Ten Tips On Dealing With Your Lawyer (Written After a LONG Day)

Ten Tips On Dealing With Your Lawyer (Written After a LONG Day)

1. Drop by the lawyer’s office frequently “just to check up on things”. Don’t bother to make an appointment; a lawyer’s day is dull and monotonous and he will appreciate the break in routine. Be sure to call back several times within the next hour with small details that you “just forgot to mention”. Your lawyer needs to hear your voice as often as possible to develop that warm attorney-client bond.

2. Be sure to bring all the documents pertinent to your case in a wadded-up paper bag along with your grocery list, old credit card slips, and your child’s report cards from last year. Shove things across the lawyer’s desk at random, without explanation, whenever he askes a question. You never know what seemingly irrelevant scrap of paper may be the key to your whole case.
3. Be sure to be indignant when your lawyer is not available the moment you call or drop in. You’re a busy person, and he has no right to be in court or seeing other clients when you need to let him know again how unfair your situation is and how upset you are.
If you absolutely must leave a message, be sure to leave a number you know you won’t be at later. Even better, leave your old phone number, the one that’s just been disconnected.(Note: This has actually happened to me several times.) Turn off your answering machine or just don’t bother to check it. That way, you can complain bitterly that your lawyer “never returns your phone calls.”

4. Frequently call your lawyer at home at dinnertime. His family will surely appreciate it. Besides, cold dinners are better for the digestion. And after his spouse leaves with the children because your lawyer has no time for family, your lawyer will have much more time to devote to your case.
5. When you call, don’t bother to identify yourself. Your lawyer and his staff should recognize your voice immediately, and you have every right to be upset when they don’t. The staff should be on their toes enough to immediately know the answer when you call and say only, “Hey. Them papers ready yet?”
6. If your call is taken by a receptionist or secretary, be sure to tell them your entire story, even if all they ask for is your name and phone number. Do not be afraid to start with the day you were born. Do not be deterred by the sound of other lines ringing in the background; they’ll wait while you pour out your heart to the receptionist. It will be good practice for when you have to tell the whole story over again to your lawyer.
7. When your lawyer gives you a legal opinion or suggests a settlement of your case, be sure to argue vehemently with him. Lawyers love to argue, and besides, what is his training and experience compared to what you’ve heard from your Aunt Louise?
Any bad news should be answered with accusations that the lawyer is taking money from the other side to sell you out.This will change your lawyer’s assessment of the situation to something more pleasing to you.
8. It’s very helpful to have your closest friend, your mother, and your uncle who used to sell insurance call your lawyer frequently with advice on how he should be handling your case. Your lawyer is sure to appreciate the input.
9. Your lawyer will do a better job without a lot of negative information cluttering his mind. Therefore, you should not give your lawyer any information about your case which you think might harm your chances. Besides, lawyers love surprises, especially when they happen in court. You’ll enjoy the look on your lawyer’s face when your wife’s attorney shows the judge the credit-card receipts for the trip to Bermuda you took with your girlfriend that you “forgot” to tell your lawyer about, or when the D.A. tells the judge about the seven DWI’s you had in Arizona which you “didn’t think were important” because “they was all lies anyway.”
10. Don’t bother to pay your legal fees and be sure to complain loudly about them, paid or not. Your lawyer should recognize that you are trying to correct a miscarriage of justice and be satisfied with the knowledge that he is doing good works. His staff will also accept that warm glow of satisfaction in lieu of payment, as will the banks holding the mortgage on his home and office. Lawyers make too much money anyway, a fact which they’re always glad to hear about.

The Only Reason to Blow a Breathalyser

Successfully identifying the chemical fingerprints of specific bacteria in the breath could lead to a breathalyser capable of detecting lung diseases such as tuberculosis.
A team from the University of Vermont was able to successfully identify strains of bacteria in the lungs of mice by analysing volatile organic compounds in exhaled breath.
"Traditional methods employed to diagnose bacterial infections of the lung require the collection of a sample that is then used to grow bacteria. The isolated colony of bacteria is then biochemically tested to classify it and to see how resistant it is to antibiotics," said co-author on the study Jane Hill, a microbiologist at the University of Vermont. "This whole process can take days for some of the common bacteria and even weeks for the causative agent for tuberculosis. Breath analysis would reduce the time-to-diagnosis to just minutes."
Analysing breath to detect diseases is not limited to lung infections. Recent studies have shown it may be possible to detect diseases such as colorectal cancer and multiple sclerosis by looking at what we exhale.
Moving the research on from mice to humans, Hill said, "We are now collaborating with colleagues to sample patients in order to demonstrate the strengths, as well as limitations, of breath analysis more comprehensively."

Jury Fat Bias

This month a team of Yale psychologists released a study indicating that male jurors—but not female jurors—were more likely to hand a guilty verdict to obese women than to slender women. The researchers corralled a group of 471 pretend peers of varying body sizes and described to them a case of check fraud. They also presented them with one of four images—either a large guy, a lean guy, a large woman, or a lean woman—and identified the person in the photograph as the defendant. Participants rated the pretend-defendant’s guilt on a five-point scale. No fat bias emerged when the female pretend peers evaluated the female pretend defendants or when either men or women assessed the guilt of the men. But when the male pretend peers pronounced judgment on the female pretend defendants, BMI prejudice reared up. Jesus wept. The justice system and our basic faith in male decency took another hit.

The study offers further depressing insights. Not only did the male pretend jurors prove “significantly more likely” to find the obese female defendants—rather than the slim ones—guilty, but the trim male participants were worst of all, frequently labeling the fat women “repeat offenders” with “awareness” of their crimes. And because the effect disappeared when the photographs depicted a man, the hypothesis that subjects were simply layering class-based assumptions—such as “poor people are more often overweight” and “poor people commit more crime”—on top of one another falls a bit short. (On the other hand, as one of the researchers, Dr. Natasha Schvey, explained to me over the phone, fat women are more likely to be perceived as coming from lower socioeconomic backgrounds than fat men. Somehow I don’t find that consoling.)

“What’s going on?” I asked her. Schvey suggested that stereotypes about obese people paint them as greedy, selfish, and thus prone to defrauding checks. My runner-up theories below:

Perhaps we (especially we lean men) associate heavier women (but not heavier men) with impaired impulse control, since obviously all female people (but not all male people) want desperately to be thin and are only not so when they can’t regulate their Cinnabon cravings.

Perhaps we lean men imagine that a nebulous fog of guilt surrounds all fat women, because fat—whether or not it is in fact unhealthy—is morally wrong.

Perhaps we lean men suspect that larger women, given their history of stigmatization by people like us, are generally unhappier with their lot in life and thus more likely to engage in deviant behavior.

Perhaps we lean men are especially susceptible to the proven bias jurors hold toward physically attractive defendants (one that, it’s worth noting, declines when we engage in simulated deliberation, aka use our brains to assess the facts of a case).

Or perhaps there’s another explanation! Lean men, weigh in! Why are you like this? Actually, never mind, don’t tell me. Just get yourself out of jury duty.

Blood Alcohol Test

Blood drawn for a forensic blood test will in almost all cases be taken from the suspect via a vacutainer, which should contain two substances -sodium flouride, a preservative, and potassium oxalate, an anticoagulent. Further, they are vacuum sealed, which explains why they are called vacutainers .
Most vacutainers in use are made by Becton Dickinson. They also have an expiration date, after which the vacuum seal is no longer warrantied. BUT, very few phlebotomists, police officers, or state crime lab personnel pay any attention to the expiration date. Simply stated, nobody checks.
Becton Dickinson only checks one out of every four thousand vials for quality control. There are at least three possible defects in the state’s blood test:
1. A bad seal on the vacutainer, which is impossible to detect after the test, because it has been opened.
2. Improper amount of sodium flouride in the vial. Since vials are routinely nor refrigerated prior to their delivery to the crime lab, the proper amount of sodium flouride is critical. Either too much or too little can lead to a false high test result and
3. Improper amount of potassium oxalate. In the case of a bad seal organisms from the environment, such as candida albicans, can get in. Unless there is enough sodium flouride in the vial, the organisms that may be in your client’s blood will grow. One such organism is the ubiquitous candida albicans, which is is a yeastlike organism that is resistant to sodium floride. In the presence of glucose and warmth, it will excrete ethanol via fermentation.
Too much sodium flouride may cause “salting out”, which will also lead to a false high test result with headspace gas chromatography. This can occur even if there is no problem with the vacutainer, but the phlebotomist draws too little blood.
If there is not enough potassium oxalate, the blood can coagulate or “micro-coagulate” which is almost completly undectable. Because this changes the ratio of liquid to solid in the substance that is tested, and ethanol is water soluble, it can lead to a false high test result.
It can be virtually guaranteed that in any case involving a blood test the lab did not test for the presence of Candida Albicans, the lab did not check the vial seal, and the lab did not check the amount of sodium flouride or potassium oxalate in the tube.
If any of these occurred, you will in all likelihood have a false high blood alcohol concentration reported by the lab.

Top 20 Myths of Breath, Blood and Urine Test

The Top 20 Myths Of Breath, Blood, And Urine Tests

By Leonard R. Stamm

Myth #10: Breath Test — Dentures Cannot Cause A False High Reading Although many scientists contend that dentures do not trap alcohol that can contribute to a false high reading, a leading study on this remains controversial. Data was excluded from one female subject (#23) who had particularly poor fitting dentures and was unable to avoid swallowing during the dosing period. Patrick Harding, et. al., The Effect of Dentures and Denture Adhesives on Mouth Alcohol Retention, 37 Journal of Forensic Science 999, 1002 (July 1992). Under these stringent experimental conditions, positive apparent BrACs occurring more than 15 min after alcohol expectoration were observed in 9 of the 24 subjects. Two subjects showed trace BrACs beyond 20 min. Id. at 1006. One of the individuals in another study had a breath sample of 70ug/100mL (Å .15) and a blood sample showed .05. Dental examination of the defendant showed that he had extensive work carried out, including three bridges. A possible explanation, therefore, for these anomalous results is that the excessive breath-alcohol concentrations might be due to mouth alcohol retained in the bridges or periodontal spaces. . . . D.J.H. Trafford & H.L.J. Makin, Breath Alcohol Concentration May Not Always Reflect the Concentration of Alcohol in Blood, 18 (4) Journal of Analytical Toxicology 225, 225 (Jul.-Aug. 1994). Unless the law is concerned with convicting the many, while ignoring the few, this case demonstrates the desirability of offering all defendants the chance to have their breath-alcohol concentrations checked by analysis of blood or urine. Id. at 228.

Myth #11: Breath Test — Slope Detectors Protect Against Mouth Alcohol Influencing A Result

Our experience with the Intoxilyzer 5000 has shown that its residual mouth alcohol flagging program (that is, the slope detector) is not entirely reliable under the extreme experimental conditions employed in the present study. In this experiment we were able to obtain apparent BrACs as high as 0.18 g/210 L in spite of this feature. The slope detector was never intended to be a substitute for residual mouth alcohol detection and prevention protocols such as a pretest alcohol deprivation period and requiring agreement within 0.02 g/210 L for successive BrACs taken 2 to 10 min apart. Patrick Harding, et. al., The Effect of Dentures and Denture Adhesives on Mouth Alcohol Retention, 37 Journal of Forensic Science 999, 1006 (July 1992). Translation: according to this author, slope detectors, designed to detect mouth alcohol, don’t work. Myth #12: Breath Test — Hematocrit Is Irrelevant To The Result So you ask, what is hematocrit? The hematocrit represents the fraction of whole blood composed of red cells and is correlated with the aqueous content of blood. The higher the hematocrit, the lower the concentration of water in blood, and vice versa. The average hematocrit for normal, healthy males is 47%, with a range of 40-54%; for females the average is 42% and the range is 36-47%. Since ethanol dissolves almost entirely in the aqueous component of blood, two individuals with identical actual BAC’s but with different hematocrits would be expected to produce different Breathalyzer results. The person with the higher hematocrit, and therefore lower blood-water content, would necessarily be characterized by a higher concentration of ethanol in the aqueous component of his/her blood and consequently, by a higher Breathalyzer reading. Given that the Breathalyzer uses only one partition ratio, Smith and Payne et al. have predicted that the normal variation in hematocrit can produce errors in breath test results in the 10 to 14% range. Dominick A. Labianca, The Chemical Basis of the Breathalyzer, 67 (3) Journal of Chemical Education 259, 261 (March 1990).

Myth #13: Breath Test — Breath Tests Are Specific For Ethanol Infra-red A number of studies found substances that can interfere with an infra-red testing device that were not picked up by the instrument. We conclude that the Intoxilyzer Model 4011 AS may exhibit significant interference when used for subjects previously exposed to lacquer or lacquer thinner fumes. William Giguiere, David Lewis, Randall C. Baselt, Randall Chang, Lacquer fumes and the Intoxilyzer, 12 Journal of Analytical Toxicology 168, 168 (May-June 1988). Toluene alone can account for somewhere between 0.048 and 0.058 g/210L of the ostensible ethanol reading without causing the interference mechanism to trigger (Table 2), and this value would be below most legal threshold. However, if the signal resulting from toluene is augmented by the presence of genuine ethanol, the readout could exceed legal limits without activating the interference mechanism. Jonathan P. Caldwell & Nick D. Kim, The Response of the Intoxilyzer 5000 to Five Potential Interfering Substances, 42 (6) Journal of Forensic Sciences 1080, 1084 (1997). The results of this study clearly indicate that all five substances tested for potential interference with the Intoxilyzer 5000 will interfere to some degree. Even so, the performance of this instrument is significantly better than that of the earlier model Intoxilyzer 4011AS-A. Four of the five compounds (toluene, the two xylenes, and isopropanol) are registered by this version of the Intoxilyzer as interferences by the instrument at given points in their concentration and one (methanol) is not. From the point of view of where this interference mechanism is triggered, the compounds can be ranked in terms of their probability (if present) of causing an undetected false-positive reading for ethanol in this order: methanol > toluene > the xylene > isopropanol. Id. at 1086. Giguiere, Lewis, and Baselt examined a 52-year-old male cabinet maker with a 20-year history of work-related exposure to lacquers and paint thinners. At 3:36 p.m he received a test reading of 0.369 percent digital, 0.312 percent printout (w/v) on an Intoxilyzer 5000, with the printout indicating “interferent subtracted.” At 3:48 p.m., 0.273 percent digital, 0.245 percent on the printout, also indicating “interferent subtracted.” A blood sample drawn at 3:40 p.m. indicated ethanol 0.0 percent, acetone 0.025 percent (w/v), and toluene 11 mg/L. Although the highest apparent blood alcohol concentration (0.31 % w/v) given by the Intoxilyzer for this subject is 282 times that of the actual blood toluene concentration, because toluene exhibits a blood:breath ratio that is 116 to 300 times less than that of alcohol, and because it demonstrates significant infrared absorption at the 3.50 Å 0.06 micron wavelength used by the Intoxilyzer 5000, we consider it likely that toluene caused the instrumental interference observed in this case. Mary Anne Edwards, William Giguiere, David Lewis & Randall C. Baselt, Intoxilyzer Interference by Solvents, 10 (3) Journal of Analytical Toxicology 125, 125 (May-June 1986). Diethyl ether vapor may substantially interfere with breath alcohol analysis by instruments based on infrared absorption at 9.5 um. C. M. Bell, S. J. Gutowski, Diethyl Ether Interference with Infrared Breath Analysis, 16 Journal of Analytical Toxicology 166, 166 (1992) (Draeger Alcotest 7110). . . . IR analysis for breath-alcohol at 9.5 um . . . would not provide a foolproof solution. Common volatile organic compounds other than ethanol, which occur for example, in solvents, perfumes, and food, also contain carbon-oxygen functionality and exhibit IR absorption bands that overlap this wavelength. Included among these are the following: other alcohols, esters, . . .and ethers . . . Dominick A. Labianca, How Specific for Ethanol is Breath-Alcohol Analysis Based on Absorption of IR Radiation at 9.5 um?, 16 Journal of Analytical Toxicology 404, 405 (Nov.-Dec. 1992). Fuel Cell The Alcolmeter device makes use of an electrochemical detector for the determination of ethanol. The alcohol present in a measured volume of breath is oxidized at a platinum electrode surface to generate an electric potential which can be registered. The detector is not specific for ethanol. It gives a response to methanol, n-propanol, isopropanol, and acetaldehyde but is insensitive to acetone. A.W. Jones, Evaluation of Breath-Alcohol Instruments III. Controlled Field Trial with Alcolmeter Pocket Model, 28 Forensic Science International 147, 148 (1985). This is consistent with a study published on the Intoximeter Web site. Myth #14: Breath Test —Truncating To Two Digits Favors The Defendant In many, if not most jurisdictions, two readings are taken and the lowest three-digit reading is truncated, leaving two digits as the reported reading. The government argues this favors the defendant and removes uncertainty in the test reading. Dr. Dubowski argues the third digit is irrelevant because the instrument is not capable of accurately reporting to three digits. Figure 8 illustrates the uniform distribution of the third digits of field BrACs in g/210L. Gullberg also reported an essentially uniform distribution of third digits in field forensic breath alcohol testing. In truncating to two digits from three digits, the omitted third digits follow a uniform distribution. Third digits are discrete random variables with an equal probability of being 0, 1_.9. An unknown third digit is as likely to be 9 as 0. Truncating BrAC measurements in g/210L to two decimal places does not introduce bias other than the intended deletion of the third digit. Kurt M. Dubowski & Natalie A. Essary, Measurement of Low Breath-Alcohol Concentrations: Laboratory Studies and Field Experience, 23 Journal of Analytical Toxicology 386, 394 (October 1999), citing, R.G. Gullberg, Distribution of the Third Digit in Breath Alcohol Analysis, 36 Journal of Forensic Science 976 (1991). Dr. Jones takes a different approach, noting that truncating unevenly favors those who have a higher third digit. In some jurisdictions rules and regulations for evidential breath-alcohol testing mandate that the lowest of the two independent breath-tests is used for prosecution. Also the third decimal is frequently truncated so that 0.109 g/210 L becomes 0.10 g/210 L. However, these safeguards do not help the person who by chance might have the same BrAC result in the two independent breath-tests or when the third decimal might have been zero. A.W. Jones, Medicolegal Alcohol Determinations — Blood — or Breath-Alcohol Concentration?, 12 Forensic Science Review 23, 42 (Jan. 2000).

Myth #15: The Alcohol Tested Is Alcohol The Defendant Drank Alcohol Swab Is Okay

A recognized source of physical contamination is the use of alcohol containing swabs to disinfect the area of specimen collection in the living patient. This method of specimen contamination is well documented in the literature (Heise, 1959; Taberner, 1989; Goldfinger and Schaber, 1982) with appropriate admonitions against using alcohol swabs for this purpose. William H. Anderson, Collection and Storage of Specimens for Alcohol Analysis, Medical-Legal Aspects of Alcohol 237, 239 (James C. Garriott ed., 4th ed. 2003).Endogenous Alcohol If for some reason large quantities of ethanol are synthesized in the gastro-intestinal tract and overwhelm the capacity of the alcohol-metabolizing enzymes in the liver, then much higher concentrations of EE should appear in the peripheral venous blood. This is exactly what was described in a group of Japanese subjects who were suffering from various disorders of the gut. Some had previously complained of experiencing feelings of drunkenness even without consumption of alcohol. This condition seemed to appear after the subjects had eaten a carbohydrate-rich meal, such as rice. This study from Japan was difficult to fault because ethanol was identified in the blood, urine, and breath with the aid of a reliable gas chromatographic method for quantitative analysis. Alan W. Jones & Barry K. Logan, DUI Defenses, Drug Abuse Handbook 1006, 1016 (Steven B. Karch ed., 1988). The term used to describe this abnormal production of EE was ‘autobrewery syndrome’ and to our knowledge this has only been observed in Japanese subjects. It is widely known that the activity of alcohol metabolizing enzymes, especially aldehyde dehydrogenase, is different in Oriental populations compared with Caucasians, which might render Japanese and other Asians less able to clear ethanol from the portal blood. Other requirements before ‘autobrewery syndrome’ should be seriously considered as contributing to a person’s BAC include genetic predisposition (Oriental origin), a past history of gastrointestinal ailments, documented medical treatment for the problem, low tolerance to alcohol, and reports of fatigue and drunkenness after eating meals. Id. at 106.Candida Albicans In this experiment Proteus vulgaris and a-streptocci produced relatively little ethanol, and this production was eliminated or reduced to undetetectable levels by flouride. However, Candida albicans produced a much greater amount of ethanol, and this production was not at all inhibited by flouride. Philip Blume & David J. Lakatua The Effect of Microbial Contamination of the Blood Sample on the Determination of Ethanol Levels in Serum, 60 Am. J. Clin. Path. 700, 701 (Nov. 1973). Glendening and Waugh cite studies indicating the usefulness of fluoride in preserving specimens of blood from which ethanol determinations are to be made. Blackmore and Pleuckhalm and Ballard, reviewing the literature and presenting the result of their own extensive studies, point out the effect of microbial contamination on the production of ethanol in specimens of blood. They both suggest the use of sodium fluoride at a concentration of 1% for the preservation of blood specimens. While this is a worthwhile precaution, it appears that care should be taken to assure the sterility of the specimens nonetheless. Id.; but see, A.W. Jones, L. Hylen, E. Svensson & A. Helander, Storage of Specimens at +4ºC or Addition of Sodium Fluoride (1%) Prevents Formation of Ethanol in Urine Inoculated with Candida Albicans, 23 Journal of Analytical Toxicology 333 (1999). Myth #16: Blood Test —Enzyme Tests Are Reliable Enough To Quantify Alcohol There are important differences between gas chromatographic and enzymatic procedures, which have an impact on this case. Gas chromatography (GC) is the preferred method because of its higher selectivity for ethanol, which allows positive identification by comparison of retention time with known standards. Mass spectral analysis would definitely prove the presence of ethanol. Enzymatic assays are less specific than GC for the analysis of ethanol. For example, both n-propanol and isopropanol are good substrates for ADH. Certain metabolic disturbances such as lactic acidosis create problems when automated enzymatic assays are used, which may lead to false positive test results. B.K. Logan & A.W. Jones, Endogenous Ethanol Production in a Child with Short Gut Syndrome, 36 (3) Journal of Pediatric Gastroenterology 419, 419-20 (March 2003). Indeed, the risk of hyperlactacidemia in short-gut syndrome was mentioned by Dahshan and Donovan, who found no measurable d-lactate in their patient. They failed, however, to report l-lactate, pyruvate, acetaldehyde, or other endogenous metabolites, all which measurements are important to the assurance that EE is truly elevated in their patient. Id. at 420. In the forensic laboratory, biochemical methods are not usually used for determining blood alcohol due to their lack of total specificity. Isopropyl alcohol and butyl alcohol interfere in the reaction. For forensic purposes, enzyme methods must be confirmed by an alternate technique. (Garriott, 1983). Richard F. Shaw, Methods for Fluid Analysis, Medical-Legal Aspects of Alcohol 213, 217 (James C. Garriott ed., 4th ed. 2003). The development of enzymatic assays based on the catalysis of ethanol to acetaldehyde and on the correlation of the rate of conversion of coenzyme NAD to NADH with ethanol concentration, as well as the assays’ availability in kit form for use on automated instruments, has simplified the task of ethanol determination. These assays, as exemplified by the Syva, Abbott, and Roche enzymatic assays are rapid, sensitive, and cost-effective. However, high serum-lactate and LDH concentrations appear to interfere in some of these assays, resulting in false-positive ethanol values. Jeffrey S. Nine, Michael Moraca, Mohamed A. Virji & Kalipatnapu N. Rao, Serum-ethanol Determination: Comparison of Lactate and Lactate Dehydrogenase Interference in Three Enzymatic Assays, 19(3) Journal Analytical Toxicology 192, 194 (May-Jun 1995). The authors’ conclusion is misleading to law enforcement agencies, attorneys, and even some pathologists because the average individual found driving under the influence or even an intoxicated person with traumatic injury does not match the pathology or the LDH and lactate concentrations described in this article. We would like to caution the forensic community that such a conclusion does not apply to situations in which an injured driver has received lactated Ringer’s solution intravenously prior to having his blood taken for a blood alcohol test. Charles Winek & Wagdy Wahba, A Response to “Serum-ethanol Determination: Comparison of Lactate and Lactate Dehydrogenase Interference in Three Enzymatic Assays,” 20 Journal Analytical Toxicology 211, 211 (May-Jun 1996). Our study showed the effect that abnormally high concentrations of lactate dehydrogenase (LDH) and lactate could have on one specific analytical method, which was then in use for the determination of serum/plasma ethanol concentrations. . . . The conclusions drawn in our paper applied to the cases in the report. The mechanism of interference in the assay was investigated in the laboratory to obtain an understanding of the biochemical basis for the falsely elevated ethanol concentrations at which the effect was observed; we suggested possible approaches to minimize or eliminate the interference. . . .The effect on Ringer’s lactate was not investigated. Jeffrey S. Nine, Michael Moraca, Mohamed A. Virji & Kalipatnapu N. Rao, The Authors Reply to, A Response to “Serum-ethanol Determination: Comparison of Lactate and Lactate Dehydrogenase Interference in Three Enzymatic Assays,” 20 Journal of Analytical Toxicology 211, 211 (May-June 1996). Myth #17: A Urine Test Can Reliably Measure Alcohol There is massive documentation that the blood alcohol concentration cannot be established sufficiently reliably for forensic purposes from the alcohol concentration of a pooled bladder urine specimen because of the extensive variability of the blood:urine ratio of alcohol. Kurt M. Dubowski, Absorption, Distribution and Elimination of Alcohol: Highway Safety Aspects, 10 J. Stud. Alcohol Suppl. 98, 102 (1985). The overall average urine ethanol to blood ethanol ratio was 1.57:1 with a range of 0.07 to 21.0:1. The actual value of the ratio is unimportant. The wide range however, indicates the high probability of a large error being introduced into the calculation of a blood ethanol value from a urine ethanol concentration when using an average value for the ratio of urine to blood ethanol concentration. . . . Based on the data presented, the unreliability of using a urine ethanol concentration to predict a blood ethanol concentration cannot be questioned. Charles L. Winek, Kathy L. Murphy, & Tracy A. Winek, The Unreliability of Using a Urine Ethanol Concentration to Predict a Blood Ethanol Concentration, 25 Forensic Science International 277, 280 (1984). Myth #18: Extrapolation Backwards Is Accepted In The Scientific Community Among the major reasons for the infeasibility of retrograde extrapolation, three stand out: (1) lack of knowledge, usually, about the timing of the alcohol concentration peak and absorption-post-absorption status; (2) ignorance about the mathematical characteristics (e.g. linear, pseudolinear, exponential) and the mean rate of change of the individual’s blood or breath elimination curve; and (3) unpredictable irregularities of the curve, especially short term fluctuations from the best-fit trend line of the blood or breath alcohol curve. Kurt M. Dubowski, Absorption, Distribution and Elimination of Alcohol: Highway Safety Aspects, 10 J. Stud. Alcohol Suppl. 98, 103 (1985). Extrapolation of a later alcohol test result to the time of the alleged offense is always of uncertain validity and therefore forensically unacceptable. Id. at 106.
Myth #19: The Test Result Is Traceable To NIST

When simulators are used for control tests . . . at least two variables controlling the control target value need to be checked and properly validated: the ethanol concentration of the aqueous simulator solution and the simulator temperature at which the alcohol equilibration occurs. The former is a laboratory task in which the ethanol standards used should be traceable to National Standards and Technology (NIST) SRM 1828. The latter must necessarily be performed at the test site at the time of the control test; it should be done by thermometry using a device with calibration traceable to a NIST certified thermometer, such as NIST SRM 934. Kurt M. Dubowski, Quality Assurance in Breath-Alcohol Analysis, 18 Journal of Analytical Toxicology 306, 310 (Oct. 1994). It is advisable to check all prepared standards versus a certified reference standard available from the National Institute of Standards & Technology (NIST SRM 1828) or College of American Pathologists (CAP Certified Alcohol Standard Solutions). . . Each new set of standards should be verified against the standards in current use as well as the certified reference material. Barbara J. Basteyns & Graham R. Jones, Quality Assurance, Medicolegal Aspects of Alcohol 229, 232 (James C. Garriott, 4th ed. 2003). Merely having an instrument or artifact calibrated at NIST is not enough to make the measurement result traceable to reference standards developed and maintained by NIST. To establish traceability to such reference standards there must be an unbroken chain of comparison and each provided measurement must be accompanied by a statement of uncertainty. The measurement system by which values are transferred must be clearly understood and under control. The dates and details of each link in the chain must also be provided. State v. Jagla, slip. op. at 6-7 (King County District Court, Washington) (June 17, 2003)(emphasis in original), quoting from, http: //ts.nist.gov/ts/htdocs/230 /233/calibrations/Policies/policy.htm. We find that in order to be admissible under WAC 448_13_040, _035, and RCW 46.61.502, the thermometer in the breath test must be tested against a thermometer traceable to standards maintained by NIST. To be traceable, the uncertainties must be measured and recorded at each level. Given the posture of the cases before us, we do not reach whether substantial compliance would be sufficient. As the State has not established that the uncertainties had been measured and recorded, it has not met its foundational burden, and therefore the trial courts did not err in excluding the tests. City of Seattle v. Clark-Munoz, 93 P.2d 141, 146 (Wa. 2004) (en banc).

Myth #20: The Test Result Is Based On Science — Not Secrets
11.9 Retention of Records Records should be retained as long as practical, but for at least 5 years. Records should include a copy of the report, request and custody forms, work sheets, laboratory data, quality control and proficiency testing records. SOFT/AAFS Laboratory Guidelines (2002). Instrument output, laboratory worksheets and reports, internal and external proficiency testing results should be retained for as long as the results of the analysis may be required in court, which could be for many years. Barbara J. Basteyns & Graham R. Jones, Quality Assurance, Medical-Legal Aspects of Alcohol 229, 233-34 (James C. Garriott, 4th ed. 2003). There are a number of articles written and guidelines published about the need to follow minimum standards of quality control and assurance in scientific testing in order to provide minimum levels of assurance about the reliability and accuracy of test results. Frederic Whitehurst, a former expert in explosives at the FBI laboratory, and lawyer, who achieved prominence in the late 1990s for his disclosures of incompetence and fraud in that laboratory, has written an article detailing the minimum requirements for quality control and quality assurance in a scientific laboratory. He lists ten requirements for types of records that should be kept by the laboratory, and should be requested by and provided to defense counsel in a criminal case. F. Whitehurst, Forensic Crime Labs: Scrutinizing Results, Audits & Accreditation, The Champion 6 (April & May 2004). In the field of toxicology, Dr. Dubowski has written an article titled, Quality Assurance in Breath Alcohol Testing, 18 J. Analytical Tox., 306 (1994). The abstract of his article states: Evidential breath-alcohol testing requires an adequate quality assurance (QA) program to safeguard the testing process and validate its results. A comprehensive QA program covers (a) test subject preparation and participation; (b) the analysis process; (c) test result reporting and records; (d) proficiency testing, inspections, and evaluations; and (e) facilities and personnel aspects. Particularly important are the following necessary scientific safeguards as components of quality control: (a) a pretest deprivation-observation period of at least 15 minutes; (b) blank tests immediately preceding each breath-collection step; (c) analysis of at least duplicate breath specimens; and (d) a control test accompanying every subject test. Id. at 306. See also, Cole v. State, 378 Md. 42, 835 A.2d 600 (2003)(defendant was entitled to discovery of testing laboratory’s standard operating procedures, including quality assurance manual, calibration record for gas chromatograph/mass spectrometer (GCMS) used by chemist to test the substance, and discovery of the chemist’s own proficiency testing records). Has anyone from the defense side yet seen and evaluated the algorithms and logarithms used in the breath test computer programs, the software, the computer programs, or the testing done on the equipment? History has shown that defendants can never take for granted what government scientists claim is good science. Conclusion As defense lawyers, it is our duty to challenge government science, especially when there are other scientists in the field who criticize the status quo. In the interest of protecting the public from drunk drivers, have legislatures, too, readily blinded themselves to shoddy science? Have courts been able to convict the innocent by failing to properly account for uncertainty in science? It seems certain. Many scientists do recognize these problems. While the percentage of overestimates and underestimates of actual BAC can give some indication of the reliability of breath analysis, the most important piece of information for legal purposes is the amount of error or uncertainty expected in an individual’s BAC result. In a legal situation, the question is whether or not a particular defendant had a BAC in excess of some limit, not what percentage of people in general have actual BAC overestimated or underestimated. G. Simpson, Incorrect Overestimates of Blood Alcohol Concentration from Breath Test Results, 14 (4) Journal of Analytical Toxicology 263, 264 (1990). [A] more acceptable way would be to make a subtraction from the mean analytical result with this deduction being derived from statistical considerations of variability as a function of alcohol concentration . . . . Note that here a 99.9% confidence limit is appropriate in keeping with a ‘beyond a reasonable doubt’ standard in criminal cases. Alan W. Jones, Medicolegal Alcohol Determinations — Blood — or Breath-Alcohol Concentration?, 12 Forensic Science Review 23, 42 (Jan. 2000); see also, Schlup v. Delo, 513 U.S. 298, 325 (1995). Indeed, concern about the injustice that results from the conviction of an innocent person has long been at the core of our criminal justice system. That concern is reflected, for example, in the ‘fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.’ In re Winship, 397 U.S. 358, 372, 90 S.Ct. 1068, 1077, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring). See also T. Starkie, Evidence 756 (1824) (‘The maxim of the law is ... that it is better that ninety-nine ... offenders should escape, than that one innocent man should be condemned’). These concepts seem to get lost in court where test results are deemed relevant under a preponderance standard and then converted to proof beyond a reasonable doubt by per se laws. It is critical that judges and juries be educated as to this slight of hand practiced by the courts. When facing expert testimony expressed in measures of uncertainty defined by standard deviations from a mean or by a probability, we have to question whether the scientific level of uncertainty expressed by the expert and accepted by the court comports with the legal level of certainty that is required to satisfy due process. It is our duty to educate legislators, judges, juries, prosecutors, police, other defense lawyers, our clients, and the public, so that in the end courts will not convict based on questionable science. n

Jury Duty

The Teardrop Tattoo Will Be His Undoing

Simone Jacobson

I'm reporting for my first jury duty summons at 500 Indiana Avenue. Though I have lived and worked in Washington, D.C. for over a decade, I have never been called to court for my civic duty to "serve."
Black men, young and old, line the halls of the courthouse. Some are lawyers and plaintiffs, but most of them are prey to an intricate web of systems—poverty, drugs, laws, codes, slavery, a deliberate erasure of histories and forced migrations, dehumanization, colonialism, patriarchy—all meant to entrap generations upon generations from birth. This is what I tell myself as I scan the inscape of the place. This is what hip-hop taught me.
There are Black teenagers frantically thumbing through torn envelopes to find the proper permits, documents, and proofs for their weapons. There are Black women swearing they haven't ever darkened that woman's doorstep, their own public defenders discrediting them in whispers.
In a mad dash out the main entrance and back down Indiana Avenue, a Black man set to appear in court slams into three strangers in front of me and grazes my arm. Minutes later, he returns with humble apologies for the guards on duty.
"My bad," he says to the officers. "I thought you was just tryna be nasty with me." Like most of the Black men funneling through security today, this guy has been here before.
With an indifferent wave of hand, the guard signals him through.
"You do realize that the metal detector didn't even go off, don't you?" huffs the white woman in front of me, incredulous at the brief inconvenience of being patted down.
My eye twitches.
During the second of what will be my sixth or seventh lining up of the day, a chorus of I-hope-they-don't-pick-me abounds in loud timbres and in whispers.
The Black woman in front of me with glassy eyes speaks in my direction without looking at me. "I hope they send me home," she sighs. "I just got off work at 5:00 a.m. If they pick me, I'll just have to go right back to work after this."
"I feel you," I say. "That's terrible."
When my jury's panel is finally called, about four hours after my sleepy arrival, I try not to nod off when the loud, artificial ocean-sounding "husher" is switched on. The husher is a constant, static noise that permeates the courtroom so no one can hear what is being said at the bench. The judge has just given a shockingly passionate speech about jury service as both duty and privilege.
I wonder what he would think if he knew that in response to the murder of Trayvon Marton, I'd written these lines: "When I go outside/ I don't ever/ have to worry someone/ will one day march in an/ impotent mob wearing/ a t-shirt with my name on it."
Eventually, I stand in line with my juror's survey crumpled in half, waiting to be called forward to the bench. I am reading a book called Letters from Burma by Aung San Suu Kyi, a Nobel Peace Prize winner and champion of the democracy movement in my mother's home country. Suu Kyi was held under house arrest for thirteen years until her release in 2010, confined during both the death of her husband in the U.K. (he was not allowed to re-enter Burma and Suu Kyi would have risked being banned from the country permanently had she chosen to go to his bedside) and her sons' formative adolescent years. Time and again, this woman bravely put her country's needs before her family.
As I wait for the judge to beckon me, I make eye contact with the defendant, another young Black male. He is dressed in an ironed button down shirt, sleek wire frame glasses, and slacks. There's a small but noticeable teardrop inked permanently on his skin, just below his right eye.
The teardrop tattoo will be his undoing.
The system will not forgive him that. This is just one of the things I want to tell him. I want to hold both his hands in mine and kneel in front of him. Instead, I make a mistake and tell the judge the truth.
"You've marked here that you would not count the testimony of a police officer to be the same as any other person," the judge begins, following up with a seemingly rhetorical question, "Is that correct?"
"Yes," I reply.
"Why is that?"
"Well, I do not believe that police officers act lawfully or appropriately the majority of the time. In my personal experience, they are not truthful, especially in a court of law." I do not mention Vincent Chin or Fong Lee. There is no space on the questionnaire for that.
The judge is taken aback by my response, but composes himself and un-scrunches his brow to continue his line of questioning.
"So you're saying if a police officer came in here to testify, you would automatically assume he or she was lying?"
"No," I say, pausing, then pronouncing each word assuredly as I attempt to clarify my statement, "I would not necessarily assume that. But I do have a strong bias."
Now, I can see the judge wants to know everything, but not for the purpose of this case. If he could, I think he would put on the husher and take me into a low-ceilinged, fluorescently lit room where judges gather. He would ask more questions, "off the record". He would want to find out why my eyes slant under these black mascara strokes. He would probe me about my experiences with the police, which have been-as I checked the appropriate box in the juror's questionnaire—exceptionally negative.
The judge does not know Asian American women like me. He smirks a bit and concedes, "I am going to excuse you."
I am free to go.
I turn and march directly out the front courthouse entrance, splaying open the glass doors with one forceful push, past smokers clustered in duets, trios and quartets, in search of coffee and food. I'm satisfied and emboldened, but I haven't officially been "released" for the day.
I sit in the juror's lounge again. 30 minutes later, they finally let those of us remaining go with a simple announcement: "Turn your badges into the wire basket on your way out. Thank you for serving."
And it's over.
The first thing I do when I walk out of 500 Indiana is text my partner. He is an artist, a loving father, and a Black man.
I text him, "I told them F the police and they let me leave."
He texts me back immediately: "What? You can't fight the system if you aren't picked. Jury nullification!!!"
"Oh shit," I type back. "I got it wrong."
In a rush to honestly express my profound skepticism about the United States "justice system" and the armed officers upholding these laws, I'd completely neglected the possibility of jury nullification. Criminal law scholar Paul Butler describes jury nullification as "a constitutional doctrine that allows juries to acquit defendants who are technically guilty, but who don't deserve punishment. When a jury disregards the evidence and acquits an otherwise guilty defendant, it has practiced jury nullification. The jury is saying that the law is unfair, either generally or in this particular case."
While my partner (and so many men like him) has had a lifetime of sink-or-swim interactions with the violent waters of the Prison Industrial Complex, I have only recently been affected in personal ways. I cannot say that I would have issued a "not guilty" verdict—had I been selected—if I felt the man with the teardrop tattoo had, beyond the shadow of a doubt, committed murder.
My partner said that he was disappointed in my actions and reminded me this marked an instance of how I "show my whiteness." My mother is Burmese and my father is a white American. My own whiteness, he argued, allowed me the privilege not to be convinced of the need for jury nullification when it counted. He assumed I had not carefully considered the man before me with deep empathy. He chastised me for not recognizing that this man might serve a life sentence because of my inability to "toughen up," to overcome my own pain, anxiety and fears in order to potentially spare the defendant. He questioned my commitment to eliminating prisons, a topic we've stayed up so many late nights discussing. In my partner's eyes, the man's innocence or guilt was irrelevant. He, like Paul Butler, understands and believes that jury nullification has the power to "help make the United States more safe and free," and that "strategic jury nullification can safely reduce mass incarceration."
Petty theft and other nonviolent crimes, that's one thing, I say to myself, but what about the murder of another Black man? Would I be capable of nullifying a murder charge?
Should I be?
What do I do with the part of me that has absolutely no tolerance for sexual violence, rape, or other incursions into a human being's body? Should the woman in me that fears sexual assault above all else retreat to support the race-conscious potential of jury nullification to reduce incarceration rates?
I decide right then that if I could report again for jury duty, I'd trade my liberating fuck-the-police moment for a meaningful act in true service to my community. I'm still not convinced I could cast a not guilty verdict for someone I thought took another life. But, I do know that my country, my peers needed me in that room deliberating, not texting my lover about a fleeting personal victory.
I want to believe the strength is within me to unlearn all the charmed Paradise Valley teachings of my youth, but I'm not sure. I want to be the kind of Burmese American woman who is savvy and courageous enough to choose her country over her family. Until that day, I can only hope the United States of America radically transforms into a country worth ethically serving and that deliberation rooms across our country are occupied with thoughtful Americans who know that our select, thuggish, unethical enforcement of laws should be on trial just as much as the lines of "guilty" Black men lining the courtrooms of our cities.
It's all too late. Ten months after my failed opportunity at jury nullification, I can still see that young Black man, the ironic permanence of a single tear branded on his skin. The static crackle of the husher confines us both to that painful memory. The truth, though, is that one of us will always be free to go.
I got it wrong.

Dershowitz on the "The Justice Game"

Dershowitz on "The Justice Game"In his 1982 book, “The Best Defense," law professor and litigator Alan Dershowitz writes about the criminal justice system and sets out 13 rules of “The Justice Game.” Some may find them a bit cynical. In fact, many may find them a bit cynical. Here they are:

I. ALMOST ALL CRIMINAL DEFENDANTS ARE , IN FACT, GUILTY.

II. ALL CRIMINAL DEFENSE LAWYERS, PROSECUTORS AND JUDGES UNDERSTAND AND BELIEVE RULE I.

III. IT IS EASIER TO CONVICT GUILTY DEFENDANTS BY VIOLATING THE CONSTITUTION THAN BY COMPLYING WITH IT, AND IN SOME CASES IT IS IMPOSSIBLE TO CONVICT GUILTY DEFENDANTS WITHOUT VIOLATING THE CONSTITUTION.

IV. ALMOST ALL POLICE LIE ABOUT WHETHER THEY VIOLATED THE CONSTITUTION IN ORDER TO CONVICT GUILTY DEFENDANTS.

V. ALL PROSECUTORS, JUDGES AND DEFENSE ATTORNEYS ARE AWARE OF RULE IV.

VI. MANY PROSECUTORS IMPLICITLY ENCOURAGE POLICE TO LIE ABOUT WHETHER THEY VIOLATED THE CONSTITUTION IN ORDER TO CONVICT GUILTY DEFENDANTS.

VII. ALL JUDGES ARE AWARE OF RULE VI.

VIII. MOST TRIAL JUDGES PRETEND TO BELIEVE POLICE OFFICERS WHO THEY KNOW ARE LYING

IX. ALL APPELLATE JUDGES ARE AWARE OF RULE VIII, YET MANY PRETEND TO BELIEVE THE TRIAL JUDGES WHO PRETEND TO BELIEVE THE POLICE OFFICERS.

X. MOST JUDGES DISBELIEVE DEFENDANTS ABOUT WHETHER THEIR CONSTITUTIONAL RIGHTS HAVE BEEN VIOLATED, EVEN IF THEY ARE TELLING THE TRUTH.

XI. MOST JUDGES AND PROSECUTORS WOULD NOT KNOWINGLY CONVICT A DEFENDANT WHO THEY BELIEVE TO BE INNOCENT OF THE CRIME CHARGED (OR A CLOSELY RELATED CRIME).

XII. RULE XI DOES NOT APPLY TO MEMBERS OF ORGANIZED CRIME, DRUG DEALERS, CAREER CRIMINALS, OR POTENTIAL INFORMANTS. DRUNK DRIVERS????

XIII. NOBODY REALLY WANTS JUSTICE.

The important role of defense counsel

“Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.”
U.S. v. Wade, 388 U.S. 218, at 256-258 (1967), Justice White, concurring and dissenting.

Alabama Dept. Of Forensic Sciences Breath Test Rules

ALABAMA DEPARTMENT OF FORENSIC SCIENCES
ADMINISTRATIVE CODE

CHAPTER 370‑1‑1 CHEMICAL TEST FOR INTOXICATION


TABLE OF CONTENTS


370‑1‑1‑.01 Admissibility Rule For The Evidential Breath Alcohol Test Method
370‑1‑1‑.02 Evidential Breath Alcohol Testing Instrument Inspections (Repealed 8/11/03)
370‑1‑1‑.03 Blood, Urine, And Other Bodily Substances
370‑1‑1‑.04 Field Sobriety Screening Tests
370‑1‑1‑.05 Field Sobriety Screening Devices
Appendix



370‑1‑1‑.01 Admissibility Rule For The Evidential Breath Alcohol Test Method.

(1) Purpose. This rule addresses the statutory elements required for the admissibility of evidence obtained from Breath Alcohol Testing Instruments. This rule contains the METHOD, as referred to by §32‑5A‑194 Code of Ala. 1975, as amended, which insures and verifies that each individual Breath Alcohol Test is performed accurately and reliably. IN EVENT THAT ONE OF THESE REQUIREMENTS IS NOT FULFILLED, BREATH ALCOHOL TESTING EVIDENCE MAY STILL BE OFFERED THROUGH TRADITIONAL EVIDENTIARY PREDICATE as approved of in Ex parte Mayo, 652 So. 2d 201 (Ala. 1994).

(2) Definitions and Abbreviations.

(a) Acceptable Breath Sample. For the purpose of this rule the subject must provide the Draeger Alcotest 7110 MKIII with a breath sample of sufficient volume and duration, as required by the software to be accepted for analysis. Software versions prior to and including version 3.24 require the subject to provide a minimum of 1.5 liters of breath, for a minimum of 4.5 seconds. Software versions 3.25 or later require the subject to provide a minimum of 1.3 liters of breath, for a minimum of 4.0 seconds.

(b) Accuracy Check Fail. When the Calibration Check results are outside the programmed parameters of the Draeger Alcotest 7110 MKIII, the instrument will abort the testing sequence.

(c) Admin. Breath Temperature Correction. Administrative Breath Temperature Correction can result in an administrative lowering of the reported Breath Alcohol Result. When the Draeger Alcotest 7110 MKIII determines a subject’s Breath Temperature is not 34.0oC an adjustment to the reported value will be made. When the Breath Temperature is above 34.0oC the adjustment will result in a lower reported Breath Alcohol Concentration.

(d) Alcohol. For the purpose of this rule, use of the term alcohol shall refer to ethanol or ethyl alcohol unless otherwise specified.

(e) Air Blank Check. The Draeger Alcotest 7110 MKIII Breath Alcohol Testing Instrument verifies that the analytical pathway is free of contamination.

(f) Ambient Air Check. The Draeger Alcotest 7110 MKIII Breath Alcohol Testing Instrument verifies that the air used to purge the analytical pathway was free of contamination.

(g) Ambient Air Fail. The Draeger Alcotest 7110 MKIII will terminate a Breath Testing Sequence when the detector systems respond to ethanol or other substances in the room air.

(h) Blowing Not Allowed. Only when the “PLEASE BLOW” message appears will the Draeger Alcotest 7110 MKIII accept a subject breath sample. Any breath sample provided to the Draeger Alcotest 7110 MKIII at any time other than when prompted to do so will not be accepted by the instrument.

(i) Blowing Time Too Short. When a breath sample is provided to the Draeger Alcotest 7110 MKIII that is sufficient in volume but deficient in duration, as required by the software, the instrument will not accept the sample.

(j) Br‑Temp Meas Not Ok. Breath Temperature Measurement Not Ok occurs when the difference between the two Breath Temperature thermistor values is outside the specified range for a single breath sample.

(k) Breath Alcohol Test. For the purpose of this rule, two (2) acceptable breath samples in conjunction with two diagnostic checks and two acceptable calibration checks shall constitute a Breath Alcohol Test.

(l) Calibration. The purpose of the calibration is to define the appropriate parameters to allow the instrument to accurately quantitate alcohol in a breath sample. The Draeger Alcotest 7110 MKIII does not calibrate itself at the time of the test; calibration is performed at the Alabama Department of Forensic Sciences laboratory and subsequently verified at the time of the test with dry gas standards.

(m) Calibration Check. For the purpose of this rule, a calibration check is the automated process whereby the Draeger Alcotest 7110 MKIII samples and tests a known dry gas standard to verify the instrument's acceptable calibration.

(n) Certificate of Analysis. For the purpose of this rule, the Certificate of Analysis is the document generated by the Draeger Alcotest 7110 MKIII for introduction of Breath Alcohol Test results to the Courts. By design, when the Certificate of Analysis indicates a numerical value for the subject’s Breath Alcohol Concentration, the Certificate of Analysis is confirmation of successful method completion.

(o) Chemical Analysis. For the purpose of this rule, chemical analysis is the separation of a substance into its constituent elements to determine either their nature or their portions. The goal as set forth in §32‑5A‑194 Code of Ala. 1975, as amended, is the chemical analyses of a person's breath to determine the presence and quantity of alcohol (ethanol).

(p) Data Pack. The Data Pack contains the supporting data for the Certificate of Analysis as referred to at the bottom of that document. By design, the Data Pack along with the Subject Mis‑Try file, and when needed the IR Curves, EC Profile Plot, and Flow Profile Plot, constitute “…full information concerning the test or tests shall be made available to him or his attorney…” as referred to by §32‑5A‑194(a)(4) Code of Ala. 1975, as amended.

(q) Draeger. For the purpose of this rule, Draeger is the appropriate English translation of the German name Dräger.

(r) Deprivation Period. For the purpose of the METHOD as referred to by §32‑5A‑194 Code of Ala. 1975, as amended, prior to submitting to a Breath Alcohol Test a person should not be allowed to put anything in their mouth for at least 20 minutes.

(s) EC. For the purpose of this rule, EC will be the abbreviation for the electrochemical cell detector utilized by the Draeger Alcotest 7110 MKIII.

(t) EC Profile Plot. For the purpose of this rule, the EC Profile Plot is a plot utilized by the Draeger Alcotest 7110 MKIII that depicts EC Detector signal for a given breath sample.

(u) Flow Profile Plot. For the purpose of this rule, the Flow Profile Plot is a plot utilized by the Draeger Alcotest 7110 MKIII that depicts breath sample flow into the instrument.

(v) Forensic Edits. In the event an operator incorrectly input clerical data as requested by the Breath Alcohol Testing method, this information can be corrected by the following procedure: the operator should strike through the incorrect data (preferably a single strike leaving the original data legible), insert the correct data, and initial and date the correction.

(w) Interference. When the detector systems of the Draeger Alcotest 7110 MKIII respond to a substance other than alcohol (ethanol, ethyl alcohol), the instrument will terminate the test.

(x) IR. For the purpose of this rule, IR will be the abbreviation for the infrared detector utilized by the Draeger Alcotest 7110 MK III.

(y) IR Curve. For the purpose of this rule, the IR Curve is a plot of the infrared detector data utilized by the Draeger Alcotest 7110 MK III for a given breath sample.

(z) Method. For the purpose of this rule a method is an orderly and systematic approach to accomplishing a goal. The goal as set forth in §32‑5A‑194 Code of Ala. 1975, as amended, is the chemical analyses of a person's breath to determine the presence and quantity of alcohol (ethanol). Therefore the method refers only to those tasks, manual or automated, which occur at the time of the breath test and result in accurately identifying and quantifying the amount of alcohol on a particular person’s breath. The method in its entirety is performed and confirmed at the time of the breath test.

(aa) Minimum Volume Not Achieved. When a breath sample is provided to the Draeger Alcotest 7110 MKIII that is deficient in volume, as required by the software, the instrument will reject the sample.

(ab) Mouth Alcohol. When a breath sample contains a measurable amount of alcohol originating from the mouth, and is higher in concentration than the end expiratory air, the Draeger Alcotest 7110 MKIII will determine the sample to contain residual mouth alcohol. Once the presence of residual mouth alcohol has been determined the instrument will suspend the testing sequence for twenty (20) minutes. The testing sequence will resume at the end of the twenty‑minute wait preserving all clerical data entries.

(ac) Out of Measuring Range. When the alcohol concentration of a breath sample exceeds 0.45 g/210L the instrument will abort the testing sequence.

(ad) Operator. For the purpose of this rule, an operator is an employee of a law enforcement agency possessing a valid permit (active permit number) and who is in control of the Draeger Alcotest 7110 MKIII during a testing sequence. The operator also acts as a “FACT” witness with regard to instrument operation in any litigation arising from the breath test. As stated by the Court in Stubstad v. City of Orange Beach, 575 So.2d 1240 (Ala.Cr.App. 1991), the operator need not be an expert on the mechanical functioning of the instrument.

(ae) Permit. For the purpose of this rule, a permit is an electronic mechanism for controlling access to a Breath Alcohol Testing Instrument through a unique operator permit number. Confirmation of an operator's active status as well as pending expiration date is designated on the Certificate of Analysis.

(af) Purging. The Draeger Alcotest 7110 MKIII Breath Alcohol Testing Instrument cycles fresh air through the instrument analysis path to cleanse the pathway of the last sample analyzed.

(ag) Refusal. The operator may elect to end an incomplete test by declaring the subject has refused to provide two complete and acceptable samples. Refusal indicates the operator believes the subject to be intentionally obstructing the collection of evidence via the breath sample. The Draeger Alcotest 7110 MKIII Breath Alcohol Testing Instrument cannot make the decision for the operator that any unacceptable subject breath sample or sequence of unacceptable subject breath samples constitutes a subject refusal. After each unacceptable subject breath sample the operator has the opportunity to determine by which of the following three options the testing sequence will proceed: <1> REFUSAL <2> UNABLE <3> RESTART TEST. In event circumstances require abruptly ending the testing sequence with a refusal, the operator may select at the "PLEASE BLOW" prompt.

(ah) Standard Gas Supply. Failure of one of the two dry gas samples to be delivered to the Draeger Alcotest 7110 MKIII for analysis will result in the termination of the testing sequence.

(ai) Subject “Mis‑Try”. A subject “Mis‑Try” is a breath sample that failed to meet the acceptable criteria as determined by the Draeger Alcotest 7110 MKIII. A record of the attempted breath sample is preserved in the Subject “Mis‑Try” file.

(aj) Unable. The operator may elect to end an incomplete test by declaring the subject is unable to provide two complete and acceptable samples. Unable indicates the operator believes the subject to be incapable of providing the required breath sample and thereby is not intentionally obstructing the collection of evidence via the breath sample. The Draeger Alcotest 7110 MKIII Breath Alcohol Testing Instrument cannot assess the subject’s physical condition for the operator. After each unacceptable subject breath sample the operator has the opportunity to determine by which of the following three options the testing sequence will proceed: <1> REFUSAL <2> UNABLE <3> RESTART TEST.

(3) Approved Evidential Breath Alcohol Instrument List.

(a) Alcotest 7110 MKIII, Draeger Safety, Inc., Durango CO. For the purpose of this rule, variations or enhancements that do not have any bearing on the alcohol measuring capability of the instrument, such as the addition of a modem designated as an Alcotest 7110 MKIII C, are approved.

(4) Approved Evidential Breath Alcohol Test Method.

(a) The method of operation of the Draeger Alcotest 7110 MKIII is software driven and controlled so as not to be influenced by operator technique. The method requires the operator to input the following clerical data (steps 1‑18) as prompted. It is appropriate for the operator to enter a “‑“ for steps 6.(i), 6.(ii), 6(iii), 6.(iv), 6.(v), and 10 ‑ 16 when the requested information cannot be obtained. Omission of an entry in any field will prevent the completion of the Breath Alcohol Testing method.

1. PERMIT NO. (NUMBER): The operator must enter and confirm his/her unique Draeger permit number.

2. <1> DUI <2> ADMIN <3> DEMO: The operator must select the type of testing routine to be administered to the subject.

3. ENTER DRY GAS STND (STANDARD) #1 PRESSURE: The operator must observe and record the pressure from the gas regulator gauge on dry gas standard #1 (0.020 g/210L ethanol standard). It should be noted that the gas pressure has no bearing on the analytical result obtained from the DUI testing routine.

4. ENTER DRY GAS STND (STANDARD) #2 PRESSURE: The operator must observe and record the pressure from the gas regulator gauge on dry gas standard #2 (0.080 g/210L ethanol standard). It should be noted that the gas pressure has no bearing on the analytical result obtained from the DUI testing routine.

5. 20 MIN (MINUTE) DEPRIVATION PERIOD: The operator must confirm that the subject has been under the control of the arresting officer, the operator, and/or other employee of a law enforcement agency for a minimum of 20 minutes. Enter “Y” for yes or “N” for no.

6. ARREST OFFICER SAME AS OPERATOR: The operator must designate whether the breath test operator is or is not the arresting officer. Enter “Y” for yes or “N” for no. If the arresting officer is not the breath test operator then the following information identifying the arresting officer will also be required.

(i) ARREST OFFICERS LAST NAME: The operator must enter the last name of the arresting officer.

(ii) ARREST OFFICERS FIRST NAME: The operator must enter the first name of the arresting officer.

(iii) ARREST OFFICERS MIDDLE INITIAL: The operator must enter the middle initial of the arresting officer.

(iv) ARREST OFFICERS IDENTIFICATION NUMBER: The operator must enter the agency identification number of the arresting officer.

(v) ARREST OFFICERS AGENCY: The operator must enter the agency of the arresting officer.

7. TIME OF OFFENSE: The operator must enter the date and time of the offense using the following format .

8. COUNTY OF OFFENSE: The operator must enter the county in which the offense occurred.

9. SUBJECT’S UTC (UNIFORM TRAFFIC COMPLAINT NUMBER): The operator must enter the subject’s Uniform Traffic Complaint number.

10. SUBJECT LAST NAME: The operator must enter the subject’s last name.

11. SUBJECT FIRST NAME: The operator must enter the subject’s first name.

12. SUBJECT MIDDLE INIT (INITIAL): The operator must enter the subject’s middle initial.

13. SUBJECT STREET ADDR/APT (ADDRESS/APARTMENT): The operator must enter the subject’s street or apartment address.

14. SUBJECT TOWN/CITY: The operator must enter the subject’s town or city of residence.

15. SUBJECT STATE: The operator must enter the subject’s state of residence using appropriate two‑letter designation.

16. SUBJECT DL# (DRIVER’S LICENSE NUMBER) OR SS# (SOCIAL SECURITY NUMBER): The operator must enter the subject’s driver’s license number, Alabama file number, social security number or Alabama I.D. number.

17. SUBJECT (MALE/FEMALE): The operator must designate the subject’s gender using “M” for male and “F” for female.

18. SUBJECT DOB (DATE OF BIRTH): The operator must designate the subject’s date of birth using the format . An entry of 01/01/1900 will be used when the subject’s date of birth cannot be obtained.

(b) Upon completion of clerical data entry the Draeger Alcotest 7110 MKIII continues the Breath Alcohol Testing method by performing or displaying the following automated steps or messages.

1. PURGING

2. AMBIENT AIR CHECK

3. AIR BLANK CHECK

4. ACCURACY CHECK (0.020 g/210L)

5. PURGING

6. AMBIENT AIR CHECK

7. AIR BLANK CHECK

8. INSERT MOUTHPIECE, PRESS BUTTON (Operator Task)

9. PLEASE WAIT

10. PLEASE BLOW (First Subject Sample)

11. STOP

12. REMOVE MOUTHPIECE

13. PURGING

14. AMBIENT AIR CHECK

15. AIR BLANK CHECK

16. PLEASE WAIT

17. PURGING

18. AMBIENT AIR CHECK

19. AIR BLANK CHECK

20. INSERT MOUTHPIECE, PRESS BUTTON (Operator Task)

21. PLEASE WAIT

22. PLEASE BLOW (Second Subject Sample)

23. STOP

24. REMOVE MOUTHPIECE

25. PURGING

26. AMBIENT AIR CHECK

27. AIR BLANK CHECK

28. ACCURACY CHECK (0.080 g/210L)

29. PURGING

30. AMBIENT AIR CHECK

31. AIR BLANK CHECK

32. RESULT

33. DATA STORED

(5) Report of Breath Alcohol Test Result.

(a) The Certificate of Analysis produced for each individual Breath Alcohol Test is confirmation of successful METHOD completion when an analytical result (number) is obtained. For a Breath Alcohol Test result to be reported, indicating successful METHOD completion, the following steps must be performed.

1. “DIAGNOSTIC CHECKS BEFORE AND AFTER OK”: An automated internal diagnostic check is performed by the Draeger Alcotest 7110 MKIII one hundred twenty eight (128) times per second. For each Breath Alcohol Test, the Draeger Alcotest 7110 MKIII stores in memory a record of a single diagnostic “Snap Shot” before the first subject sample is collected and after the second subject sample is collected.

2. “CALIBRATION CHECKS BEFORE AND AFTER OK”: An automated calibration check is performed before the first subject sample is collected and after the second subject sample is collected to verify the calibration of the Draeger Alcotest 7110 MKIII at the time of the breath test. A 0.020 g/210L ethanol standard is introduced into the instrument before the first subject sample is collected. An acceptable result of 0.015 to 0.025 g/210L will allow the Breath Alcohol Test to proceed. A 0.080 g/210L ethanol standard is introduced into the instrument after the second subject sample is collected. An acceptable result of 0.076 to 0.084 g/210L must be obtained before the results of the Breath Alcohol Test will be reported. When results obtained from the calibration checks are not within the stated acceptable ranges, the “Certificate of Analysis” obtained from the Draeger Alcotest 7110 MKIII will indicate ACCURACY CHECK FAIL and no numerical result will be reported at the time of the breath test..

3. "INSPECTION BEFORE AND AFTER TEST OK": Completed Diagnostic Checks and Calibration Checks verify instrument accuracy and reliability and therefore constitute a time of test inspection. When a condition exist which prevents the completion of either the diagnostic checks or the calibration checks the "Certificate of Analysis" will not bear this statement.

4. “THE SUBJECT MUST COMPLETE A DEPRIVATION PERIOD OF AT LEAST TWENTY MINUTES BEFORE PROVIDING THE FIRST BREATH SAMPLE”. An operator must attest that reasonable efforts were made by an employee of a law enforcement agency to deprive the subject of putting potentially interfering substances in their mouth. In event the operator becomes aware of potentially interfering substances in the mouth, the deprivation period should be restarted.

5. “TWO ACCEPTABLE BREATH SAMPLES WERE ANALYZED, THE LOWEST RESULT IS REPORTED”. The subject must provide two acceptable breath samples for analysis. The lowest alcohol result generated from each breath sample must agree within 0.020 g/210L of breath. If the alcohol results from the two breath samples do not agree within 0.020 g/210L of breath, the instrument will begin a second breath sample collection sequence. Failure to provide two (2) acceptable breath samples for the second breath sampling sequence will constitute a refusal of the whole test. When the results of two acceptable breath samples do agree within 0.020 g/210L of breath, the Draeger Alcotest 7110 MKIII will report the lowest result truncated to the second decimal place.

6. When the subject provides a breath sample that does not meet the minimum acceptable criteria or when not prompted to do so, one of the following errors will be recorded in the Subject “Mis‑Try” file: “Minimum Volume Not Achieved”, “Blowing Time Too Short”, or “Blowing Not Allowed”. When the Draeger Alcotest 7110 MKIII determines a sample or samples to be unacceptable the operator has the opportunity to determine by which of the following three options the testing sequence will proceed: <1> REFUSAL <2> UNABLE <3> RESTART TEST.

(b) Four copies of the Certificate of Analysis will be generated each bearing the statement “SUPPORTING DATA FOR THIS DOCUMENT IS AVAILABLE UPON WRITTEN REQUEST TO THE ALABAMA DEPARTMENT OF FORENSIC SCIENCES, IMPLIED CONSENT SECTION”. The supporting data or information as referred to in §32‑5A‑194(a)(4) Code of Ala. 1975, as amended, for the Certificate of Analysis consists of the “Data Pack”, “Subject Mis‑Try File”, and when needed IR Curves, EC Profile Plot, and Flow Profile Plot.

(6) Qualifications: An applicant must satisfactorily complete a new operator's course in the operational procedures of the Breath Alcohol Testing Instrument and be an employee for one of the agencies listed in §32‑5A‑194, Code of Ala. 1975, as amended.

(7) Permits:

(a) Permits to perform a chemical analysis of a person's breath pursuant to §32‑5A‑194, Code of Ala. 1975, as amended, will be issued by the Director of the Department of Forensic Sciences upon the recommendation of the Technical Director of the Implied Consent Section of the Department of Forensic Sciences.

(b) Permits issued to new operators will automatically expire at the end of the succeeding calendar year.

(c) Operator permit status can remain active by satisfactorily completing a continuing education session each calendar year and by being an employee for one of the agencies listed in §32‑5A‑194, Code of Ala. 1975, as amended. The permit of an operator failing to complete a continuing education session any year after their new operator's course will automatically expire at the end of that calendar year.

(d) An operator who fails to attend a continuing education session may be reactivated provided they attend a continuing education session within two calendar years. Any operator who remains inactive for more than two successive calendar years must attend a new operator’s class to be reinstated.

(e) Any action or practice which is misleading or deceptive, or the violation of any of the rules of the Alabama Department of Forensic Sciences promulgated under the provisions of §32‑5A‑194, Code of Ala. 1975, as amended, shall constitute grounds upon which the Director may revoke such permit.

(f) If the Director receives a complaint or has reason to believe that an operator is participating in misleading or deceptive practices, violating or has violated any of the rules, he shall notify the operator that a hearing to determine if the alleged infraction has occurred. The Director will designate a place and time for the hearing.

(g) The Director or his designee shall conduct the hearing.

(h) Upon revocation of a permit, the Director shall notify the operator, the operator's immediate superior and the Technical Director of the Implied Consent Section of the Alabama Department of Forensic Sciences.

Relevant Cites:

Designated Instrument: Harper v. City of Troy, 467 So.2d 269 (Ala.Cr.App. 1985)

Method: McDaniel v. State, 706 So. 2d 1305, (Ala.Crim.App. 2001).

Predicate: Ex parte Mayo, 652 So. 2d 201 (Ala. 1994); Ex Parte Vizzina, 533 So.2d 269,271 (Ala. 1988); Ex Parte Bush, 474 So.2d 168 (Ala. 1985); Moore v. State, 442 So.2d 164, 167 (Ala.Cr.App.1983); Patton v. City of Decatur, 337 So.2d 321 (Ala.1976); McGough v. Slaughter, 395 So.2d 972, 977 (Ala.1981).

Testimony: Stubstad v. City of Orange Beach, 575 So.2d 1240 (Ala.Cr.App. 1991)
Author: Dale A. Carpenter, Mark A. Pevey, Gregory L. Turner
Statutory Authority: Code of Ala. 1975, §§32‑5A‑194, as amended.
History: New Rule: Filed December 7, 1994; effective January 11, 1995. Amended: Filed October 10, 1995; effective November 11, 1995. (This function was transferred by Act No. 88‑660 to the Department of Forensic Sciences, May 13, 1988.) Amended: Filed July 24, 1996; effective August 28, 1996. Amended: Filed December 4, 1998: effective January 8, 1999. Amended: Filed May 7, 1999; effective June 11, 1999. Amended: Filed July 7, 2003; effective August 11, 2003. Amended: Filed June 4, 2004; effective July 9, 2004.



370‑1‑1‑.02 Evidential Breath Alcohol Testing Instrument Inspections. (Repealed 8/11/03)
Author: Department of Forensic Sciences
Statutory Authority: Code of Ala. 1975, §§32‑5A‑194, as amended.
History: New Rule: Filed December 7, 1994; effective January 11, 1995. Amended: Filed October 10, 1995; effective November 11, 1995. (This function was transferred by Act No. 88‑660 to the Alabama Department of Forensic Sciences, May 13, 1988.) Amended: Filed July 24, 1996; effective August 28, 1996. Amended: Filed December 4, 1998; effective January 8, 1999. Amended: Filed May 7, 1999; effective June 11, 1999. Repealed ‑ Appendices A, B and D also: Filed July 7, 2003; effective August 11, 2003.



370‑1‑1‑.03 Blood, Urine And Other Bodily Substances.

(1) Purpose. This rule describes the statutory elements required for the admissibility of evidence obtained from chemical analyses of a person’s blood, urine, or other bodily substance. This rule contains the METHODS as referred to by §32‑5A‑194 Code of Ala. 1975, as amended, that insures and verifies each chemical analysis is performed accurately and reliably. IN THE EVENT THAT ONE OF THESE REQUIREMENTS IS NOT FULFILLED, CHEMICAL ANALYSIS EVIDENCE MAY STILL BE OFFERED THROUGH TRADITIONAL EVIDENTIARY PREDICATE as described in Powell v. State, 515 So.2d 140 (Ala. Cr. App. 1986).

(2) Definitions and Abbreviations:

(a) Alcohol‑ For the purpose of this rule, use of the term alcohol shall refer to ethanol or ethyl alcohol unless otherwise specified.

(b) Method‑ For the purpose of this rule, a method is an orderly and systematic approach to accomplishing a goal. The goal as set forth in §32‑5A‑194 Code of Ala. 1975, as amended, is the chemical analyses of a persons blood, urine or other bodily substance to determine the presence and quantity of alcohol (ethanol) or other chemical substances. Therefore the method refers only to those tasks, manual or automated, that result in accurately identifying and quantifying the amount of alcohol or other chemical substance in a particular person’s blood or urine.

(c) Permit‑ For the purpose of this rule, a permit is authorization by the Director allowing an employee to analyze blood, urine, or other bodily substances for alcohol, drugs, or other chemical entities. By assigning a qualified employee this particular task the Director has expressed authorization.

(3) Qualifications. Applicants for a permit to perform a chemical analysis of a person’s blood, urine, or other bodily substance pursuant to the Alabama Chemical Test for Intoxication Act shall meet the following requirements.

(a) Be employed as a Forensic Scientist by the Alabama Department of Forensic Sciences and be assigned to the Toxicology Section or Implied Consent Section by the Director.

(b) Have been approved by the Toxicology Section Discipline Chief to perform analyses on blood, urine, or other bodily substance analyses for the purpose of identification and quantitation of alcohol and/or other drugs.

(4) Certification Permits.

(a) Permits to perform a chemical analysis of a person’s blood, urine, or other bodily substance pursuant to the Alabama Chemical Test for Intoxication Act will be issued by the Director and certified by the Toxicology Section Discipline Chief..

(b) Once issued, permits will remain effective concurrent with the term of employment of the individual. At the Directors discretion permits may be rescinded.

(5) Methods.

(a) Analysis of blood, urine, or other bodily substances for the presence of volatile compounds; such as alcohol (ethanol), shall be performed by Gas Chromatography utilizing internal standard headspace injection, in accordance with the Toxicology Section’s Standard Operating Procedure for that analysis.

(b) Analysis of blood, urine, or other bodily substances for drugs or other chemical substances will utilize a screening technology in conjunction with Gas Chromatography Mass Spectrometry confirmation, in accordance with the Toxicology Section’s Standard Operating Procedure for that analysis.
Authors: Dale A. Carpenter, Jack R. Kalin
Statutory Authority: Code of Ala. 1975, §32‑5A‑194, as amended.
History: New Rule: Filed December 7, 1994; effective January 11, 1995. Amended: Filed October 10, 1995; effective November 11, 1995. (This function was transferred by Act No. 88‑660 to the Alabama Department of Forensic Sciences, May 13, 1988.) Amended: Filed July 24, 1996; effective August 28, 1996. Amended: Filed July 7, 2003; effective August 11, 2003.



370‑1‑1‑.04 Field Sobriety Screening Tests.

(1) Purpose. This rule describes the approved TECHNIQUE (Procedure) as referred to by §32‑6‑49.13 Code of Ala. 1975, as amended, that insures each Field Sobriety Screening Test performed on an operator of a commercial vehicle is performed in a standardized and reliable fashion.

(2) Definitions and Abbreviations.

(a) Alcohol‑ For the purpose of this rule, use of the term alcohol shall refer to ethanol or ethyl alcohol unless otherwise specified.

(3) Approved Procedure. The test battery comprising the Horizontal Gaze Nystagmus (HGN), One‑leg Stand (OLS), and Walk and Turn (WAT) Field Sobriety Tests as described and applied according to the DUI Detection and Standardized Field Sobriety Testing Student Manual, Publication HS178, Transportation Safety Institute, National Highway Traffic Safety Administration, U.S. Department of Transportation in its June, 1992 or successor printings.

(4) Training Certificates. A certificate will be issued to each officer who successfully passes written and practical examinations during a minimum of 16 hours of Standardized Field Sobriety Test Training which included no less than two controlled drinking workshops using volunteer drinkers and wherein the administration and interpretation of the HGN, OLS, and WAT tests was presented.
Authors: Dale A. Carpenter, Mark A. Pevey, Gregory L. Turner
Statutory Authority: §32‑6‑49.13, as amended.
History: New Rule: Filed July 24, 1996; effective August 28, 1996. Amended: Filed July 7, 2003; effective August 11, 2003.



370‑1‑1‑.05 Field Sobriety Screening Devices.

(1) Purpose. This rule list the approved “FIELD BREATHALYZER or OTHER APPROVED DEVICE” as referred to by §32‑6‑49.13 Code of Ala. 1975, as amended. Additionally, this rule describes training requirements and minimal operational criteria necessary for accurate and reliable results.

(2) Definitions and Abbreviations:

(a) Alcohol. For the purpose of this rule, use of the term alcohol shall refer to ethanol or ethyl alcohol unless otherwise specified.

(b) Observation. For the purpose of this rule, use of the term observation shall mean to watch. Prior to the administration of a field sobriety screening test employing an approved field sobriety screening device a subject must be under the observation of the arresting officer for a period of not less than twenty minutes.

(3) Approved Training. Training afforded by the manufacturer of an approved device and/or training received as a part of the Alabama Preliminary Breath Testing Instrument course shall constitute approved training.

(4) Operation of Devices.

(a) Officers shall use the device according to the manufacturer’s operational procedure.

(b) Every subject must be under observation by the arresting officer for a period of twenty minutes before the screening device test is administered.

(5) Calibration. Calibration shall be checked every twelve (12) months. The device passes the calibration check if it renders a reading between 0.030 g/210L and 0.050 g/210L inclusive on a 0.040 g/210L percent standard delivered from either a wet bath simulator or a dry gas cylinder.

(6) Training and Calibration Records. It shall be the responsibility of each law enforcement agency to maintain permanent records documenting the training of each officer in the use of approved field sobriety screening devices and the annual calibration check results on each device in use by the law enforcement agency.

(7) Approved Field Sobriety Screening Device List.

NOTE: For the purpose of this rule, variations or enhancements that do not have any bearing on the alcohol measuring capability of the instrument, such as the addition of a modem, external printer or passive sampling systems are approved.

(a) Alco‑Sensor III (Device Model)
Intoximeters, Inc., Saint Louis, MO (Manufacturer)

(b) Alco‑Sensor IV (Device Model)
Intoximeters, Inc., Saint Louis, MO (Manufacturer)

(c) Alcotest 7410 (Device Model)
Draeger Safety, Inc., Durango CO (Manufacturer)

(d) Lifeloc FC‑10 (Device Model)
Lifeloc Technologies, Wheat Ridge, CO (Manufacturer)

(e) Lifeloc FC‑20 (Device Model)
Lifeloc Technologies, Wheat Ridge, CO (Manufacturer)

(f) Intoxilyzer 300 (Device Model)
CMI, Inc., Owensboro, KY (Manufacturer)

(g) S‑D2 (Device Model)
CMI, Inc., Owensboro, KY (Manufacturer)
Authors: Dale A. Carpenter, Mark A. Pevey, Gregory L. Turner
Statutory Authority: Code of Ala. 1975, §32‑6‑49.13, as amended.
History: New Rule: Filed July 24, 1996; effective August 28, 1996. Amended: Filed July 7, 2003; effective August 11, 2003.
Appendix A

Evidential Breath Alcohol Testing Quality Control.

Purpose.

The purpose of this section is to inform the public of the quality control or good laboratory practices that are utilized by the Alabama Department of Forensic Sciences to support Breath Alcohol Testing in the field. The practices described in this section only demonstrate that each Draeger Alcotest 7110 MKIII is capable of performing as expected. The method as described in 370‑1‑1‑.01(4) is the only sequence of steps that isolates alcohol (ethanol) from a subject to accurately determine the amount. Subsequently the quality control built into the method is the only process that verifies a particular Breath Alcohol Test did indeed perform as expected. Since the authority derived from §32‑5A‑194 Code of Ala. 1975, as amended, is limited to a method to perform a chemical analysis to determine the alcoholic content of a subjects blood the following information pertaining to good laboratory practice does not constitute a rule.

(1) Pre‑installation Evaluation. Each Draeger Alcotest 7110 MKIII is evaluated by the Alabama Department of Forensic Sciences Technical Director or his designee prior to being placed in operation. The evaluation will demonstrate the ability of each Draeger Alcotest 7110 MKIII to identify and flag specific conditions; as well as, verify the analytical integrity of the instrument.

(a) Purging Error. Place the instrument in the “Error Check” mode. Restrict the air flow into the ambient air inlet while the pump is running. This will prompt the instrument to display “Check Sampling Hose” and sound an audible alarm. Record pass if the message “Error Triggered, Test Okay” is printed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.

(b) Minimum Volume Not Achieved. Place the instrument in the “Error Check” mode. At the prompt “Please Blow”, deliver a deficient sample volume. Record pass if the message “Error Triggered, Test Okay” is printed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.

(c) Blowing Time Too Short. Place the instrument in the “Error Check” mode. At the prompt “Please Blow”, deliver a sample of sufficient volume and deficient duration. Record pass if the message “Error Triggered, Test Okay” is printed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.

(d) Blowing Not Allowed. Place the instrument in the “Error Check” mode. At any time other than when the instrument indicates “Please Blow” deliver a sample into the instrument. Record pass if the message “Error Triggered, Test Okay” is printed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.

(e) Ready To Blow Expired. Place the instrument in the “Error Check” mode. At the prompt “Please Blow” do not provide a sample. After three (3) minutes has elapsed this error will be triggered by the instrument. Record pass if the message “Error Triggered, Test Okay” is printed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.

(f) Ambient Air Check. Place the instrument in the “Error Check” mode. When the instrument begins to purge itself, direct an ethanol vapor (typically from a 0.020 g/210L dry gas cylinder) near the breath hose inlet, but not directly into the breath hose inlet. Record pass if the message “Error Triggered, Test Okay” is printed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.

(g) Interference. Place the instrument in the “Error Check” mode. Prepare a methanol control by adding 105 microliters of methanol to 500 milliliters of distilled water and dispense into a simulator. At the prompt “Please Blow”, deliver a sufficient sample into the instrument. Record pass if the message “Error Triggered, Test Okay” is printed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.

(h) Mouth Alcohol. Place the instrument in the “Error Check” mode. At the prompt “Please Blow” the evaluator should rinse his or her mouth with a common mouthwash containing ethanol, then deliver a sufficient sample into the instrument. Record pass if the message “Error Triggered, Test Okay” is printed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.

(i) Accuracy Check Fail. Place the instrument in the “Error Check” mode. Connect the 0.020 g/210L dry gas cylinder to the 0.080 g/210L gas port and initiate a test. Record pass if the message “Error Triggered, Test Okay” is printed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.

(j) Standard Gas Supply. Disconnect the dry gas cylinders from the instrument and initiate a test. Record pass if the message “Stnd Gas Supply” is displayed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.

(k) Outside +/‑ Tolerance. Initiate an administrative test sequence. At the prompt “Please Blow” deliver a sufficient sample. When prompted to deliver the second sample, deliver a sufficient sample which varies in concentration from the first by at least 0.021 g/ 210 L. Record pass if the message “Outside +/‑ Tol” is displayed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.

(l) No Admittance. The evaluator should attempt to initiate a restricted function without the use of an appropriate key. Record pass if the message “No Admittance” is displayed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.

(m) Linearity Check. Utilizing manufactured solutions prepare simulators with the following ethanol concentrations: 0.000g/210L, 0.020g/210L (+/‑ 0.005 g/210L), 0.040 g/210L (+/‑ 0.005 g/210L), 0.080 g/210L (+/‑ 5%), 0.120 g/210L (+/‑ 5%), 0.200 g/210L (+/‑ 5%), and 0.500 g/210L (+/‑ 5%). Place the instrument in the “Acc‑Check” mode. When instructed, connect the appropriate simulator to the instrument. Repeat this procedure three times for each ethanol control. Average the results obtained for each concentration from the three runs. To record pass, the average results must fall within the following parameters: 0.000 g/210L, 0.020 g/210L (+/‑ 0.005 g/210L), 0.040 g/210L (+/‑ 0.005 g/210L), 0.080 g/210L (+/‑ 5%), 0.120 g/210L (+/‑ 5%), 0.200 g/210L (+/‑ 5%), and 0.500 g/210L (+/‑ 5%). If the instrument does not pass, initiate the necessary corrective actions to achieve the desired specifications.

(n) Breath Temperature Check. Place the instrument in “ABA” mode. Initiate a testing sequence consisting of three breath samples. When instructed to do so deliver three breath samples into the instrument from a precisely controlled water bath apparatus adjusted to a temperature of approximately 34.0oC. Repeat this procedure using a precisely controlled water bath apparatus adjusted to a temperature of approximately 37.0oC. Record pass if the instrument records a temperature within +/‑ 0.3oC of the actual temperature. If the instrument does not pass initiate the necessary corrective actions to restore the instrument to proper working condition.

(o) Acetone Interference Check. Prepare a solution consisting of 500 milliliters of a manufactured 0.080 g/210L solution of ethanol and 950 microliters of Acetone in a simulator. Initiate an administrative test sequence. At the prompt “Please Blow”, deliver a sufficient sample into the instrument. Record pass if the message “Interference” is displayed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.

(p) Voltage Range Check. Verify the Draeger Alcotest 7110 MKIII’s performance capability throughout a voltage range of approximately 90‑200 volts AC and 12 volts DC.

1. With the instrument connected to a variable AC power supply, adjust the voltage to approximately 90 volts AC. Initiate a standard check sequence consisting of three measurements of a 0.080 g/210L dry gas standard. Record pass if the instrument records an average result between 0.076‑0.084 g/210L. If the instrument does not pass, initiate the necessary corrective actions to achieve the desired specification.

2. With the instrument connected to a variable AC power supply, adjust the voltage to approximately 220 volts AC. Initiate a standard check sequence consisting of three measurements of a 0.080 g/210L dry gas standard. Record pass if the instrument records an average result between 0.076‑0.084 g/210L. If the instrument does not pass, initiate the necessary corrective actions to achieve the desired specification.

3. With the instrument connected to a DC power supply, adjust the voltage to approximately 12 volts DC. Initiate a standard check sequence consisting of three measurements of a 0.080 g/210L dry gas standard. Record pass if the instrument records an average result between 0.076‑0.084 g/210L. If the instrument does not pass initiate the necessary corrective actions to achieve the desired specification.

(q) Barometer Check. Establish communication with the instrument in the diagnostic screen mode. Compare the barometric pressure as indicated by the instrument to the laboratories barometer. Record pass if the difference between the two readings is not greater than 5%. If the instrument does not pass initiate the necessary corrective actions to restore the instrument to proper working condition.

(r) Standard Deviation Check. Initiate a standard check sequence consisting of ten measurements of a 0.080% dry gas standard. Record pass if the instrument records the following: an average result between 0.076‑0.084 g/210L and a standard deviation of less than 0.0025. If the instrument does not pass initiate the necessary corrective actions to restore the instrument to proper working condition.

(2) Data Download Review. The Test Data collected and stored by each Draeger Alcotest 7110 MKIII in the field is transferred to the Alabama Department of Forensic Sciences. Upon transfer, the data is systematically reviewed to identify instrument problems and to perform trend analyses. This data transfer allows the Alabama Department of Forensic Sciences to review essentially 100% of the Breath Alcohol Tests performed statewide.

(a) Communication Check. The Draeger Alcotest 7110 Data Retrieval and Archiving Program produces a Summary of Automatic Data Retrieval. The summary readily identifies those instruments for which communication was not established. For those instruments that automatic communication was unsuccessful, manually establish communication. If communication problems persist investigate the source of the problem and document.

(b) Message Check. Open the Message File (50 File) to identify the automatic Instrument Messages and Operator Messages retrieved by the current download. Review the messages to determine the needs of the instrument, operator, or location (supplies). Document any actions taken.

(c) Instrument Parameter Check. Open the Data File (10 File) to identify Instrument Parameter data retrieved by the current download. Isolate the data corresponding to each of the following parameters collected before and after the subject samples for review: Ambient Air Pressure, 12V DC Power Supply, Battery Voltage, IR Signal, EC Offset, Cuvette Temperature, Breath Hose Temperature, Breath Probe Temperature, Breath Temperature Thermistors, Flow Sensor, Pre‑Test Diagnostic Check, and Post‑Test Diagnostic Check. For each parameter identify when if any an instrument recorded a result outside the specified operating range. Investigate the source of any problem and document any corrective action.

(d) Dry Gas Configuration Check. Open the Data File (10 File) to identify the Dry Gas Configuration data retrieved by the current download. Isolate the data corresponding to each of the following categories for review: 0.02 Gas Lot Number, 0.02 Gas Expiration Date, 0.08 Gas Lot Number, 0.08 Gas Expiration Date, 0.02 Target Concentration, 0.02 Relative Tolerance, 0.02 Absolute Tolerance, 0.08 Target Concentration, 0.08 Relative Tolerance, and 0.08 Absolute Tolerance. For each category identify if the instrument contains the correct configuration. Investigate any discrepancy and document any corrective action.

(e) Error and Accuracy Check. Open the Data File (10 File) to identify the Error and Accuracy Check data retrieved by the current download. Isolate the data corresponding to each of the following errors or measurements: Error, Error 2, Error 3, Error 4, 0.02 gas data, and 0.08 gas data. For each category identify when if any an instrument recorded a result outside the specified operating range. Also review the 0.02 g/210L and 0.08 g/210L gas data to identify low or high trends. Investigate the source of any problem or trend and document any corrective action.

(3) Electronic Inspection. The Electronic Inspection serves primarily as a quality assurance role by being a back‑up inspection to the instrument set‑up procedures and Data Download Review. The Electronic Inspection also is an opportunity to evaluate instrument performance over an extended time frame.

(a) Diagnostic Screen Check. Initiate the Draeger Alcotest 7110 Data Retrieval and Archiving Program. Establish communication with the instrument through the Diagnostic Screen. Evaluate the following displayed parameters: Instrument Serial Number, Instrument Location, Firmware Version, Date, Time, Ambient Air Pressure, 12VDC Power Supply, Battery Voltage, IR Signal, EC Offset, Cuvette Temperature, Breath Hose Temperature, Breath Probe Temperature, Breath Temperature 1, Breath Temperature 2, Function Key, and Flow Sensor. Investigate any discrepancy and document any corrective action.

(b) Interactive Screen Check. Initiate the Draeger Alcotest 7110 Data Retrieval and Archiving Program. Establish communication with the instrument through the Interactive Screen. Evaluate the following displayed parameters: Measuring Units, Calibration Configuration, and Cylinder Pressure Limit. Investigate any discrepancy and document any corrective action.

(c) Calibration Check Plot. Open the Data File (10 File) to identify the Accuracy Check data retrieved by the instrument over the last 6 months. Plot the Accuracy Check data for both the 0.02 and 0.08 g/210L Accuracy Checks. Investigate the source of any problem or trend and document any corrective action.

(4) Annual Re‑Evaluation/Pre‑Installation Evaluation. Regardless of the performance of an instrument in the field each instrument will be brought back to the Alabama Department of Forensic Sciences laboratory once a year for evaluation. This evaluation will consist of the battery of tests described under (1) Pre‑Installation Evaluation.
Authors: Dale A. Carpenter, Mark A. Pevey, Gregory L. Turner
Statutory Authority: Code of Ala. 1975, §32‑6‑49.13, as amended.
History: New Appendix: Filed July 7, 2003; effective August 11, 2003.

Ed Note: Appendix is attached to Rule 370‑1‑1‑.01, as per certification filed July 7, 2003; effective August 11, 2003.