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QUALITY ASSURANCE BREATH TESTING PROGRAM

NASSAU COUNTY POLICE DEPARTMENT CRIME LAB AND BREATH TEST PROGRAM   LACKS QUALITY CONTROL WHICH PROVIDES REASONABLE DOUBT UNDER THE LAW.

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DWI LAW AND JURY INSTRUCTIONS EXPLAINED IN LAYMAN TERMS

Since 1986 the National Safety Council has laid out the necessary safeguards for breath testing for police purposes.   

THE NEED FOR DUPLICATE TESTING

The first and foremost safeguard is called duplicate testing, which is the testing of two separate breath tests which should be taken from a suspect within 5 minutes of each other.   This is the cornerstone of quality assurance in breath testing.  Duplicate testing should not be confused with   replicate testing which is merely the retesting of the same sample.  Duplicate testing has been used throughout the Country for several decades, and was used by the New York State Troopers, Nassau County Police Department, Suffolk County Police Department, as well as every major Police Department in the State even though the Statute did not require it.  It is done to ensure quality control in breath testing programs and was deemed a necessary safeguard in preventing false high readings, or inaccurate results of a breath test.   Any credible expert in Breath Testing will state that any breath test result is unreliable, and cannot be a basis for a conviction if the result cannot be duplicated.  In fact, the experts for the Police Department in the past testified that it was a necessary safeguard for breath test analysis.  In fact, the Nassau County Police Commissioner had issued an Order that stated that two separate breath tests must be given to a person arrested for DWI. 

EXPERTS INSIST ON DUPLICATE TESTING

Dr. Kurt M. Dubowski, a world leading scientist in the area of blood testing and breath testing for the Government, has championed the necessity of Duplicate Testing for over 40 years.  His position on Duplicate Testing has been accepted by the National Safety Council, National Highway Traffic Safety Administration and is accepted by both scientists and Police Departments throughout the country and world.  This is not surprising as "duplicate testing" is a standard, established methodology in analytical chemistry and toxicology.  

Unfortunately, the Nassau County Police Department, Suffolk Police Department, New York State Troopers as well as the New York City Police Department no longer use duplicate testing in their breath test programs.  What is the reason?  At the trial of People v. McCabe, the Technical Supervisor for the Nassau County Police Department testified that the reason they discontinued the use of duplicate testing on the Intox 5000 was because they found they were coming up with different readings when they did so!!!  When the jury heard this they had little difficulty coming up with a Not Guilty Verdict on all counts.         

Dr. Dubowski published the following in 1994 in his Article Quality Assurance in Breath Testing:

The National Safety Council Committee on Alcohol and Other Drugs endorses a minimum of two (2) tests taken not less than 2 or more than 10 minutes apart, as per Dubowski on page 310 of the following article: K. M. Dubowski. "Quality Assurance in Breath-Alcohol Analysis." JOURNAL OF ANALYTICAL TOXICOLOGY, Vol. 18: 306-311 (1994).

In previous testimony under oath  in Nassau County – The Technical Supervisor of the Nassau County Police Department  - Police Officer John Dell’area, stated that  he was aware of the opinions of Dr. Dubowski and other known experts  like Dr. Alan Wayne Jones; as he attended a course before becoming a Technical Supervisor, where Dr. Dubowski lectured that Duplicate Testing was necessary.  The Supervisor admitted at trial that he was powerless to implement Duplicate Testing at the Nassau County Police Department, even though he was responsible for bringing Quality Control to the Breath Test Program, because his superiors would not permit Duplicate Testing.  

THE UNFAIRNESS OF THE TESTING PROCEDURES UTILIZED BY THE NCPD         

In Nassau County a person arrested for a DWI is not permitted to have a second breath test if they request it, nor will the Police administer a blood test to them if they request it. This is the policy even though it is the most accurate test.  Scary, when one considers that A PERSON CONVICTED OF A FIRST TIME DWI OFFENSE FACES UP TO ONE YEAR IN JAIL as well as other severe consequences.  Under the law, a person has a right to have a blood test from a doctor of their own choosing.  While in the past the NCPD used to inform a person of this valuable right at the time the police requested a breath test, recently they have instituted a policy that they no longer advise a person that they possess this right.  It’s like having a right to vote, and not being informed of it.  Ironically, even though the police have the right to take your blood, they will decline to do so even if you request it and agreed to pay for it.  They also will not permit you to go to hospital to get a blood test, nor will they transport you to one, even though there is a hospital less than a mile away where a blood test can be administered. Although the police can have an EMT, AMT or Nurse take  your blood, they will not permit a nurse who appears at station to draw a suspect’s blood if they are doing so on the behalf of the suspect.  In essence, they have instituted a policy which makes it virtually impossible to get a second test under any conditions.  WHY?  One can only draw the conclusion that they are more concerned with obtaining convictions than getting an accurate result.

WHY DUPLICATE TESTING IS NECESSARY

Duplicate Testing is necessary because it aids in the detection of mouth alcohol, and other problems that can lead to an artificially high reading.  Duplicate Testing aids in ensuring that a breath test result is reliable and correct. If the first test shows a reading of .14 and the second test is much lower or higher then this would indicate that the readings are not reliable and may be the result of mouth alcohol, operator error, radio frequency interference, operator tampering and other problems.  While the Intoxilyzer 5000EN readings can be affected by intentional, or unintentionally by radio frequency interference, or operator manipulation and other circumstances, research has shown it is very difficult to reproduce the same results on two separate breath tests.   The Intoxilyzer 5000 EN is capable of running duplicate tests on the same breath test printout. It would take no more than an additional 5 minutes to do so.  While the software is in place in the machine, the Police Departments in Nassau, Suffolk and New York City, have chosen not to use this option for no good reason.  

EXPERTS STATE THAT A SINGLE BREATH TEST  WITHOUT DUPLICATION SHOULD NEVER BE A BASIS TO CONVICT.

Any credible breath test expert will tell you that failing to confirm the accuracy of the first breath test reading on the Intoxilyzer 5000EN with a later breath test on a second separate sample with the same machine makes the first reading unreliable. Reliability is defined as the ability to reproduce the same result through later tests, or in other words the ability to confirm the accuracy of the first test result. If the first test result cannot be confirmed by a second breath test within a short period of time, it can never be deemed reliable or accurate.   Dr. Alan Wayne Jones, one of the world’s leading experts in this area, has stated in his presentation the "Dilemma of a Constant Blood/Breath Ratio in Chemical Test Evidence of Intoxication” at the  ALCOHOL DRUGS AND TRAFFIC SAFETY: PROCEEDINGS OF THE T89 11th INTERNATIONAL CONFERENCE ON ALCOHOL, DRUGS AND TRAFFIC SAFETY, National Safety Council: Chicago on page 240 that “It would be hard to defend a breath-test program with a per se statute based on a single determination.”  Moreover, in one of his lectures he stated that one breath test alone without a confirmatory second test minutes later, should never pass the Reasonable Doubt standard used in a Criminal Trial to obtain a conviction.  

Dr. Dominick Labianca is the former Chairman of the Brooklyn College Chemistry Department, who currently has 94 publications that deal with chemistry, of which 40 deal with breath- and blood-alcohol analysis. Like the aforementioned experts, Dr.  Labianca considers duplicate testing a necessary safeguard and has testified on numerous occasions about the inherent unreliability of breath alcohol analysis. Dr. Labianca   has testified as an expert witness in more than 260 cases over a period of more than 25 years in the area of breath- and blood-alcohol analysis. He has been qualified as an expert witness in alcohol-based cases in numerous New York State Courts, including Courts in the Counties of New York, Kings, Queens, Bronx, Richmond, Nassau County, Suffolk County, Westchester County, Dutchess County, Orange, and Ulster.  He has also been qualified as an expert witness in the Superior Court of New Jersey (Essex County). Moreover, he has been certified by CMI (the company that makes the Intoxilyzer 5000) as an Intoxilyzer 5000 breath analysis operator and breath test instructor.

THE POLICE DEPARTMENT USE TRIPLICATE ANALYSIS OF BLOOD

Currently, when the Nassau County Police Department takes Blood from a suspect for DWI, they test two samples, and tests the samples  three times.  They test the samples in triplicate to establish reliability.  Even though this is done, recently it was revealed that many of the Blood test results were incorrect. One person was shown to be legally drunk, when in fact they had a Blood Alcohol Concentration of zero. Blood testing is considered to be the most accurate way of determining a person’s Blood Alcohol Content. Yet the Nassau County Police Department does not use it, and will refuse to give a person who requests a blood test the option of getting one, even at their own expense.  If there can be mistakes in the most accurate test, what happens when they use a much cheaper and less reliable breath test?  If one is charged with a crime and their life is on the line, they should be given the most accurate test available, not the cheapest least accurate. Common sense tells you that if your child was sick, would you want the most accurate test or the less accurate test? The same common sense should be applied when one considers a person’s fate based upon one breath test. 

LACK OF USE OF SECURITY CARDS

Moreover, the Nassau County Police Department (NCPD) used to use 3 ply carbon cards, know as security cards, where the reading was printed out by dot matrix through a slot in the Intoxilyzer Machine. These cards were used to ensure that that the Breath Tech did not print out the reading or tamper with the actual reading printout.  These cards have been discontinued and replaced with a laser printer. Indeed, an unsavory Breath Tech could print up a breath test card for any subject on any computer with a printer and pass it off as a person’s legitimate breath test.  This would be undetectable.

LACK OF VIDEOTAPING THE BREATH TEST AND COORDINATION TEST AT THE STATION

While Police Departments throughout the Country and the New York City Police Department videotape the breath test being taken and the result, NCPD refuses to do so. Some departments even videotape the period of observation. NCPD does neither.  I have seen numerous tapes from other Police Departments where the breath test was clearly given incorrectly, which clearly increased the reading.  Just looking at the test record or breath test print out, it was impossible to ascertain the errors in the breath testing procedure.  While NCPD has the video equipment to videotape the period of observation, and the cameras are actually in the room, they have made a decision not to videotape the period of observation, or the breath test. Unlike other police departments in the State which administer breath tests, the NCPD will not videotape a person’s performance test on Standard Field Sobriety Tests back at the station. This is unacceptable given that the equipment is installed and used to videotape person’s performance on these tests when the accused declines to submit to the breath test.   

Other police departments in New York and across the Country videotape these performance tests. This is done to allow a jury to see how the tests are given and how a person performs, and then judge for themselves whether the person is intoxicated or the reading should be believed.  While the Nassau County Police Department will give the physical tests after the breath tests, they will not videotape the physical performance tests if there is a breath test result.   The only circumstance where they will videotape is if a subject refuses to submit to a breath test. In my career I have used many videotapes (from those police departments using videos), at trial to in order to rebut the officer’s opinion pertaining to intoxication and to rebut the reading of the breath test. A videotape will allow the jury to see if the officer gives the test correctly and if his subjective opinion is correct. I have seen numerous tapes where Police Officers have not given the field tests correctly or their findings were incorrect. Without the videotape, I would not have been able to establish this at trial.  The lack of videotaping the breath test and the performance tests should constitute Reasonable Doubt in any fair juror’s mind given that the Burden of Proof is on the Prosecution, coupled with the law that the defendant is presumed innocent.

HOW VIDEOTAPES DIFFER FROM POLICE OPINIONS

In those cases, where videotapes are produced, one can easily see if the Officer’s opinion that the Accused was slurring his speech, was unsteady, or performed poorly on the tests is in fact correct. It also allows a Jury to hear the Accused speak, and judge for themselves.  Given that the cost of  videotaping or using a DVR is quite inexpensive, one would expect that police departments would use this equipment.  It would save the taxpayer millions of dollars a year in overtime costs.  The cost of a trial alone can approach $20,000 for the prosecution, not to mention the price that the Accused must pay. Why not use it?  The reason is simple,  the Police Department was advised not to videotape.  Why? –  because these videotapes many times hurt the Prosecution’s case.  It is easier to obtain a conviction for the Prosecutor when they elicit from the Police Officer his subjective opinion and description as to how a person looks and performs on various tests.  This is because Jurors tend to believe Police Officers and their opinions.  Many times they do not want Juries to see how a person really looks or sounds because the Jurors’ objective unbiased opinion frequently differs from the Police Officer who has a built-in bias, that being to try to obtain a conviction by embellishing.  During one of my trials, a police officer stated under oath that the speech of the Accused was slurred. Upon reviewing the videotape, the officer was unable to find one instance where the speech of the Accused  was slurred.  He stated that during his questioning, the Accused was swaying from side to side. Again faced with the videotape, he was unable to find one single instance of sway.  He stated the Accused was intoxicated when by any fair few of the evidence he was perfectly sober.  The Jury decided for themselves in reaching a quickly not guilty verdict as they had the tangible real proof before them which showed that the Police Officers subjective opinion was not justified.  In a recent case where the Accused performed the physical tests virtually perfect, the officer said this person was obviously intoxicated, and had failed the test.  One Breath Tech that actually still works for the department insisted that the Accused took 10 steps instead of 9 steps on the Walk and Turn test even though the video clearly showed him taking only 9. When faced with the indisputable proof, the officer still insisted under oath, that his notes where correct, when in fact the video clearly showed otherwise.

Although the Nassau County Police Department has spent millions of dollars on their breath testing program, despite recommendations from their own experts and technical supervisors to improve quality assurance, the Department has refused to institute the most basic necessary safeguards.  Those experts and technical supervisor that do not acknowledge the need for duplicate testing are being nothing less than dishonest.  One technical supervisor who is also a Breath Tech in Nassau County claimed under oath at trial,  that he did not know that the position taken by the National Safety Council, Dr. Dubowski and other experts in the field that Duplicate Testing is necessary. This is beyond belief, for in order to become a Technical Supervisor he attended a course just a year prior to this testimony where Dr. Dubowski lectured about Quality Control in Breath Testing with the focus on Duplicate Testing. Why would he not admit it?  Obviously he did not want the Jury to know that their program, like the Criminal Lab, lacks quality control and should never be relied upon in finding a person guilty.

CRIME LAB FORCED TO CLOSE BECAUSE OF POOR QUALITY CONTROL

The poor Quality Control that resulted in the closing of the NCPD Crime Lab, which it appears led to the conviction of  many innocent individuals, still persists in the Nassau County Breath Test Program and other Police Breath Test Programs throughout the State.   The closure of the Crime Lab, also known as FEB, impacts any breath result because they prepared the chemicals used to calibrate the breath test machine.   

It is unbelievable that Juries would even consider convicting any person on evidence so flimsy, given that the Burden Of Proof is on the Prosecution, and the defendant is presumed innocent.  In other words, a jury must have the predisposition if they follow the law that there is a presumption that the test showing a person is above the legal limit, is not accurate in the defendants case. Coupling this with the the fact that Reasonable Doubt can exists based upon the lack of evidence, the defendant should be found not guilty!!! . However, lately defense attorneys have been stifled in their attempts to get this relevant information to jurors, and stifled in their attempts to present a defense for their clients.

REFUSAL TO RELEASE THE SOURCE CODES IN NASSAU COUNTY

The maker of the of  Intoxilyzer 5000EN, CMI, will not release the source code for independent inspection.  Despite previous attempts to obtain the source code by my Office to see if the Machine actually does what it says, the Nassau County District Attorney’s Office has refused to let defense counsels’ experts review the source code and has fought in court any attempt to have an independent computer software company review the codes to ensure that the Machine produces accurate results for persons submitting to the test.   There is no good reason for their opposition. Any computer software programmer will attest that if a program cannot be validated, or is written incorrectly errors can appear in its output or result.  While the Police Department could force CMI to release the code by refusing to continue their contract with CMI, they have failed to do so. In fact, according to previous testimony, the Nassau County Police Department has never even had anyone on its staff or any outside organization attempt to determine if the program that the Machine uses to determine a suspect’s breath test reading is functioning properly. Yet they continued to still use this Machine.  Neither the Federal Government nor NHSTA has ever reviewed the program, and CMI continues to this day to fight any attempt to analyze the source code. You would think that the Police Department or the District Attorney’s Offices would want to ensure that the computer program contains no programming errors that would cause an artificially high reading leading to the conviction of an innocent person. Apparently not. 

A thorough discussion of CMI’s refusal to release the source codes even under Court order can be found in the article by Charles Short, entitled “Guilty by Machine” at the following link www.hudson-law.net/GuiltByMachine.pdf.

SLOPE DETECTORS UTILIZED BY THE MACHINE HAVE BEEN DEEMED TO BE UNRELIABLE BY RESEARCH AND EXPERTS IN THE FIELD

Many breath test machines like the Intoxilyzer 5000EN have a feature built in referred to as the Slope Detector.  In theory, this computer program is designed to detect if there is an improper sample, and print out an invalid sample instead of a breath test, which may be artificially high based upon mouth alcohol, or improper blowing.  The research that has been published shows that this so called “safeguard” is unreliable.  In fact, peer research has shown that it fails the majority of the time. The Minnesota Bureau of Criminal Apprehension conducted experiments on this feature and found that it failed the majority of the time. They obtained alcohol readings far above the legal limit on completely alcohol free persons.  This research was confirmed by Rick Swope, a noted expert in the field that found it to be unreliable.  In fact, the Machine does not even test to see if the Slope Detector is functioning.  Moreover, the tests that the technical supervisor does on it when they maintain it are worthless as they do not mimic real test conditions, but instead are conducted in a way that the Slope Detector will always appear to be reliable on every occasion they test it.   The simulator calibration check that the Machine runs as part of any person breath test, does not test it at all.  Although frequently Prosecutors attempt to convey that this safeguard was designed by a computer expert, in fact, the person who designed this part of the computer program was someone that only possessed a degree in refrigerator repair. Not only do they fail to bring out to the Jury the research that has shown this to be unreliable but they fight any attempt to introduce it into evidence by the defense. 

As mentioned earlier, The NCPD and other Police Departments have never inspected the Source Code of the Intoxilyzer 5000EN. Recently, in Florida, CMI, the manufacturer of the Intoxilyzer 5000EN, refused under Court Order to reveal the Source Code which resulted in the Dismissal of numerous cases.  Why would they not release the Source Code?  Could it be that there is a flaw in the Code which they do not want revealed to others?

Dr. Alan Wayne Jones, a leading expert in the field of breath testing in a lecture in 2006 found the Slope Detector to be unreliable based upon his research.    He stated: 

“So these mouth-alcohol detectors, the algorithms in them are not the best.  They're not doing the job they're designed to do.”

“They may be good if you swirl up whiskey in your mouth and then blow afterwards.  Then they'll flag mouth-alcohol.  If you swirled whiskey in your mouth, then wait five or six minutes, and then blow into the instrument, although you have mouth-alcohol the instrument doesn't flag it as mouth-alcohol.”

He notes that Police Testing Procedures when maintaining these machines where inadequate:

“So slope detectors then, on the majority of these instruments that I've tested anyway, they aren't doing the job they're intended to do. But when the  - the State People test this slope detector, they either spray their throats with some  alcohol, and then blow immediately into the instrument, then it flags mouth-alcohol; or they put some alcohol in their mouth, spit it out, and then blow into the instrument, and then they'll find mouth-alcohol. But that's not the dangerous mouth-alcohol.   The dangerous mouth-alcohol is the alcohol that comes up from their stomach…That's the dangerous mouth-alcohol. That's what the instrument should be detecting.  But unfortunately it doesn't.”

Neither the NHSTA, the Federal Government nor New York State have ever tested the reliability of the Slope Detector, nor do they make any claim about its effectiveness.

NASSAU COUNTY POLICE DEPARTMENT WILL NOT LET OUTSIDE EXPERTS INSPECT THEIR BREATH TEST MACHINES.

Rick Swope is a leading expert on the Intoxilyzer 5000EN, who was trained by the Manufacturer of the Intoxilyzer to repair and maintain these Machines, and still repairs and maintains these Machines. Mr. Swope a former police officer has made several attempts to inspect and test the Intoxilyzer 5000EN used by the Nassau County Police Department to determine if they are properly functioning or have been altered.   Dr. Labianca, another leading expert on Intoxilyzer 5000En has also repeatedly sought permission to inspect and test these Machines.  On each occasion both Swope’s and Labianca’s requests were soundly rejected.  What are they hiding?  Are they afraid these Machines will not stand up to scrutiny? Their behavior is akin to a used car dealer refusing to let a prospective buyer have their own mechanic inspect or test drive their vehicle before making a decision to buy,  yet urging you to buy the car by only showing you the maintenance records.   One can only draw a conclusion that like the Nassau County Crime Lab that was closed down, that these Machines and protocols are not satisfactory and should never be a basis of convicting a person.  What makes their refusal more disturbing is when a Prosecutor questions Mr. Swope and other experts on the fact that they have not inspected the Machine used on the individual who is on trial, and then attempts to use this to discredit their testimony.  That would be akin to used car salesman criticizing you and your own mechanic on his failure to inspect and test drive the vehicle that you wanted to buy, when the used car dealer refused to let anyone inspect or drive the car!!!! This is completely unfair and improperly shifts the Burden onto the defendant who is presumed innocent.

The complete lack of Quality Control and Assurance in the NCPD provides more than ample Reasonable Doubt in any Breath Test case for a Jury to acquit. Therefore, the NCPD policies should be revised.

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