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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 in Nassau County.
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 in the DWI trial.
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 TOXOLOGY, 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’aera, and
admitted expert on the Intoxilzer 5000EN stated at trial in April,
2010 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 Dubowski and other
experts taught him that Duplicate Testing was necessary. Moreover
Dell’aera testified that he was aware of that Duplicate testing
relates to quality control in breath testing and had been taught
it was necessary in obtaining accurate and reliable readings on
breath tests. Dell’aera further stated under cross that
although he was in charge of bringing quality control to the
Nassau County Breath Testing Program, he was he was powerless to
implement Duplicate Testing at the Nassau County Police
Department, because he did not make policy and that he did not
have the authority to institute this policy without supervisor
approval.
THE UNFAIRNESS OF THE TESTING PROCEDURES
UTILIZED BY THE NCPD
A
person arrested for a
DWI in Nassau County 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 IN NASSAU COUNTY 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 Nassau County Police Department
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 a 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 the 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, Suffolk, Westchester, Dutchess, 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 in Nassau
County, 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 in a DWI arrest.
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, Nassau County
Police Department refuses to do so. Some departments even
videotape the period of observation. Nassau County Police
Department 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
Nassau County Police Department 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 NY
State which administer breath tests, the Nassau County
Police Department 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. In fact, the Technical
Supervisor John Dell’Area testified that he had attempted to bring
about more quality control at Central Testing Section where they
give the breath test through the use of Video cameras for the
breath tests and the giving of the coordination of physical tests
at the station but his requests and recommendations where rejected
by his supervisors.
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 preforms, 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
Accused’s speech was slurred. Upon reviewing the videotape, the
officer was unable to find one instance where the Accuseds’ speech
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 National Highway Safety and Traffic Administration
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 Nassau County Police Department Breath
Testing Program provides more than ample Reasonable Doubt in any
Breath Test case for a Jury to acquit. Therefore, these policies
should be revised.
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