dwi trial prep

Dr. Booker's Forensic Toxicology Section

Q: My expert tells me I need to get 30 days of "subject test" records and 30 days of maintenance records for the Intoxilyzer used to test my client for the 30 days prior to the test and for the 30 days after the test. He also says to get them on discovery well in advance of the trial, not by subpoena duces tecum at the time of the trial. Is this really necessary?

A: Yes, it is. There are at least two reasons. First, it is quite common for the state to provide incomplete records. For example, the subject test records in the state's possession show, for each test conducted over that 60 day period, the following: time of test, date of test, operator name, reference value found, the results of both subject tests, and any error codes generated during the testing processes. All of these factors are important to your expert (and to you and to your client) because they expose any problems that the machine, the operator or the technical supervisor are encountering, and they tell you what, if any corrective action has been taken. Omit the operator name, and you can't see clusters of bad tests conducted by the same person; omit the time, and you lose the right to question whether the test of your client may have been improperly conducted; no reference values means drift in the calibration escapes your attention, and
so forth. You don't know what may be significant until you look at all the information, and if you don't have it ahead of time, you may not have it at all, especially if you work in Austin or Houston.

The maintenance records are different because they tell you more about the people who maintain the machines. For example, one of the technical supervisors in the Houston area had error codes that were screaming at him that there was a serious problem with one of his machines. He did nothing about it for the THREE weeks those problems were showing up. (Did I mention that his office is in the same building with that machine?)



M&M#7: Direct observation of the subject for at least 15 minutes prior to conducting a breath test is not necessary to assure that the results of the test will be accurate

Original Source: The Scientific Director of the Texas Breath Alcohol Testing Program

Affected Region: Throughout the State of Texas; Not applicable in other regions

Citation: Texas Breath Alcohol Testing Regulations §19.3(c)(1) – “Direct observation is no longer necessary to assure the validity or accuracy of the test result.”

Discussion: It is universally accepted that an accurate breath test can only be made if the air being sampled is taken from the lungs in such a manner that there are no contaminants introduced during its passage from the lungs into the breath testing device. In essence that is a two part requirement that (1) the sample is “deep lung” (or “alveolar”) breath (Texas even includes this specific requirement in Texas Breath Alcohol Testing Regulations §19.1(b)(1) – “Breath specimens collected for analysis shall be essentially alveolar in composition.”) and (2) that no contaminants be present.

Ensuring that the second of these requirements is met comes down to making sure that the mouth is free of contaminants, particularly contaminants that contain alcohol or a substance that could mimic and be confused with alcohol by the breath testing device. Research going back to the origin of breath testing has shown that if there is nothing in the mouth that can continually generate contaminants – tobacco, gum and candy being the most common sources of such contaminants – and if no contaminants are introduced for a period of at least fifteen minutes prior to the breath sample being taken, then a contamination-free sample can be obtained. Obviously the precaution of depriving the person to be tested of food, water, tobacco, etc (hence the often used term, “deprivation period”) is necessary, but the really subtle and hard to detect source of contamination is alcohol brought into the mouth from the stomach as a gas (burps, belches) or liquid (vomit which may or may not be obvious under conditions ranging from projectile vomiting to a “wet burp”.) The only assurance that stomach contents do not contaminate the sample is a conscientious observer carefully and closely observing the subject. This was, in fact, required by the Texas Breath Testing Program as it was and still is in every other breath testing regime (For example, 1988 Texas Breath Alcohol Testing Regulations §19.3(c)(1) required “continuous observation of the subject for a minimum period of time as set by the Scientific Director prior to the collection of the breath sample during which time the subject must not have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten, smoked or introduced a ny substances into the mouth.” In 1990, this regulation was changed to the current, “A period during which the operator is required to remain in the presence of the subject. An operator shall remain in the presence of the subject for at least 15 minutes before the test and should exercise reasonable care to ensure that the subject does not place any substances into the mouth. Direct observation is no longer necessary to assure the validity or accuracy of the test result.”

Considering that the Texas breath test instrument before and after the change was the same Intoxilyzer 5000 and that the state had no new research data or theory on which to base the change, especially considering that it removed the only primary protection mechanism to ensure an uncontaminated sample, why was the change made?

The answer comes from one (actually from several) of the technical supervisors who were employed by the breath testing program when the change was instituted: Alvin Weatherman, the named author of the Breath Test Operator Manual when the change was made engaged in this dialog in State of Texas v. Jeffrey Burt, Cause No. 527,044 in the County Court at Law No. 3 of Travis County, Texas, May 22, 2002:

A: Yes. Our regulations state that an individual should be in the presence of the operator for a minimum of 15 minutes prior to the analysis.

Q: What is the purpose of that observation period?

A: Primarily to ensure that the individual that we're going to collect that sample from doesn't have something in the mouth, such as a liquid or a solid. Primarily to protect the integrity of the instrumentation so that we don't have them put something into that chamber, such as a solid or liquid. That – because if that happens, then we're going to have to take it out of service and go through it and clean it out. But it's primarily to protect the instrument; to be sure that there's no damage done to the instrumentation.

Now we can parse that new regulation. It breaks down into three distinct parts:

First, direct observation is no longer required because the Director of the Breath Alcohol Testing program has decreed that it is not required. That decision may have been made for any number of reasons – a belief that mechanical, electronic or computational components of the breath testing device provide adequate safeguards, a pragmatic realization that regardless of the regulations, operators are not going to faithful conduct a competent and careful observation, or simply a desire to process more DWI suspects at the least investment of time and effort. It certainly wasn’t a decision made at the manufacturer’s recommendation (CMI still requires the direct observation.) or on the basis of new scientific data.

Second, direct observation has never been required to insure the validity of the test. “Validity,” as used in breath testing with an Intoxilyzer, has a unique definition. That definition can’t be found in a dictionary, and it can’t be derived from any scientific textbook or from usage within any scientific discipline. “Validity” comes from the Texas Breath Test Operator Manual (page 33 and page 53 in the current edition) where conditions describing the requirements for an acceptable test on a sample of breath and the conditions for an acceptable printed report are described in detail. Nowhere among these requirements is there anything that would even suggest the breath concentration value being reported truly represents the concentration of alcohol in the breath of the person being tested.

Third, the implication that the procedures and protocols of the Breath Alcohol Testing Program will insure an accurate test result is simply wrong. Even if every requirement is followed in exacting detail, there is no provision that will prevent contamination in the form of mouth alcohol from contributing to the alcohol detected and being reflected in the test result. This is a real, common, and significant problem, and when it occurs, the reported alcohol concentration values will be high, and the fact of contamination will be impossible to recognize.