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Since 1986 the National Safety Council has laid out the necessary
safeguards for breath testing for police purposes.
THE NEED FOR DUPLICATE TESTING
The first and foremost safeguard is called
duplicate testing, which is
the testing of two separate breath tests which should be taken
from a suspect within 5 minutes of each other. This is the
cornerstone of quality assurance in breath testing. Duplicate
testing should not be confused with replicate testing which is
merely the retesting of the same sample. Duplicate testing has
been used throughout the Country for several decades, and was
used by the New York State Troopers, Nassau County Police
Department, Suffolk County Police Department, as well as every
major Police Department in the State even though the Statute did
not require it. It is done to ensure quality control in breath
testing programs and was deemed a necessary safeguard in
preventing false high readings, or inaccurate results of a breath
test. Any credible expert in Breath Testing will state that any
breath test result is unreliable, and cannot be a basis for a
conviction if the result cannot be duplicated. In fact, the
experts for the Police Department in the past testified that it
was a necessary safeguard for breath test analysis. In fact, the
Nassau County Police Commissioner had issued an Order that stated
that two separate breath tests must be given to a person arrested
for DWI.
EXPERTS INSIST ON DUPLICATE TESTING
Dr. Kurt M. Dubowski, a world leading scientist in the area of
blood testing and breath testing for the Government, has
championed the necessity of Duplicate Testing for over 40 years.
His position on Duplicate Testing has been accepted by the
National Safety Council, National Highway Traffic Safety
Administration and is accepted by both scientists and Police
Departments throughout the country and world. This is not
surprising as "duplicate testing" is a standard, established
methodology in analytical chemistry
and toxicology.
Unfortunately, the Nassau County Police Department, Suffolk Police
Department, New York State Troopers as well as the New York City
Police Department no longer use duplicate testing in their breath
test programs. What is the reason? At the trial of People v.
McCabe, the Technical Supervisor for the Nassau County Police
Department testified that the reason they discontinued the use of
duplicate testing on the Intox 5000 was because they found they
were coming up with different readings when they did so!!! When
the jury heard this they had little difficulty coming up with a
Not Guilty Verdict on all counts.
Dr. Dubowski published the following in 1994 in his Article
Quality Assurance in Breath Testing:
The
National Safety Council Committee
on Alcohol and Other Drugs endorses a minimum of two (2)
tests taken not less than 2 or more than 10 minutes apart, as per
Dubowski on page 310 of the following article: K. M. Dubowski. "Quality
Assurance in Breath-Alcohol Analysis." JOURNAL OF
ANALYTICAL TOXICOLOGY, Vol. 18: 306-311 (1994).
In previous testimony under oath in Nassau County – The Technical
Supervisor of the Nassau County Police Department - Police
Officer John Dell’area, stated that he was aware of the opinions
of Dr. Dubowski and other known experts like Dr. Alan Wayne
Jones; as he attended a course before becoming a Technical
Supervisor, where Dr. Dubowski lectured that Duplicate Testing was
necessary. The Supervisor admitted at trial that he was powerless
to implement Duplicate Testing at the Nassau County Police
Department, even though he was responsible for bringing Quality
Control to the Breath Test Program, because his superiors would
not permit Duplicate Testing.
THE UNFAIRNESS OF THE TESTING PROCEDURES
UTILIZED BY THE NCPD
In Nassau County a person arrested for a DWI is not permitted to
have a second breath test if they request it, nor will the Police
administer a blood test to them if they request it. This is the
policy even though it is the most accurate test. Scary, when one
considers that A PERSON CONVICTED OF A FIRST TIME DWI OFFENSE
FACES UP TO ONE YEAR IN JAIL as well as other severe
consequences. Under the law, a person has a right to have
a blood test from a doctor of their own choosing. While in the
past the NCPD used to inform a person of this valuable right at
the time the police requested a breath test, recently they have
instituted a policy that they no longer advise a person that they
possess this right. It’s like having a right to vote, and not
being informed of it. Ironically, even though the police have the
right to take your blood, they will decline to do so even if you
request it and agreed to pay for it. They also will not permit
you to go to hospital to get a blood test, nor will they transport
you to one, even though there is a hospital less than a mile away
where a blood test can be administered. Although the police can
have an EMT, AMT or Nurse take your blood, they will not permit a
nurse who appears at station to draw a suspect’s blood if they are
doing so on the behalf of the suspect. In essence, they have
instituted a policy which makes it virtually impossible to get a
second test under any conditions. WHY? One can only draw the
conclusion that they are more concerned with obtaining convictions
than getting an accurate result.
WHY DUPLICATE TESTING IS NECESSARY
Duplicate Testing is necessary because it aids in the detection of
mouth alcohol, and other problems that can lead to an artificially
high reading. Duplicate Testing aids in ensuring that a breath
test result is reliable and correct. If the first test shows a
reading of .14 and the second test is much lower or higher then
this would indicate that the readings are not reliable and may be
the result of mouth alcohol, operator error, radio frequency
interference, operator tampering and other problems. While the
Intoxilyzer 5000EN readings can be affected by intentional, or
unintentionally by radio frequency interference, or operator
manipulation and other circumstances, research has shown it is
very difficult to reproduce the same results on two separate
breath tests. The Intoxilyzer 5000 EN is capable of running
duplicate tests on the same breath test printout. It would take no
more than an additional 5 minutes to do so. While the software is
in place in the machine, the Police Departments in Nassau, Suffolk
and New York City, have chosen not to use this option for no good
reason.
EXPERTS STATE THAT A SINGLE BREATH TEST WITHOUT DUPLICATION
SHOULD NEVER BE A BASIS TO CONVICT.
Any credible
breath test expert will tell you that failing to confirm the
accuracy of the first breath test reading on the Intoxilyzer
5000EN with a later breath test on a second separate sample with
the same machine makes the first reading unreliable. Reliability
is defined as the ability to reproduce the same result through
later tests, or in other words the ability to confirm the accuracy
of the first test result. If the first test result cannot be
confirmed by a second breath test within a short period of time,
it can never be deemed reliable or accurate. Dr. Alan Wayne
Jones, one of the world’s leading experts in this area, has stated
in his presentation the "Dilemma of a Constant Blood/Breath Ratio
in Chemical Test Evidence of
Intoxication” at the ALCOHOL DRUGS AND
TRAFFIC SAFETY: PROCEEDINGS OF
THE T89 11th INTERNATIONAL CONFERENCE ON ALCOHOL, DRUGS AND
TRAFFIC SAFETY, National Safety
Council: Chicago on page 240 that “It would be hard to
defend a breath-test program with a per se statute based on a
single determination.” Moreover, in one of his lectures he stated
that one breath test alone without a confirmatory second test
minutes later, should never pass the Reasonable Doubt standard
used in a Criminal Trial to obtain a conviction.
Dr. Dominick
Labianca is the former Chairman of the Brooklyn College Chemistry
Department, who currently has 94 publications that deal with
chemistry, of which 40 deal with breath- and blood-alcohol
analysis. Like the aforementioned experts, Dr. Labianca considers
duplicate testing a necessary safeguard and has testified on
numerous occasions about the inherent unreliability of breath
alcohol analysis. Dr. Labianca has testified as an
expert witness in more than
260 cases over a period of more than 25 years in the area of
breath- and blood-alcohol analysis. He has been qualified as an
expert witness in
alcohol-based cases in numerous New York State Courts, including
Courts in the Counties of New York, Kings, Queens, Bronx,
Richmond, Nassau County, Suffolk County, Westchester County,
Dutchess County, Orange, and Ulster. He has also been qualified
as an expert witness in the Superior
Court of New Jersey (Essex
County). Moreover, he has been certified by CMI (the
company that makes the Intoxilyzer 5000) as an Intoxilyzer 5000
breath analysis operator and breath test instructor.
THE POLICE DEPARTMENT USE TRIPLICATE ANALYSIS OF BLOOD
Currently, when the Nassau County Police Department takes Blood
from a suspect for DWI, they test two samples, and tests the
samples three times. They test the samples in triplicate to
establish reliability. Even though this is done, recently it was
revealed that many of the Blood test results were incorrect. One
person was shown to be legally drunk, when in fact they had a
Blood Alcohol Concentration of zero. Blood testing is considered
to be the most accurate way of determining a person’s Blood
Alcohol Content. Yet the Nassau County Police Department does not
use it, and will refuse to give a person who requests a blood test
the option of getting one, even at their own expense. If there
can be mistakes in the most accurate test, what happens when they
use a much cheaper and less reliable breath test? If one is
charged with a crime and their life is on the line, they should be
given the most accurate test available, not the cheapest least
accurate. Common sense tells you that if your child was sick,
would you want the most accurate test or the less accurate test?
The same common sense should be applied when one considers a
person’s fate based upon one breath test.
LACK OF USE OF SECURITY CARDS
Moreover, the Nassau County Police Department (NCPD) used to use 3
ply carbon cards, know as security cards, where the reading was
printed out by dot matrix through a slot in the Intoxilyzer
Machine. These cards were used to ensure that that the Breath Tech
did not print out the reading or tamper with the actual reading
printout. These cards have been discontinued and replaced with a
laser printer. Indeed, an unsavory Breath Tech could print up a
breath test card for any subject on any computer with a printer
and pass it off as a person’s legitimate breath test. This would
be undetectable.
LACK OF VIDEOTAPING THE BREATH TEST AND COORDINATION TEST AT THE
STATION
While Police Departments throughout the Country and the New York
City Police Department videotape the breath test being taken and
the result, NCPD refuses to do so. Some departments even videotape
the period of observation. NCPD does neither. I have seen
numerous tapes from other Police Departments where the breath test
was clearly given incorrectly, which clearly increased the
reading. Just looking at the test record or breath test print
out, it was impossible to ascertain the errors in the breath
testing procedure. While NCPD has the video equipment to
videotape the period of observation, and the cameras are actually
in the room, they have made a decision not to videotape the period
of observation, or the breath test. Unlike other police
departments in the State which administer breath tests, the NCPD
will not videotape a person’s performance test on Standard
Field Sobriety Tests back at the station. This is unacceptable
given that the equipment is installed and used to videotape
person’s performance on these tests when the accused declines to
submit to the breath test.
Other police departments in New York and across the Country
videotape these performance tests. This is done to allow a jury to
see how the tests are given and how a person performs, and then
judge for themselves whether the person is intoxicated or the
reading should be believed. While the Nassau County Police
Department will give the physical tests after the breath tests,
they will not videotape the physical performance tests if there is
a breath test result. The only circumstance where they will
videotape is if a subject refuses to submit to a breath test. In
my career I have used many videotapes (from those police
departments using videos), at trial to in order to rebut the
officer’s opinion pertaining to intoxication and to rebut the
reading of the breath test. A videotape will allow the jury to see
if the officer gives the test correctly and if his subjective
opinion is correct. I have seen numerous tapes where Police
Officers have not given the field tests correctly or their
findings were incorrect. Without the videotape, I would not have
been able to establish this at trial. The lack of videotaping the
breath test and the performance tests should constitute Reasonable
Doubt in any fair juror’s mind given that the Burden of Proof is
on the Prosecution, coupled with the law that the defendant is
presumed innocent.
HOW VIDEOTAPES DIFFER FROM POLICE OPINIONS
In those cases, where videotapes are produced, one can easily see
if the Officer’s opinion that the Accused was slurring his speech,
was unsteady, or performed poorly on the tests is in fact correct.
It also allows a Jury to hear the Accused speak, and judge for
themselves. Given that the cost of videotaping or using a DVR is
quite inexpensive, one would expect that police departments would
use this equipment. It would save the taxpayer millions of
dollars a year in overtime costs. The cost of a trial alone can
approach $20,000 for the prosecution, not to mention the price
that the Accused must pay. Why not use it? The reason is simple,
the Police Department was advised not to videotape. Why? –
because these videotapes many times hurt the Prosecution’s case.
It is easier to obtain a conviction for the Prosecutor when they
elicit from the Police Officer his subjective opinion and
description as to how a person looks and performs on various
tests. This is because Jurors tend to believe Police Officers and
their opinions. Many times they do not want Juries to see how a
person really looks or sounds because the Jurors’ objective
unbiased opinion frequently differs from the Police Officer who
has a built-in bias, that being to try to obtain a conviction by
embellishing. During one of my trials, a police officer stated
under oath that the speech of the Accused was slurred. Upon
reviewing the videotape, the officer was unable to find one
instance where the speech of the Accused was slurred. He
stated that during his questioning, the Accused was swaying from
side to side. Again faced with the videotape, he was unable to
find one single instance of sway. He stated the Accused was
intoxicated when by any fair few of the evidence he was perfectly
sober. The Jury decided for themselves in reaching a quickly not
guilty verdict as they had the tangible real proof before them
which showed that the Police Officers subjective opinion was not
justified. In a recent case where the Accused performed the
physical tests virtually perfect, the officer said this person was
obviously intoxicated, and had failed the test. One Breath Tech
that actually still works for the department insisted that the
Accused took 10 steps instead of 9 steps on the Walk and Turn test
even though the video clearly showed him taking only 9. When faced
with the indisputable proof, the officer still insisted under
oath, that his notes where correct, when in fact the video clearly
showed otherwise.
Although the Nassau County Police Department has spent millions of
dollars on their breath testing program, despite recommendations
from their own experts and technical supervisors to improve
quality assurance, the Department has refused to institute the
most basic necessary safeguards. Those experts and technical
supervisor that do not acknowledge the need for duplicate testing
are being nothing less than dishonest. One technical supervisor
who is also a Breath Tech in Nassau County claimed under oath at
trial, that he did not know that the position taken by the
National Safety Council, Dr. Dubowski and other experts in the
field that Duplicate Testing is necessary. This is beyond belief,
for in order to become a Technical Supervisor he attended a course
just a year prior to this testimony where Dr. Dubowski lectured
about Quality Control in Breath Testing with the focus on
Duplicate Testing. Why would he not admit it? Obviously he did
not want the Jury to know that their program, like the Criminal
Lab, lacks quality control and should never be relied upon in
finding a person guilty.
CRIME LAB FORCED TO CLOSE BECAUSE OF POOR QUALITY CONTROL
The poor Quality Control that resulted in the closing of the NCPD
Crime Lab, which it appears led to the conviction of many
innocent individuals, still persists in the Nassau County Breath
Test Program and other Police Breath Test Programs throughout the
State. The closure of the Crime Lab, also known as FEB, impacts
any breath result because they prepared the chemicals used to
calibrate the breath test machine.
It is unbelievable that Juries would even consider convicting
any person on evidence so flimsy, given that the Burden Of Proof
is on the Prosecution, and the defendant is presumed innocent. In
other words, a jury must have the predisposition if they follow
the law that there is a presumption that the test showing a person
is above the legal limit, is not accurate in the defendants case.
Coupling this with the the fact that Reasonable Doubt can exists
based upon the lack of evidence, the defendant should be found not
guilty!!! . However, lately defense attorneys have been stifled in
their attempts to get this relevant information to jurors, and
stifled in their attempts to present a defense for their clients.
REFUSAL TO RELEASE THE SOURCE CODES IN NASSAU COUNTY
The maker of the of Intoxilyzer 5000EN, CMI, will not release the
source code for independent inspection. Despite previous attempts
to obtain the source code by my Office to see if the Machine
actually does what it says, the Nassau County District Attorney’s
Office has refused to let defense counsels’ experts review the
source code and has fought in court any attempt to have an
independent computer software company review the codes to ensure
that the Machine produces accurate results for persons submitting
to the test. There is no good reason for their opposition. Any
computer software programmer will attest that if a program cannot
be validated, or is written incorrectly errors can appear in its
output or result. While the Police Department could force CMI to
release the code by refusing to continue their contract with CMI,
they have failed to do so. In fact, according to previous
testimony, the Nassau County Police Department has never even had
anyone on its staff or any outside organization attempt to
determine if the program that the Machine uses to determine a
suspect’s breath test reading is functioning properly. Yet they
continued to still use this Machine. Neither the Federal
Government nor NHSTA has ever reviewed the program, and CMI
continues to this day to fight any attempt to analyze the source
code. You would think that the Police Department or the District
Attorney’s Offices would want to ensure that the computer program
contains no programming errors that would cause an artificially
high reading leading to the conviction of an innocent person.
Apparently not.
A thorough discussion of CMI’s refusal to release the source codes
even under Court order can be found in the article by Charles
Short, entitled “Guilty by Machine” at the following link
www.hudson-law.net/GuiltByMachine.pdf.
SLOPE DETECTORS UTILIZED BY THE MACHINE HAVE BEEN DEEMED TO BE
UNRELIABLE BY RESEARCH AND EXPERTS IN THE FIELD
Many breath test machines like the Intoxilyzer 5000EN have a
feature built in referred to as the Slope Detector. In theory,
this computer program is designed to detect if there is an
improper sample, and print out an invalid sample instead of a
breath test, which may be artificially high based upon mouth
alcohol, or improper blowing. The research that has been
published shows that this so called “safeguard” is unreliable. In
fact, peer research has shown that it fails the majority of the
time. The Minnesota Bureau of Criminal Apprehension conducted
experiments on this feature and found that it failed the majority
of the time. They obtained alcohol readings far above the legal
limit on completely alcohol free persons. This research was
confirmed by Rick Swope, a noted expert in the field that found it
to be unreliable. In fact, the Machine does not even test to see
if the Slope Detector is functioning. Moreover, the tests that
the technical supervisor does on it when they maintain it are
worthless as they do not mimic real test conditions, but instead
are conducted in a way that the Slope Detector will always appear
to be reliable on every occasion they test it. The simulator
calibration check that the Machine runs as part of any person
breath test, does not test it at all. Although frequently
Prosecutors attempt to convey that this safeguard was designed by
a computer expert, in fact, the person who designed this part of
the computer program was someone that only possessed a degree in
refrigerator repair. Not only do they fail to bring out to the
Jury the research that has shown this to be unreliable but they
fight any attempt to introduce it into evidence by the defense.
As mentioned earlier, The NCPD and other Police Departments have
never inspected the Source Code of the Intoxilyzer 5000EN.
Recently, in Florida, CMI, the manufacturer of the Intoxilyzer
5000EN, refused under Court Order to reveal the Source Code which
resulted in the Dismissal of numerous cases. Why would they not
release the Source Code? Could it be that there is a flaw in the
Code which they do not want revealed to others?
Dr. Alan Wayne Jones, a leading expert in the field of breath
testing in a lecture in 2006 found the Slope Detector to be
unreliable based upon his research. He stated:
“So these mouth-alcohol detectors, the algorithms in them are not
the best. They're not doing the job they're designed to do.”
“They may be good if you swirl up whiskey in your mouth and then
blow afterwards. Then they'll flag mouth-alcohol. If you swirled
whiskey in your mouth, then wait five or six minutes, and then
blow into the instrument, although you have mouth-alcohol the
instrument doesn't flag it as mouth-alcohol.”
He notes that Police Testing Procedures when maintaining these
machines where inadequate:
“So slope detectors then, on the majority of these instruments
that I've tested anyway, they aren't doing the job they're
intended to do. But when the - the State People test this slope
detector, they either spray their throats with some alcohol, and
then blow immediately into the instrument, then it flags
mouth-alcohol; or they put some alcohol in their mouth, spit it
out, and then blow into the instrument, and then they'll find
mouth-alcohol. But that's not the dangerous mouth-alcohol.
The dangerous mouth-alcohol is the alcohol that comes up from
their stomach…That's the dangerous mouth-alcohol. That's what the
instrument should be detecting. But unfortunately it doesn't.”
Neither the NHSTA, the Federal Government nor New York State have
ever tested the reliability of the Slope Detector, nor do they
make any claim about its effectiveness.
NASSAU COUNTY POLICE DEPARTMENT WILL NOT LET OUTSIDE EXPERTS
INSPECT THEIR BREATH TEST MACHINES.
Rick Swope is a leading expert on the Intoxilyzer 5000EN, who was
trained by the Manufacturer of the Intoxilyzer to repair and
maintain these Machines, and still repairs and maintains these
Machines. Mr. Swope a former police officer has made several
attempts to inspect and test the Intoxilyzer 5000EN used by the
Nassau County Police Department to determine if they are properly
functioning or have been altered. Dr. Labianca, another leading
expert on Intoxilyzer 5000En has also repeatedly sought permission
to inspect and test these Machines. On each occasion both Swope’s
and Labianca’s requests were soundly rejected. What are they
hiding? Are they afraid these Machines will not stand up to
scrutiny? Their behavior is akin to a used car dealer refusing to
let a prospective buyer have their own mechanic inspect or test
drive their vehicle before making a decision to buy, yet urging
you to buy the car by only showing you the maintenance records.
One can only draw a conclusion that like the Nassau County Crime
Lab that was closed down, that these Machines and protocols are
not satisfactory and should never be a basis of convicting a
person. What makes their refusal more disturbing is when a
Prosecutor questions Mr. Swope and other experts on the fact that
they have not inspected the Machine used on the individual who is
on trial, and then attempts to use this to discredit their
testimony. That would be akin to used car salesman criticizing
you and your own mechanic on his failure to inspect and test drive
the vehicle that you wanted to buy, when the used car dealer
refused to let anyone inspect or drive the car!!!! This is
completely unfair and improperly shifts the Burden onto the
defendant who is presumed innocent.
The complete lack of Quality Control and Assurance in the NCPD
provides more than ample Reasonable Doubt in any Breath Test case
for a Jury to acquit. Therefore, the NCPD policies should be
revised.
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