Recently, a lawyer’s group discussed in quite a bit of detail, the topic of what criteria a lawyer should consider when retaining an expert witness. While it is important for a lawyer to find a good expert to work with in litigation, it is also important for an expert to find a good lawyer.

My 33 years as a warnings expert has taught me that there are at least five rules that should help the expert maintain a healthy relationship with the lawyer.

1. Clear Statement of Objectives, Timetable and Fees. The attorney should tell the expert very clearly what the facts of the case are and for what area(s) of expertise the attorney is seeking assistance. The best time to hire an expert is early in the case prior to the taking of depositions (if possible) so that the lawyer will question witnesses in areas important to the expert and the development of facts that may be useful in developing or supporting expert opinions. Regardless, the expert needs to know the timetable for the trial and should avoid being hired at the last minute (unless the attorney is seeking a rebuttal witness). Obviously,there should be a clear understanding of the expert’s fee structure, retainer requirements and payment schedule. A written letter of retention is best for both parties to avoid any later misunderstandings about the expert’s assignment and payment procedures.

2. Experts must be allowed to behave as experts. Although this sounds obvious, attorneys must not prevent an expert from performing his or her due diligence (i.e., conducting primary or secondary research necessary to the development of opinions). An expert should never allow an attorney to determine what materials are important, or worse yet, e.g., what specific quotations in a deposition are important for an expert to review. The attorney is hiring the expert for their expertise and should allow them to use that expertise in their job.

3. There should be NO surprises for either party. While experts are performing their due diligence, they should communicate frequently with their client(s) and keep them informed both about their findings and the amount of time they are expending in their preparation. Similarly, the attorney should keep the expert informed about new developments in the case, the availability of new depositions, exhibits or other materials, changes in the schedule, etc.

4. Pay the witness in a timely manner according to the exact terms in the retention agreement. It is amazing how many attorneys in my 33 years as an expert have dogs “that have eaten their invoices.” Experts expect their client to be the attorney or law firm that has retained them and should not have to wait for the law firm to be reimbursed (e.g., by an insurance company) for the expert to be paid in accordance with their retention agreement. Experts should not be distracted from their primary role as an expert by such financial issues.

5. Finally, don’t forget to tell the expert the disposition of the case. Months (or years) should not go by without an attorney telling the expert if the case indeed settled.

Attorneys: Follow these five easy rules for a successful relationship with your expert.

During a traffic stop, many officers will conduct a breath test using a PBT, PRIOR to having the suspect perform field sobriety exercises. The problem with this is that they begin field sobriety testing while having already obtained knowledge of the preliminary breath test result.  This often times causes an officer to have a predetermined mindset that the suspect is impaired, even before conducting field sobriety testing.

For example, let’s say the officer conducts PBT testing, PRIOR to conducting field sobriety, and finds a result of 0.124g/210L. Having knowledge of the PBT result BEFORE performing field sobriety testing can subconsciously cause the officer to have a preconceived opinion that the suspect will fail field sobriety testing, upon which the arrest decision is already made.

Georgia Courts limit and restrict testimony, regarding PBT results to “positive” or “negative” for the presence of alcohol.  Since the actual alcohol concentration is not allowed in court for evidential use; restricting testimony to simply a “positive” or “negative” sends a FALSE message that any “positive” result must indicate impairment.

For example, a PBT result of 0.032g/210L is well below the per se statutory limit for DUI.  However, a law enforcement officer will testify in court that the defendant’s PBT result was “positive for alcohol”.  Even though this may be a true statement; it is VERY misleading.  The accurate response from the officer, based on the example above, should be “the PBT showed positive for alcohol, but negative for impairment.”  However, Georgia Courts again restrict testimony on this subject and will NOT allow officers to make this statement. As this would then open up discussion as to what the defendant’s actual alcohol concentration was at the time the hand held breath testing.

Another problem with using the PBT, PRIOR to conducting SFST disregards recommendations by the National Highway Traffic Safety Administrations (NHTSA) and the major manufacturers of the hand held breath test instruments.  NHTSA as well as the PBT manufacturers ALL recommend the necessity for a pre-test deprivation period of at least 15 minutes, prior to using the PBT as a screening device.  An officer that uses the PBT without adherence to this essential, 15 minute waiting period may get an artificially high reading as a result.  The artificially high result may also cause the officer to have the preconceived notion of impairment, before he even begins the field sobriety testing.

If Georgia is going to use the hand held instrument as a screening device, I believe it is imperative that the instruments be used properly and as they were intended to be used.

Matthew E. Malhiot

http://www.forensicalcohol.com/

Our thorough and detailed audit of this particular Intoxilyzer®, found that during 2010 and 2011, there were 161 breath tests administered by the agency using this instrument. Out of the 161 breath tests conducted, only 46% were completed without an “error message”.  This means that the majority of the breath tests conducted, during 2010 and 2011, were aborted due to numerous errors with the machine.

During the last two years, 29% of the breath tests performed on this instrument resulted in a PURGE FAIL; with a few of these PURGE FAILS being physically impossible.  A PURGE FAIL is the instrument’s inability to clear alcohol vapors from the sample chamber.  If there is no alcohol in the sample chamber, it should NEVER result in a PURGE FAIL.  However, it did occur with this instrument; which clearly demonstrates that the machine was malfunctioning and should have been removed from evidential use at least two years ago.

Adding to the issue, 38% of the completed breath tests found that the accused was BELOW a 0.08 breath alcohol concentration.  In fact, a vast majority of them blew 0.000.

Based on these findings, no result generated from this Intoxilyzer® should be considered scientifically reliable. Despite the critical problems with this breath test instrument, a review of the 2010 and 2011 Agency and Department Inspections show the instrument WAS  in-compliance with Chapter 11D-8 F.A.C.

This illustrates that the Florida Department of Law Enforcement’s Annual Inspections of the Intoxilyzer®, as well as the Agency’s Monthly Inspections, do NOT identify ALL problems with a breath test instrument.  However, a complete and thorough instrument audit, by a qualified expert, can uncover and expose problems that were NOT found, during these inspections.

Keep in mind that this audit is only a 2 year review of a SINGLE breath test instrument being used in the State of Florida.  There are over 400 Intoxilyzers® in use throughout the state; which have been in service since March of 2006.

We are certain that this instrument is NOT the only one with problems.  Each instrument should have a complete and comprehensive performance audit to help with the quality control process. FDLE does not have the staff or time to audit each instrument.

Instrument audits are only one of the many services offered by Forensic Alcohol Consulting and Training, LLC.  Contact us to learn how we may be able to assist you with your DUI case.

By: Matthew E. Malhiot- Forensic Alcohol Consulting and Training, LLC

www.ForensicAlcoholConsulting.com

I frequently have opportunities to appear in counties throughout the State of Georgia to testify regarding the “materiality” of the Intoxilyzer® 5000EN source code.  After the hearings, judges have issued a “Certificate of Materiality” allowing CMI, Inc. to be served with a subpoena to produce the source code.

You and your client are entitled to have knowledge of the way or manner in which the Intoxilyzer® generated the breath test result on the CMI print card.

Our litigation support services will assist you by reviewing your specific case and aid in developing the “material showing” that the court is seeking.  We will provide you with a complete and thorough understanding of the documents that the Georgia Bureau of Investigation and CMI, Inc. has in possession, as well as the specific instrument issues regarding your DUI case.  An interpretation of technical information on the instrument, software (source code) and my expert testimony will provide explanation of the issues to the finder of fact.

We stand ready to offer you support in your case preparation and to assist in exposing why this information is “material” to the defense of your client accused of DUI.

Georgia’s Bureau of Investigations, Implied Consent Program is the agency that has oversight and rule making authority for forensic breath testing of DUI suspects. Georgia uses the Intoxilyzer® 5000 as a soul source instrument for this forensic analysis of breath in suspected drunk drivers. The State of Georgia requires quarterly inspections of these instruments. However, these required inspections fall short of meeting scientific standards of reliability.

The quarterly inspection consists of various steps that are outlined in the Georgia’s Bureau of Investigations Implied Consent Operations Manual, Instrument Inspection Protocol (1/2/07). This document explains the steps the Implied Consent Area Supervisor is to use when inspecting the Intoxilyzer® 5000. The inspection schedule requires the instruments used for evidential breath alcohol testing be inspected “once each calendar quarter”. This means it could be up to five months and 30 days between inspections. For example, an instrument could be inspected on July 1 and would not be required to be inspected again until December 31 of that same year. What happens on December 31 if the inspection fails to meet the Georgia Bureau of Investigation standards? The instrument would be removed from service, but there would be six months worth of breath tests done on that particular instrument with no calibration checks having been conducted during that time frame.

The Implied Consent Area Supervisor is required to reprint the last breath test print card done on the instrument. This step in the quarterly inspection procedure is designed to “Determine if the operator conducted the test as trained and correctly logged the results”. However, there could be hundreds of breath tests done between quarterly inspections, but the only breath test audited was the single breath test done right before the quarterly inspection. If there are 100 breath tests done between quarterly inspections, this would equate to a 1% quality control check of breath testing. Furthermore, if there were 200 breath tests done between quarterly inspections the quality control check of breath test operators drops to .5%. It is impossible to verify whether an operator followed proper procedures simply by looking at the print card. The only check that can be done is to determine if the documentation was completed correctly, not whether the breath test was performed properly.

The Intoxilyzer® 5000EN model was designed with five filters, three of which are designed to detect interfering substances. The three filters are designed to detect acetone, toluene and acetaldehyde. However, the toluene and acetaldehyde filters are not validated as part of Georgia’s quarterly inspections. The acetone filter is the only filter required to be checked by the Area Supervisor according to Georgia’s Instrument Inspection Protocol. The purpose for this required check is to ensure the instrument will properly identify an interfering substance during a subject breath test. It is done by “….adding 0.25ml to 0.5ml of acetone to approximately 500ml of an ethyl alcohol solution” in a wet bath simulator. This requirement is not specific on the amount of acetone or ethyl alcohol solution to be used. If 0.25ml of acetone is used that would be half the amount that might be used on another inspection where an Area Supervisor may have used 0.5ml of acetone. Without required specific, scientific measurements of the acetone and ethyl alcohol solution, the concentration used is unknown. The instrument’s interferent detection threshold is being tested by an unknown solution concentration value.

The breath test sample is taken from a suspect based on time, pressure and slope. There is a pressure switch in the Intoxilyzer® 5000 that activates a “tone” when a suspect blows hard enough to trigger the pressure switch. If the suspect continues to blow and keeps the switch closed the tone will continue to sound. The Instrument Inspection Protocol does not require the Area Supervisor to check this pressure switch during the quarterly inspections. However, the pressure switch is vital in determining if the suspect is blowing hard enough and helps ensure the breath sample is reliable. If the switch is set too low, it will trigger and activate the tone when it should not. If the switch is set too high, it may be too difficult for a person to give a proper sample. When this occurs, they may be physically unable to provide a sample and their inability to do so may be interpreted as a refusal to complete the breath test.

A calibration check is also done as part of the quarterly inspection. According to the Instrument Inspection Protocol, this check is performed with a wet bath simulator containing “0.08 grams of ethanol per 210L at 34 degrees C”. The Implied Consent Manager has the discretion to allow the Area Supervisor to use a dry gas standard for this test. The instrument will conduct two analyses of the 0.08g/210L standard. This is the only check of the instrument’s calibration done for the entire quarter. This is known as a single point calibration check. This check would be good for a control test done with every single breath test (as many states do), but falls short of ensuring scientific reliability of all breath tests done during the quarter between inspections.

To ensure scientific reliability, calibration validations should be much more extensive. The calibration checks should be done at different points along the range of detection for the specific instrument model. A check at both the low and high ends of the instrument’s range of detection along with a check somewhere in the middle would be appropriate to check the calibration along its entire range of detection, i.e. a check at 0.04g/210L, a check at 0.15g/210L and a third check at 0.30g/210L. Completing five analyses at each of these levels and a calculation of the standard deviation of all the testing would ensure the instrument measures properly. This would more than likely allow 95% of all breath tests done in Georgia to fit within the instrument’s calibration validation.

Both accuracy and precision checks are vital to ensure scientific reliability in breath testing. Georgia’s Instrument Inspection Protocol lacks procedures for ensuring instrument precision. Precision can be measured by at least three analyses and a calculation of the standard deviation based on the three analyses. Although three analyses can calculate a standard deviation, it is well-advised to use more analyses. Some states use as many as ten analyses to calculate a standard deviation and measure precision. This is known as repeatability. Does the instrument give consistent results over multiple analyses?

The American Society of Crime Lab Directors (ASCLD) has even established standards stating that calibrations should use “traceable reference standards and reference materials, which confirm the accuracy and precision of the breath alcohol measuring instruments across a range of ethanol values…” (ASCLD/LAB International’s Forensic Science Breath Alcohol Calibration Program, Breath Alcohol Calibration Guidance Document, December 12, 2009)

Control testing with every breath test also helps ensure scientific reliability. Georgia does not perform a control test with every breath test, as is done in most other states. The control test is recommended by National Safety Council, Committee on Alcohol and Other Drugs, Report of the Subcommittee on Alcohol: Technology, Pharmacology and Toxicology, February 18, 2008. This control test recommendation is “an assessment of within-run accuracy and /or verification of calibration”. The Intoxilyzer® 5000 is physically capable of doing control testing during the breath test sequence and can be done with either a wet bath simulator control test or a dry gas standard control test. If implemented by Georgia, a control test would check the instrument’s accuracy and calibration at the time of the breath test. A calibration check done months prior to or months after a subject test does not meet the basic safeguards of ensuring scientific reliability. Even though Georgia does two diagnostic checks with every breath test, these diagnostic checks do not check instrument calibration with a National Institute of Science and Technology (NIST) traceable standard.

The breath test instrument used in Georgia is a fine instrument, but the way it is used falls short of scientific reliability. If the State of Georgia wants scientific reliability (and it should demand it) then further accuracy and precision checks should to be required in the quarterly inspection procedures. Additionally, control testing with every breath test performed must be implemented to ensure the reliability of the results.

Matthew E. Malhiot
mmalhiot@forensicalcohol.com

http://www.forensicalcoholconsulting.com/

Having been a Department Inspector for FDLE’s Alcohol Testing Program for many years, provides me complete knowledge and understanding of the flow sensor issues being litigated in the Florida courts today.  In 2009, while still working for FDLE, equipment was purchased to initiate testing for flow sensor accuracy.  Although the equipment was acquired, the testing procedure was never implemented by the FDLE Alcohol Testing Program.  Despite the lack of FDLE written procedures mandating the inspection of flow sensors, I was the only FDLE Department Inspector who implemented the validation process on flow sensors.  Since the equipment had been purchased by FDLE and was available for use, inspecting flow sensors should have been routinely included, as part of ALL department inspections.  Given the importance of flow sensor performance, it is unfortunate that the procedure for inspecting flow sensors was not implemented by other Department Inspectors until August 2010.

The flow sensor on the Intoxilyzer® 8000 is described by CMI Inc. as a “pressure transducer”.  The intended function of this pressure transducer is to measure both flow and breath volume, during breath testing.  Accurately measuring the flow and breath volume ensures the collection of a proper sample of breath for analysis.  Without routine inspections of the instrument’s flow sensors, the performance of the flow sensor cannot be validated.

The Intoxilyzer® 8000 used in Florida is based on obtaining a “minimum” sample volume of 1.1 Liters of breath.  CMI Inc. established this minimum threshold based on an attempt to ensure a deep lung breath sample was collected for analysis.  Obtaining a deep lung breath sample is the most accurate representation of alcohol concentration in the bloodstream.  Any breath sample collected of less than 1.1 Liters should produce a message of “Volume Not Met” on the breath test instrument. A Volume Not Met message would indicate that an adequate breath sample was NOT provided or there is a possible problem with the flow sensor. Obtaining a breath sample over 1.1 Liters of breath, in addition to meeting the other minimum sample requirements should produce a breath test result on the instrument.  However, this result may NOT be valid, if the flow sensor was not functioning as it was designed.

Since the function of the flow sensor is to help determine whether a valid breath sample has been collected, it is essential that the flow sensor is operating properly to ensure a reliable breath test result.   If the flow sensor is NOT functioning properly; the minimum sample requirements of flow and breath volume CANNOT be validated.  Although an instrument may provide a breath alcohol result, which is shown on the breath test affidavit as a valid breath test result, does NOT necessarily mean it is a reliable result.

Prior to August 2010, FDLE did not routinely check or calibrate the accuracy of the flow sensor as part of the departmental inspections. The flow sensor was ONLY checked or calibrated, if and when an instrument was sent to an authorized service center for repair. Breath tests administered, prior to the routine flow sensor inspections being conducted by FDLE Department Inspectors, may not have produced scientifically, reliable results.

A closer review of the flow sensor’s performance (which is not found on the Breath Test Affidavit) could indicate if a breath sample was invalid.  The breath test result printed on the Breath Test Affidavit may be an accurate analysis of the actual breath sample provided.  However, if the sample provided did NOT meet the minimum sample requirements, the result on the affidavit may NOT be valid for evidential use.

If you suspect there is a problem with the breath test instrument used in your client’s case, Forensic Alcohol Consulting & Training, LLC can provide you with a complete and thorough audit of the Intoxilyzer® 8000 used.  Our detailed instrument audits will identify any and all problems with the instrument, including flow sensor issues.  A review of the breath instrument used in your case will help determine if your client’s breath test result may be suppressed.

Matthew E. Malhiot