Do Prosecutors Trust The Intoxiliar 5000?

Well, Eric Dexheimer, on the Statesman’s Focal Point blog, actually asks the question “Do prosecutors walk the walk with DWI breath tests?”. The answer, of course, is usually a resounding “Hell No!” but a more interesting question is – if you believe me that the answer is “No”- then “Why Not?”

Could it be that as lawyers intimately involved in the criminal justice system, that they know their rights, and when to exercise them?

Bill Mange wins a .12 DWI Breath Test Trial

I’m at the Rusty Duncan seminar in San Antonio, and news comes by way of the Austin Criminal Defense Lawyer’s Association listserv that Austin DWI lawyer Bill Mange just got a Not Guilty verdict on a .12 breath test trial back in Travis County. I heard the jury came back in just under an hour.

Congrats Bill.

I knew you were on to something when I walked into County Court Number 7 yesterday and saw an Intoxilyzer sitting in the middle of the courtroom with a “Defendant’s Exhibit #6” sticker on it.

I assume you’ll be getting that back, eh?

Why DWI Lawyers Should Read Blogs

One of the things I love about the criminal defense/DWI blogosophere is that it is a great resource for practicing lawyers. Reading other attorneys’ thoughts often helps me in my day to day practice.

Two quick examples:

From Robert Guest on DWI and Jury Selection:

As part of the jury selection process I often ask potential jurors if they have ever driven after drinking. The vast majority of potential jurors answer yes.

The truth about DWI is that most jurors have committed DWI in their past but did not get arrested. They only difference between them and the defendant is luck.

When I inquire into the reason they chose to drink and drive most will say they were "young and stupid." I often wonder at why jurors are so ready to ruin the lives of defendants who are on trial for DWI, when they have committed the same crime themselves.

I’m not sure I would ask the “why” follow up question in Voir Dire, but that’s a matter of personal style. The point is that by reading Robert’s blog, I’ve added a question to my repertoire.

It’s simple, to the point, and something the DWI lawyer wants and needs to know. I’ve had my own ways (in the past) of inquiring about this subject matter, but because of Robert’s post, I’m going to adopt his way of doing it. It’s better than how I tried to illicit the information, and I’m not afraid to admit it. Read, learn, and get better. (I can even admit that his method is so much simpler and better than mine has been that I’m a little embarrassed.)

One general rule for jury selection is that you shouldn’t be asking “raise your hand if …” type questions, you should be asking questions that force potential jurors to respond substantively, with their own thoughts and ideas. But this is a good example of an exception to the general rule.

Example #2 comes from Mark Bennett, but some background before we get to his specific cross examination question. 

I think one of the most difficult tasks for a DWI lawyer is to successfully defend a breath or blood test case where the client’s BAC (Blood or Breath Alcohol content) comes back as over .08. Briefly, there are two basic defenses: (1) the machine is an untrustworthy piece of junk, or (2) the defendant’s BAC at the time of driving was lower than at the time of the test

The problem for the DWI defense attorney is that both of these are highly technical, i.e. scientific based defenses… and we went to law school. Few of us have graduate degrees in Science. Or undergraduate degrees, for that matter. Personally, I received a Bachelor of ‘Science’ in Psychology, after relatively brief and/or longer stops in the Departments of Computer Science, Theater Arts, and English, in that order. (OK, it took me a while to figure out what I wanted to do – and even then I changed my mind - although you can certainly make the case that my ‘Theater’ training still comes in handy.)

But generally speaking, the person testifying for the State knows more about the Intoxilyzer 5000 than we do. In Texas DWI cases, that person is the “Technical Supervisor’. Their job is essentially to come and testify that defense #1 is out the window, because the Intoxilyzer is God’s gift to machines, and that while defense #2 is theoretically possible, it doesn’t apply in your client’s DWI because blah blah blah (insert mumbo jumbo here, and the reasons seem to change to fit the facts of your particular case).

Here’s what I learned from Mark, in his post on “Dealing with the State’s Expert: One Last Question”:

If you get a chance to talk to the State's expert witness before trial (if you're allowed to, try; the best experts often see themselves as neutral, and will explain their conclusions to you), your last question should be: "What book should I read to learn about this topic myself." Get the book; it'll be a learned treatise that you can mine for cross-examination material.

Yes, it’s not technically cross examination; it’s an informal question most likely asked in whatever room the prosecutors are holed up in, and not in a pretrial or trial setting.

But here’s how it applies to DWI cases: it’s a great question to ask at the ALR driver’s license revocation hearing. This is often held before the criminal case, and it’s an absolute goldmine for defense lawyers. 

Why not use your ALR hearing last question to the technical supervisor to ask his question? About books, or magazine articles and the like. Worst case scenario is that the expert limits his knowledge of ‘learned treatises’ on the subject to a bunch of material that only backs up his side of the story.

At the very least, you can show that the State’s expert relies only on material that favors his conclusions. Or, in the alternative, that the DWI technical supervisor relies on scientific publications that help your client.

Either way, you learn more, and your clients (present and future) benefit.

Intoxilyzer 5000: Prosecutor Issues "Scientific" Challenge

Dennis Paxinos, the chief prosecutor for Yellowstone County, Montana, wrote a Guest Opinion column in the Billings Gazette this week entitled “Scientific Test would disprove DUI myth of ‘few drinks’.”

Outraged by the suggestion of legislators in his area that a “few drinks” might accidently put them over the legal limit of .08, he issues a challenge to any two legislators to have drinks and dinner with him with these conditions:

• We all agree to take a breath test on a Portable Breath Test Instrument (PBT) first to make sure we are all starting with a 0.00 BAC.

• The lawmakers, myself and a member of the press will order dinner and drinks and we chat as we would normally for an hour and a half.

• I would then ask everyone to estimate their BAC as well as the BAC of their dining companions.

• We would then be given a preliminary breath test from an officer on stand-by. And, to demonstrate how accurate the PBT tests are, we would then all be driven to the DUI processing center to have our breath analyzed on the Intoxilizer 5000. [sic]

He finishes his challenge by insisting that since the breath test machine will inevitably show them to be “under .08”, they will have to make a statement on the floor of the House or Senate that “having a couple of drinks with dinner is perfectly legal”. (Presumably, he means driving after a few drinks at dinner is legal.)

Ignoring for now his implication that being under .08 would automatically make someone not guilty, let’s analyze what’s wrong with his so called scientific challenge…

He assumes that the Intoxilyzer 5000 gives an accurate result. (Of course, the PBT that he offers first is so unscientific, that it doesn’t even meet the low threshold for admissibility.) If the machine is so “scientific”, why doesn’t CMI, the manufacturer, allow independent (read: non law enforcement) folks to buy the machine and test it out?

The basis of modern science is peer review; and yet CMI refuses to let their machine be independently tested? Does that sound like science to you?

One last point about his op-ed piece. Paxinos writes:

…having a couple of drinks with dinner is perfectly legal. However, consuming a lot of drinks with or without dinner coupled with driving is against the law and should not be condoned or accepted by anyone.

Thanks for highlighting the problem with DWI/DUI legislation everywhere. Something is fishy when even the prosecutor can’t enunciate a clear cut rule for “how much is too much”. 

If you’re going to write an article mocking the idea that folks don’t always know when they’ve exceeded a .079 breath alcohol content, shouldn’t you yourself be able to define it better than “more than a few drinks, but less than a lot”? Science indeed.

DWI Breath Test Machine Accuracy

Practicing DWI defense in Austin, Texas, I concern myself primarily with the accuracy of the Intoxilyzer 5000, the machine Austin Police Department uses, not the Breathalyzer or Alcotest machines. But I ran across this article about pending litigation in New Jersey regarding use of the Alcotest 7110 in DWI cases, and wondered if anyone else had a similar reaction to the first paragraph:

Police departments in dozens of North Jersey communities could soon begin using a new machine to determine drunkenness among drivers, following a judge's recommendation Wednesday that the device -- although not entirely accurate -- is fairly reliable.

“Fairly Reliable” – is that the standard now? 

I’m trying to see if I can track down the 268 page report that the retired judge submitted to the New Jersey Supreme Court. If and when I find it, I’ll have more later on this subject.

But from what I can tell from the newspaper reports, there appears to be at least an acknowledgment in the report that false high readings can be caused by variables in body temperature. This is also a known problem in some Intoxilyzer breath test results as well.