Axion Training Institute has joined forces with the American Chemical Society (ACS) and Agilent Technologies (formerly Hewlett Packard) to offer the best hands-on Gas Chromatography and High Performance Liquid Cchromatography courses available. Axion has provided scientific services to every major pharmaceutical, chemical and petroleum company in the US. Axion Labs has also provided similar services to most of the larger government labs (FDA, FBI, DEA, USDA, CDC, etc.).

Axion Analytical Laboratories provides expert chromatography services including High Performance Liquid Chromatography (HPLC), Gas Chromatography (GC), and Ion Chromatography (IC) Training, Short Courses, Seminars, sample analysis, methods development, and consulting. Their laboratory director has trained thousands of professionals internationally in the art and science of High Performance Liquid Chromatography (HPLC), Ion Chromatography (IC), and Gas Chromatography (GC).

Axion Labs specializes not only in developing new methods, but also in drastically improving current methods, in terms of sensitivity, reliability, and analysis times. Along with performing typical chromatographic analyses, Axion also offer some unique scientific capabilities in the carbohydrate, organic acid, biofuels, biodiesel, cellulosic ethanol and environmental tobacco smoke arenas. Axion has provided services to many of the Fortune 100 companies, as well as government agencies and small businesses.

The course is instructed by Axion Team Members that have the unique combination of great technical expertise, and outstanding communication skills. Each instructor has a Ph.D. in chromatography, and at least 18 years of chromatography teaching and laboratory experience.

Dr. Lee N. Polite, B.A., MBA., Ph.D. is the primary instructor and institute coordinator for all of the courses. He has been teaching chromatography short courses for over 18 years. Lee is the National Instructor for the American Chemical Society’s popular Fundamentals of HPLC courses. He has also taught courses for the FDA, FBI Academy, and several industrial clients. Before becoming lab director for Axion, Lee spent 9 years with Amoco Corporation with a variety of responsibilities including: heading up their HPLC efforts, serving as Technology Supervisor of a refinery lab, and Group Leader of their environmental analysis efforts. He also spent time working as an applications chemist for an HPLC vendor, an HPLC specialist for a QC laboratory, and a technician in a pharmacology research lab.

Professor Harold McNair, B.S., M.S., Ph.D. is one of the icons of modern chromatography. He developed one of the first chromatography short courses over 35 years ago and has been teaching ever since. He was instrumental in the start-up of the chromatography divisions of both Hewlett Packard and Varian. He has consulted for the FDA, FBI, FAA, CODEX, and numerous industrial organizations. Professor McNair has trained 50 graduates students in chromatography with 200 publications and countless national and international awards.

For 40 hours Jonathan spend his time learning GC theory and hands on practice under the guidance and side by side with Dr.’s McNair and Lee Polite. and as advertised – “After this course, you will know more about GC than 80% of the professionals who do GC for a living!” – Jonathan has achieved this high level of knowledge and competence. This is because Axion has been providing the finest High Pressure Liquid Chromatography (HPLC) and Gas Chromatography (GC) training courses for more than 25 years. Jonathan has joined the ranks of Axion chromatography training graduates, such as every major pharmaceutical, chemical and petroleum company in the US. The course is designed for users in GC who want practical laboratory experience and thorough understanding of the technique fundamentals. By the end of this course, you are not only comfortable operating any modern GC, a graduate of the course is able to choose the correct temperatures, flows, column length, diameter, film thickness and stationary phase. Every participant will build a calibration curve, develop complex methods from scratch, and optimize GC methods to separate 10 compounds. As a final exam of sorts, a student is required to problem solve when the assigned GC they have been working on is required to fix a GC that is programmed to work improperly. A graduate is able to do all of this because the graduate thoroughly understand each of these important parameters. This end result is due to the fact that the classroom instruction is reinforced with plenty of hands on time with the GC’s in the lab.

Every participant will have the opportunity to build a calibration curve, develop complex methods from scratch, and optimize GC methods to separate 10 compounds.

This extensive training is important in DUI defense when blood is analysed for alcohol concentrations. Few Toxicologist (the state employee responsible for this analyses via GC testing) have this level of training on the GC that Jonathan has. As a result, Jonathan understands the limitations of the method, calibration, runs, single vs. dual column analyses, and many other issues can be exposed as being valid, invalid, or sufficient or deficient. When the presumption of innocence is said to be over come with a blood alcohol number it is paramount to ensure that the the generation of the number was not done with sloppy, invalid, or just plain wrong information. Citizens are all too often quick to believe the results when couched in reliable science, but there are times when, despite good scientific intentions, human error contributes to incorrect results. The first step in ensuring the right methods were used is understanding the process by which the number was produced.

At the time of this writing, Jonathan is the only DUI defense attorney who regularly practices in Whatcom, Skagit, Island, and San Juan counties that has not only his vast DUI defense experience, but also has this unique training.

After law enforcement has made the decision to perform a traffic stop on your vehicle the investigation really has begun.  Officers are trained at their law enforcement academy to begin observing indications of criminal activity immediately.  Of course, one reason is for officer safety, but between the hours of about 10 p.m. and 3 a.m. officers are always on the lookout for DUI drivers.  In the formal training of officers “Phase 1” of DUI detection has begun.

Law enforcement takes particular note of the driver’s ability to stop his vehicle and police reports often accentuate the smallest details.  Reports often include details of:

• Pulling over quickly or a long delay before pulling over;
• Coming to a stop blocking traffic – no matter how subtle and even on two lane roads or rural roads;
• Running over a curb or parking too close or too far away from a curb;
• Failing to signal a turn while pulling over;
• Taking extra time before placing the vehicle in park or letting vehicle roll any amount after parking;

Again, this list is not exhaustive as law enforcement are trained to record and report any detail as though it is indicative of impaired driving.

After your vehicle comes to a stop an officer continues “Phase 1” by having a conversation about the stop and usually asking for license, insurance and registration.  Officers will lean in close to the car cab to use their sense of smell, will move their flashlight around for sight, and engage in general conversation looking for signs of slurred or irregular speech.  The police report forms issued to law enforcement for DUI documentation include pre-printed lists about speech and coordination.  If you slur your words, speak quickly, or repeat yourself there is a box to check.  If you have a difficult time finding your driver’s license or other paperwork – a check goes in a box.  Every detail is being observed in order to paint the picture of an intoxicated driver in the police report.

The ultimate decision that an officer is tasked with in “Phase 1” of DUI detection is whether to ask, or more often order, the driver to exit the vehicle.  The officer is required to have reasonable suspicion of criminal conduct in order to turn a traffic stop into a criminal investigation, but sometimes an officer will actually expand the stop in order to obtain the requisite suspicion.  As there is a gold mine of observations to be made as a driver exits the vehicle officers are anxious to remove drivers from vehicles.

Some of the most common observations made during the driver’s exit:

• Driver has difficulty untangling from a seat belt;
• Has a difficult time standing up from a vehicle, or getting out of a truck;
• Uses the door or windshield post as a brace or handle, or “for balance;”
• Used the vehicle to steady herself after exiting;
• Stumbles as exiting or while walking after exiting;
• Slow to exit the vehicle; exited the vehicle quickly;

And the list goes on… With the exit order a full-fledged DUI investigation is underway and the officer will continue to gather every detail that could be used to paint the picture that a driver was impaired or under the influence.

The DUI Stop

Washington citizens and motorist alike have the right to be left alone.  To go about their business unencumbered by the government or its agents.  That means law enforcement of all varieties.  While a citizen has this right it does not mean they are “untouchable.”  In fact, we are far from it.  When you are in a vehicle there are rules to follow.  You learn them when you take your driving test.  You learn, you memorize them and then you slowly forget them.  Your driving becomes a habit and bad habits creep in.  You frequently speed. Don’t use a signal since no one is around.  The stop sign is frequently just a suggestion and it becomes a Roll- Sign.  We are have them, we all do them.  It is these rules we bend and break that are the basis for law enforcement officers to seize us and over come our right to be let alone as it has a limit.  The rules of the road, are for the most part, civil in nature.  That means if violated, a person faces a fine imposed by a Judge if found to have been committed or admitted.  These rules of the road violations are known as “infractions” and this designation is important because you do not face a jail term, but they can lead to a jail term.

Under our system of rule enforcement, the law is such that when a police officer sees a rule violation, or sees behavior that he believes is a violation, he is entitled to seize that person with his lights and detain them to issue the ticket.  Once contact is made, an officer should not ignore things that come to his attention during the contact of the driver.

As a result, a DUI stop is most often a stop for a road rule violation and then becomes a investigation for a crime that appears to be afoot, or in progress.  This is why the rules of the road and lazy driving habits are so important in avoiding a DUI.  A person may not even be DUI as evidenced by a breath test, but if there is poor driving exhibited a conviction is possible.  As a result, a driver should employ good habits,not only because it avoids false “detection” but it makes you a better driver.

Here is a list of the most frequently seen violations that in my experience lead to a stop and then DUI investigation:

• Speeding –  This includes going 10 mph UNDER the limit even if you do not hold up any traffic;
• Wide Turns;
• Failure To “Properly” Signal – A proper signal is given 100 feet prior to making a turn or lane change;
• Crossing A Lane Line – Fog line, Center-line, Or Line Marking Separate Lanes for Same Direction of travel;
• Swerving And Drifting Within The Designated Lane Of Travel;
• Almost Striking A Vehicle Or Other Object. With the existence of the new “move over” statute driver’s are said to be not far enough over and therefore “almost” struck another vehicle;
• Failure To Completely Stop At Stop Signs, Crosswalks, Or Other Stop Lines;
• Going the Wrong Way On a 1-Way street –  Bellingham WA is full of 1 way streets that are sometimes improperly signed, and is generally a confusing matrix of streets for those not familiar;
• Stopping Problems – Too far, too short, or too jerky;
• Slow Response To Traffic Signals;
• Driving Without Headlights At Night;
• Following Too Closely; and
• Improper Or Unsafe Lane Change.

This list is not exhaustive, and there are many other non-driving related reasons for seizing a driver such as expired tabs, broken taillight, or a local favorite “defective license plate light,” defective exhaust, and the list goes on and if you maintain your vehicle and have good driving habits your risk of being stopped is lowered if not eliminated and simultaneously causes driver’s around you to appreciate you.  Regardless of how cautious and courteous you are, you still may find yourself stopped by an officer, but with the exception of speeding, the above infractions are most frequently enforced after 10pm and before 3am as time of driving is a major part of DUI enforcement and training.

Therefore, the best DUI defense is to not drink and drive, but until Washington becomes a “Zero Tolerance” State, it remains legal to consume alcohol drive as long as the driver is neither above a .08 or affected by the alcohol, and good driving habits will help you avoid a DUI.

Starting March 8, Officers from the Bellingham, Ferndale and Lynden police departments in addition to Whatcom County Sheriff’s deputies and Washington State Patrol will commit extra patrols countywide. This start date was chosen in preparation for St. Patrick’s Day on March 17, 2012. These measures are part of an called “target zero” where the goal of the program is to reduce traffic fatalities related to driving under the influence (DUI) charges to zero by 2030.  While this is a worthy goal from a traffic safety perspective, the collateral effects can be detrimental to the average law abiding driver.  This is because, inevitably, this “emphasis,” this “wide net” will not only discover driver’s who are found to be over the legal limit, but it will also snare some driver’s who are actually under the limit.

As a result, those driver’s who are legally having a drink and then driving, legally under the limit, and therefore not impaired, will be arrested and will be prosecuted.  When this emphasis is over the local and state breath testing machine databases will show proof positive that driver’s under the limit were arrested and await prosecutor.  Stay tuned for the post-emphasis blog.

I have viewed this video on several different sites, and suffice it to say that it has gone viral.  I have not been able to confirm the authenticity of the video, but it appears to be an officer’s dash camera and depending on the state laws in the Officer’s jurisdiction, would be subject to public disclosure.  It sounds as though the officer mentions “Charleston” and so South Carolina might be a good guess.

Even if the video is a “dramatization” the point is well made – officers can get very offended when citizens exercise their rights.  Think of the difficulty you might have in telling an officer, in full uniform with pepper spray, badge and sidearm, that he can only search your vehicle, house, backpack, etc. if he has a warrant.  That would be uncomfortable, at best.  But, why?

Isn’t an officer a civil servant who is to embody the “protect and serve” mantra of our civil police forces?  These are public employees who literally, and philosophically, work for us, the people.  Why are we afraid?  Why can they exercise such unfettered authority and aggression?  Why do we need a video before we actual believe this abuse of power and discretionary power exists?

As a practical matter, one might simply answer that people today, not just law enforcement officers, have lost their manners.  We’ve certainly all experienced attitude and/or rude service from someone whom we are paying to provide a service or are buying merchandise.  Sure, people have bad days, but when it comes to police officers, a bad day is simply not an excuse.  That we have lost our manners is not an acceptable excuse either.  We cannot simply choose to stop obeying the Sheriff or Washington State Patrol because they are not polite.

The Department of Justice just concluded an investigation into the Seattle Police Department’s use of force practices and policies.  In short, the federal DOJ concluded that the Seattle Police engaged in a pattern of excessive force in more than half the time during arrests!  Certainly the politics, methods used to make this determination, etc. could be argued for hours; however, it remains clear that something is amiss with those tasked with actually protecting our constitutions and individual rights.  For everyone’s sake, I hope that Seattle is not  indicative of how other law enforcement agencies are operated – hopefully they are the exception and not the rule.  But given this video, perhaps Seattle is the norm?

As a defense attorney defending those accused of alcohol and drug related driving crimes such as Driving Under the Influence Of Alcohol/Drugs (DUI), Physical Control, Minor Operating After Consuming Alcohol, Minor in Possession (MIP), or Unlawful Possession of Marijuana, I have reviewed a number of video and audio recordings like the one here.  While I have never observed an officer as rude as the one in the video, I have certainly seen very aggressive and apparent adverse reactions when citizens have exercised their rights.  I certainly understand the need for officers to make safety their number one priority, but retaliation for exercising one’s rights is unacceptable in a free society.  Furthermore, employing the use of a Taser because it is easier than using social skills or training, to avoid the use of physical force, is also unacceptable.

Why Isn’t There Always A Video Recording Of A Traffic Stop And Arrest?

The video here captures an officer having a meltdown and verbally abusing a citizen who politely declines an invitation to search his constitutionally protected vehicle unless the officer provides a search warrant.   The irony of the situation is that police guilds, sheriffs, and law enforcement in general, tend to resist the transparency and actual safety that a camera affords.  I believe this is because the risk of the above video being shown to the public outweighs the benefits of government transparency in the minds of law enforcement.

I have asked prosecutors and law enforcement officers why only a very select few Washington State Patrol DUI investigations are captured by video.  The canned answer:  it a budgetary problem.  Is this true? Or is this a pre-textual excuse to avoid actual video and audio evidence of an event in order that a Trooper or Deputy or Officer’s testimony and report are the bulk of evidence of an event.  I argue that it is certainly the latter and I believe this because of personal experience – in court, providing live sworn testimony, an officer testified that he stopped a client of mine for failure to use a signal.  When asked if he was “sure,” or if he wanted to modify his testimony he declined.  So I played the video of the stop, a video that showed my client’s car actually using a signal.  The officer makes contact and does NOT tell the person why he stopped her.  While the officer confirmed the video was authentic, he continued to state, under oath that the car was stopped for failure to signal!  Why?  Simply because that is what he wrote in his report.  I am sad to say that this officer no longer has a video and has risen to the level in his agency of that of Trainer of new cadets.  It is for these reasons, I wish every officer had a video.

Ask nearly any criminal defense attorney defending traffic related crimes such as Driving Under the Influence, Reckless Driving, or Negligent Driving if they would prefer that the investigation and arrest of their client to be captured on video and the overwhelming answer is YES!

Video evidence removes the guesswork from an incident – was the person actually weaving in their lane?  Yes, here’s the video of such driving OR no, there is no evidence of the fact that the officer stopped for an actual violation and therefore, the driver was illegally and unlawfully seized -  a serious and flagrant violation of the State and Federal Constitutions.  The camera captures more than just the visual, as the technology employs a lapel microphone and bot officer and driver’s voices are clearly captured.  So with respect to the questions of “Did driver really stutter and slur all of her words?”  “Was there an admission during the roadside tests that “I can’t do these sober?”  Once again, here’s the audio or no, the officer seems to have difficulty with his hearing.  The list of information goes on, and I am sure you get the picture.  More importantly is the recorded administration and performance of roadside sobriety tests.  A violation of National Standards that each officer swears s/he is trained under renders the tests invalid, but officer’s rarely say they do not do them correctly, when in fact, their recitation of the standards is rarely correct.  Once again, the utility of the video cannot be overstated.

From a citizen’s perspective it is difficult to believe that budgetary constraints are really the problem.  The police routinely photograph accident scenes, and unfortunately, I often see law enforcement officers talking on cellular phones while driving in disobedience of the law they swear to enforce.  As we all know there are very few cell phones without video/audio recording capabilities.  This technology is simply not very expensive any longer.  Add to this that all police officers I have interacted with have in-car computers allowing them to remotely access a person’s criminal and driving histories – this technology is certainly more complex than a video camera.

The strength or weakness of cases would no longer hinge on the accuracy of Washington State Patrol Trooper or County Sheriff testimony of an event that often occurs more than year before the case can proceed to trial.  A lawful stop would be evident – no motions hearings with law enforcement officers, prosecutors, clerks, bailiffs and judges getting paid and/or overtime.  A lawful arrest?  See video.  Expensive trials?  See the video.  And so on.

Is Officer Grumpy The Canary In The Coal Mine?

Aside from the practical disappointment of the video, there are more fundamental philosophical problems evidenced here.  Without boring the reader or disappointing my college professors, I will talk about this failure in the context of social contract theory.

The social contract is one of the fundamental ideas our great democracy was founded, and has succeeded, upon.  The origins of the social contract can be found in Plato’s Republic and are described by the character Glaucon.  Basically, the idea is that the people of a society must group together and create a government in order to keep the desire and interests of the individual in check.  This idea was forwarded in western political thought by Thomas Hobbes in Leviathan and later by John Locke and Jean-Jacques Rousseau in their respective writings.  Suffice it to say the philosophies of Locke and Rousseau were monumental in the creation of western republics, namely in the French and American revolutions.

Boiled down, the social contract provides the government may wield power, necessarily the monopoly of force, against its citizens in order to sustain and enforce order amongst the people.  The people submit to this power, and give up some freedoms and agree to behave in certain ways (or face punishment).  In our society we permit the police to patrol our streets, stop our vehicles when we fail to follow the rules, and to arrest us when we step out of line. We also submit to government presence in our lives in the name of safety and order, e.g. the T.S.A.   Our government is also allowed to incarcerate us, or remove us from society, if it is proven that we broke the rules.  However, and as we all know, these powers come with very strict rules the government must follow.

The Bill of Rights, or the first ten amendments to the United States Constitution, is a very clear example of the rules the government must follow as part of their obligation in the social contract.  As a criminal defense attorney, the fourth amendment of the US Constitution is of the utmost importance:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

As every officer knows, a warrant is required in order to search a person’s effects – in the case of the video, a warrant is required to search the person’s car.  Of course there are exceptions to the Warrant Requirement that have been created through the court system; however, it is clear that no exception applied here.   Most recently, the United States Supreme Court reinforced the warrant requirement in a case where one was authorized but the police responsible for executing it failed to do so despite it being spelled out in black and white letters on the page.

In this video here, what we saw was a citizen who needed to exercise his rights because the officer did not respect his right to be secure from intrusion.  Would this have happened without the officer knowing his dashboard camera was rolling?  Would the officer have created his own exception and ordered the driver from the vehicle in order to search through the driver’s belongings?   How many times does this scenario play out every day on our roads?  Every month?  Every year?

It is clear that your individual rights can be difficult to protect.  If you need an advocate and a voice for your individual rights I am here to help.  Standing up to a police officer who fails to abide by the social contract and to respect your rights can be a difficult task.  It can often be met with force, rudeness, or worse, an arrest with very little and/or questionable proof.  A DUI prosecution has serious punishment and consequences and in almost every case it comes down to the “word” of the officer.  While many officer’s are honest and forthright, if even one officer bends the rules and an innocent person is sent to jail, lost their driver’s license and livelihood and a video could have prevented it, then that is one instance to many.  However, the crime DUI is “unpopular” and thus, the need to expose the prosecutorial problems of this crime are a low priority.

We certainly do not want Big Brother to watch all of us all of the time, but perhaps Big Brother could at least mount a video/audio camera in all the police vehicles so that this scenario can be remedied each and every time it occurs.

This month I attended the full course again.  A refresher course would have sufficed, or perhaps I could have done the instructor course thus allowing me to teach others, but I choose to refresh with the entire course.  As I spend my 24 hours immersed in the curriculum I saw the course differently the second time around for what it really was.  A course designed upon some generic studies that “appear” to validate the roadside tests, but really it is a course designed to instill into the minds of law enforcement that almost any behavior is indicative of a DUI.  In fact, there is a published paper on the issue that concludes these tests are designed for failure.

The course breaks down as follows: observation of vehicle in motion, personal contact and pre-arrest screening.  From the moment an officer sees a vehicle he is trained to believe it is a DUI, he is trained to understand that there are 25 “clues” of driving that are said to reliably indicate that the driver is DUI.   They are told that the accuracy of these driving clues is somewhere between 50-100 percent.  The reality is, however, these are simply lazy driving habits that person does perfectly sober, or when distracted by a cell phone, radio, or passengers.  As a result the officer is trained to prejudice his mind, his observations, and interactions with the driver rather make objective observations that lead to a conclusion that is not already predisposed.  Despite the clear objectives of the course that state this phase is about answering whether “the vehicle should be stopped,” the training clearly encourages a stop for any reason at all, with a predisposition to believe the officer is dealing with a DUI.

Make Contact

The officer is trained to make contact and make decision based upon contact.  The training goal at this stage is based upon what is seen, heard, and smelled “do I have the driver exit the vehicle?”  What is said by the driver, how the driver acts, and all other variables are added to the mix, but what s/he Sees, Smells, and Hears, is what they are to rely upon.  Guess what?  Almost everything said when coupled with the admission to drinking or the odor of alcohol is labeled as a reliable clue of “possible intoxication”.  However, the training emphasis minimization of what was done right and only focusing on what was done wrong in the officer’s opinion, because the Detection has but only a singular goal in mind; DUI arrest based upon less than reliable facts.

Prey on Driver’s Nervousness

Officers are trained to prey upon a driver’s nervousness and deference to their apparent authority.  Upon contact the officer is trained to confuse, distract, and in essence “bully” a driver; the officer is trained to ask simple but intentionally distracting questions: questions by the way that a Washington driver is under no obligation to answer.  Training begins seeking the driver’s typical papers that are not always easily found, while the driver searches the training encourages officers to interrupt and distract a driver.  For instance, the materials specifically directs an officer to ask odd questions during one task, to start another, and yet another, never really caring what the answer is, but only to establish confusion, to be able to point to facts that they can rely on to justify an exit order.  Funny thing is, officer’s will often repeat the same question and expect to get a different answer, yet, when a person repeats the answer, the observation factored into their justification for exit, or arrest is “repetitive speech!”  This all plays into the course objective of answering the roadside question presented of “should I have the driver exit,” yet at the training to this point focuses on issues that lead up to this goal, as well as the next.

Pre-Arrest Screening

By the time the driver is out of the car, the third phase sums it all up, as it is called “Pre-Arrest Screening”  Really?  Yes, really, the phase itself implies the inevitable just like the training as a whole.  Pre-Arrest screening is the stage of Standardized Sobriety Tests that are in line with the training curriculum, confuse the mind and place a person in the most unbalanced positions where natural reactions become clues to base an arrest upon and in cases where the breath test is under the legal limit or refused, have the state prosecute a person for having failed these tests.  Furthermore, the tests are not to be administered upon certain people (over age 65, or 50 lbs overweight), and for those that have some actual physical disability (hip arthritis, injury, inner ear condition, etc.) the officer is trained to assure the person that the issue will be “taken into consideration.”  The problem is this:  there is no training that teaches or even addresses what consideration can or should be made.  As result the officer’s are trained to lie to the subject and count clues that when totaled tell them to arrest, but without any criteria to separate the clues due to physical injury/impairment from that of possible alcohol impairment.

The tests themselves conceptually are not that hard, but the reality is it takes students of the tests 16 of the 24 hour course to learn how to administer them and also learn the tricks they don’t teach the driver to make the tests easier; easier to demonstrate for a subject and jury.  The officer may need to demonstrate the tests in court, and failing them in front of a jury would not be the type of “convincing” evidence the course speaks to.  As a result, they are taught some tricks to avoid such embarrassment.  I have discussed these tests in detail on my site but a refresher is indeed overdue.

Horizontal Gaze Nystagmus (HGN)

Otherwise known as the eye test, this is a the only test that does not require some actual physical agility, and while the test requires a subject to follow a pen with their eyes, the test can be challenging as the sanding position is feet together and hands at the sides and the person’s gaze to set look up and follow a moving visible point.  Anyone who has stood at heights, the surest way to fall down is look up and the passing sky will cause you to lose your balance.  The HGN test is typically done at night, and is relatively easy as all a driver needs to do is to follow a pen.  However, the training has the focus point of your eyes that a driver is to follow “slightly” above eye level thereby forcing you to look up.  The test is said to be accurate, but the practical reality is, it does only one thing: confirms that the person has consumed alcohol.  Student of the course are taught a formula, where the variable plugged into the formula is nothing more than a guess.

The Walk And Turn (WAT)

The WAT instructions are intensive and “wordy”, but they are designed to sound straightforward.  First, if there is no designated line available like those painted in a  parking lot, the person is told to “imagine” a line and the told to place their left foot on the line that does not exist, and then place their right foot in front of the left in the same “line” touching heel to toe.  Then place your arms and hands at their sides and to NOT move from this position, and to not start the test until told to do.  The instructions take about 30 seconds if done properly and slowly.  They are as follows: When I tell you to start, walk down the line (real or imaginary) taking 9 heel-to-toe steps, turn and take 9 heel-to-toe steps back.  The officer then shows how to take these steps, and then is also required to demonstrate the turn while verbalizing the instructions.  When you get to the 9^th step, leave your front foot planted on the line and take a series of small steps as you turn around and then begin walking back down the line touching heel-to-toe.  As you are walking keep your hands at your side, look down at your feet and count each step out loud.  Once you begin this test do not stop walking until you are done with this test.  Do you understand?  When I tell you to begin, count your first step as 1.  You may begin.

As you sit and read this feel free to assume the heel to toe position and see how long you can stand there while the instructions are given (the officer can stand in this position longer than most because he practices this test, and is taught that a slight shifting and relaxing of the legs allows good balance control).  Questions are permitted but they are answered with the same strict language originally given.   In essence a driver is told to walk in a manner that produces a natural reaction to lift arms, walk slowly such that balance is impaired from nothing more than the test requirements.

What They’re Looking For

When you read the instructions for the final test, it is clear to see that the natural reaction of lifting one’s arms is warned about 3 times and this test it is mentioned 1 time.  The officer is on the lookout for 8 possible things a person may do “wrong.”  If the person steps out of the instruction stance they get a clue/demerit, if the officer uses halting speech during the instructions it implies permission to proceed, and then the clue is “starts to soon.”  The test is not yet even begun, but 2 clues of a possible 8 to look for gives the officer the threshold point to consider this test not passed.  The remaining clues are, stops walking, steps off line, misses heel to toe (more than ½ inch), raises arms (more than 6inches), improper turn, and improper number of steps.

The math on this test is simple, a person takes 18 steps and thus has 18 opportunities to get a possible 6 remaining clues (assuming they stood properly during instructions).  18 x 6 = 108 opportunities to do something wrong.  Assuming the person is wearing flip flops during the test and therefore does not properly touch heel to toe on 1 step, and when that happens their balance is momentarily thrown and they raise their arms more than 6 inches (6 1/4 is too much).  They now have 2 clues and have failed the test, despite the fact that they did 106 of 108 things correct and therefore scored 98%!  When have you ever taken a test where your were told that that anything less than 99% compliance meant you failed?  In fact, the necessary score to learn that deems a student proficient and competent in these “sobriety tests” 80%!  Enough said about this unfair test,

One Leg Stand (OLS)

The OLS, is a test where the officer instructs driver to stand on one leg, not because it has anything to do with driving, or even the counting they require, but because standing on one leg is rarely something anyone can do for 30 seconds without violating the criteria.  This is also another test where the officer does not share a trick with the driver (nor is this information shared with a jury).  Remember, this is the final phase called “pre-arrest screening.”  The training and the goal objective makes it very clear that the screening is just a formality for the inevitable arrest, so why would an officer share the trick with anyone.  Again, being overweight or over the age of 65 precludes this test from being offered, and if there are any injuries or illness they will NOT be considered despite the officer’s assurances because such training for these does NOT exist.

The One Leg Stand is instructed as followed:  Stand with your feet together and hands and arms at your side.  Remain in this position until I tell you to start.  Do you understand?  When I tell you to start, I want you to lift one leg, either leg, raising your foot off the ground approximately 6 inches and keep your foot parallel to the ground (the officer then demonstrates).  You must keep both your legs straight during the test and your arms at your side.  While maintaining this position, I want you count out loud like this (demo one-thousand and one, one-thousand and tw0, one thousand and three, etc.).  Your arms must remain at your sides at all times and you must watch your raised foot during the test. Do you understand?  The test may begin.  The test is timed and the driver is expected to stand for 30 seconds with one foot off the ground counting out loud.  At no point during the test does the officer share the fact with the driver, nor the jury, nor the judge, that if you bend the knee of the leg stood upon balancing is much easier.  The things the officer grades a driver on is whether they sway, they lift their arms, put the foot down, or hop in an effort to keep balance.  Again, none of these things are likely to happen if the knee is slightly bent.  If any 2 of these 4 things is seen, the test is considered not passed, despite a 50% completion.

This third and final test completes the “Pre-Arrest Screening.”  The only person who decides what is seen and marked as clue is the officer, and since he is screening you for an arrest you can bet he will see something.  In every DUI trial I have ever conducted it is inevitable that the officer testifies that he administers these tests hundreds, if not thousands of times and not everyone he “screens” with these tests is arrested.  In my opinion and experience that is simply not true.  If it were true, I would not regularly represent people who provide a breath sample of less than .08, and currently, as low as .04!  The breath sample after the fact is proof positive that these tests are designed for failure, these tests are a very effective tool to achieve their purpose: “Pre-Arrest Screening.

Field Sobriety Tests Require a Warrant or Driver Permission

In Washington these tests are considered a search; therefore they require a warrant to achieve such a search, or the driver’s permission to conduct this search.  Furthermore, they are voluntary.  Voluntary means that there are no consequences to refusing to volunteer.  However, in a suspected DUI stop, the refusal to do the tests leads to an immediate arrest.  A decision to do the tests leads to the same result.  In my opinion, these tests should be politely declined and then a driver should brace themselves for an arrest.

As it can be seen, there is a specific philosophy to these tests, and to the untrained observer or even a jury member, the officer will present them in a scientific manner, and in a manner of fairness.  Unless your defense attorney has gone through the course, or even been qualified as an instructor of the course, the problems with the test, the unfairness of the tests, and their hidden design objectives will not be exposed.

Further clarification is now, again, on its way with Williams v. Illinois.  This case was accepted by the USSC for review of People v. Williams, 939 N.E.2d 268 (Ill. 2010). Oral arguments to the USSC were heard on December 6. The ruling is under consideration.   The case presents a review of the presentation of expert evidence where the Illinois Supreme Court held: the absent analyst’s report was introduced not for the truth of what it asserted but rather “to show the underlying facts and data [the in-court witness] used before rendering an expert opinion in this case.”  In simple English the lab report in a DNA case was not admitted, but examined by an expert in the related field to examine the report and then to render an opinion, but the actual analyst who tested the substance and created the report was not present.

Traditionally an expert can rely on reports of others to render an opinion, but in this case the opinion was sought to avoid the cross examination of the person who prepared the report and did the testing. The case has the potential to impact expert testimony in criminal cases beyond expert forensic testimony. As a result of the nature of this issue, the question to be answered in light of the right to confront witnesses, is now how much an expert may rely on statements and facts of others who do not testify at trial?  Under Federal and State Court Rule 703, traditionally an expert may rely upon “facts or data” in which an expert “in the particular field would reasonably rely,” and the facts and data “need not be admissible for the opinion to be admitted.” The question in the case is whether the Confrontation Clause allows this practice and to what extent.

As always is the case with the Court, the impact of the ruling is a concern and this case is no different given the following statement of Justice Stephen G. Breyer:

requiring multiple forensic technicians to testify would result in “a sea change in normal criminal law practices.

He then suggested that an exception to testimonial statements be considered for expert testimony.  Such an exception is unprecedented to date.  Questions like this from the Justices during Oral Arguments makes one wonder if the case signals another new direction or solidification of the Confrontation Clause and caselaw to date.  Currently, the USSC has gone to great lengths to require that when the government presents testimonial statements from witnesses, experts or laypersons, the person making the statement must be subject to cross-examination.  Given the use of rule 702, will this Court now relax the bright line recently established and make an accommodation for expert testimony?

The traditional voting lines of the Justices on the recent confrontation cases have been by five to four margins. The make-up of the Court currently is important for the “swing-vote.”  The local Judiciary here in Whatcom County, Washington State are paying attention as this new rule will have an impact.

Recently I had the opportunity to test the local courts understanding and use of the Bullcoming decision, and the results were not consistent with the case law to date.  In a local DUI case the State sought to use a surrogate breath test technician to rely on records to show that the breath test machine was in proper working order at the time of my client’s case.  The surrogate Technician had no knowledge of what was actually done to or with the breath test machine at the time of my clients test as he was not even a technician on the date she was arrested and providing a breath sample.   The following argument was made:

Beginning in Crawford v. Washington, 541 U.S. 36, (2004), our U.S. Supreme court held that the Confrontation Clause could be abrogated “…only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.”

In 2007 our state Supreme Court stated that “until the Supreme Court more fully develops precisely what is “testimonial” under the confrontation clause, all courts will be divining the intent of our nation’s highest court.” State v. Mason.  Fortunately, 2 years later, the U.S. Supreme Court did just that in their subsequent decision of Melendez-Diaz v. Massachusetts, the U.S. Supreme Court addressed the issue of confrontation vis-à-vis the chemical testing of drugs being introduced at trial.

The Melendez-Diaz, Court, declined to create a “forensic evidence exception” to Crawford, when they held that “a forensic laboratory report, created specifically to serve as evidence in a criminal proceeding, ranked as “testimonial for Confrontation Clause purposes.”  Subsequent to Melendez-Diaz, what can only be considered the most comprehensive analyses and enforcement of a Defendant’s 6^th Amendment, and fortunately for this case, analyzed and presented vis-à-vis a DUI trial, is Bullcoming v. New Mexico.  In Bullcoming the Court reversed the trial court because blood evidence in a DUI trial was admitted over the Defendant’s objection when the State failed to call the individual who actually analyzed the blood sample.  The principal evidence against Bullcoming was a forensic lab report reporting and certifying that Bullcoming’s blood alcohol level was well above the threshold for an aggravated DWI.  In lieu of testimony from the analyst who actually did the testing, that State sought to admit the analyst’s report and the results thereof through another analyst who had not tested nor signed the certification. In short the “surrogate” analyst had no personal knowledge as to the actual testing, but was familiar and proficient with respect to the State’s laboratory’s testing procedures. At trial this “surrogate” reviewed the notes made by the actual analyst and testified to the results printed upon the paper.

The State circumvented the Defendant’s 6^th Amendment right as proffering this certificate as a business record, and then elicits testimony from this other analyst.  The trial Court and the New Mexico Supreme Court were correct in holding that “the blood-alcohol analysis was indeed ‘testimonial,’ but were incorrect in their holding that the “Confrontation Clause did not require the certifying analyst’s in-court testimony because live testimony of another analyst satisfied the constitutional requirements.”   As a result, the Bullcoming Court has now provided every subordinate court the guidance they had been seeking since Crawford.

Most importantly is the sum total of the Bullcoming holding: the Clause (confrontation) does not tolerate dispensing with confrontation simply because the court believes that questioning one witness about another’s testimonial statements provides a fair enough opportunity for cross-examination.  Furthermore, the purpose of the rights set forth in [the Sixth] Amendment is to ensure a fair trial; but it does not follow that the rights can be disregarded so long as the trial is, on the whole, fair.”

Short and simple is the fact that when the state elects to introduce any testimonial certification, the author of that becomes a witness, and as held in Bullcoming, the defendant has an absolute right to confront.  The plea of our State Supreme Court in Mason, for guidance, was answered pre-Bullcoming in  Melendez-Diaz, where the Bullcoming Court cites to:

 The “certificates of analysis” prepared by the analysts who tested the evidence in Melendez-Diaz, this Court held, were “incontrovertibly . . . affirmation[s] made for the purpose of establishing or proving some fact” in a criminal proceeding. Id., at ___ (slip op., at 4) (internal quotation marks omitted). The same purpose was served by the certificate in question here.  A document created solely for an “evidentiary purpose,” Melendez-Diaz clarified, made in aid of a police investigation, ranks as testimonial. 557 U. S., at ___ (slip op., at 5) (forensic reports available for use at trial are “testimonial statements” and certifying analyst is a “‘witness’ for purposes of the Sixth Amendment”).

Finally, the Bullcoming Court left us with a clear indication of what is testimony as well as clearly set forth the State’s obligation:

The prosecution, however, bears the burden of proof. Melendez-Diaz, 557 U. S., at ___ (slip op., at 19) (“[T]he Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court.”). Hence the obligation to propel retesting when the original analyst is unavailable is the State’s, not the defendant’s. See Taylor v. Illinois, 484 U. S. 400, 410, n. 14 (1988) (Confrontation Clause’s requirements apply “in every case, whether or not the defendant seeks to rebut the case against him or to present a case of his own”).

Recently, the Washington Appellant Courts have held steadfast to Bullcoming notably in the matter of State v. Dash, — P.3d —-, 2011 WL 3433019 (Wash.App. Div. 1)(2011).  In Dash, the conviction was reversed on the instructional error, and the Confrontation issue became moot for the appeal “however, because some of these issues may arise on remand, we briefly address these remaining claims of error in order to assist the trial court.” The Dash, trial court improperly, and in violation of the Dash’s 6^th Amendment right, admitted a videotaped interview of witness Taylor, who was not subjected to cross-examination neither during the interview nor at trial.  As a result Dash asserts that his Sixth Amendment right to confront the witnesses against him was violated.  In providing guidance to the lower court(s) due to remand, the Appellant Court held that the proper focus is not on whether the statement is hearsay but, rather, whether the statement is offered “against” the defendant to establish or prove a past event relevant to the criminal prosecution.

Furthermore, the Appellant Court specifically quoted Melendez-Diaz and held that the text of the Amendment (6^th) contemplates two classes of witnesses—those against the defendant and those in his favor. The prosecution must produce the former; the defendant may call the latter. Contrary to respondent’s assertion, there is not a third category of witnesses, helpful to the prosecution, but somehow immune from confrontation.  Here, (in Dash’s trial) several of Taylor’s utterances, whether directly accusatory or not, were being offered by the State to “prove one fact necessary for his conviction” and as established by the United States Supreme Court, “a witness need not directly accuse the defendant of wrong doing in order to be a witness subject to cross-examination for purposes of confrontation clause.”

In the DUI case i tried here locally, Defendant faced a charge of DUI, in which the State sought to (and were permitted in the end) convict under RCW 46.61.506 (a breath test printout).  As a result, a significant piece evidence against Defendant is generated by a machine, yet requires an offering of statement “against” the defendant to in order to establish or prove a past event relevant to the criminal prosecution. 

The State has indicated that they will be calling the arresting officer as a witness, a DataMaster Technician who, at the time of the test in this case, was not trained, nor employed as a Breath Test Technician and therefore, has no personal knowledge of the operating  condition of the breath test machine at the time of the breath test being offered here.  Furthermore, the State 2 days prior to trial has endorsed 3 Toxicologists that did not create the external simulator solution.

Given the 6^th Amendment, the creator of the solution is a necessary witnesses, as are those who “certified” either the external simulator solution, or the individual(s) who prepared, tested and certified any of the four simulator solutions used in the mandatory Quality Assurance Procedure (QAP) for the machine used to test Defendant’s breath.

Finally, the State has endorsed a sworn testimonial statement by the State Toxicologist, Fiona Couper.  This statement is testimonial and clearly falls under the confrontational case law of Crawford, Melendez-Diaz, and Bullcoming.

The Defendant objects to any use of the sworn statement on 6^th Amendment grounds as well as a violation of CrRLJ 6.13.

Defendant further objects to the document since it is a declaration subsequent to the date in question and has no relevance to the breath test in this case. See Ludvigsen v. City of Seattle, 162 Wash.2d 660, 174 P.3d 43(2007)(We conclude the application of the 2004 DWI amendments, redefining a “valid” test, to Ludvigsen’s 2002 criminal conduct violates the ex post facto clause. The 2002 definition governs).

Consider the well-settled law on a breath test.  For a Breath test to be admissible in Washington, it must first be valid.  State v. Baker, 56 Wn.2d 846 (1960); State v. Straka, 116 Wn.2d 859, at 870 (1991); State v. Watson, 51 Wn.App. 947 (1988); State v. Brayman, 110 Wn. 2d 183, 191, 751 P.2d 294 (1988).  The admissibility of breath tests is governed by RCW 46.61.506, and WAC 448-16 et seq and RCW 46.61.506 (3).   RCW 46.61.506 (3) states that:

 Analysis of the person’s blood or breath to be considered valid under the provisions of this section or RCW 46.61.502 or 46.61.504 shall have been performed according to methods approved by the state toxicologist and by an individual possessing a valid permit issued by the state toxicologist for this purpose. The state toxicologist is directed to approve satisfactory techniques or methods, to supervise the examination of individuals to ascertain their qualifications and competence to conduct such analyses, and to issue permits which shall be subject to termination or revocation at the discretion of the state toxicologist. (Emphasis added).

Additionally, WAC 448-16-070, reads:

The state toxicologist will review, approve, and authorize such protocols of procedures and methods (of the toxicologist’s own promulgation or submitted by outside agencies or individuals for consideration) required in the administration of the breath test program. These protocols will be updated as necessary to maintain the quality of the breath test program.  (Emphasis Added).

Ignoring the issue of whether RCW 46.61.506(3) and WAC 448-16-070 require a preliminary finding of validity by the trier of fact, at a minimum, taken together RCW 46.61.506(3) and WAC 448-16-070 mandate that the State demonstrate, at trial, compliance with the methods, techniques, and protocols established by the State toxicologist in order to establish that a given result is VALID.   One such procedure in place, deemed “necessary to maintain the quality of the breath test program,” is the use of “certified” simulator solutions which are to be used in a mandatory annual QAP and in the external standard during a breath test.

The protocol for the Quality Assurance Procedure was written and approved by the State Toxicologist, pursuant to her authority under RCW 46.61.506 and WAC 448-16-070, on December 10, 2010.  While describing the QAP procedure in the 2010 WSP Calibration Technical Manual, Dr. Couper states that

The Quality Assurance Procedure (QAP) ensures the accuracy, precision and forensic acceptability of the DataMaster breath test instrument for the purpose of quantitative evidential measurement of the alcohol concentration of a person’s breath. The procedure evaluates critical systems within the instrument to ensure their compliance with strict predetermined criteria. When complying with the standards required in the QAP, the DataMaster can be confidently placed in the field for evidential use.  (Emphasis Added).

One of the “standards required in the QAP” is what is referred to as a CALIBRATION PROCEDURE which consists of calibrating the machine with a 0.08 QAP solution.  The protocol requires that this QAP solution be “certified” among other technical requirements related to the calibration of the machine.

Another one of the “standards required in the QAP” is referred to as a CERTIFICATION PROCEDURE.  This protocol also requires the use of “certified solutions” wherein the machine tests certified simulator solutions at 0.04, 0.08, 0.10, and 0.15.  There are likewise additional technical requirements that must be followed relating to this process.

While a BAC Technician is typically the one to perform a QAP, only those analysts who are employed, trained, and certified by the State Toxicologist may prepare and certify the simulator solutions (including those that are required for a QAP).  However, before the solution can be certified it MUST exist, it must have been created by someone and the creation of the solution is found in Chapter 3 of the 2010 WSP Calibration Technical Manual, and is entitled PREPARATION OF THE EXTERNAL STANDARD SOLUTION.  This section describes the procedures that must be followed in order to prepare and certify an external standard solution.

Dr. Couper has approved a protocol for both creation and certification of the solution.  This protocol, for this particular solution created in 2010 (in fact it is the 24^th solution created). The creator is to follow specific steps in making the solution and then “once mixing is complete, purge the spigot then remove an aliquot of the solution for certification (refer to 4.0 Certification of Simulator Solutions).”

This protocol for certification is found in Section 4, and is referred to as CERTIFICATION OF SIMULATOR SOLUTIONS.  It states at the end of the creation that:

Each external standard and QAP solution must be certified by forensic scientists prior to its distribution to breath test technicians. The forensic scientists must have a valid Blood Alcohol Analyst Permit issued by the State Toxicologist.  A minimum of three (3) analysts shall test each solution before the average solution concentration can be calculated. Typically, three (3) analysts certify each set of QAP solutions, and seven to eight (7-8) analysts certify the external standard solution. Each analyst who has results included in the final computation of the average solution concentration has certified the batch.  (Emphasis Added).

Just as certified solutions are required for any QAP, so too are certified solutions required for use an “external standard.”  The external standard test is perhaps the most important function of the Datamaster and Datamaster CDM, as it provides the contemporaneous testing of a known and predetermined quantity of alcohol at the time of a subject’s breath test.

The specific protocol approved by the RCW 46.61.506 (4)(a)(iv) requires evidence that “Prior to the start of the test, the temperature of any liquid simulator solution utilized as an external standard, as measured by a thermometer approved of by the state toxicologist was thirty-four degrees centigrade plus or minus 0.3 degrees centigrade.  According to WAC 448-16-030(8) and (11):

(8) ‘External Standard Test” means the process by which the accuracy of the instrument is verified, using a simulator containing a certified simulator solution or a compressed gas standard containing a known alcohol concentration.  (11) ‘Simulator‘ means a device which when filled with a certified simulator solution, maintained at a known temperature, provides a vapor sample of known alcohol concentration.

Therefore the plain meaning of the statute requires a showing, by testimony that the solution was certified.  Certification is a process and has been established by the State Toxicologist.  As stated throughout this text, the procedure is found in Chapter 3, and chapter 4 of the Washington State Patrol Toxicology Laboratory Division technical manual -  Breath Alcohol Calibration, chapters 3 – Preparation of the External Standard Solution AND Chapter 4 – Certification Of Simulator Solutions.  Section 6, entitled, EXTERNAL STANDARD SOLUTION CHANGING PROCEDURE, mandates that that “[o]nly certified external standard solutions are to be used” and that these must be changed every 60 days.  (Emphasis added).

Given the above referenced protocols, Statutes, and WAC provisions, it is clear that if the State is to establish that a breath test is valid under RCW 46.61.506(3), and admissible under RCW 46.61.506, they must first elicit testimony from witnesses that can attest to personally doing the things necessary to demonstrate the various preconditions necessary to admit the test.

As stated above, every step of the process   involves the offering of statement(s) “against” the defendant to in order to establish or prove a past event relevant to the criminal prosecution.  Absent productions of witness with personal knowledge an attempt to prove compliance with RCW 46.61.506, by either producing documentation of testimonial declaration or certifications, the Defendant’s 6^th Amendment right properly demanded under CrRLJ 6.13 (See Defendant’s NOA and DEMAND Number 36, 37, 39) and therefore NOT waived.

Consequently, this Court must adopt the rulings of our U.S. Supreme Court in Crawford v. Washington, in Melendez-Diaz v. Massachusetts, and the recent opinion of Bullcoming v. New Mexico, as well as the Washington case law subsequent thereto.

Despite all this law, the Court held that the only right to confront held by my client was to cross examine the arresting officer!  This ruling ignored the USSC and all State Court authority above the trial court, and was also was a result of RCW 46.61.506(4) which ignores subsection (3) of the same requiring the machine to be found in proper working order such that it produces a valid test.  With this type of ruling despite the case law to date, every citizen accused of DUI, and their lawyers need to be watching for the ruling to be issue in Williams.

The first of these two was presented by The National College Of DUI Defense, an organization I have been a General Member of since 2005.  The conference was held at Harvard Law School and keynote speaker was F.Lee. Bailey.  College General Members represent the most experienced DUI defense attorneys in the country and are the backbone of the college—capable, experienced attorneys who dedicate a portion of their practice to the defense of DUI cases throughout the country. Training always embraces the most innovative and creative methods of DUI defense as well as polishing the corner stone of trial work like cross examination.

The second seminar was and advance evidence seminar.  The previous year I attended this same conference, but also lead a specialized breakout session on roadside sobriety tests. These training session are important because as a DUI defense attorney, my clients freedom and driving privilege (to name only 2) depends on my skills and knowledge that are accumulated and practiced to the point where they are instinct and second nature. Spending time with other attorneys from around the nation who have likewise dedicated their legal careers and practices to the defense of citizens accused of DUI creates a scholastic environment where we are all dedicated to the same cause, and share our success and failure in the courtroom.  Believe it or not, defense attorneys, secure less Not Guilty verdicts than Guilty verdicts, but it is usually the cases we fight hard and lose that are our best teaching aids.

This annual conference allows a lawyer student to choose their own schedule of lectures and breakout sessions so that the lawyer can sharpen their skills, or gain a greater understanding of procedures, protocols, and highly technical areas of science that DUI prosecutions are steeped in.  The program is also designed to allow DUI defense lawyers to practice in front of other lawyers and thereby receive constructive criticism and share ideas and concepts that enhance the lawyers skill set.

At this years program I choose to revisit blood testing and the Drug Recognition Evaluation (DRE) protocol for Drug based DUI prosecutions.

The science of blood testing is “regulated” by national scientific standards, but even so, one  should never under estimate the power of human error and the fallibility of machines that are programmed by the human hand.  Blood testing uses Headspace Gas Chromatography.  This is a type of testing where a vial of blood is shaken and mixed for a period of time and then the blood itself is NOT actually tested. Rather, what is tested is the airspace above the blood level (the “Headspace”) as it is sealed in a  “vacutainer” tube. The tube is a vacuum sealed space with suction helping to fill the tube from the subjects body when blood is drawn.  To analyze and test the head space above the blood after it has been shaken, the machine doing the analysis injects a small needle into the top of the soft rubber tube (stopper) and a small bit of gas is sucked out and then ran through a machine.  The gas substance is injected into another know gas and then forced to travel through a tubular line where at the end of this journey the substance is quickly burned up in a actual flame.  It is this end process that results in the analysis of the substance and the alcohol concentration.

This is a very rudimentary description of the process, but suffice it say, most do not understand that the blood content itself is NEVER actually tested.  Furthermore, many do not realize that the machine is used to test all sorts of other fluids and compounds and the cross contamination potential is huge.  Add to that fact that the machine is an automated one and most times the analysis is done without human oversight.  As a result of these and other issues, a  complete understanding of the process is necessary to adequately challenge, not only the end result, but the process itself, because what is generated is a number.  What is presented is nothing more than a number to which the prosecution points to as guilt beyond a reasonable doubt.  However, in Washington State, and most other States, the accuracy and the reliability of that final number is always a critical issues that must be addressed in arriving at a final decision.

While this overview is not intended to be comprehensive, but instead an brief review of a complicated process fraught with potential error and to show that the net result of spending time learning from other attorney’s who excel in this and other scientific areas where it intersects with the law,  benefits not only future clients, but helps a defense attorney explain to a jury the limitations of the testing utilized in any given case.

The difference between exposing error by pulling back the curtain on pseudo-scientific, and unreliable evidence can mean the difference between lockup or liberty.  While this may seem dramatic, consider how many recent cases there have been where legitimate science has exonerated previously convicted persons who were convicted by the use of evidence that was of poor quality, and was either misunderstood, or presented as infallible, and was not challenged by an advocate with adequate knowledge?  The fact that the charge of DUI is “unpopular” is no reason to allow less than adequate evidence to untested, unscrutinized, and unchallenged if it fails to be collected and analyzed properly.

The other practice area i choose to spend more time on was the Drug Recognition Program, or DRE.  This is an area of law that is NOT based upon science, NOR supported by rigorous peer reviewed research, NOR endorsed by any agencies other than the those law enforcement agencies that promote the circular reasoning of:  “the program works because we say it works.”

While I have previously completed a 16 hour course on the DRE program overview, it had been a while since I represented a citizen accused of a Drug-DUI, so a close review of the materials presented, and the companion workshops where a critique of courtroom skills was done was a welcome review and challenge.

The DRE program is a book unto itself and a short blog will not adequately capture the program, but from a brief overview perspective, the program starts with ruling out alcohol suspected impairment and then runs a subject through a series of “sobriety” tests that are not related to drug impairment.  This entails, a physical examination that requires monitoring of blood pressure, physical inspection of the subjects arms, a  dark room examination, and a custodial interrogation of the person that usually leads to a disclosure of a substance the person previously ingested.  Final steps are the rendering and recording of an officer’s opinion of what category of drug the person ingested as well as the actual drug the officer suspects.  For example, category could be “Cannabis,” and actual drug being “Marijuana.”  Guess what?- The officer’s typically render an opinion that the suspected substance ingested is the same as that confessed to!  Brilliant detective work!  The final step in the process is the drawing of a subjects blood and an analysis of the blood as described above.

This is not the whole procedure, but the suffice it to say, it is the “meat and potatoes” of the program.  Pulling back the curtain on false assumptions, coercive procedures, and the close examination of the blood analysis itself is critical and exactly why rigorous training and experiences in these cases is paramount to be a successful DUI defense attorney.

Recently, two newsworthy and related events have come to pass; First –  Amanda Knox verdict was over turned due to a showing that the investigation was less than adequate, in fact scientific evidence was processed incorrectly and failed to support the allegations; Second- the Seattle Times reported on unlawful and abusive Police Behavior, with respect to preservation of exculpatory evidence, failure to turn over such evidence, destruction of this evidence,and a denial that it even exits!

These may be extreme examples, the fact of the matter remains that they gained notoriety because the evidence was challenged, because the defense lawyers dared to pull back the curtain and say, “look at this with a critical eye!”  We live in a country where proof beyond a reasonable doubt means something, but all to often jurors, judges, and prosecutors settle for what they think is simply “good enough” as a result of the type of charge the accused person is facing.  If defense attorneys fail to to educate and then use that education to examine the evidence with the legal tools provided by the Constitution and State Court rules then they have failed their client, the system which requires them to be critical, and their oath as a defense attorney.

As of July 22, 2011, the fines and fee for the conviction have increased as a result of the breath test fee increasing.  The 125.00 breath test fee has been increased by $75.00 per test.  As a result of this increase the former totals of $866.00 and $1121.00 are now $941.00  and $1196.00. Traditionally, this fee is not able to be waived, but as an added change, under special circumstances and upon a verified petition by the person assessed the fee, the court may suspend payment of all or part of the fee if it finds that the person does not have the ability to pay.

So the fee is increased, but have you ever wondered what happens to these DUI fines and fees?  According to the statute, this breath test fee is for the purpose of funding the Washington State Toxicology Laboratory and the Washington State Patrol grants and activities to increase the conviction rate and decrease the incidence of persons driving under the influence of alcohol or drugs. The logic of this will be discussed shortly, but here is the breakdown of this fee use.

According to the statute, the fee assessed shall be collected by the clerk of the court and, subject to another statute (RCW 46. 61. 5054 [4]), $175.00 of the breath test fee MUST be distributed as follows:

Forty percent ($70.00) shall be subject to distribution under the authority of following statutes: RCW 3.46.120 (Repealed), RCW 3.50.100 (where to deposit and interest earned), RCW 35.20.220 (Powers and Duties of Chief Court Clerk), RCW 3.62.020 (Forfeiture Money From District Courts), RCW 3.62.040 (Forfeiture Money From City Cases), or RCW 10.82.070 (Superior Court Collections).

The remainder of the fee ($105.00) shall be forwarded to the state treasurer who shall, deposit: Fifteen percent ($15.75) in the death investigations’ account to be used solely for funding the state toxicology laboratory blood or breath testing programs; and eighty-five percent ($89.25) in the state patrol highway account to be used solely for funding activities to increase the conviction rate and decrease the incidence of persons driving under the influence of alcohol or drugs.

The remaining 25.00 from the original 200.00 ($175.00 MUST be used as described above), or the extra 25.00 that takes the prior 175.00 fee to 200.00 must be distributed to the highway safety account to be used solely for funding Washington traffic safety commission grants to reduce statewide collisions caused by persons driving under the influence of alcohol or drugs. Grants awarded under this subsection may be for projects that encourage collaboration with other community, governmental, and private organizations, and that utilize innovative approaches based on best practices or proven strategies supported by research or rigorous evaluation.

After reading the statue closely, it now begs the question of: what are these innovative approaches to reduce “crashes?”  Keep in mind the statute by their very plain language do not seek to reduce the incidences of drunk driving, rather they seek to reduce crashes “caused” by drunk driving.  The problem as I see it, however, is that the vast majority of car crashes ARE NOT CAUSED by drunk driving.  While many believe that the majority of crashes are caused by alcohol or drug impaired driving this is not the case.  Like everything else, “sensationalizing” or constant headlines reporting leads many to the conclusion that all crashes are alcohol related.  Consider the 2008 statistics compiled by National Highway Traffic Safety Administration (NHTSA):

In 2008, the NHTSA discovered that 60 percent of fatal crashes were single-vehicle crashes, and from that statistic, 71 percent of those crashes were run-off-road crashes. A run-off-road crash is where the vehicle runs off the road and crashes into an object. What I found that was interesting was that 95 percent of these accidents were due to driver errors. Overcompensating the steering wheel when turning, poor directional control, and driving too fast for the conditions; these are the factors that make up that 95 percent. What this means in simple terms is Americans are horrible drivers. The main reason why people get into car accidents is because they can’t drive.

From this information, reading statutes carefully and with a critical and thoughtful analyses of the language of a statute is important to separate the reality from the rhetoric.  This is not intended to mean that drunk driving should be supported, rather it is intended to cause the reader, the citizen, the legislator to read statutes and proposed statues critically, and to think critically.

Why should time and energy be invested into reducing the cause of crashes that is way down the list of reasons for the crashes?  The answer is likely because it is easy increase fines and fees for issues associated with DUI than it is to say what the change is really about. It is easy to raise fees and fines for a crime such as DUI because it is popular to hate it.  In the words of a good friend of mine, Ted Vosk:

Defending an individual charged with driving under the influence of alcohol can be a challenging affair. Only those accused of sex offenses seem to be viewed with more disgust. The hysteria created by special interest groups has led to the adoption of ill conceived and unfair laws. Moreover, the spasmodic response to the proclaimed “carnage on the highways” has created a DUI exception to the Constitution so that citizen’s are now expected to check their rights at the ignition.

This does not mean we as Defense attorneys are “pro” DUI, rather we are “pro” common sense, fairness, and well thought out and well drafted laws. When we return for a look at the language of this new statute: “utilize innovative approaches based on best practices or proven strategies supported by research or rigorous evaluation”  it makes no sense.  How do we utilize innovative, meaning new, approaches that are proven?  By definition, if they are new they are in fact, unproven. If they are new, how can they be considered a proven strategy?  What the statute seeks to implement is methods that are proven to reduce DUI.  Really, the only way to reduce it is zero tolerance.  The current state of the law is this: it is not illegal to drink and then drive; so people do it.

The problem with permitting a judgment impairing activity is the line between impaired and not impaired is easily crossed.  If the legislature wants a new yet proven method of reducing DUI crashes then stop the rhetoric and simply make laws that prohibit any alcohol mixed with driving a crime. Interestingly enough this is one way an innovative yet proven method work.  Until such a time that the nation goes to zero tolerance the rhetoric of these statutes and agencies like MADD that seek to reduce DUI, simply seek to increase fundraising for their own causes.

An Arrest for DUI (RCW 46.61.506) or Physical Control (RCW 46.61.504) now require a mandatory 12 hour impound at the owner’s expense.  The discretion formerly held by the arresting officer has been removed with only 2 exceptions: the vehicle is a commercial vehicle or is a farm transport vehicle and the registered owner was not a occupant of the vehicle when the stop occurred.

Many commercial vehicles are not owned by the driver’s who are hired to drive them so the law seems to respect their ownership interest in the vehicle as well as the trailer or load it may be carrying. The statute commands the officer that he or she SHALL provide and invest a reasonable amount of time and energy to arrange for the owner of the vehicle to take possession of the vehicle.  The problem, however, is that the statute uses the specific language of owner and there is no authority to permit the owner to send or arrange a suitable driver.  Consider the owner who cannot get from his residence in New Jersey to retrieve a fleet vehicle of his.  He is not permitted to have anyone else take possession of the vehicle.  The same may be said for farm equipment, except they are also in addition likely hard to find proper transport for so an exception can be made.

The mandatory impound is for 12 hours from the time the vehicle arrives at the tow storage yard, unless there are 2 or more registered owners of the vehicle OR there is a legal owner of the vehicle that was not the arrested driver.  Under these circumstances, one of these persons may retrieve the vehicle after it arrives at the impound yard.  This means a tow operator must take possession of the vehicle.  As a result, contacting the registered owner prior to vehicle being seized by the arresting officer and transported by a tow company while the vehicle is still on the roadside, is no longer possible.  As a result, charges for the hook-up, tow, and time in the tow yard in the form of storage will be accrued.

Given this financial gain by every tow company state-wide, it is no surprise that they were a very vocal special interest group and fought hard for this law.  While many supporters of the law cite to the case of “Hailey” and the community safety concern, it is important to remember and highlight the fact that the arresting officer previously ALWAYS had the ability to impound the vehicle previously driven by a DUI arrestee.  The officer in “Hailey’s” case choose not to.  He choose not to even though that arrestee (who later returned to her car after her DUI processing) had a pending DUI,had a suspended license, and did not have the ignition interlock that was required due to her restricted driver’s license.  This now mandatory law was always a possibility but it was the negligence of one arresting officer (as determined by a jury) and the multimillion dollar verdict that was the spark of this legislation.

While the community safety justification is one that cannot be disagreed with, there is no such practical problem in Whatcom County for DUI arrests.  This is because the Whatcom county jail has a policy of mandatory booking of DUI arrestees.  The arrested driver will not be released until a sober driver can be arranged to pick them up who must meet face to face with that driver and the arrested person proves a breath sample on a portable device that is .04 or lower.  As a result of this, justification of this new impound law is less persuasive and the apparent influence of the tow truck lobby is in fact a reality.

While many other jails have a similar policy, many do not.  In a Mount Vernon DUI, or Anacortes DUI, or any Skagit County DUI arrest, the jail will accept a DUI arrested driver, but only when space allows as the dangers of overcrowding have to be considered.  In those counties, the officer can call the jail and see if the person will be accepted.  If not, then the impound can move forward.  Nevertheless, while the spirit of the law is a good intention, the practical effect of the law can be unforeseen and undesired such that the law requires an amendment.

It should be kept in mind that vehicle impound is not a seizure and forfeiture of the vehicle forever, unless the vehicle becomes abandoned, but rather, the law only permits a hold for a 12 hour period unless one of the previously described circumstances exists.

The law also removes liability for any damage or loss the vehicle sustains post-arrest of the driver, even if the officer departs the scene before a tow truck driver arrives to take possession of the vehicle.  The statute permits the officer to simply lock the vehicle with the notice of tow and impound form inside the vehicle and leave the scene if, or when:  the officer has waited 30 minutes since requesting the tow truck/impound; the officer is presented with “exigent” circumstances that are defined in the statute as “being called to another incident or due to limited available resources being required to return to patrol.”

To the average citizen who is unfamiliar with the nightly occupation of a officer conducting “emphasis” patrols the statute is essentially the officers to not remain with the vehicle because they are always short handed such that they are operating under “limited resources.”  Sure it is just a car, but we tend to keep many valuable and important items in our vehicles and this opens them up to loss or destruction and the driver has no recourse.  In a county where the driver will not be returning to the vehicle anyways due to mandatory booking, the complete waiver of liability may serve as a extra punishment for the DUI arrestee who happens to use their vehicle as a mobile office.

Finally, this statute may also punish an owner, who never really uses the vehicle as it is typically in possession of an employee for work.  However, only a registered owner(s)s or legal owner(s)s may retrieve the vehicle from the impound lot, either early or post-12 hour hold.  As a result, the only person who can practically get the vehicle, after the 12 hour hold or longer, is the former driver/arrestee, but has no ability to do so.  This could be another extra expense in the form of longer storage time, therefore longer fees and travel expenses for an absentee properly owner.

This is not intended to suggest that this law should not have been passed, but rather, it is an example of good intentions affecting various unintended citizens and is the result of rushing legislation to appease the lobbying party at the expense of logical and measured thoughtfulness before stamping an effective date on a bill.