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Fighting BAC: Defending Breath Test Prosecutions

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Fighting BAC: Defending Breath Test Prosecutions

Over the past several years, there has been a trend toward scrutinizing DWI breath test technology. In a 2019 investigative study, the New York Times discovered what DWI attorneys have known for a long time: that breath tests are “often unreliable.” In this presentation, we will explore some foundational issues in defending a “breath test” prosecution. Core concepts will include Henry’s Law, Beer’s law, and the variable of temperature. This presentation isn’t meant to make you an expert in the area, but it will introduce you to some core issues involved in beating bad breath.

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Jason Potter:   Welcome to Fighting Back, Defending Breath-Test Prosecutions by Quimbee. My name is Jason Potter and I'm a staff presenter at Quimbee. In addition to preparing slide handouts with detailed presenter notes, we've also prepared some supplemental materials for download.

   In March of 2009, a vehicle sped down a South Carolina road past a squad car. After pulling over the vehicle, officers approached, at which point, the driver gave himself a freshness boost by coating the inside of his mouth with men's body spray, allegedly to rid his mouth of the scent of alcohol. Despite this sensual sandalwood smoke screen, officers found 11 open cans of beer in the car, 10 of which were almost empty. Officers arrested the man, although he failed his breath-test, the man smelled sophisticated through booking, gracing the state station with a freshness boost for up to 48 hours.

   Bizarre, but true, DWI arrest stories like this one abound. After all, driving while intoxicated is one of the most common crimes in the United States. According to the most recent CDC data available, in 2016, over 1 million drivers in the United States were arrested for driving while intoxicated or DWI.

   Enforcement of state DWI laws is a crucial way of ensuring the safety of the roads and the community. There's no national universal law of driving while intoxicated. States are in charge of passing and enforcing own DWI laws, which are typically misdemeanors. There is, however, a universal nationwide assumption that impairment behind the wheel occurs when a person's blood alcohol ratio reaches a certain threshold. All states in incorporate this ratio as a measure of intoxication in their drunk driving laws.

   Tests involving blood, breath, and urine have all been used as a measure of blood to alcohol ratio. These tests help the trier of fact determine how impaired people were at the time they were stopped. In this presentation, our focus is on breath-test technology in DWI prosecutions.

   Over the past several years, there's been a trend towards scrutinizing these technologies. In a 2019 investigative study, the New York Times documented what DWI attorneys have known for a long time, that breath-tests, a linchpin of the criminal justice system, are often unreliable. For example, in Massachusetts, over 27,000 OUI convictions may be vacated in 2020 due to faulty breath-test devices and the commonwealth's failure to disclose evidence of the problem.

   The administration of breath-tests have also been problematic. In 2018, the New Jersey Supreme Court ruled that over 20,000 breath-test results were not admissible due to administration errors. A DWI charge needs to be defended at every point, from stop, to field sobriety test, from arrival at the station, to a formal administration of a BAC test. Every moment must be examined and in light of significant issues that can arise with breath-test technology and its administration, a DWI defense often involves a close examination of the BAC test technology and its operation. These examinations are highly specialized and require an advanced level of understanding and experience.

   In this presentation, we will explore some foundational issues in breath-test prosecutions. We will cover some core concepts in defending these cases, including but not limited to, Henry's Law, Beer's Law and the variable of temperature. This presentation isn't meant to make you an expert in the area, but it will introduce you to some core issues involved in beating bad breath.

   Okay, let's start with a hypo. This is the Blowharder manufactured by Minty Breather Incorporated. The Blowharder is a fictional breath-test device using infrared spectrometry, which I'll explain more in a few minutes. The Blowharder is just like many of the breath-test devices currently in use today. The Blowharder is used throughout the Commonwealth of Intoxichusetts, including by Gintown Police Department.

   Two nights ago, Laurie Lightweight was pulled over by a Gintown officer. She apparently failed field testing and was arrested for driving while intoxicated. At the precinct, she agreed to a breath-test. Laurie blew a 0.08 BAC on the Blowharder. Laurie was booked and she was released on bail. Laurie would like your firm to represent her in defending this charge. Laurie doesn't believe she was impaired that night.

   Alcohol-related driving impairment is a major public health concern throughout the United States. Impairment is essentially defined as the physiological state in which alcohol has impaired the operator's ability to operate the vehicle in a safe and prudent manner. In DWI cases, the state needs to prove how impaired a person was behind the wheel. This often involves using science to estimate the level of impairment.

   There's a lot of uncertainty in the science of getting sloshed. Pharmacological and toxicological science about impairment doesn't work in certainties and absolutes. These disciplines focus on likelihood of impairment. This creates an issue for proving a DWI case beyond a reasonable doubt, and so legislatures have passed laws with strict liability or per se statutes for a blood alcohol level above a certain threshold, for example, .10 or .08 or some other percentage. Because of per se statutes like this, there's a lot of weight on the results of blood alcohol tests. In fact, test results are a crucial part of a prosecutor's case in a per se DWI prosecution.

   Now let's about terminology for a moment. In this presentation and in Laurie's hypothetical, we use the term driving while intoxicated or DWI. This is dictated by state law. New York, for example, uses the term DWI. Other jurisdictions may use acronyms with similar meanings like DUI, driving under the influence as in Maryland, and OVI, operating a vehicle while intoxicated, such as in Ohio. The term driving under the influence is an umbrella term meant to simplify, but a lot of people have a problem with the phrase under the influence due to its vagueness. Jurisdictions may use other terms like drunk driving, operating a vehicle while under the influence, operating a vehicle while intoxicated, and driving while intoxicated.

   In the context of blood alcohol testing, the relevant measurement for estimating alcohol impairment is blood alcohol concentration or BAC. breath-test devices measure breath alcohol concentration, or BRAC, and then convert that result to BAC. We use the term BAC for simplicity, but it's very important to know that BRAC is used to indirectly measure BAC. As you might imagine, the issue of whether a person's ability to prudently drive was impaired is replete with very challenging problems, practically, legally, and scientifically. It takes DWI attorneys years to understand and develop strategies involving BAC testing.

   We'll barely scratch the surface today, but suffice to say lots of thorny issues can arise in the area of DWI BAC test evidence. There's also a lot of variation about breath-test evidence among the states. Every state deals with breath-test evidence somewhat differently, and this presentation doesn't focus on any one state.

   All this means that defending a breath-test prosecution isn't the sort of matter you can just wing as a favor to a friend who's had a bad blow on 4th of July weekend. As one DWI attorney stated, "You cannot be part-time DWI lawyers. You need to either do DWI cases or refer them to someone who is qualified. Do not dabble; DWI is not a field for dabbling. You need to educate yourself all the time..."

   So with respect to our hypothetical, let's imagine that for Laurie's representation, you've associated with an attorney experienced in DWI defense. As with any criminal prosecution, we start with the statute. DWI laws are generally misdemeanors, but multiple offenses or involvement of injuries and fatalities may be subject to enhanced penalties and felonies.

   Let's take a look at the DWI statute at issue in Laurie's case. In Laurie's case, here's the basic statute for the Commonwealth of Intoxichusetts. A person commits the crime of driving while intoxicated (DWI) if that person operates a motor vehicle while under the influence of intoxicants or while having an alcohol level of 0.08 grams or more of alcohol per 100 milliliters of blood, or 210 liters of breath. This is modeled after Maine's statute. To convict someone under this statute, the prosecution will need to prove either that the person was driving under the influence of intoxicants or that the person had a BAC of at least 0.08 at the time of the traffic stop.

   In the Intoxichusetts statute, subsection two is the commonwealth's per se statute. Because of subsection two, Intoxichusetts prosecutors won't need to prove that Laurie was under the influence beyond a reasonable doubt. As they would if the statute only contained subsection one. Rather, Laurie is charged under subsection two of the statute, the per se BAC provision. So the prosecution will only need to prove element two, the BAC level. That's it. But that doesn't mean it will be any less complicated. Defending Laurie's case based on her BAC test results requires an understanding of breath-test technology, discovery in BAC test cases, and possibly expert testimony.

   So here's our roadmap for today. First we'll travel through time to review the evolution of breath testing, and we'll put on our lab coats for a few minutes to study the science behind breath-test technology. Second, we'll examine the importance of fact finding in breath-test prosecutions and survey some discovery techniques and strategies. And third, we'll review some of the common defenses in breath-test prosecutions.

   All right, any history buffs in the house? Well, it's time for a brief history of intoxication behind the wheel. By the early 1800s, the average American over the age of 15 downed nearly seven gallons of pure liquor per year. It's a good thing then that Karl Benz didn't patent the first automobile, the Benz Patent-Motorwagen, until 1886. Soon after the introduction of the automobile on September 10th, 1897, the first recorded case of driving while intoxicated occurred. On that day, George Smith, an electric cab company driver in London, collided with the building located at 165 Bond Street. Upon being arrested for DWI, Smith said that he had imbibed two or three glasses of beer. Smith was convicted and faced a 20 shilling fine. At that time in the United States, a national cocktail party was in full swing, but in the early 1900s, a temperance movement took off initiated by Protestant churches.

   The first DWI law in the United States was enacted in New York in 1910 to protect the public welfare from impaired drivers. In 1917, the 18th Amendment passed in both houses of Congress, largely to the efforts of the Anti-Saloon League. Despite the excitement often depicted in films, Prohibition turned out to be a major buzzkill from an economic, enforcement, and social perspective. On December 5th, 1933, President Franklin Delano Roosevelt signed a Presidential Proclamation declaring that the 21st Amendment had replaced the 18th Amendment. The 21st Amendment repealed Prohibition and gave states the power to regulate the manufacture, distribution, and sale of alcohol occurring there. After Prohibition, all states passed alcoholic beverage control laws. While some of the stated goals of these laws were to promote temperance and to avoid the excesses that led to Prohibition, under these laws, the alcoholic beverage industry exploded in the United States.

   As a result of the wide distribution and consumption of ethyl alcohol, the chemical ingredient in alcohol that gets you drunk, drunk driving became a widespread issue in the United States. Very early on, it was established that determining the level of ethyl alcohol in the bloodstream can approximate how impaired a person was in their ability to effectively drive the vehicle.

   The first tests of ethyl alcohol in the bloodstream were actual blood tests conducted by third party experts. Although these tests were pretty accurate, they were invasive, challenging, inefficient, expensive, limited to a specific testing site, and far from instantaneous, but this was the only technology regarded as reliable at the time. Ironically, during Prohibition, in 1927, Dr. Emil Bogen proved that blood alcohol levels can be measured through breath-tests. Shortly thereafter, in 1936, Professor Rolla Harger of Indiana University patented an apparatus for and process of readily determining alcohol concentration in live animals and solution. It was also known as the Drunkometer. No, no, that's not, that's not a joke. That was the name, Drunkometer. Harger's invention was based on the assumption that two liters of breath contained substantially the same amount of alcohol as one cubic centimeter of blood. That assumption stuck.

   In 1938, 2 years after the Drunkometer was patented, police incorporated the device into the field for the first time, the apparatus required drivers to blow into a balloon, affixed to a vessel of potassium permanganate and sulfuric acid. The color of the solution was a measure of alcohol in the bloodstream. The darker the chemical got in the vessel, the more alcohol was in the bloodstream. By matching the shade, officers could get an estimate of blood alcohol level, BAC. Now, remember, this is all based on the assumption that BAC is an accurate measure of actual impairment. Relatively quickly, BAC and breath-tests were broadly accepted by legislatures and courts.

   Courts began allowing BAC as evidence and BAC became a presumption of guilt. Legislatures made BAC test results exceeding a certain threshold guilt per se, which is the kind of statute that Laurie was charged under. One of the challenges about breath-tests from an enforcement perspective is that they require compliance. So legislatures created a mechanism to compel compliance through implied consent laws or refusal statutes that penalized drivers with license revocation for failure to cooperate with BAC testing. Discussion of these implied consent or refusal laws is beyond the scope of this presentation though. Girl, we can't cover everything.

   Whereas older breath-test devices were called wet chemical machines due to the chemicals required to operate them, breath-test technology today is largely based on infrared technology. Infrared machines provide a printout which makes results harder to falsify. Infrared machines don't have wet chemicals so there are no ampules or chemicals to spill. Infrared machines have more automated functions and interference detectors so they're simpler to operate, which can be much different than wet chemical machines. And infrared machines have mouth-alcohol detectors and supposedly only sample deep lung air.

   Machines in use today are generally of three types. Here they are. Devices employing infrared spectrometry, such as BAC DataMaster DMT by Analytical Systems Incorporated, the Intoxilyzer 5000 by CMI Incorporated, and the Blowharder by Minty Breather Incorporated, of course, the one in Laurie's case. Also another type of device is a device employing electro-mechanical oxidation/fuel cell technology, such as the Intoximeter EC/IR II by Intoximeters Incorporated. And finally, the third type of device in use today are devices with dual detectors, infrared and fuel cell. For these, two separate analyses are performed. Each confirms the accuracy of the other. One example of this is the Alcotest 7110 MK III by Drager Incorporated. Courts generally find infrared machines scientifically reliable.

   Now this is a good segue from the history classroom to the science classroom and an introduction to breath-test technology. Now pay attention here. I'll be giving a baccalaureate exam on breath-test technology at the end. Get it? Baccalaureate, B-A-C... Nevermind.

   As a general matter, the Society of Forensic Toxicologists, which publishes the forensic toxicology laboratory guidelines, did not include breath-testing as a methodology to measure BAC, but it did consider blood and urine testing as a means of doing so. The US went all in though on breath-testing anyway. So let's check out the science behind it and maybe you'll get an idea of why the Society of Forensic Toxicologists didn't endorse it.

   Breath-testing technology is based on Henry's Law. Henry's Law is widely accepted as basic or foundational law, kind of like Newton's universal law of gravitation. Regardless of the manufacturer and type, breath-test machines are all based on Henry's Law. Henry's Law states that, "The ratio between the amount of alcohol in a person's blood to the amount in that person's breath is 2100:1." Stated another way, all breath-testing machines are based on the premise that the amount of alcohol in blood is 2100 times that concentration of alcohol in alveolar air, or air from the lungs.

   Defense attorneys contesting breath-test technology don't contest Henry's Law itself. Rather, what's contested is the proper ratio of breath to blood to use for the purpose of an evidentiary test. One key issue with the 2100:1 ratio is that abnormal body temperature can affect it leading to variations in readings. This is a key issue often raised in defense. So that's Henry's Law. But for Henry's Law, today's BAC breath-test machines would not exist as we know them. There is also another important principle to understand regarding today's breath-test devices. That's Beer-Lambert's Law of absorption or Beer's Law.

   Beer's Law holds that chemical substances interact with radiation to a degree dependent upon the amount of the chemical substance present. As applied to alcohol, when infrared radiation is aimed at the vapor of ethyl alcohol, the vapor will absorbed some of it in a direct proportion to the quantity of ethyl alcohol present. In other words, by measuring the amount of radiation that bounces back, one can estimate the amount of alcohol vapor present. Beer's Law of absorption often arises in breath-testing cases involving infrared breath-test technology, which are most of the devices in use today.

   The atomic compound of ethyl alcohol is the only compound that will absorb radiation at wavelengths of 3.00, 3.39, 7.25, 9.18, 9.50, and 11.5 microns. The problem is that some infrared breath-testing machines only pick up lower wavelengths, such as 3.39 microns. Although I may be over simplifying, the problem with machines that use the lower wavelength is that other alcohol compounds like acetone or methanol are detected at about 3.4 microns, which has the potential to screw up the isolation of ethyl alcohol. Some machines that are dual detectors make up for this. For example, Drager's Alcotest 7110 MK III is sensitive to infrared light at around 9.5 microns, but not all jurisdictions use these dual detectors or devices that compensate for the potential for mix-ups.

   As you might be gathering, there's a level of uncertainty in breath-test technology. That's one overarching issue that defense attorneys have with it. It's important to remember that the measure of alcohol in the blood taken by breath-test machines is not a direct measure. It's an indirect measure. When getting a direct measurement of something is impossible or challenging, scientists measure something known to estimate the unknown. Without conducting a blood test, which requires a warrant, we insert radiation into alcohol vapor and take a reading of the radiation reflected back to estimate the amount of alcohol present, and then use the 2100:1 ratio to estimate what the concentration of alcohol in the blood is.

   There's always variability behind a measurement like this. We're okay with variables in some contexts. Think about the classic Double Stuf Oreo cookies. The nutritional label says 140 calories for the ridiculous serving of two cookies. My serving size while making this presentation alone was nothing short of a box, but I digress. Now, Nabisco doesn't mean that there's actually 70 calories in each cookie. That's an estimate. Actual cookies may have slight variations due to variations in the ingredients, and their proportion, to their actual size, and so on. But how much variability is okay in breath-test technology? Enough to require a warning, right?

   Well, when doing indirect measurements, variations can add up as calculations add up. So when taking indirect measurements, scientists always report the finding as well as an estimate of the uncertainty that goes along with it. But breath-test results, which involve a number of calculations and uncertainties, are not reported with a margin of error, which according to one defense attorney, "takes the testing beyond the scientific foundation on which it is built."

   There's more than uncertainty and variation in calculations that need to be taken into account though. There are other uncertainties and variations that need to be taken into account in breath-tests like the test subject themselves, how the sample is analyzed, how the test result is reported and recorded, and inspection and maintenance, including calibration of the breath-test device. In Laurie's case, it would be important to learn whether she was properly given a deprivation-observation period of at least 15 minutes to ensure that mouth-alcohol, that can skew the test results, has dissipated. And also whether the BAC test result was an analysis of at least duplicate breath specimens. Defense attorneys report that in many states, there is still only one breath-test sample being tested and the quality of the pre-test deprivation-observation is low.

   There's also a lot of coordination that must occur to get it right. In Laurie's case, even if the officer conducted a breath-test in the field, that generally couldn't be admitted as evidence. Only ones done at the station are. Laurie had to be transported to the station, then given a 15 minute waiting period, or deprivation- observation period, for dissipation of mouth-alcohol, then be subject to machine set up time before the breath-test could be conducted. And failure to provide the proper wait time could skew the result here. And more fundamentally, blood alcohol levels are supposed to reflect impairment at the time of driving. It's time dependent.

   Typically, peak alcohol in the bloodstream occurs about one half hour after consumption, but this can vary based on a number of factors like food and alcohol consumed and metabolism. Also in terms of estimating what the BAC was at the time of driving, it's important to know whether the concentration of alcohol in the blood was rising or falling. If Laurie had not yet reached peak levels when stopped, it's impossible that her breath-test reading at the station would be higher than it was while driving and vice versa. But because of physiological variables, it's impossible to measure if the driver's BAC was rising or falling at the time of the stop. Even dual detectors, like the Alcotest 7110 MK III, that do two tests of the driver's breath, they both test the exact same sample. That yields no useful information about whether BAC was rising or falling when the driver was behind the wheel.

   So as you can see, even based on this cursory review of the science of breath-test technology, there's a lot of uncertainty and variation to explore with respect to Laurie's breath-test results. It often requires expert testimony if the defendant can afford it. But in Laurie's case, it will certainly be important to talk with the client and conduct discovery into the circumstances surrounding that test result, as well as the Blowharder machine itself and its result.

   All right, as I alluded to before, here's your baccalaureate test to summarize our very basic intro into breath-test science. Just two questions, and true of false at that. All right.

   First question, true or false? As dictated by Henry's Law, a person's partition ratio of concentration of alcohol in their blood to the concentration of alcohol in their breath is always 2100:1. The answer is false.

   Henry's Law, that's the foundational law behind all breath-test machines, assumes the body temperature of 34 degrees Celsius. If Laurie's body temperature at the time she was stopped was something else, her partition ratio would be different that 2100:1 number. The International Association for Chemical Testing found in a study that the mean expired breath temperature is actually 35 degrees Celsius, and others have found that number to be up to 37 degrees. One 1989 study found that BAC increased 8.6% for each degree Celsius increase in core body temperature. And so, true partition ratios have been found from 1100:1 to 3400:1. A ratio of less than 2100:1 will actually artificially inflate true blood alcohol levels.

   And now your second question, true or false? All infrared breath-test machines take radiation readings at a broad spectrum of alcohol-absorbing wavelengths, 3.00, 3.39, 7.25, 9.18, 9.50, and 11.5 microns. What's the answer? False.

   Only some machines, like Dragers Alcotest 7110 MK III, are sensitive to infrared light up to around 9.5 microns, as founded on Beer's Law. Some infrared machines only pick up lower wavelengths, such as 3.39 microns. This means that the accuracy of test results of many devices in use today can be affected by the presence of other alcohol compounds in the breath like acetone or methanol. In fact, acetone can exist in one's breath naturally. In Laurie's case, if she has hypoglycemia or diabetes, for example, her breath may actually contain acetone naturally, which could have impacted her test result. Also, if Laurie was dieting at the time, her body would create elevated levels of isopropyl alcohol and turn it to acetone.

   In DWI defense, preparation is the most important part of representing your client zealously and competently. In a breath-test prosecution like Laurie's case, you'll need to do a heck of a lot of fact finding. You'll also need to know your client really well. You'll want to keep reminding yourself of what you are up against, the district attorney who does their best to build a fortress of evidence to box your client in. As one defense attorney said, it's "not necessary to remove every brick just enough to weaken the case. Ask yourself if the prosecution can prove this case beyond a reasonable doubt."

   Removing the breath-test evidence, or calling it into doubt, like exposing that bad breath, is a powerful way to pull out some bricks. This is because the breath-test is a prosecutorial theory in DWI cases. According to one experts, it's the "strongest piece of evidence against a motorist. It is important to review and where necessary, challenge the reliability of a chemical test." It can become very difficult to prosecute a DWI case without that result admitted as evidence.

   Of course, this must all be done in the context of the law in your state. For example, to be successful, every defense raised must be grounded in the law of your state. And this should all be done in the context of a strategy that you've devised in close collaboration with the client and in consideration of the facts you've discovered. In connection with Laurie's case, all you know about her case you've learned from her initial phone interview, that she was arrested for a DWI in Intoxichusetts, given a breath-test using the Blowharder, and received a result of .08, causing her to be booked for a DWI. Given that Laurie has retained you to defend her, you'll need to get up to speed on the facts and circumstances. You'll want to go about this in a methodical way to make sure you've covered all your bases. Here are the various tasks you'll want to undertake, in a nutshell.

   The order will matter. For example, it's important to review the police reports and learn about the machine and the operator before a full debrief with the client. And it's important to do all of these things be before reviewing the actual breath-test machine. Here's one approach to fact finding. First, review the police reports, then interview the client, then inspect the machine, then file any discovery demands, FOIA requests, and subpoenas. Next, prepare a timeline and then write a theory of defense memorandum.

   Reviewing the police reports is the first step toward learning the foundational facts, at least from the perspective of police. In general, you'll want to learn about the length of time between the stop, the arrest, the administration of warnings for refusing a breath test, and the administration of the breath test itself. You'll need to clearly establish this timeline, which you can get through the police reports and your client interview. You'll also want to look for the names of potential witnesses in the police documentation. Some experts say that these should be reviewed with the understanding that police generally have a presumption of intoxication even before a field sobriety test.

   In Laurie's case, the police report filed by the arresting officer, Officer Ardent, indicate that Laurie was stopped at 12:11 AM on Lockdown Road. Officer Ardent's report indicates that at 12:15 AM, Laurie performed three field tests, one leg stand, heel to toe, and alphabet. Ardent then placed her under arrest at 12:20 AM and took her to the precinct at 1:07 AM, the Blowharder operator, Sergeant Spitter, administered the breath-test after he placed Laurie in observation for the statutorily prescribed 15 minute waiting period. According to police records, at 1:09 AM, Laurie's BAC was revealed as 0.08. At 1:20 AM, Laurie was booked by Sergeant Spitter.

   With this context, it's also important to learn about the breath-test machine and the operator, as well as talk to some other attorneys experienced in this area of law and with this particular machine at issue in your case. Another good way to learn about the machine and possibly the operator is by attending a trial involving the same machine and same operator, if you're lucky enough. And reviewing the transcripts of that trial, you may be able to hear expert testimony about that particular device and defense attorney's theories regarding the test result and the reliability of that particular operator as a witness.

   It's important to polish up on the science behind these technologies as much as possible, as well as with the breath-test administration. It's especially important to understand any assumptions that the technology relies upon so you can determine whether any of those assumptions should factor into your defense. Speaking to former breath-test operators on similar devices can help in that regard. In Laurie's case, let's assume you speak with an operator of the Blowharder. You learn that it's a device that employs infrared spectrometry, but that one of the improvements on this newer version is that it has the ability to detect mouth-alcohol.

   Armed with this preliminary discovery, it's important to conduct a comprehensive debrief with the client, which may take a couple of hours. Be prepared for the deer in headlights look if your client can't recall the events clearly due to their alcohol intake or other condition. In this interview, it's important to clearly establish the events and the circumstances leading up to the test, as well as those test taking circumstances. After the interview, it's a good idea to type up a narrative and timeline for the client to confirm.

   In the client meeting, be a cat. That is, the topics you'll want to cover in your meeting can be remembered with the acronym CAT. C, client. Look for specifics about the client that could have an impact on the circumstances surrounding the test or the result itself like health conditions, medications, and so on. Next, A, alcohol. Look for specifics about the alcohol consumed prior to the arrest, the time, the place, the type and the amount. And then T, test. Look for specifics about the events leading up to the test, including the stop, arrest and the test itself, like the Miranda, the time of the test, people present for the test, the wait time, the number of samples, any operator statements before, during, and after the test, and so on.

   In Laurie's meeting, Laurie tells you that on the night of the arrest, she drank two bellinis at a bar. The first bellini at about 11:00 PM and the second at about 11:40 PM. She had few handfuls of peanuts while drinking and ate almost a whole pizza at about 7:00 PM. Laurie then confirms the accuracy of the police reports in terms of the basic timeline in them. Laurie says that when she was taken to the police station, about 10 minutes away from her arrest location, she was observed for a while by Sergeant Spitter, but there was then an altercation in the parking lot that took Sergeant Spitter out of the room briefly. On his return, he made her wait a while longer until he brought her in for testing a little after 1:00 AM. After explaining next steps, you say goodbye to Laurie and offer her a piece of your mother's heavenly fudge on the way out. She says, "Oh, oh, oh no, thanks. I've been on keto for months now."

   In fact gathering, your next step is to inspect the crime scenes, specifically the testing machine and the location of the client's arrest, as well as their journey up to that point. Regarding the testing machine, you want to inspect and photograph the breath-test machine. Given that infrared breath-testing machines have been deemed reliable by courts, defending a client competently in a breath-test prosecution requires a nuanced understanding of the technology. Getting access to the actual breath-test device can be done informally by contacting the DA or formally by motion.

   Regardless of how that access is granted, here are some important things to remember. First, bring your smartphone. You should take photos and request to do so in advance. Maybe you can take a video too. Photos can be critical in developing your theory of the case and in filling out your defense for jurors, most of whom have probably not seen an infrared breath-testing device before. Second, focus on the big open-ended questions you still have after having reviewed as much material on the machine as possible and talk to as many people about it as possible. Third, see if anyone will talk to you about the machine, including the actual operator. If they refuse, make a note about it.

   Regarding inspecting the location of the arrest, remember that it was the client's driving that got them pulled over in the first place. So it's important to inspect the road traveled to learn from the client's point of view, from their perspective, how they saw the road and to estimate the conditions at the time of the arrest. In Laurie's case, you'd want to drive the route from the bar she left to the location of the arrest. You'd want to examine the road. Are there potholes to swerve around? One DWI attorney suggested, "Counsel may find it helpful to attempt recording what the client saw by driving the route with a video camera." You'll also want to walk that exact spot where Laurie was given her field test. What's the ground like at that spot? Were there adverse weather conditions that night? How would that have impacted Laurie as she was driving down the road? On her visibility? On the terrain?

   Even after all this, your understanding of the facts isn't complete. Enter discovery, demands, FOIA requests, and subpoenas. There are basically two kinds of breath-test evidence. First kind, the actual test results admitted. And the second kind, the certificates that attest to the calibration, functioning and maintenance. The defense attorney has to demand specific evidence, including all documentation regarding the breath-test machine and all documentation regarding the officer's certification to use that machine. This is really what separates the casual DWI attorney from the career DWI attorney.

   In Laurie's case, imagine that you learn through document requests that the Blowharder's simulator test follows a different pathway in the machine than the driver's actual breath does. In the Blowharder, the simulator air was not blown through the same tube that Laurie blew in. Through the document requests, you confirm that the Blowharder can apparently detect mouth-alcohol, and despite this, Intoxichusetts law still requires a 15 minute observation period. You also learn through a FOIA request that Intoxichusetts police had software modified on the Blowharder device because people believed that the device over detected mouth-alcohol.

   Next, preparing timelines is key in piecing the facts together, identifying any gaps, and developing an overall theory of the case. There are at least two important fact syntheses that need to occur, a timeline for breath-test and analysis, and the machine features, maintenance, and operation.

   Here's a rough timeline for Laurie Lightweight's case based on the facts adduced in discovery. So 7:00 PM, Laurie eats nearly a whole pizza, but she's also on this keto diet, which is worth noting. At 11:00 PM, Laurie drinks bellini one at the bar and bar food. At 11:40 PM, Laurie drinks bellini two at the bar and eats bar food. At 12:11 AM, Laurie is stopped for not staying in her lane. At 12:15 AM, Laurie is given field tests. At 12:20 AM, Laurie is arrested, given Miranda, and taken to the precinct. At 12:20 AM, Laurie arrives at the precinct and from 12:20 AM to 1:07 AM, the timing of the observation period is unclear. Sergeant Spitter observes Laurie for a while, sergeant Spitter leaves due to an altercation, and Sergeant Spitter returns to start observation period over. At 1:07 AM, spitter gives the Blowharder test and at 1:09 AM, the result 0.08 is obtained.

   Now, what we know about the Blowharder is the following. It uses infrared spectrometry. There's a simulator test separate from driver breath. It detects mouth-alcohol. The software was modified to tone down mouth-alcohol detection. And there's a certificate of calibration, certificate of analysis and operator permit, and all appear copacetic. As you can see from Laurie's chronology, there's a lot unknown about the observation period at the station. A pre-trial hearing would be an appropriate forum to learn more about that observation period, as well as specifics about Sergeant Spitter's training and any retraining.

   Next, you may conduct pre-trial hearings to oppose the admission of the breath-test score. Depending on the jurisdiction, it may be important to assess, among other things, whether the test administration, the machine, and the operator were susceptible to an attack in the pre-trial phase. The information adduced from pre-trial hearings can be critical in fleshing out the timeline, which should be continually updated with any new information.

   Once the facts are well-developed, the next step is drafting a theory of defense memorandum. Developed over time, the theory of the defense is a short statement that gives the overarching rationale for why your client should not be convicted. The theory itself is best kept to one page or less and the memorandum supporting that theory may be longer. In Laurie's case, it appears that the defense could focus around the machine, the operator, and the subject, though you'd want to zero in further on the most likely defenses and why they compel a decision in your client's favor.

   Let's look at some of the common defenses to breath-test prosecutions. Each defense needs a legal basis and availability may differ ending on the law in your jurisdiction. We'll do this in the context of Laurie's case. Now defenses in breath-test prosecutions can be divided into three basic categories, defenses based on the subject which may require experts, defenses based on the machine which often requires experts, and defenses based on the operator.

   Let's take a look at some subject based defenses that you could assert in Laurie's case. These are defenses involving something unique about the client that could have impacted the breath-test reading. Is there anything about Laurie or her actions might make you believe her breath-test result was incorrect? Well, here's the first defense, relation-back or extrapolation. The essence of this defense is that the BAC result is not an accurate depiction of the client's BAC at the time they were stopped. In Laurie's case, you'd be arguing that even though her BAC was 0.08 at the time of test administration, her BAC when driving was actually lower than that. In short, you'd be arguing her blood alcohol concentration was rising at the time of the arrest.

   To determine this, you'd need to understand the science of the body's processing of alcohol, or pharmacokinetics, as well as Laurie's metabolism. Whereas peak alcohol uptake typically occurs within in about 30 minutes after drinking, it's possible that Laurie's food intake, combined with her overall keto diet, could impact absorption. When you're following the keto low carb diet, which places the body in ketosis, the body can't absorb as much alcohol so you get drunk faster. On the other hand, high intakes of carbs, like a whole pizza in Laurie's case, can decrease alcohol-absorption. If Laurie had been strictly following keto and cheated with a whole pizza, it's even more likely that her body could have been unable to absorb alcohol as it normally would. This is the type of defense that would likely require an expert, as you can imagine.

   The next defense is partition ratio of less than 2100:1. Another possible defense is that Laurie's partition ratio of concentration of alcohol in her blood to the concentration of alcohol in her breath is less than 2100:1 due to her body temperature. Remember that's Henry's Law. It assumes a body temperature of 34 degrees Celsius. If Laurie's body temperature at the time she was stopped was something else, her partition ratio would be different. In Laurie's case, if Laurie blew a 0.08 and actually has a partition ratio of 1400:1, it's possible to manually calculate her BAC. The formula is the BAC test result, divided by 2100, times the client's actual partition ratio and that results in the actual BAC. So in Laurie's case, if her test result was 0.08, we divide it by 2100, and that equals 0.0000381, times her partition ratio 1400, and we get her actual BAC, 0.053. This shows that if Laurie's partition ratio is lower than 2100:1, which it could be, the BAC she blew on the device would actually inflate her true BAC. This may be the foundation for a defense, depending on the jurisdiction. A lower partition ratio can result from a number of physiological issues, including higher mouth temperature and dehydration, even. This type of defense would probably, as you can imagine, need an expert too.

   Now what about defenses based on the machine? As with other defenses, the availability of defenses depends on the law of your state, but some common defenses are raised in Laurie's case. For example, the simulator validation defense. There are a number of ways to attack the validation of a breath-test result depending on the device and the jurisdiction. A simulator solution is the device's way to confirm its accuracy. As we learned in Laurie's case, the simulator solution that validates test results does not travel the same pathway through the device as the test takers alveolar air, or air from the lungs. This means that the Blowharder technology assumes that there are no changes to the simulator vapor that would occur if it was blown through the same pathway as the client's air. How can a specific test result be validated when it doesn't travel the same pathway? This is a defense that may need to be explored with both the operator in cross-examination and with an expert.

   And another defense based on the machine is the mouth-alcohol detection. Whereas older devices could not detect mouth-alcohol, newer devices like the Blowharder do, but not when they don't work properly. In Laurie's case, we learn that the police department had the software on the Blowharder modified because they thought it was over-detecting mouth-alcohol. This is perhaps the best avenue to a winning defense for Laurie, because it calls into question the reliability of the whole Blowharder product, but also for anyone who's been tested since the Blowharder software was modified. This is the stuff that a DWI breath-test defense theory is made of. Law enforcement in the Commonwealth of Intoxichusetts modification of its breath-test device to effectively turn down mouth-alcohol detection isn't the first time that this has occurred. South Carolina police in fact did the same thing on their BAC DataMasters. Other defenses that aren't applicable here in Laurie's case might include, but aren't limited to, the faulty instrument defense and the assumption defense.

   Now finally, what about defenses based on the operator? Well, here's one, the observation period defense. Even in states that use breath-tests that detect mouth-alcohol, they typically still require observation periods to ensure that all mouth-alcohol that could otherwise skew test results as expired. In Laurie's case, it's unclear whether Laurie was observed by Sergeant Spitter uninterrupted for the statutorily prescribed 15 minute observation period. Spitter left mid-observation and then Laurie waited a while again upon his return. Depending on the jurisdiction, an officer's failure to strictly comply with a waiting period may not result in the inadmissibility of the breath-test result though. This is a defense that often goes to the weight of the evidence, not the admissibility of evidence. It can be established on cross-examination of the device operator who will essentially need to commit to a 15 minute uninterrupted period of time.

   Other defenses that aren't necessarily implicated by Laurie's case might include the inadequate training defense and the falsification defense. As you can see, there are a number of defenses that Laurie could make to the admissibility of her breath-test result. Defenses based on her own condition, the device, and the operator. Again, any defense used needs to have a basis in law, which means the availability of defenses tends to vary from jurisdiction to jurisdiction. In Laurie's case, finding a hook, you know that winning defense theory or strategy, really matters. Given Laurie's 0.08 BAC result, a .01 discrepancy could mean the difference between guilt and innocence.

   In this introduction to DWI and breath-test technology, we don't have time to review all of the important foundational topics that we wish we could, like a more thorough examination of the science, a direct and cross-examination of witnesses discussion, developing a strategy around video evidence, or damages issues, to name a few. Educating oneself about the area and keeping abreast of new developments in technology and in law is a constant practice. Here's some great advice about staying current from an experienced DWI attorney, "Every day I get into the office at 7:00 AM and spend 90 minutes reading all of the recent articles and publications and looking at and contributing to all of the forums. I try to continually educate myself every day of the week."

   Thank you for joining us for this introduction to DWI and breath-test technology. To learn more about the content of today's presentation, you can check out the accompanying course materials, which today's slides and associated presenter notes. Thanks so much for choosing Quimbee.

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