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.
United States Supreme Court Case Requires The Right To Confront Witnesses Even In DUI Cases.
Last month the United States Supreme Court (USSC) took another anticipated step in preserving one of the most fundamental and important rights that an accused person is afforded under the Constitution of The United States. The recent case issued by the USSC of Bullcoming v. New Mexico followed in the path of Crawford v. Washington, 541 U. S. 36, 59, and Melendez-Diaz v. Massachusetts, 557 U. S. ___, in clearly defining the right of confrontation, and in so doing, also defining the obligation of the prosecuting authority in every criminal case. Unlike many cases that are decided by the USSC, Bullcoming was a case of DUI.
The facts of the case are somewhat unimportant, as the “meat” of the case was the fact that the lab analyst who conducted the blood alcohol test that Mr. Bullcoming submitted to was unavailable for trial. In place of the original analysts, a different analyst testified from the report that the first analyst created as the blood was tested. While the substitute analyst had knowledge about what should have been done, or what was usually done, he had no knowledge of what was actually done.
In blood test cases, there are scientific and state policy and protocols that must be followed in order for the results to be admitted and shown to a jury. The inability to determine what was actually done precluded Mr. Bullcoming from confronting the witness. As described by the USSC:
The analysts who write reports introduced as evidence must be made available for confrontation even if they have “the scientific acumen of Mme. Curie and the veracity of Mother Teresa.” [The substitute analyst was not an] adequate substitute witness simply because he qualified as an expert with respect to the testing machine and the laboratory procedures. Surrogate testimony of the kind [the substitute analyst] was equipped to give could not convey what the actual analyst knew or observed about the events he certified, nor expose any lapses or lies on his part. With the actual analyst on the witness stand, Mr. Bullcoming’s counsel could have asked questions designed to reveal whether incompetence, evasiveness, or dishonesty accounted for his removal from work [and thus his unavailability for trial]. The State did not assert that the substitute analyst had any independent opinion concerning Mr. Bullcoming’s blood alcohol content. More fundamentally, the Confrontation Clause does not tolerate dispensing with confrontation simply because the court believes that questioning one witness about another persons testimonial statements provides a fair enough opportunity for cross-examination. Although the purpose of Sixth Amendment rights is to ensure a fair trial, it does not follow that such rights can be disregarded because, on the whole, the trial is fair.
The case is now the highest authority in the land on the issue of confrontation and serves as the new “floor” when it comes to the right to Confront witnesses and what this actually and practically means. Typically, in Washington State a Federal Constitutional right is given even a higher level of protection under the more protective State Constitution. While the Washington State Supreme Court has built upon the prior USSC cases involving and preceding this new case of Confrontation, Bullcoming has now, and once again raised the protective bar accordingly.
Bullcoming permits no substitutes when it comes to confronting ALL witnesses against an accused and this is important in every criminal case, but especially so for DUI cases involving blood tests as well as breath test cases. The importance of the case in a blood case is fairly straight forward: the testing person must be present for the trial unless they were previously confronted at a pre-trial hearing.
With respect to the breath testing the right to confront under Bullcoming is equally operational but it will likely require an Appellant Court to settle the matter despite the fact that the implications are clear to the defense bar. In a DUI prosecution with a breath test, there must be a showing that a breath test machine’s external simulator solution is prepared by a toxicologist. In order to make sure that the solution is certified under lab protocols several other toxicologist must also test the solution. The State and City DUI prosecutors typically call just one of those who had a hand in only the testing phase and not the actual person who created it. They argue against Bullcoming by stating that the multiple testing of the solution and the presence at trial of one of these testers who the defense can, in fact, confront is good enough and distinguishable from Bullcoming.
This is because it is a rare case that the person who ACTUALLY created the solution is present at trial. From the defendant’s Confrontation standpoint, Bullcoming holds that the creator of the solution is required to be there in order to test that person’s veracity, demeanor, and to some extent competence in their creation of the solution. While the solution is easy to prepare, it can be prepared in a manner that is NOT consistent with the required lab protocols and the subsequent testers have no personal knowledge as to how it was actually created. In addition to this, the secondary tests of other analysts would not indicate whether there was any deviation in the preparation. As a result the actual person who prepared the solution needs to be confronted by the accused.
While Bullcoming is apparent and clear to a defense attorney like myself, the lower Court’s typically do not like to stray beyond the rule of law that is clearly on point and therefore convincing the lower bench of this requirement when it happens will be challenging. In fact,that is my personal experience recently. As a result, the objection to the lack of Confrontation and the argument will need to made over and over until someone appeals a final verdict against a defendant and then the Appellant Courts will weight in on the matter.
This was the case in Redmond v. Moore. While that was not a case in response to a Court of higher authority, the attorney’s made the argument over and over and over and were denied repeatedly, until the denial of the motion and argument was appealed Only on appeal was the argument agreed to and then endorsed by the higher Apppellant court. In response to that court ruling the lower courts now had clear authority to enforce the issue and argument and the Department of Licensing was ordered to change their ways had to revamp the method in which it proposed to suspend a person’s driving privilege.
This comment and analogy is not an indictment of the lower courts. In fact their reluctance to step out on a limb and make new law is understood as nobody likes to be actually stray from the established status quo and risk reversal. However, that is the job, as it is the job of defense attorneys to make the argument, to expose the logical legal flaws, to point out the fact that another similar case came to a opposite conclusion, and to present an age old scenario in a different light. Progress in the law is made the same way progress is made in society and technology: a new idea on an old issue.
A defense attorney’s role is typically criticized for creating “loopholes,” or generating the flaws in the law when the reality is we are charged with the duty of protecting clients rights, and if the right to Confront is watered down it is up to us to point it out and argue against it tirelessly until someone recognizes that doing things the same old way, because it has always been this way, is no excuse. As stated by the Court in Bullcoming when quoting another case: “it does not follow that such rights can be disregarded because, on the whole, the trial is fair.” The right itself needs to be respected, otherwise what worth is it?
Jonathan Rands is an experienced, dedicated, and tenacious DUI lawyer with proven DUI defense success. The right to Confront all witnesses is an important right that effects each and every DUI case where there is a breath or blood test measuring alcohol concentration. 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.
Breath Test Devices Manipulated To Show Higher BAC Levels.
This past Summer the BC government lowered the breath alcohol limit and increased penalties to be imposed on the roadside by police officer’s. Not surprisingly it is now discovered that in the absence of checks and balances to their unfettered roadside police power, the device employed by the officers provide false readings- falsely high readings.
Lawyers Claim Faulty Use Of Breathalyzer
BY KIM WESTAD, POSTMEDIA NEWS MARCH 4, 2011
A class-action lawsuit challenging impaired driving penalties given out under new drunk driving legislation was filed Thursday in Vancouver.
The lawsuit says that, between Sept. 20 and Nov. 19, police officers throughout the province were negligent in their use of the roadside breathalyzer device, which determines a driver’s blood-alcohol level.
Legislation came into effect Sept. 20 that penalizes drivers whose bloodalcohol concentration is between .05 and .08. The level is determined by a roadside breathalyzer, which indicates “warn” if a person’s blood-alcohol level is between those numbers.
The lawsuit alleges that until Nov. 19 police used improperly programmed breathalyzers to determine the reading, which resulted in drivers being penalized when their blood-alcohol levels were below .05, said Michael Thomas, one of the lawyers who filed the lawsuit.
On Nov. 19, Victoria police Chief Jamie Graham, as chairman of the B.C. Association of Chiefs of Police traffic safety committee, recalled 2,200 roadside breathalyzers after RCMP lab tests found a margin of error in the devices. The RCMP found the units could indicate a reading over .05 when the driver was actually under it.
The units were re-set so that a “warn” reading is obtained if the driver blows .06, recognizing the potential machine error.
“The way the legislation is drafted, the public has to rely upon proper enforcement. Our allegation is that that wasn’t done in this time period,” Thomas said.
Police either improperly programmed the devices or failed to detect that they weren’t programmed accurately, the lawsuit alleges. An estimated 170 people a week faced licence suspensions during the period, with penalties ranging from $600 to $4,060.
For a driver with one “warn” reading in the past five years, the minimum penalty is an immediate loss of licence for three days, a $200 penalty and a $250 licence reinstatement fee -and the likely loss of one’s vehicle for the three days, plus towing and storage fees. For those with more than one reading above the legal limit, the penalties escalate.
In a class-action suit, one person sues on behalf of all the people who have similarly suffered.
The lawsuit has to go to B.C. Supreme Court to be classified as a class-action suit before proceeding. That will likely happen within three months, Thomas said.
He will ask for repayment of costs incurred by people who were improperly penalized.
This week, Solicitor-General Rich Coleman said the province is considering allowing drivers to appeal roadside penalties for impaired driving offences.
That would make no difference to the lawsuit, Thomas said.
On the heels of this lawsuit, the BC government announced that there will now be an appeal process for a driver who wishes to contest this roadside suspension, but the appeal may be too little, too late.
Here in Washington, breath testing is subjected to numerous and rigorous challenges by defense attorneys such as myself. These challenges routinely target the claimed accuracy of testing in a DUI prosecution. These challenges are important due to the fact that what hangs in the balance is not only the potential loss of a drivers license, but most importantly freedom vs. incarceration.
It is well known, and established by law here in Washington that the same handheld devices described above, used by law enforcement here, are not reliable proof of anything other than establishing that a person has consumed alcohol. Administration of these tests and the readings provided are only admissible in a hearing to challenge the lawfulness of a driver’s DUI arrest. They are not admissible in a trial due to their unreliability. This is set forth in Washington Administrative Code (WAC) 448-15. The devices use “Fuel Cell” technology and this type of technology will provide false positives as a result of cold weather conditions, recently consumed pizza, and dozens of other factors.
The more advanced technology used utilizes “Infrared” testing. The basic explanation is that light passes through a small sample of air blown into the machine by an arrested person. While this technology is better, it is far from perfect and currently it is behind the “scientifically reliable curve.” As a result, Washington has cleared the way for a new generation of breath testing machine, and has purchased about half of the units needed. While this leap into the current breath testing generation is admirable, i cant help but wonder why the units purchased simply sit in storage rather than be deployed immediately? Perhaps it impeaches the accuracy and reliability of the current machine in use that has been around since the last century (1987).
A DUI charge is full of complex evidence that only the most experienced DUI lawyer can demystify and expose its limitations and “secrets.” As a result whether you are over .02 (Minor DUI), .04 (CDL DUI), or .08 (DUI), or if you are under the legal .08 limit, the charge is not to be taken lightly nor is it for the inexperienced. A successful outcome requires a highly specialized level of understanding, skill, passion, and compassion. Jonathan Rands is an experienced, dedicated, and tenacious DUI lawyer with proven DUI defense success. 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 and provides legal services for cases in Whatcom, Skagit, Island, and San Juan Counties. | Jonathan Rands regularly discusses DUI issues with (AM 790 ) KGMI’s Tracy Ellis every other Sunday on the Legal Docket.
