The Four Theories to Win a Breath Test Case

  • I. Head to Head
  • II. I Believe It When I See It
  • III. Garbage In/Garbage Out
  • IV. No Extrapolation

Head to Head

Voir Dire Questions
Q. Without saying what it is… raise your hand if you have “any” connection or knowledge of the breath test machine?

Q. I am going to ask you to put yourself in one of the following categories:
1. I believe the breath test machine is accurate and will require the defense to prove to me that the test score in this case was not accurate.
2. I will require the State’s attorney to prove to me that the test score in this case was accurate.
3. Your personal category:

Q. What does “beyond a reasonable doubt” mean to you?

Q. We all agree that the burden of proof for the first two elements of DWI… not normal mentally or not normal physically (point to the prosecutor’s board) …must be proven beyond a reasonable doubt…

Q. But does the burden of proof… “beyond a reasonable doubt” apply to the accuracy of the breath test score?
In other words, accurate 58 up to 68
What would you do?

Head to Head Index
A. Bias of State’s Expert
B. Partition Ratio – *under “garbage in – garbage out”
C. Length of Breath – *under “garbage in – garbage out”
D. Observation Period / “In Presence” – *under “garbage in – out”
E. Slope Detector / Ketones – *under “garbage in garbage – out”
F. Differences Between Two People –*under “garbage in – out”
G. Reference Solution / Stimulator Solution
H. Subject Test Agreement
I. Modem Check
J. Computer Print Out
K. Cost of Instrument
L. Sample Chamber
M. Computer Chip
N. Solenoid
O. Accuracy of Instrument
P. DVM - Digital Voltage Measurement
Q. Filter Wheel
R. Chopper Motor
S. Source Lamp
T. Warranty
U. Toxitrap
V. Preservation of Sample
W. Right to a Blood Test

A. Bias of State’s Expert
Q. Did you have any knowledge of the breath test machine before you came to work for the county?
Q. Part of your job description is to testify in court.
Q. Your salary is paid by __________ County.
Q. Over the years, you have testified 100’s of times?
Q. Have you viewed the video in this case?

B. Partition Ratio-– *under “garbage in garbage – out”
C. Length of Breath – *under “garbage in garbage – out”
D. Observation Period / “In Presence”– *under “garbage in garbage – out”
E. Slope Detector / Ketones – *under “garbage in garbage – out”
F. Differences Between Two People – *under “garbage in garbage – out”

G. Reference Solution / Simulator Solution
(Note: always look at the reference solution score. Issue: is it close to being out of tolerance?)
Q. The breath-alcohol simulator is an ideal Henry’s Law system consisting of a dilute solution of ethanol in water maintained at 34° C.
Q. The simulator solution is intended to simulate human test subjects.
Q. The reference simulator is a closed container, kept at a constant temperature, with a power wheel that spins the fluid to keep the temperature and mixture constant throughout the liquid
Q. The tolerance of the reference sample is plus or minus .01.
*Issue: If the score is close to the limit (of being out of tolerance) ask:
Q. If the reference solution had been off by another one thousandths of a gram per 210 liters of breath… the entire test would have been invalid.
*Issue: If the reference test is “above” the predicted amount:
Q. How is it possible that the solution gains alcohol after it is sealed?
Q. Will you agree that it is very rare for the reference solution to read above the predicted value?
Q. Re Celsius measurement, for every one degree increase of the temperature of the reference solution, the test score increases by .006.
Q. The reference solution must be 34 degrees Centigrade / plus or minus .01.
Q. 34 degrees Celsius equals 92 degrees Fahrenheit
Q. One degree Celsius is just under 2 degrees Fahrenheit
*(Need conversion chart)

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H. Subject Test Agreement
Q. The test score of the second breath test sample must be within plus or minus .02 of the first sample.
Q. If the first breath test score was .08, a second score of .06 would be accepted as within tolerance and a test score of .10 would be accepted as within tolerance.

I. Modem Checks
Q. You often check the instruments over the phone line with a “modem check”.
Q. You connect to the instrument over a phone line and run a series of diagnostic tests.
Q. You have had instances where the “modem check” reported the instrument was operating correctly but you later confirmed that there was a problem with the instrument.

J. Computer Print-Out
Q. You have had instances where the instrument printed a test score, the individual was arrested, and later it was determined that the test score was invalid.

K. Cost of Instrument
Q. The cost of the breath test instrument is about 6 thousand dollars
Q. The cost of the instrument that analyzes blood is about 100,000 thousand dollars.

Imp: Don’t ask which is more accurate/ save for final argument:

L. Sample Chamber
Q. The volume of the sample chamber is 81 milliliters.
Q. 81 milliliters is about the same volume as a third of a 12 ounce Coke can.
Q. The sample chamber is a metal tube / about 11 inches long
The diameter is about one half inch
The walls of the tube are about three quarters inch thick
Q. Over a period of time, the sample chamber collects dust inside the cylinder.
Q. Do you know the last time that the sample chamber in this instrument was cleaned?
Q. At one end of the tube there is an infrared detector – at the other end of the tube an infrared source.
Q. The amount of alcohol measured is an expression of grams of alcohol per 210 liters of breath.
Q. 210 liters is about the size of a 55 gallon oil drum.
Q. A gram is equal to the amount of powder in a Sweet and Low package.
Q. To obtain a reading of .10 – You would pour one-tenth of a packet of Sweet and Low into that 55 gallon drum.
Q. The amount of alcohol to register .10 in the 11 inch sample chamber is .08 divided by 2,300.
Note: alcohol is not being measured
Q. The amount of alcohol in the sample chamber is 3 millionths of a gram of alcohol or .000003.
(Imp: Do not ask the State’s expert if that is a small amount.)

M. Computer Chip
Q. This breath test instrument has the same computer chip that was used in 1980

N. Solenoid
Q. What is the function of the solenoid?
Q. You sometimes have to rebuild the solenoid.

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O. Accuracy of Instrument
Note: ask this question if you have a score close to .08
Per Larry Boyd transcript of Alvin Finkley / February 7, 2006, pg. 34, There’s nothing that is infallible, but we like to maintain a confidence level of 95%. That means 5% plus or minus .005.
Work
Q. The instrument has a margin of error of plus or minus 5 percent.
*(this equates to .005)

P. DVM - Digital Voltage Measurement
Q. Degradation of the source lamp can cause problems with digital voltage measurement.
Q. The source lamp is the light bulb at one end of the 11 inch testing chamber.
Q. Digital voltage measurement problems can occur if the chopper motor is not turning at the correct revolutions.

Q. Filter Wheel
Q. The filter wheel must turn at a speed of 2,200 to 2,300 revolutions per minute. Wk pg. 39 McCollum transcript cleaned.
Q. Over a period of time, the filter wheels have to be cleaned.
Q. Prior to this test, when was the last time the filter wheel was cleaned in this instrument?
Q. Over a period of time, the speed of the filter wheel has to be adjusted.
Q. Over a period of time, the filter wheels have to be replaced.
Q. Has the filter wheel been replaced in this instrument?

R. Chopper Motor
Q. The chopper motor is for:
Q. Has the chopper motor been repaired in this instrument?

S. Source Lamp
Q. The infrared source lamp can collect dust?
Q. When is the last time the source lamp was cleaned prior to this test?
Q. Over a period of time, there can be degradation of the source lamp.
Q. Has the source lamp been replaced in this instrument?

T. Warranty
Q. These instruments are manufactured in Owensboro, Kentucky by a company called CMI.
Q. In fact, in the state where this Intoxilyzer is manufactured… Kentucky, that state does not use this instrument in their breath testing program?
Q. When was this instrument purchased?
Q. The warranty on this instrument is for one year from date of purchase?
Q. Does the gas chromatograph come with a warranty that guarantees that it is accurate to determine the blood alcohol content in a subject’s test? (need to work / subpoena warranty for gas chromatograph)

U. Toxitrap
Q. The instrument is “capable” of preserving a breath sample to be tested at a later time.
Q. The Toxitrap is a device that can be attached to the breath test instrument that will preserve the breath test sample.
(Note: the expert will say that it is not accurate.)
Q. The Toxitrap is sold by the same company that sells the breath test instrument.
(Note: Save for final argument: The same company that sells the breath test instrument sells a device that the State’s expert testified is not accurate.)
Q. The cost to preserve the breath sample is about 2 dollars.

V. Preservation of Sample
Q. When a breath test is given, the breath sample is not preserved.
Q. When a blood test is given, the blood sample is preserved.
Q. That preserved blood sample can be retested by an independent lab at a later time.
Q. Whose discretion is it to ask for a breath test or a blood test.

W. Right to a Blood Test
Note: Cover this with the operator
Q. The Texas Transportation Code, Section 724.019 (need copy of statute) states…
Q. If an individual takes the breath test… they are then given the opportunity to have a nurse take their blood?
Q. Did you inform my client of this right to a blood test?
Note: Save further questions for final argument.
Q. Have there been times when you have asked the person to take a blood test? (Often with non-English speaking defendants)
Q. So your jail is staffed to take blood tests. (Not in smaller cities)
Q. The Code states (need to confirm in breath test manual) that the arresting officer can ask for a breath or blood or both?
 

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I Believe What I See

Voir Dire Questions
Q. Without saying what your knowledge is… raise your hand if you have “any” connection or knowledge of the breath test machine?

Q. I am going to ask you to put yourself in one of the following categories:
1. I believe the breath test machine is accurate and will require the defense to prove to me that the test score in this case was not accurate.
2. I will require the State’s attorney to prove to me that the test score in this case was accurate.
3. Your personal category:

Q. What does “beyond a reasonable doubt” mean to you?

Q. We all agree that the burden of proof for the first two elements of DWI… not normal mentally or not normal physically (point to the prosecutor’s board) …must be proven beyond a reasonable doubt…

Q. But does the burden of proof… “beyond a reasonable doubt” apply to the accuracy of the breath test score?

Ms X (always Ms)
Q. What is your favorite drink?
You leave here and go to lunch with your best friend…
You are upset because you didn’t get picked for the jury…
You start drinking and have 5 beers (your favorite drink) in one hour
Q. How would you appear as you left that restaurant?

Texas Rules of Evidence - Article VIII Hearsay - 803
The following are not excluded by the hearsay rule, even though the
declarant is available as a witness:
(18) Learned Treatises.
To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art establishes as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may
be read into evidence but may not be received as exhibits.

I Believe What I See Index
A. Appearance at High Test Scores
B. Calculation of the Number of Drinks
C. Elimination– *under “garbage in – out”

A. Appearance at High Test Scores
CONCEPTS:
1. Re: Transcript of Marcellena Burns
Pg. 12 – People at .15 are visibly, obviously intoxicated
2. RE MASKING:
*WAT and OLS are designed to rule out tolerance.
CONCEPTS:
Issue: Need to eliminate the prosecution’s argument that the defendant is a heavy drinker and can mask the affects of alcohol.

Strategy: Does the defendant have anyone who will testify that he is not a heavy drinker.911 Note: If the defendant has any prior DWI or PI… this will open the door.

B. Calculation of the Number of Drinks
Q. Issue: Have the State’s expert calculate how much alcohol is in the defendant’s body “at the time of the test”.
Q. Issue: Calculate the number of drinks on board:
For a male/female
that weighs _____
and registers a _____ breath test

How many drinks does that reflect are in the person’s body at the time of the test.

C. Elimination - *Under “No Extrapolation”
Q. A 150 pound male eliminates about one beer per hour. *refer the Texas breath test manual.
Q. So in addition to the number of drinks in the body, to get the total number of drinks consumed in the evening, you would add one for every hour of drinking.

Trial strategy:
*Have the defendant testify what and when he had eachdrink.
Testimony is enhanced by:
1. Receipts for drinking;
2. Witnesses to his/her drinking;
3. Bartender or waitress that served the drinks
 

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Garbage In/Garbage Out

Voir Dire Questions
Re “Averages”
(Issue: the breath test machine works on the assumption of 2,100 to 1 BBR.)
Q. There are times when using averages is very helpful but there are times when using averages is misleading?

Texas Rules of Evidence - Article VIII Hearsay - 803
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(18) Learned Treatises.
To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art establishes as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may
be read into evidence but may not be received as exhibits.

Garbage In/Garbage Out Index
A. Bias of State’s Expert– *under “head to head”
B. Physiological Variables
C. Hematocrit Factor
D. Reference Solution– *under “head to head”
E. Partition Ratio
F. Person’s Temperature
G. Length of Breath
H. Pressure of Breath
I. Observation Period “In Presence”
J. Accuracy vs. Precision
K. Calculate Number of Drinks - *under “I Believe What I See”
L. Difference Between Two People - *under “Head to Head”

A. Bias of States’ Expert - *under “Head to Head”

B. Physiological Variables
Q. Do you agree with Dr. A.W. Jones that 70% of uncertainty in the breath test results is attributable to physiological variables.

*(Pg. 1238 Dominick A. Labianca study: “the flawed nature of the calibration factor in Breath-alcohol analysis)

C .Hematocrit Factor
Q. The hematocrit represents the fraction of whole blood composed of red blood cells and is correlated with the aqueous content of blood.
Q. The higher the hematocrit, the lower the concentration of water in blood.
Q. Ethanol dissolves almost entirely in the aqueous component of blood.
Q. The person with the higher hematocrit, and therefore lower blood-water content, would have a higher breathalyzer reading.
Q. Per “the chemical basis of the breathalyzer” by Dominick Labianca – “variance in hematocrit can produce errors in breath test results in the 10 to 14% range.

D. Reference Solution - *under “Head to Head”

E. Partition Ratio
Q. The instrument relies on an assumption that all people have a breath to blood partition ratio of 2,100 to 1.
Q. However, Dr. Dubowski has written that:
the ratio is 2,573 to 1.
*(in: The Flawed Nature of the Calibration Factor in Breath-Alcohol Analysis) by Dominick A. Labianca, Dept. of Chemistry, Brooklyn College, page 1237
Q. *(In same study as above: Dominick Labianca writes on pg. 138)
Do you agree with the statement of Dominick Labianca when he writes: “The blanket claim, therefore, that the result of a breath-alcohol analysis reflects the subject’s actual BAC within the same narrow margin of error characterizing simulator-based calibrations, is misleading and untenable.” pg. 1238
Q. *(note: re the next question: do not use if you test score is more than 40% over .08)
Do you agree with Dominick Labianca when he writes: that the partition ratio can produce an error of up to 42%. pg. 1238
 

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F. Person’s Temperature
Q. If a person’s temperature is raised by one degree Fahrenheit, that person’s test score will be increased by six percent (.006) up to 8 percent.
Q. “Studies have shown that the BBR changes with temperature by factors ranging from 6.5%/C (30) to 8.6%/C (29)
Re research study: “The Flawed Nature of the Calibration Factor in Breath-Alcohol Analysis” by Dominick Labianca, pg. 1239
You will agree that the operator’s manual for the “Texas Breath Alcohol Testing Program” states:
Q. On page 7, “Human body temperature is 98.6 degrees Fahrenheit or 37 degrees Celsius”.
And
Q. On page 7, “Breath leaves the mouth at 93.2 degrees Fahrenheit or 34° Celsius.
Q. One degree Celsius is 1.8 times as large as each degree Fahrenheit.
Q. Water freezes at 32° Fahrenheit or 0° Celsius.
Q. And water boils at 212° Fahrenheit or 100° Celsius.
Q. A person can have a body temperature of 99.6 degrees and still be considered in the normal range.
Q. You will agree that the same person, if he takes the test at normal body temperature and all factors are the same and he takes that test with an elevated body temperature the test score will be higher with the elevated body temperature.
Q. Did anyone take the temperature of Mr. X prior to taking the breath test?
Q. This instrument doesn’t measure the individual’s temperature who is breathing into the instrument.
Q. There are instruments on the market that measure the person’s breath temperature.
Need literature, etc.
Draeger

G. Length of Breath
Note: Establish through the operator that they are taught to look at the asterisks on the screen and to have the second test match the number of asterisks of the first test.
Q. Have you observed an individual blow into the instrument for 6 seconds and the instrument accept that specimen and then provide a test score.
Q. .02 for 150 male equates to about one 12 ounce beer.
Q. Have you seen on the print outs where the two scores of the same individual vary by .02.
Q. Will you agree that an individual cannot absorb or eliminate a 12 ounce beer in 3 minutes?
Q. Will you explain to the jury what causes this .02 variance in the test scores. *(breathing pattern)
Q. Do you recognize Dr. Allen Jones as an expert in the field of breath testing.
Q. Will you agree that Dr. Allen Jones has written that breathing pattern alone can cause a 30% variance in the breath test score.
Q. As a person blows into the instrument, asterisks register on the instrument panel.
Q. The operator is taught to view the display panel as the person blows into the instrument.
Q. The operator is taught to have the tested subject blow the same number of asterisks on the second test as they did on the first test.
Note: Establish this with the operator of the instrument before the expert testifies.
Q. Would you agree that you have seen the reports where the test difference… the same person that gave two samples, the test scores varied by .038.
Q. Do you agree with Dr. Hlastala when he writes that: “The length of time involved in breath sample delivery is also a critical variable in breath analysis.” Hlastala has found that errors in BAC of as much as plus or minus 50%, or more, can occur by altering the breathing pattern.

H. Pressure of Breath
Q. Do you agree that the pressure that a person breathes into the instrument can affect the test score.

I. Observation Period “In Presence”
Q. There is a 15 minute “in presence” requirement to verify that:
A. The tested person does not consume any alcohol during that 15 minutes
B. Make sure the tested person does not put anything in their mouth
C. Make sure the person does not regurgitate any stomach content back into the mouth.
Q. If alcohol is present in the stomach and some of it is regurgitated back into the mouth, a portion of that does will be absorbed in the mouth. - Pg. 40 of Texas Breath Test Manual
Q. Were you present during this 15 minute “in presence” requirement.
Q. The presence requirement of 15 minutes “in presence”… is different from what it was several years ago.
Q. Will you agree that the manual from the manufacturer of the instrument states that the tested person is to under “direct observation” for 15 minutes prior to the test.
note:
The time that the defendant is in the back seat being transported will not count towards the 15 minute “in presence” requirement.

J. Accuracy vs. Precision
Dr. Wimbish to explain and develop questions:

K. Calculate the Number of Drinks - *under “I Believe What I See”

L. Differences Between Two People - *under "Head to Head"
 

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No Extrapolation

Voir Dire Questions
As the judge stated (if the judge did so) the offense is driving “while” intoxicated
So
Q. What is the critical time that the breath test must be .08 or higher?
Q. Does the burden of proof… “beyond a reasonable doubt” apply to providing .08 or higher… “at the time of driving”

Texas Rules of Evidence - Article VIII Hearsay - 803
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(18) Learned Treatises.
To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art establishes as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may
be read into evidence but may not be received as exhibits.

Cross and Concepts (for State’s Expert)

Critical Issue: The prosecution will stress:

“ELIMINATION”

but you have to stress:

“ABSORPTION”

Critical Issue: Discuss using your own expert

No Extrapolation Index
A. Elimination Phase
B. Absorption Phase
C. Higher / Lower / The Same
D. Extrapolation

A. Elimination Phase
Q. From the stomach, alcohol enters the small intestine.
Q. Alcohol is rapidly absorbed into the body by the small intestine.
Q. But alcohol may not leave the stomach for a long period of time.
Q. The pyloric sphincter controls the passage of material from the stomach to the small intestine.
Q. The pyloric sphincter remains closed longer when there is food in the stomach.
Q. The type of food may affect the absorption rate but the amount of food is the most important factor. (pg. 40, Texas Breath Test Manual)
Q. Alcohol is metabolized through the liver.
Q. Regarding the elimination of alcohol from the human body… would you explain the term “elimination rate.”
Q. What is the average elimination rate? (.026?)
Q. A 150 male eliminates about 1 12 oz. beer per hour.
Q. If there is alcohol in the body, the body is constantly “eliminating” that alcohol.

B. Absorption Phase
Q. On the opposite side of elimination, we have absorption of alcohol.
Q. You will agree that there is no “average” absorption rate?
Q. Why is there no “average” absorption rate?
Q. Absorption occurs mainly in the small intestine.
Q. Alcohol can be in the stomach but the body not be absorbing that alcohol?
Q. At the same time that alcohol is being absorbed it is also being eliminated.
Q. According to Dr. Kurt Dubrowski, absorption can take as much as 138 minutes.
(Issue: The State’s expert will say… on an empty stomach, absorption can take between 30 minutes to an hour.)
Q. It is possible that at the time of driving… a person’s concentration of alcohol in their blood could be under the legal limit but an hour later it could be over the legal limit.

C. Higher / Lower / The Same
Q. The time of the test in this case was _____ minutes after the time of driving.
Q. If we know the breath test score at _____ there are 3 possibilities as to what the score would have been at the time of driving.
Q. The breath test would have been higher, lower, or the
same.

D. Retrograde Extrapolation
Q. Retrograde extrapolation is the attempt to determine the test score at an earlier time. *Work
Q. Factors that you need to know are:
Gender of individual
Weight of individual
Time and type of food consumed
Time of first drink
Time of last drink
Amount and type of drink
Time of stop
Time of test
Re time of last drink:
Q. To determine extrapolation, you must have the time of the last drink.
(Note: During final argument, object if the prosecution argues that only one person knows the time of the last drink – comment on defendant not testifying)
Q. Re food in stomach:
The amount of food in the stomach is an important factor in deciding how long it takes for alcohol to be absorbed.
Per study: “Statistical Analysis of Blood to Breath-Alcohol Ratio Data in the Logarithm-Transformed and Non-Transformed Modes” written by Professor Dominick A. Labianca and Dr. G. Simpson, Department of Chemistry, Brooklyn College.
On page 115 of their study:
Q. “Baselt and Dunhof (24) reported that, for fasting subjects, 0.5 to 2.1 hours after the end of drinking must elapse before peak blood-alcohol concentration is reached.”
Q. For non-fasting subjects, 1.0 to 6.0 hours after the end of drinking must elapse before the peak blood-alcohol concentration is reached.
 

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