DWI attorneys should focus on front line defenses.

By Donald J. Bartell

Attacking and Defending Drunk Driving Tests

Excerpted from Attacking and Defending Drunk Driving Tests

There are many ways to challenge breath tests. The inside secret is that the various approaches are not of equivalent strength. Some methods are much more readily understood and accepted by jurors than others. The key to attacking breath tests is to use a system that leads to the defense that will be the most successful.

Use a Three-Category System

The system to attack breath tests can be broken into three categories:

  • First Line Defenses (defenses that can defeat a breath test on their own). [See §§12:20-12:45.]
  • Second Line Defenses (defenses that are more successful if they have additional support). [See §§12:50-12:52.]
  • Third Line Defenses (defenses that are rarely successful). [See §§12:60-12:63.]

The fact that first category has had more success than the others does not mean that the attacks in that category are of greater scientific value than the attacks in the other categories. It simply means that traditionally jurors have been more comfortable acquitting defendants in those defenses.

Practice Tip:

Sometimes you will get lucky in trial, but you will never get lucky in trial if you do not announce ready for trial. From the defense perspective, properly prepared drunk driving cases almost always get better in trial than they appeared on paper. At first this will seem to you to be an interesting and happy happenstance. Upon reflection, what you may discover is that the cases get better in trial not because of some good fortune, but rather because without a trial the government’s evidence is never tested. The police report looks unyielding until the cross-examination of the officer. The laboratory records appear bulletproof until they undergo the same scrutiny.

§12:11     First Line Defenses

First line defenses are defenses that can defeat breath tests on their own.

Not only can first line defenses stand alone, but they have the added benefit that jurors easily understand them. This makes them more plausible, and it is where a defense attorney should first look in developing an attack on a breath test.

An example of a first line defense is when the calibration records show that the breath machine was not working accurately at the time the defendant took the breath test.

[For more on first line defenses, see §§12:20-12:45.]

§12:12     Second Line Defenses

Second line defenses could stand alone, but they are generally much more successful if they have additional support. They are relatively easy to explain to jurors and the defense is not only reasonable, but seems reasonable.

An example of a second line defense is the absorptive phase defense. Breath alcohol levels read significantly higher than blood alcohol levels during the time when alcohol is being absorbed into the body. However, while this observation is unquestionably true, additional evidence pointing to the defendant’s innocence is usually required for jurors to feel comfortable in acquitting a client presenting this defense.

[For more on second line defenses, see §§12:50-12:52.]

§12:13     Third Line Defenses

Third line defenses are legitimate recognized approaches, but they seldom work. Using any of these methods in a trial is a little like selecting the field entry in a horse race: you are not likely to win, but you have something to talk about.

Examples or third line defenses are:

  • Instability in the differential voltage measurement of a breath machine.
  • Radio frequency interference with the breath machine.
  • Alcohol trapped in dentures can falsely elevate the test results.
  • A person with blood with a high hematocrit elevates breath alcohol results.
  • Body temperature and breathing patterns skewed the test.

[For more on third line defenses, see §§12:60-12:63.]

§12:14     The Common Theme

Irrespective of what which category of defense is employed or which type of breath machine was involved, there is a common theme that should be weaved into all attacks on breath testing. That common theme is:

Because breath testing involves the analysis of microscopic amounts of alcohol it is critical that everything involving the breath test be done with precision and pursuant to established procedures—small variances in procedures can result in huge variances in results.

This theme helps explain to jurors how a sober person can obtain a .16% breath test result. Jurors will accept the notion that a procedural error may result in some inaccuracy in the test outcome, but most jurors legitimately wonder how a routine error could possibly produce a result that is more than two times the legal limit. After all, the jurors’ own bathroom scales seldom have such error rates. To many reasonably minded jurors it seems that it would take an error of seismic proportions to take a breath test from a true value of .06%, to a reported test value of .16%. The answer to these understandable questions is to emphasis the common theme about small variances resulting in huge variances.

Practice Tip:

One way to illustrate the common theme is to show your empty hands to jurors during opening statement. Explain that what is in your left hand (which has nothing in it) is what the naked eye would see if a person blew a 0.00% into a breath machine: i.e., nothing. Then hold up your equally empty right hand. Explain that this is what a .16% alcohol level would appear like to the naked eye. This hand too has nothing visible in it. What can be seen is that the difference between a 0.00% test and a .16% test is an invisible amount of alcohol. Due to the fact that we are measuring invisible amounts of alcohol, it is apparent that it does not take much of an error to wildly distort the results. The same open hand visual can be used during your questioning of the prosecution and defense’s expert witnesses. The image can then be shown one concluding time during your closing argument. In this way the common theme is weaved continuously throughout the trial.

§12:15     Checklist for Attacking Breath Tests

  • Use a systemized approach to review the defenses available.
  • Employ the common theme throughout all stages of the case. Repeat this often: Because breath testing involves the analysis of microscopic amounts of alcohol it is critical that everything involving the breath test be done with precision and pursuant to established procedures—small variances in procedures can result in huge variances in results.
  • Obtain and review the calibration and maintenance records.
  • If the records seem perfect, see if there is still something that can be said about the records. For example, determine when the last time the thermometer in the simulator was checked for accuracy.
  • Scrutinize the breath operator’s qualifications and how the test was administered. Pay particular attention to whether or not the required observation period was complied with.
  • Look for opportunities to introduce evidence of the variability of the 2100 to 1 ratio. Do not give up on this issue, even if the court repeatedly rules against you. Perhaps the court’s pangs of guilt in denying you the opportunity to tell the jury the truth about breath testing, will pay dividends for you with other objections.
  • Review second and third line defenses after you have canvassed the availability of first line defenses.
  • Include in your defense the fact the breath machine does not measure specifically for alcohol even if you are not making this you main defense. It is an easy claim to advance, and it will diminish the breath machine’s perceived value. This will help you in what ever other defense you employ.
  • Hire an expert.

First Line Defenses

Calibration of the Machine

§12:20     Review Calibration Records

Examine the calibration records of the breath machine. If you do not review the records it is difficult to object that the machine was improperly maintained. [Bollinger v. Lohman, 936 S.W.2d 870 (Mo. App. 1997) (the lack of objection precludes a claim that the breath machine was not properly maintained).]

The purpose of this review is to see whether there is documentary evidence that the device was working properly. Absent this, the test may not even be admissible. [State v. Caswell, 769 A.2d 387 (N.H. 2001) (test results inadmissible as the prosecution did not prove preventive maintenance check had been performed).]

If the records reveal that the device was not functionally properly the defense is fairly simple: the breath machine was not functioning. This is an effective defense because the prosecution must establish that the breath test has been conducted in accordance with the rules, including the successful completion of the required preventive maintenance check and the certification of the Intoxilyzer’s accuracy. [State v. Caswel, 769 A.2d 387, 390 (New Hampshire 2001); City of Bowling Green v. O’Neal, 682 N.E. 2d 709 (Ohio App. 1996) (Government has burden of proof to show breath machine was working even during the defendant’s motion to exclude the evidence).]

As the party offering the breath test results, the State bears the burden of laying the foundation for admitting those results into evidence. [Stewart v. State, 754 N.E.2d 608, 611 (Ind. App. 2001).]

The records can usually be admitted by the prosecution as a business record or as a self authenticating document. [Grady v. State, 962 S.W.2d 128 (Tex. App. [1st Dist] 1997) (Intoxilyzer inspection records held admissible as business records because court did not find they were prepared for any specific litigation); Callahan v. State, 811 So.2d 420 (Miss. App. 2001) (pursuant to Mississippi Rules of Evidence 902(1) the documents are self authenticating); Anderson v. Commonwealth, 486 S.E.2d 115 (Va. App. 1997) (the police officer administering the breath test is permitted to testify that breath machine had been tested within the required time period even thought he officer did not have any personal knowledge of this fact).]

The records do not always reveal totally errant machines. Still, it does happen enough that the records need to be examined. When there is evidence in the records of significant problems with the maintenance and calibration of the breath machine, the attack on the breath test is usually incurable for the prosecution.

Furthermore, there is more to attacks based on the maintenance and calibration records than simply hoping for proof that the breath device was not working. Remember, the defense does not have to show the machine was malfunctioning; the prosecution must prove that the apparatus was working.

Cautionary Note:

Failure to review the records may open you up to claims of ineffective assistance of counsel if there is something in the records that would have exonerated your client.

Practice Tip:

Avoid describing crime laboratories in court by their full official names. For example, GBI sounds less impressive than the Georgia Bureau of Investigation. Similarly, DOJ is less striking than the Department of Justice.

In a case involving an accident with a SUV that rolled over upon impact, I decided to describe the accident as the SUV rollover. By the second day the prosecutor was calling the crash the SUV rollover. I thought to myself, some of the stuff in these books actually works.

—From The DUI Wars

§12:21     Frequency of Certification Varies

How frequent breath machines must be certified for accuracy varies from state to state.

EXAMPLES:

  • Connecticutrequires that checks be conducted prior to and after every breath test. [State v. Morelli, 595 A.2d 932 (Conn. App. 1991) (thirty-five minute delay meets the requirement).]
  • Californiarequires a calibration check to be performed every 10 days or every 150 subjects tested, whichever occurs first. [Title 17 California Code of Admin Regs §1221.4(a)(2)(B).]
  • Wisconsinmandates that the breath equipment needs to be certified at intervals not exceeding 120 days. [Wisconsin Stat. §343.305(6)(b)3.]
  • New Hampshire requires that a check be done every six months. [N.H. Admin. Rules, He-P 2207.05(d).]
  • Georgia only demands that each breath instrument be checked periodically for calibration and operation. [GBI Rule 92-3-.06(8).]

§12:22     Distinguish Between Calibrations and Calibration Checks

Calibration check records are not the same thing as records showing a calibration of the breath machine.

A calibration check is simply a check to see if the unit is properly measuring samples. It does not include an adjustment or calibration of the machine. The difference is similar to the difference between checking to see if your car needs a tune-up, and actually giving the car a tune-up.

The calibration check records show a known alcohol value in a simulator solution comprised of water mixed with alcohol. The solution is placed into a glass jar (the simulator) heated to thirty-four degrees centigrade (plus or minus .2 degrees centigrade) and then pumped into the breath machine to simulate a person blowing into the unit. [WashingtonAdmin Code 448-13-040.] (The solution is heated to thirty-four degrees to replicate the average temperature of expired human breath.)

Practice Tip:

In cross-examining experts avoid the common courtroom mistake in confusing calibration check records with actual calibrations of the machine. If you are inquiring about calibration checks do not erroneously ask the opposing expert if it is not true that that the machine was calibrated on such and such date. If you do, be prepared for the expert to correct you in open court by replying that the machine was not calibrated on this date—rather a calibration check was conducted.

§12:23     Sample Calibration Check Record

The format of a calibration check record varies from state to state, and even from county to county within a state. Many calibration check records look like a receipt from a grocery store register. Whatever the form, the information contained in the various formats is essentially the same. The following is an example of a calibration check record:

In this example the “known value” of the alcohol is .10% (the % sign is assumed in the records). Test 1 and Test 2 reflect the actual results the breath machine obtained in analyzing the known value. The actual results should be within a plus or minus .01% of the known true value. “Temp” (which stands for temperature) states whether the temperature was satisfactory or not. A satisfactory reading means that the simulator solution was measured at 34 degrees centigrade plus or minus .2 degrees centigrade. Some records recite the exact temperature rather than just stating if the temperature was suitable or not. The other listed information reflects the date and time of the calibration checks and the location where the checks were performed.

This example shows that on one occasion the calibration check was not done in a timely fashion. Twelve days passed between 9/2/03 and 9/14/03 before another check was performed. Californialaw requires a check at least every 10 days or before 150 subjects have taken tests, whichever occurs first. Records stating how many subjects were tested on a given breath machine are not part of the calibration check records. For completeness sake, if such records are kept, make a discovery request for these records as well.

This example also shows a peculiarity in the calibration check occurring on 9/30/03. Prior to this date all of the checks were within the acceptable range of plus or minus .01% of the known value .10%. However, on 9/30/03 the check was significantly off, reading .07% and .08%. Within an hour and half a follow-up calibration check proved that the machine was back within range.

If a similar occurrence takes place in your case find out what went wrong and what was done to fix the problem. Machines do not fix themselves. The crime laboratory cannot simply claim the deviation was due to some intermittent error that was resolved on its own. There must be documentation showing the steps that were taken to repair the problem. [State v. Lipsky, WL 397738 (Ohio App. 2002) (evidence suppressed as the government failed to comply with the requirement to keep breath records for three years).] Your expert can advise you as to whether or not the problem was appropriately remedied.

CALIBRATION CHECK RECORDS

Intoxilyzer 5000 Serial Number 66-052380

Location

Date

Time

Test 1

Test 2

Known Value

Temp

Eureka, CA

8/15/03

10:00

.10

.10

.10

OK

Eureka, CA

8/25/03

9:30

.10

.10

.10

OK

Eureka, CA

9/02/03

11:00

.11

.10

.10

OK

Eureka, CA

9/14/03

10:00

.10

.10

.10

OK

Eureka, CA

9/24/03

9:00

.11

.11

.10

OK

Eureka, CA

9/30/03

10:00

.07

.08

.10

OK

Eureka, CA

9/30/03

11:30

.10

.11

 .10

OK

Eureka, CA

10/08/03

9:00

.10

.11

.10

OK

§12:24     Suppressing Tests for Lack of Calibration Check

Whether a breath test can be suppressed for failure to perform timely calibration checks depends on state law.

In the following states, evidence can be suppressed for failure to perform timely checks:

  • Missouri. [Woodall v. Director of Revenue, 795 S.W.2d 419 (Mo.App. 1990).]
  • Mississippi. [Johnston v. State, 567 So.2d 237 (Miss. 1990).]
  • Massachusetts. [Commonwealth v. Barbeau, 585 N.E. 2d 1392 (Mass.1992).]

However, in the following state failure to comply with the regulations does not generally result in suppressing the evidence:

  • California. [People v. Williams, 28 Cal. 4th 408, 414 (2002) (noncompliance goes only to the weight of the evidence, not its admissibility).]

§12:25     Challenging Perfect Records

We are not retreating, we are simply attacking in a different direction.

—General Douglas MacArthur

Often the calibration records appear to establish that the breath machine was working properly. The laboratory performed the accuracy checks in a timely fashion and the results were within permissible parameters. Sometimes, if you are a defense lawyer, it seems that every case you get has flawless records. However, even if the records are seemingly fine, there typically remain two areas that can be challenged.

The first area to challenge is the difference between the time of the check and the time of the test. This may be somewhat minor, but the challenge needs to be made in the face of perfect calibration records. In most jurisdictions all an accurate calibration check establishes is that the breath machine was working fine at the specific time the laboratory performed the calibration check. Unless the check was done at the same time as the test on the defendant, it does not conclusively prove that the breath machine was working at the critical hour of the defendant’s test. This challenge does not work for a jurisdiction like Connecticut, which conducts a check with every subject test. However, in can be used in most jurisdictions. [See, e.g., Wisconsin Stat. §343.305(6)(b)3 (Wisconsinbreath equipment only needs to be certified every 120 days).]

The second area to challenge is the accuracy of the simulator. In essence, the question is: who is checking the checker? The critical piece of equipment in the simulator is the thermometer. Improper heating of the simulator solution results in inaccurate calibration checks. Old thermometers survive in many simulators and laboratories seldom check their accuracy. Even with perfect calibration records if the thermometer has not been checked recently for accuracy—and this is often the case—the calibration checks are not reliable.

§12:26     Cross-Examining on Calibration Checks

The following is a sample cross-examination of an expert witness in a case where the calibration records appear otherwise flawless:

Q:    Turning to the records you brought to court today, may I take a look at them?

A:    Of course.

Q:    These are the calibration check records for the Intoxilyzer used on the defendant?

Comment:

Avoiding the pitfall of calling the calibration check records, “calibration records.”

A:    Yes.

Q:    During the questioning by the prosecutor you testified that the records showed that the device was working perfectly when it was used on the defendant?

Comment:

During your cross-examination of the state’s expert you may want to call the breath machine a “device.” If you call it a machine, the common reply is in turn to call it an “instrument” in an effort by the state’s expert to heighten the device’s perceived reliability. You can avoid this tit-for-tat by calling it a device. You may resume calling the mechanism a machine when you are questioning your expert. In closing argument, depending on the atmosphere in the case, you can describe the breath machine variously as a “machine,” “contraption” or even “gizmo.”

A:    That is correct.

Q:    The defendant’s test was on the 22nd of May?

A:    Yes.

Q:    I’m looking at these records, did I miss something, I do not see any calibration check performed on the 22nd?

A:    Well, the instrument did not have a calibration check done on the 22nd. There was one performed on the first of the month and another on the last day of the month. Both of these accuracy checks were fine.

Q:    I see. So, as I understand it there was not an actual accuracy verification performed on the day the defendant was given the breath test?

A:    Yes, the rules in our state (Florida) only require that we do them every 30 days.

Q:    So when you say the device was working perfectly on the 22nd you are actually surmising that from checks done about three weeks before the test, and a week after the test?

A:    It is a reasonable conclusion.

Q:    I understand that you think it is a reasonable conclusion, but if we had the benefit of a calibration check on the day the test was taken we would not have a need to try and arrive at a reasonable conclusion—we would know if the thing was working at the time?

A:    Our rules do not require a calibration check with every test.

Q:    The rules do not prohibit it though, do they?

A:    They do not prohibit it.

Q:    The device is capable of performing a calibration check with every test?

A:    Yes.

Q:    It can even be programmed to do a safeguard accuracy check with each test?

Comment:

Quietly slipping the word “safeguard” into the equation.

A:    It is possible.

Q:    Other jurisdictions do it?

Comment:

Long live Connecticut.

A:    That is my understanding.

Q:    But your lab does not use this safeguard?

A:    It is not required by the rules.

Q:    In order to implement the safeguard it would cost only a few pennies a test?

A:    Probably. But, we work at a government lab. We do a lot of tests.

Q:    I see.

Comment:

The lawyer is somewhat startled by the gift theme given to the attorney by the witness. The witness has confirmed the theme that the lawyer had considered arguing, i.e., “close enough for government work.”

Q:    Every month or so when you get around to doing these safeguard checks you do it by using a simulator solution?

Comment:

Attempting to show the lab is lackadaisical by only complying with the minimum state standards.

A:    Yes.

Q:    You heat the simulator solution up to 34 degrees centigrade?

A:    Yes, it has to be heated to 34 degrees plus or minus .2 degrees.

Q:    If the temperature of the solution is not within this range you cannot perform an accurate calibration check?

A:    That is correct.

Q:    So the temperature is critical?

A:    Absolutely.

Q:    The thermometer is the device that is used to determine the accuracy of the temperature?

A:    Yes.

Q:    You do a calibration check on the Intoxilyzer at least every 30 days?

A:    Yes, but the regulations do not require us to calibrate the thermometer.

Comment:

Apparently the witness has figured out where the examiner is headed. A telltale sign that a witness knows where you going is when the witness adds an explanation to the witness’ answer that attempts to preempt your next line of questioning. The question here had nothing to do with thermometers, but the witness jumped the topic in an effort to head off the questioning, or at least to strike first on the issue. A little known cross-examination secret is to look for the “preemptive answer,” when a witness attempts to preempt your next line of questioning by going beyond what is called for in the current inquiry. It is an attempt by the witness to buffer the witness from the battering the witness apparently seems to feel the witness is going to suffer in the next line of questioning. Your primary concern should not be so much that the answer was non-responsive. What really should raise your interest is that the witness obviously knows where you are headed—and the usual rule is that a forewarned witness is a foreboding one. Here though (and this is the secret), the witness has just told you that the witness feels vulnerable in the area that you are about to address. If you were unsure about how deep to go in exploring the next area of cross-examination, when you see a preemptive answer, it is time to go spelunking.

Q:    You agree that the thermometer must be accurate?

A:    Yes.

Q:    Like any piece of equipment, it is capable of error?

A:    It is possible.

Q:    In science before making measurements a prerequisite is that the equipment making the measurements be accurate?

A:    Yes.

Q:    The normal way that is done is by checking the accuracy of the equipment?

A:    Usually.

Q:    When was the last time you checked the calibration of the thermometer?

A:    I am not sure of the date.

Q:    Was it in the last 30 days?

A:    No.

Q:    The last 60 days?

A:    No.

Q:    In the last 6 months?

A:    I do not believe it has been this year.

Q:    Well, was it done last year?

A:    I do not have those records.

Q:    Could you tell this jury if you have ever performed a calibration check on the thermometer?

A:    I don’t know.

Comment:

Whenever you have an issue of neglect, try drawing the examination out in increments. Instead of asking the last question first (you have never done a calibration check on the thermometer), consider stretching out the questioning. The easy was to do this is to ask if the required task was done in the last 30 days, 60 days, and so on. This rivets the jurors’ attention for a longer period of time on an issue you want to raise. It also makes the inaction seem so much more neglectful, because there were so many missed opportunities to take action.


Donald Bartell is on the Board of Directors of the California DUI Lawyers Association, and is a frequent lecturer around the state on DUI trial tactics.  He has been asked to participate in the California DUI Lawyers Association and National Collegefor DUI Defense’s jury research project investigating what arguments resonate with jurors in drunk driving cases.  He is the author of Attacking and Defending Drunk Driving Tests, from which this article is excerpted.