would not be the type of “convincing” evidence the course speaks to. As a result, they are taught some tricks to avoid such embarrassment. I have discussed these tests in detail on my site but a refresher is indeed overdue.
Horizontal Gaze Nystagmus (HGN)
Otherwise known as the eye test, this is a the only test that does not require some actual physical agility, and while the test requires a subject to follow a pen with their eyes, the test can be challenging as the sanding position is feet together and hands at the sides and the person’s gaze to set look up and follow a moving visible point. Anyone who has stood at heights, the surest way to fall down is look up and the passing sky will cause you to lose your balance. The HGN test is typically done at night, and is relatively easy as all a driver needs to do is to follow a pen. However, the training has the focus point of your eyes that a driver is to follow “slightly” above eye level thereby forcing you to look up. The test is said to be accurate, but the practical reality is, it does only one thing: confirms that the person has consumed alcohol. Student of the course are taught a formula, where the variable plugged into the formula is nothing more than a guess.
The Walk And Turn (WAT)
The WAT instructions are intensive and “wordy” and they are intense and sound straight forward, but they are designed to sound so. First if there is no designated line available like those painted in a parking lot, the person is told to “imagine” a line and the told to place their left foot on the line that does not exist, and then place their right foot in front of the left in the same “line” touching heel to toe. Then place your arms and hands at their sides and to NOT move from this position, and to not start the test until told to do. The instructions take about 30 seconds if done properly and slowly. They are as follows: When I tell you to start, walk down the line (real or imaginary) taking 9 heel-to-toe steps, turn and take 9 heel-to-toe steps back. The officer then shows how to take these steps, and then is also required to demonstrate the turn while verbalizing the instructions. When you get to the 9th step, leave your front foot planted on the line and take a series of small steps as you turn around and then begin walking back down the line touching heel-to-toe. As you are walking keep your hands at your side, look down at your feet and count each step out loud. Once you begin this test do not stop waling until you are done this test. Do you understand? When I tell you to begin count your first step as 1. You may begin.
As you sit and read this feel free to assume the heel to toe position and see how long you can stand there while the instructions are given (the officer can stand in this position longer than most because he practices this test, and is taught that a slight shifting and relaxing of the legs allows good balance control). Questions are permitted but they are answered with the same strict language originally given. In essence a driver is told to walk in a manner that produces a natural reaction to lift arms, walk slowly such that balance is impaired from nothing more than the test requirements. Furthermore, when you read the instructions for the final test it is clear to see that the natural reaction of lifting one’s arms is warned about 3 times and this test it is mentioned 1 time. The officer is on the lookout for 8 possible things a person may do “wrong.” If the person steps out of the instruction stance they get a clue/demerit, if the officer uses halting speech during the instructions it implies permission to proceed, and then the clue is “starts to soon.” The test is not yet even begun, but 2 clues of a possible 8 to look for gives the officer the threshold point to consider this test not passed. The remaining clues are, stops walking, steps off line, misses heel to toe (more than ½ inch), raises arms (more than 6inches), improper turn, and improper number of steps. The math on this test is simple, a person takes 18 steps and thus has 18 opportunities to get a possible 6 remaining clues (assuming they stood properly during instructions). 18 x 6 = 108 opportunities to do something wrong. Assuming the person is wearing flip flops during the test and therefore does not properly touch heel to toe on 1 step, and when that happens their balance is momentarily thrown and they raise their arms more than 6 inches (6 1/4 is too much). They now have 2 clues and have failed the test, despite the fact that they did 106 of 108 things correct and therefore scored 98%! When have you ever taken a test where your were told that that anything less than 99% compliance meant you failed? In fact, the necessary score to learn that deems a student proficient and competent in these “sobriety tests” 80%! Enough said about this unfair test,
One Leg Stand (OLS)
The OLS, is a test where the officer instructs driver to stand on one leg, not because it has anything to do with driving, or even the counting they require, but because standing on one leg is rarely something anyone can do for 30 seconds without violating the criteria. This is also another test where the officer does not share a trick with the driver (nor is this information shared with a jury. Remember, this is the final phase called “pre-arrest screening.” The training and the goal objective makes it very clear that the screening is just a formality for the inevitable arrest, so why would an officer share the trick with anyone. Again, being overweight or over the age of 65 precludes this test from being offered, and if there are any injuries or illness they will NOT be considered despite the officer’s assurances because such training for these does NOT exist. The One Leg Stand is instructed as followed: Stand with your feet together and hands and arms at your side. Remain in this position until I tell you to start. Do you understand? When I tell you to start, I want you to lift one leg, either leg, raising your foot off the ground approximately 6 inches and keep your foot parallel to the ground (the officer then demonstrates). You must keep both your legs straight during the test and your arms at your side. While maintaining this position, I want you count out loud like this (demo one-thousand and one, one-thousand and tw0, one thousand and three, etc.). Your arms must remain at your sides at all times and you must watch your raised foot during the test. Do you understand? The test may begin. The test is timed and the driver is expected to stand for 30 seconds with one foot off the ground counting out loud. At no point during the test does the officer share the fact with the driver, nor the jury, nor the judge, that if you bend the knee of the leg stood upon balancing is much easier. The things the officer grades a drive on is whether they sway, they lift their arms, put the foot down, or hop, in an effort to keep balance. Again, none of these things are likely to happen if the knee is slightly bent. If any 2 of these 4 things is seen, the test is considered not passed, despite a 50% completion.
This third and final test completes the “Pre-Arrest Screening.” The only person who decides what is seen and marked as clue is the officer, and since he is screening you for an arrest you can bet he will see something. In every DUI trial I have ever conducted it is inevitable that the officer testifies that he administers these tests hundreds, if not thousands of times and not everyone he “screens” with these tests is arrested. In my opinion and experience that is simply not true. If it were true, I would not regularly represent people who provide a breath sample of less than .08, and currently, as low as .04! The breath sample after the fact is proof positive that these tests are designed for failure, these tests are a very effective tool to achieve their purpose: “Pre-Arrest Screening.
In Washington these tests are considered a search; therefore they require a warrant to achieve such a search, or the driver’s permission to conduct this search. Furthermore, they are voluntary. Voluntary means that there are no consequences to refusing to volunteer. However, in a suspected DUI stop the refusal to do the tests leads to an immediate arrest. A decision to do the tests leads to the same result. In my opinion, these tests should be politely declined and then a driver should brace themselves for an arrest.
As it can be seen, there is a specific philosophy to these tests, and to the untrained observer or even a jury member, the officer will present them in a scientific manner, and in a manner of fairness. Unless your defense attorney has gone through the course, or even been qualified as an instructor of the course, the problems with the test, the unfairness of the tests, and their hidden design objectives will not be exposed.
Jonathan Rands is an experienced, dedicated, and tenacious DUI lawyer with proven DUI defense success due to specific and focused DUI training. Confronting all witness and having the knowledge and skill to expose the limitations and biases of their proffered evidence is an important right that effects each and every DUI case where there is a breath or blood test measuring alcohol concentration, and this is especially true when a DUI prosecution is based upon officer “observations” during unfair tests. If you or someone you know is facing a DUI or alcohol related arrest, contact Jonathan Rands. | http://www.jrandslaw.com | Email: jrands@jonathanrands.com | Phn. 360.306.8136 | Jonathan Rands is Focused On Your DUI Defense. | Serving Whatcom, Skagit, Island, and San Juan Counties. | Jonathan Rands regularly discusses DUI issues with (AM 790 ) KGMI every other Sunday on the Legal Docket.
United State Supreme Court Revisits 6th Amendment Right To Confront Witnesses. There Will Be State Consequences.
Over the past 10 years the Supreme Court has been interpreting the meaning of confronting a witness. The most recent published analyses was the case of New Mexico v. Bullcoming. That case was specifically a DUI case and the absence of a witness who actually analyzed the blood of the defendant. While this case has had some impact on how the State presents witnesses and subsequent evidence, Judges have not been able to apply the concepts for fear of not knowing where to draw the line at confrontation. In fact the biggest complaint from the Washington Judiciary has been the lack of guidance.
Further clarification is now, again, on its way with Williams v. Illinois. This case was accepted by the USSC for review of People v. Williams, 939 N.E.2d 268 (Ill. 2010). Oral arguments to the USSC were heard on December 6. The ruling is under consideration. The case presents a review of the presentation of expert evidence where the Illinois Supreme Court held: the absent analyst’s report was introduced not for the truth of what it asserted but rather “to show the underlying facts and data [the in-court witness] used before rendering an expert opinion in this case.” In simple English the lab report in a DNA case was not admitted, but examined by an expert in the related field to examine the report and then to render an opinion, but the actual analyst who tested the substance and created the report was not present.
Traditionally an expert can rely on reports of others to render an opinion, but in this case the opinion was sought to avoid the cross examination of the person who prepared the report and did the testing. The case has the potential to impact expert testimony in criminal cases beyond expert forensic testimony. As a result of the nature of this issue, the question to be answered in light of the right to confront witnesses, is now how much an expert may rely on statements and facts of others who do not testify at trial? Under Federal and State Court Rule 703, traditionally an expert may rely upon “facts or data” in which an expert “in the particular field would reasonably rely,” and the facts and data “need not be admissible for the opinion to be admitted.” The question in the case is whether the Confrontation Clause allows this practice and to what extent.
As always is the case with the Court, the impact of the ruling is a concern and this case is no different given the following statement of Justice Stephen G. Breyer:
requiring multiple forensic technicians to testify would result in “a sea change in normal criminal law practices.
He then suggested that an exception to testimonial statements be considered for expert testimony. Such an exception is unprecedented to date. Questions like this from the Justices during Oral Arguments makes one wonder if the case signals another new direction or solidification of the Confrontation Clause and caselaw to date. Currently, the USSC has gone to great lengths to require that when the government presents testimonial statements from witnesses, experts or laypersons, the person making the statement must be subject to cross-examination. Given the use of rule 702, will this Court now relax the bright line recently established and make an accommodation for expert testimony?
The traditional voting lines of the Justices on the recent confrontation cases have been by five to four margins. The make-up of the Court currently is important for the “swing-vote.” The local Judiciary here in Whatcom County, Washington State are paying attention as this new rule will have an impact.
Recently I had the opportunity to test the local courts understanding and use of the Bullcoming decision, and the results were not consistent with the case law to date. In a local DUI case the State sought to use a surrogate breath test technician to rely on records to show that the breath test machine was in proper working order at the time of my client’s case. The surrogate Technician had no knowledge of what was actually done to or with the breath test machine at the time of my clients test as he was not even a technician on the date she was arrested and providing a breath sample. The following argument was made:
Beginning in Crawford v. Washington, 541 U.S. 36, (2004), our U.S. Supreme court held that the Confrontation Clause could be abrogated “…only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.”
In 2007 our state Supreme Court stated that “until the Supreme Court more fully develops precisely what is “testimonial” under the confrontation clause, all courts will be divining the intent of our nation’s highest court.” State v. Mason. Fortunately, 2 years later, the U.S. Supreme Court did just that in their subsequent decision of Melendez-Diaz v. Massachusetts, the U.S. Supreme Court addressed the issue of confrontation vis-à-vis the chemical testing of drugs being introduced at trial.
The Melendez-Diaz, Court, declined to create a “forensic evidence exception” to Crawford, when they held that “a forensic laboratory report, created specifically to serve as evidence in a criminal proceeding, ranked as “testimonial for Confrontation Clause purposes.” Subsequent to Melendez-Diaz, what can only be considered the most comprehensive analyses and enforcement of a Defendant’s 6th Amendment, and fortunately for this case, analyzed and presented vis-à-vis a DUI trial, is Bullcoming v. New Mexico. In Bullcoming the Court reversed the trial court because blood evidence in a DUI trial was admitted over the Defendant’s objection when the State failed to call the individual who actually analyzed the blood sample. The principal evidence against Bullcoming was a forensic lab report reporting and certifying that Bullcoming’s blood alcohol level was well above the threshold for an aggravated DWI. In lieu of testimony from the analyst who actually did the testing, that State sought to admit the analyst’s report and the results thereof through another analyst who had not tested nor signed the certification. In short the “surrogate” analyst had no personal knowledge as to the actual testing, but was familiar and proficient with respect to the State’s laboratory’s testing procedures. At trial this “surrogate” reviewed the notes made by the actual analyst and testified to the results printed upon the paper.
The State circumvented the Defendant’s 6th Amendment right as proffering this certificate as a business record, and then elicits testimony from this other analyst. The trial Court and the New Mexico Supreme Court were correct in holding that “the blood-alcohol analysis was indeed ‘testimonial,’ but were incorrect in their holding that the “Confrontation Clause did not require the certifying analyst’s in-court testimony because live testimony of another analyst satisfied the constitutional requirements.” As a result, the Bullcoming Court has now provided every subordinate court the guidance they had been seeking since Crawford.
Most importantly is the sum total of the Bullcoming holding: the Clause (confrontation) does not tolerate dispensing with confrontation simply because the court believes that questioning one witness about another’s testimonial statements provides a fair enough opportunity for cross-examination. Furthermore, the purpose of the rights set forth in [the Sixth] Amendment is to ensure a fair trial; but it does not follow that the rights can be disregarded so long as the trial is, on the whole, fair.”
Short and simple is the fact that when the state elects to introduce any testimonial certification, the author of that becomes a witness, and as held in Bullcoming, the defendant has an absolute right to confront. The plea of our State Supreme Court in Mason, for guidance, was answered pre-Bullcoming in Melendez-Diaz, where the Bullcoming Court cites to:
The “certificates of analysis” prepared by the analysts who tested the evidence in Melendez-Diaz, this Court held, were “incontrovertibly . . . affirmation[s] made for the purpose of establishing or proving some fact” in a criminal proceeding. Id., at ___ (slip op., at 4) (internal quotation marks omitted). The same purpose was served by the certificate in question here. A document created solely for an “evidentiary purpose,” Melendez-Diaz clarified, made in aid of a police investigation, ranks as testimonial. 557 U. S., at ___ (slip op., at 5) (forensic reports available for use at trial are “testimonial statements” and certifying analyst is a “‘witness’ for purposes of the Sixth Amendment”).
Finally, the Bullcoming Court left us with a clear indication of what is testimony as well as clearly set forth the State’s obligation:
The prosecution, however, bears the burden of proof. Melendez-Diaz, 557 U. S., at ___ (slip op., at 19) (“[T]he Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court.”). Hence the obligation to propel retesting when the original analyst is unavailable is the State’s, not the defendant’s. See Taylor v. Illinois, 484 U. S. 400, 410, n. 14 (1988) (Confrontation Clause’s requirements apply “in every case, whether or not the defendant seeks to rebut the case against him or to present a case of his own”).
Recently, the Washington Appellant Courts have held steadfast to Bullcoming notably in the matter of State v. Dash, — P.3d —-, 2011 WL 3433019 (Wash.App. Div. 1)(2011). In Dash, the conviction was reversed on the instructional error, and the Confrontation issue became moot for the appeal “however, because some of these issues may arise on remand, we briefly address these remaining claims of error in order to assist the trial court.” The Dash, trial court improperly, and in violation of the Dash’s 6th Amendment right, admitted a videotaped interview of witness Taylor, who was not subjected to cross-examination neither during the interview nor at trial. As a result Dash asserts that his Sixth Amendment right to confront the witnesses against him was violated. In providing guidance to the lower court(s) due to remand, the Appellant Court held that the proper focus is not on whether the statement is hearsay but, rather, whether the statement is offered “against” the defendant to establish or prove a past event relevant to the criminal prosecution.
Furthermore, the Appellant Court specifically quoted Melendez-Diaz and held that the text of the Amendment (6th) contemplates two classes of witnesses—those against the defendant and those in his favor. The prosecution must produce the former; the defendant may call the latter. Contrary to respondent’s assertion, there is not a third category of witnesses, helpful to the prosecution, but somehow immune from confrontation. Here, (in Dash’s trial) several of Taylor’s utterances, whether directly accusatory or not, were being offered by the State to “prove one fact necessary for his conviction” and as established by the United States Supreme Court, “a witness need not directly accuse the defendant of wrong doing in order to be a witness subject to cross-examination for purposes of confrontation clause.”
In the DUI case i tried here locally, Defendant faced a charge of DUI, in which the State sought to (and were permitted in the end) convict under RCW 46.61.506 (a breath test printout). As a result, a significant piece evidence against Defendant is generated by a machine, yet requires an offering of statement “against” the defendant to in order to establish or prove a past event relevant to the criminal prosecution.
The State has indicated that they will be calling the arresting officer as a witness, a DataMaster Technician who, at the time of the test in this case, was not trained, nor employed as a Breath Test Technician and therefore, has no personal knowledge of the operating condition of the breath test machine at the time of the breath test being offered here. Furthermore, the State 2 days prior to trial has endorsed 3 Toxicologists that did not create the external simulator solution.
Given the 6th Amendment, the creator of the solution is a necessary witnesses, as are those who “certified” either the external simulator solution, or the individual(s) who prepared, tested and certified any of the four simulator solutions used in the mandatory Quality Assurance Procedure (QAP) for the machine used to test Defendant’s breath.
Finally, the State has endorsed a sworn testimonial statement by the State Toxicologist, Fiona Couper. This statement is testimonial and clearly falls under the confrontational case law of Crawford, Melendez-Diaz, and Bullcoming.
The Defendant objects to any use of the sworn statement on 6th Amendment grounds as well as a violation of CrRLJ 6.13.
Defendant further objects to the document since it is a declaration subsequent to the date in question and has no relevance to the breath test in this case. See Ludvigsen v. City of Seattle, 162 Wash.2d 660, 174 P.3d 43(2007)(We conclude the application of the 2004 DWI amendments, redefining a “valid” test, to Ludvigsen’s 2002 criminal conduct violates the ex post facto clause. The 2002 definition governs).
Consider the well-settled law on a breath test. For a Breath test to be admissible in Washington, it must first be valid. State v. Baker, 56 Wn.2d 846 (1960); State v. Straka, 116 Wn.2d 859, at 870 (1991); State v. Watson, 51 Wn.App. 947 (1988); State v. Brayman, 110 Wn. 2d 183, 191, 751 P.2d 294 (1988). The admissibility of breath tests is governed by RCW 46.61.506, and WAC 448-16 et seq and RCW 46.61.506 (3). RCW 46.61.506 (3) states that:
Analysis of the person’s blood or breath to be considered valid under the provisions of this section or RCW 46.61.502 or 46.61.504 shall have been performed according to methods approved by the state toxicologist and by an individual possessing a valid permit issued by the state toxicologist for this purpose. The state toxicologist is directed to approve satisfactory techniques or methods, to supervise the examination of individuals to ascertain their qualifications and competence to conduct such analyses, and to issue permits which shall be subject to termination or revocation at the discretion of the state toxicologist. (Emphasis added).
Additionally, WAC 448-16-070, reads:
The state toxicologist will review, approve, and authorize such protocols of procedures and methods (of the toxicologist’s own promulgation or submitted by outside agencies or individuals for consideration) required in the administration of the breath test program. These protocols will be updated as necessary to maintain the quality of the breath test program. (Emphasis Added).
Ignoring the issue of whether RCW 46.61.506(3) and WAC 448-16-070 require a preliminary finding of validity by the trier of fact, at a minimum, taken together RCW 46.61.506(3) and WAC 448-16-070 mandate that the State demonstrate, at trial, compliance with the methods, techniques, and protocols established by the State toxicologist in order to establish that a given result is VALID. One such procedure in place, deemed “necessary to maintain the quality of the breath test program,” is the use of “certified” simulator solutions which are to be used in a mandatory annual QAP and in the external standard during a breath test.
The protocol for the Quality Assurance Procedure was written and approved by the State Toxicologist, pursuant to her authority under RCW 46.61.506 and WAC 448-16-070, on December 10, 2010. While describing the QAP procedure in the 2010 WSP Calibration Technical Manual, Dr. Couper states that
The Quality Assurance Procedure (QAP) ensures the accuracy, precision and forensic acceptability of the DataMaster breath test instrument for the purpose of quantitative evidential measurement of the alcohol concentration of a person’s breath. The procedure evaluates critical systems within the instrument to ensure their compliance with strict predetermined criteria. When complying with the standards required in the QAP, the DataMaster can be confidently placed in the field for evidential use. (Emphasis Added).
One of the “standards required in the QAP” is what is referred to as a CALIBRATION PROCEDURE which consists of calibrating the machine with a 0.08 QAP solution. The protocol requires that this QAP solution be “certified” among other technical requirements related to the calibration of the machine.
Another one of the “standards required in the QAP” is referred to as a CERTIFICATION PROCEDURE. This protocol also requires the use of “certified solutions” wherein the machine tests certified simulator solutions at 0.04, 0.08, 0.10, and 0.15. There are likewise additional technical requirements that must be followed relating to this process.
While a BAC Technician is typically the one to perform a QAP, only those analysts who are employed, trained, and certified by the State Toxicologist may prepare and certify the simulator solutions (including those that are required for a QAP). However, before the solution can be certified it MUST exist, it must have been created by someone and the creation of the solution is found in Chapter 3 of the 2010 WSP Calibration Technical Manual, and is entitled PREPARATION OF THE EXTERNAL STANDARD SOLUTION. This section describes the procedures that must be followed in order to prepare and certify an external standard solution.
Dr. Couper has approved a protocol for both creation and certification of the solution. This protocol, for this particular solution created in 2010 (in fact it is the 24th solution created). The creator is to follow specific steps in making the solution and then “once mixing is complete, purge the spigot then remove an aliquot of the solution for certification (refer to 4.0 Certification of Simulator Solutions).”
This protocol for certification is found in Section 4, and is referred to as CERTIFICATION OF SIMULATOR SOLUTIONS. It states at the end of the creation that:
Each external standard and QAP solution must be certified by forensic scientists prior to its distribution to breath test technicians. The forensic scientists must have a valid Blood Alcohol Analyst Permit issued by the State Toxicologist. A minimum of three (3) analysts shall test each solution before the average solution concentration can be calculated. Typically, three (3) analysts certify each set of QAP solutions, and seven to eight (7-8) analysts certify the external standard solution. Each analyst who has results included in the final computation of the average solution concentration has certified the batch. (Emphasis Added).
Just as certified solutions are required for any QAP, so too are certified solutions required for use an “external standard.” The external standard test is perhaps the most important function of the Datamaster and Datamaster CDM, as it provides the contemporaneous testing of a known and predetermined quantity of alcohol at the time of a subject’s breath test.
The specific protocol approved by the RCW 46.61.506 (4)(a)(iv) requires evidence that “Prior to the start of the test, the temperature of any liquid simulator solution utilized as an external standard, as measured by a thermometer approved of by the state toxicologist was thirty-four degrees centigrade plus or minus 0.3 degrees centigrade. According to WAC 448-16-030(8) and (11):
(8) ‘External Standard Test” means the process by which the accuracy of the instrument is verified, using a simulator containing a certified simulator solution or a compressed gas standard containing a known alcohol concentration. (11) ‘Simulator‘ means a device which when filled with a certified simulator solution, maintained at a known temperature, provides a vapor sample of known alcohol concentration.
Therefore the plain meaning of the statute requires a showing, by testimony that the solution was certified. Certification is a process and has been established by the State Toxicologist. As stated throughout this text, the procedure is found in Chapter 3, and chapter 4 of the Washington State Patrol Toxicology Laboratory Division technical manual - Breath Alcohol Calibration, chapters 3 – Preparation of the External Standard Solution AND Chapter 4 – Certification Of Simulator Solutions. Section 6, entitled, EXTERNAL STANDARD SOLUTION CHANGING PROCEDURE, mandates that that “[o]nly certified external standard solutions are to be used” and that these must be changed every 60 days. (Emphasis added).
Given the above referenced protocols, Statutes, and WAC provisions, it is clear that if the State is to establish that a breath test is valid under RCW 46.61.506(3), and admissible under RCW 46.61.506, they must first elicit testimony from witnesses that can attest to personally doing the things necessary to demonstrate the various preconditions necessary to admit the test.
As stated above, every step of the process involves the offering of statement(s) “against” the defendant to in order to establish or prove a past event relevant to the criminal prosecution. Absent productions of witness with personal knowledge an attempt to prove compliance with RCW 46.61.506, by either producing documentation of testimonial declaration or certifications, the Defendant’s 6th Amendment right properly demanded under CrRLJ 6.13 (See Defendant’s NOA and DEMAND Number 36, 37, 39) and therefore NOT waived.
Consequently, this Court must adopt the rulings of our U.S. Supreme Court in Crawford v. Washington, in Melendez-Diaz v. Massachusetts, and the recent opinion of Bullcoming v. New Mexico, as well as the Washington case law subsequent thereto.
Despite all this law, the Court held that the only right to confront held by my client was to cross examine the arresting officer! This ruling ignored the USSC and all State Court authority above the trial court, and was also was a result of RCW 46.61.506(4) which ignores subsection (3) of the same requiring the machine to be found in proper working order such that it produces a valid test. With this type of ruling despite the case law to date, every citizen accused of DUI, and their lawyers need to be watching for the ruling to be issue in Williams.
Jonathan Rands is an experienced, dedicated, and tenacious DUI lawyer with proven DUI defense success. Confronting all witness and exposing the limitations of their proffered evidence is an important right that effects each and every DUI case where there is a breath or blood test measuring alcohol concentration, or simply based on officer observations. If you or someone you know is facing a DUI or alcohol related arrest, contact Jonathan Rands. | http://www.jrandslaw.com | Email: jrands@jonathanrands.com | Phn. 360.306.8136 | Jonathan Rands is Focused On Your DUI Defense. | Serving Whatcom, Skagit, Island, and San Juan Counties. | Jonathan Rands regularly discusses DUI issues with (AM 790 ) KGMI every other Sunday on the Legal Docket.
Jonathan Rands Completes Annual DUI Defense Advanced Training To Ensure Fair Trial And Use Of Best Evidence.
Late this past summer as well as last month I attended 2 annual 3 day seminars and conference dedicated to trial skills and techniques, as well as advanced understanding and challenging various types of advanced evidence issues in DUI cases.
The first of these two was presented by The National College Of DUI Defense, an organization I have been a General Member of since 2005. The conference was held at Harvard Law School and keynote speaker was F.Lee. Bailey. College General Members represent the most experienced DUI defense attorneys in the country and are the backbone of the college—capable, experienced attorneys who dedicate a portion of their practice to the defense of DUI cases throughout the country. Training always embraces the most innovative and creative methods of DUI defense as well as polishing the corner stone of trial work like cross examination.
The second seminar was and advance evidence seminar. The previous year I attended this same conference, but also lead a specialized breakout session on roadside sobriety tests. These training session are important because as a DUI defense attorney, my clients freedom and driving privilege (to name only 2) depends on my skills and knowledge that are accumulated and practiced to the point where they are instinct and second nature. Spending time with other attorneys from around the nation who have likewise dedicated their legal careers and practices to the defense of citizens accused of DUI creates a scholastic environment where we are all dedicated to the same cause, and share our success and failure in the courtroom. Believe it or not, defense attorneys, secure less Not Guilty verdicts than Guilty verdicts, but it is usually the cases we fight hard and lose that are our best teaching aids.
This annual conference allows a lawyer student to choose their own schedule of lectures and breakout sessions so that the lawyer can sharpen their skills, or gain a greater understanding of procedures, protocols, and highly technical areas of science that DUI prosecutions are steeped in. The program is also designed to allow DUI defense lawyers to practice in front of other lawyers and thereby receive constructive criticism and share ideas and concepts that enhance the lawyers skill set.
At this years program I choose to revisit blood testing and the Drug Recognition Evaluation (DRE) protocol for Drug based DUI prosecutions.
The science of blood testing is “regulated” by national scientific standards, but even so, one should never under estimate the power of human error and the fallibility of machines that are programmed by the human hand. Blood testing uses Headspace Gas Chromatography. This is a type of testing where a vial of blood is shaken and mixed for a period of time and then the blood itself is NOT actually tested. Rather, what is tested is the airspace above the blood level (the “Headspace”) as it is sealed in a “vacutainer” tube. The tube is a vacuum sealed space with suction helping to fill the tube from the subjects body when blood is drawn. To analyze and test the head space above the blood after it has been shaken, the machine doing the analysis injects a small needle into the top of the soft rubber tube (stopper) and a small bit of gas is sucked out and then ran through a machine. The gas substance is injected into another know gas and then forced to travel through a tubular line where at the end of this journey the substance is quickly burned up in a actual flame. It is this end process that results in the analysis of the substance and the alcohol concentration.
This is a very rudimentary description of the process, but suffice it say, most do not understand that the blood content itself is NEVER actually tested. Furthermore, many do not realize that the machine is used to test all sorts of other fluids and compounds and the cross contamination potential is huge. Add to that fact that the machine is an automated one and most times the analysis is done without human oversight. As a result of these and other issues, a complete understanding of the process is necessary to adequately challenge, not only the end result, but the process itself, because what is generated is a number. What is presented is nothing more than a number to which the prosecution points to as guilt beyond a reasonable doubt. However, in Washington State, and most other States, the accuracy and the reliability of that final number is always a critical issues that must be addressed in arriving at a final decision.
While this overview is not intended to be comprehensive, but instead an brief review of a complicated process fraught with potential error and to show that the net result of spending time learning from other attorney’s who excel in this and other scientific areas where it intersects with the law, benefits not only future clients, but helps a defense attorney explain to a jury the limitations of the testing utilized in any given case.
The difference between exposing error by pulling back the curtain on pseudo-scientific, and unreliable evidence can mean the difference between lockup or liberty. While this may seem dramatic, consider how many recent cases there have been where legitimate science has exonerated previously convicted persons who were convicted by the use of evidence that was of poor quality, and was either misunderstood, or presented as infallible, and was not challenged by an advocate with adequate knowledge? The fact that the charge of DUI is “unpopular” is no reason to allow less than adequate evidence to untested, unscrutinized, and unchallenged if it fails to be collected and analyzed properly.
The other practice area i choose to spend more time on was the Drug Recognition Program, or DRE. This is an area of law that is NOT based upon science, NOR supported by rigorous peer reviewed research, NOR endorsed by any agencies other than the those law enforcement agencies that promote the circular reasoning of: “the program works because we say it works.”
While I have previously completed a 16 hour course on the DRE program overview, it had been a while since I represented a citizen accused of a Drug-DUI, so a close review of the materials presented, and the companion workshops where a critique of courtroom skills was done was a welcome review and challenge.
The DRE program is a book unto itself and a short blog will not adequately capture the program, but from a brief overview perspective, the program starts with ruling out alcohol suspected impairment and then runs a subject through a series of “sobriety” tests that are not related to drug impairment. This entails, a physical examination that requires monitoring of blood pressure, physical inspection of the subjects arms, a dark room examination, and a custodial interrogation of the person that usually leads to a disclosure of a substance the person previously ingested. Final steps are the rendering and recording of an officer’s opinion of what category of drug the person ingested as well as the actual drug the officer suspects. For example, category could be “Cannabis,” and actual drug being “Marijuana.” Guess what?- The officer’s typically render an opinion that the suspected substance ingested is the same as that confessed to! Brilliant detective work! The final step in the process is the drawing of a subjects blood and an analysis of the blood as described above.
This is not the whole procedure, but the suffice it to say, it is the “meat and potatoes” of the program. Pulling back the curtain on false assumptions, coercive procedures, and the close examination of the blood analysis itself is critical and exactly why rigorous training and experiences in these cases is paramount to be a successful DUI defense attorney.
Recently, two newsworthy and related events have come to pass; First – Amanda Knox verdict was over turned due to a showing that the investigation was less than adequate, in fact scientific evidence was processed incorrectly and failed to support the allegations; Second- the Seattle Times reported on unlawful and abusive Police Behavior, with respect to preservation of exculpatory evidence, failure to turn over such evidence, destruction of this evidence,and a denial that it even exits!
These may be extreme examples, the fact of the matter remains that they gained notoriety because the evidence was challenged, because the defense lawyers dared to pull back the curtain and say, “look at this with a critical eye!” We live in a country where proof beyond a reasonable doubt means something, but all to often jurors, judges, and prosecutors settle for what they think is simply “good enough” as a result of the type of charge the accused person is facing. If defense attorneys fail to to educate and then use that education to examine the evidence with the legal tools provided by the Constitution and State Court rules then they have failed their client, the system which requires them to be critical, and their oath as a defense attorney.
Jonathan Rands is an experienced, dedicated, and tenacious DUI lawyer with proven DUI defense success. Confronting all witness and exposing the limitations of their proffered evidence is an important right that effects each and every DUI case where there is a breath or blood test measuring alcohol concentration, or simply based on officer observations. If you or someone you know is facing a DUI or alcohol related arrest, contact Jonathan Rands. | http://www.jrandslaw.com | Email: jrands@jonathanrands.com | Phn. 360.306.8136 | Jonathan Rands is Focused On Your DUI Defense. | Serving Whatcom, Skagit, Island, and San Juan Counties. | Jonathan Rands regularly discusses DUI issues with (AM 790 ) KGMI every other Sunday on the Legal Docket.
