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Alcohol Breath Test Technology Under Attack

Posted Wednesday, November 13, 2019 by Andrew Charles Huff

One regular tool police use to investigate DUI cases is the Preliminary Breath Test (PBT) device, the small handheld device that officer have driver blow into to estimate the BAC. In Washington, a driver does not have to submit to a roadside breath test as it is purely optional. It is only the breath test machines at police stations that carry potential license revocations if you refuse to provide a sample. These devices are larger and produce more accurate results than the roadside PBT devices.

All blood alcohol content breath testing machines use either fuel cell or infrared cell technology, or both. The cell sensors on the machines oxidize the alcohol in the breath sample, which produces an electrical current that the breathalyzer is able to measure and translate into the percentage of alcohol in the persons system. This all sounds rather confusing but it may be enough to say that the alcohol in a person’s blood vaporizes and passes through the lungs. These organic compounds passing through the lungs are measurable as wavelengths of alcohol.

Breath test machines including the Draeger Alcotest used in Washington can produce inaccurate results. This may occur when the machine itself is not properly calibrated or defective. False-positive results may also appear on the machine due to the presence of alcoholic compounds in a person’s system that show up as ethyl alcohol molecules—the molecules that the breathalyzer detects—when, in fact, the alcohol molecules detected are part of the wider spectrum of methyl alcohol. Ethyl alcohol, the compound that is found in alcoholic drinks is only one molecule in a broader array of alcoholic compounds. For example, a person who suffers from certain medical conditions or who is taking a prescription medication may test positive on an alcohol detection breath test even though he or she has not been drinking.

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Draeger AlcoTest Breath Machine’s Accuracy Called Into Question

Posted Wednesday, November 13, 2019 by Andrew Charles Huff

Many of the alcohol breath test machines used by police on DUI cases can often be unreliable, according to a recent New York Times investigation. The investigation found these machines showing skewed results with alarming frequency, even though they are marketed as precise to the third decimal place.

For example, various judges in Massachusetts and New Jersey have thrown out more than 30,000 breath tests in the past 12 months alone, largely because of human errors and lax governmental oversight. Across the country, thousands of other tests also have been invalidated in recent years.

The machines are sensitive scientific instruments, and in many cases they haven’t been properly calibrated, yielding results that were at times 40 percent too high. Maintaining these machines is up to police departments that sometimes have shoddy standards and lack expertise. Technical experts have found serious programming mistakes in the machines’ software. Various states have picked devices that their own experts didn’t trust and have disabled safeguards meant to ensure the tests’ accuracy.

A county judge in Pennsylvania called it “extremely questionable” whether any of his state’s breath tests could withstand serious scrutiny. In response, local prosecutors stopped using them. In Florida, a panel of judges described their state’s instrument as a “magic black box” with “significant and continued anomalies.” Even some industry veterans say the machines should not be de facto arbiters of guilt. “The tests were never meant to be used that way,” said John Fusco, who ran National Patent Analytical Systems, a maker of breath-testing devices.Yet the tests have become all but unavoidable. Every state punishes drivers who refuse to take one when ordered by a police officer.

The Dräger Alcotest 9510 in Washington

Washington state uses the Dräger Alcotest 9510 machine and here’s how it works: When a person breathes into the device, a beam of infrared light is shot through the sample. Chemicals, including the ethanol in alcoholic drinks, absorb light to varying degrees. By analyzing how much light is absorbed, the instrument can identify the type of chemical and the amount of it present. This machine also use a fuel-cell sensor — the same type of tool that is in portable devices. Each system is supposed to operate independently; if both return similar results, it’s argued to be an extra assurance that the measurement is accurate.

We on the defense side have repeatedly tried to forensically examine the machines, especially their software because inspecting the code could reveal any built-in flaws or assumptions the devices use in their calculations. But even procuring a machine is a challenge because manufacturers won’t sell them to the public. When our state decided to spend more than $1 million to replace its aging machines in 2009, the state police chose the Alcotest 9510 despite a report by their own scientist that described the machines as “not yet ready for implementation.”

Before rolling out the machines, state officials debated whether to spend tens of thousands of dollars on an outside expert to evaluate the software. Dr. Fiona Couper, a state toxicologist, emailed her colleagues: “I think we throw caution to the wind and proceed without paying up front for an independent evaluation.” In 2015, a local judge granted a request from defense lawyers to review the software underpinning the state’s Alcotest machines. That task fell to a consulting company run by two veteran programmers and security experts, Robert Walker and Falcon Momot. Dräger insisted on extraordinary security. It demanded that its software be reviewed on an isolated computer network and that the state police be able to inspect the testers’ equipment, according to court documents. After a couple weeks dissecting the Alcotest code, they wrote a nine-page draft report, “Defective Design = Reasonable Doubt.” They planned to dig further, but things went awry when they shared their report with defense lawyers at a convention.

However, Dräger sent Mr. Walker a letter demanding that he and Mr. Momot ask anyone with a copy of their report to destroy it — including the lawyers who hired them — and to stay silent about the instruments’ inner workings. Facing a giant company, Mr. Walker felt he had no choice but to comply.

The report said the Alcotest 9510 was “not a sophisticated scientific measurement instrument” and “does not adhere to even basic standards of measurement.” It described a calculation error that Mr. Walker and Mr. Momot believed could round up some results. And it found that certain safeguards had been disabled.Among them: Washington’s machines weren’t measuring drivers’ breath temperatures. Breath samples that are above 93.2 degrees — as most are — can trigger inaccurately high results.

Washington had decided against spending more on a sensor that would check breath temperature and allow the software to adjust for it, according to Mr. Shaffer. He said Washington wasn’t alone; most of Dräger’s American clients skip the sensors.The Washington State Patrol has insisted they are confident in the machine’s accuracy and reliability and do not believe that the breath temperature sensor was needed to produce accurate results.

See https://www.nytimes.com › business › drunk-driving-breath

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Appeals Court: Backpack Must Be Actually “Possessed” To Be Searched

Posted Thursday, October 31, 2019 by Andrew Charles Huff

Can police search a person’s backpack if actual “possession” was not established? Not so, says Washington’s Court of Appeals.

An interesting case involving young Ms Alexander sitting in a field with friends marked by a ‘No Trespass” sign. Police arrive to speak with them and notice a pink backpack sitting directly behind Ms Alexander, who said the pack was hers. Ms Alexander is eventually arrested after a warrant pops up on an unrelated matter. The arresting officer takes the backpack and searches it, finding a controlled substance.

Ms Alexander challenged the search of the backpack and argued that the warrantless search was not a “search incident to arrest,” which is an exception to the warrant requirement. The Appeals Court agreed and found that because there was no evidence that Ms Alexander was “holding, wearing, or carrying the backpack at any time during her contact with the arresting officer,” she did not have actual or exclusive possession of it. Therefore, the search of the backpack without a warrant was unlawful.

State of Washington v. Heather A. Alexander, Court of Appeals-Division 1, 77513-8-I

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Sorry Officer, You Can’t Sit There

Posted Wednesday, August 28, 2019 by Andrew Charles Huff

Can a defendant get a fair trial if a corrections officer is allowed to stand next to the witness chair while defendant is testifying?

This was the issue following a guilty verdict by a jury of James Gorman-Lykken after the defendant testified but did so with a corrections officer standing next to him on the witness stand.

Mr. Gorman-Lykken argued that the trial court erred in allowing the corrections officer to be stationed next to the witness stand during his testimony as a security measure because it would violate his right to a fair trial.

In reviewing this case on appeal, the court found the presumption of innocence to be a basic component of a fair trial under our criminal justice system and in preserving this presumption of innocence, the defendant is “ ‘entitled to the physical indicia of innocence which includes the right of the defendant to be brought before the court with the appearance, dignity, and self-respect of a free and innocent person.’ ” Courts have previously recognized that certain courtroom security measures are inherently prejudicial. This includes shackling, handcuffing, or other physical restraints.

In this case, the appellate court found that the trial court abused its discretion in allowing the corrections officer to be stationed next to the testifying defendant without analyzing whether case-specific reasons supported the need for that security measure. Accordingly, the conviction of Mr. Gorman-Lykken was reversed.

State of Washington v. James Wrenne Gorman-Lykken, No. 51254-8-II

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How I Fight and Win Traffic Tickets

Posted Thursday, August 8, 2019 by Andrew Charles Huff

This question is one I’m asked by clients, friends, and colleagues who don’t practice traffic defense and my answer is always the same…a thousand different ways.

When I first review the discovery documents of any case, I look at the face of the ticket to ensure required information is present.

There are specific filing deadlines that have to be met by the court and prosecutor.

There are jurisdictional requirements for a court to hear a case. For example, Seattle Municipal Court could not hear a case cited in unincorporated King County.

A check of the alleged dates to see if everything is consistent, such as whether the violation date is the same as the date the ticket provided to the driver.

I examine what the officer’s qualifications and training in conducting traffic stops and operating a Speed Measuring Device (SMD).

The many foundational issues such as when the Speed Measuring Device (SMD) was calibrated and checked for accuracy by the citing officer and the results.

It is imperative to find as many issues as possible to show the court the prosecutor has not met their burden of proof. Remember, unlike a criminal case, the burden of proof is much less…a preponderance or “more likely than not” the state has met their burden.

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