Michigan Drunk Driving Defense Book
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CHAPTER FIVE
UNDERSTANDING CHEMICAL INTOXICATION EVIDENCE
5.1 Breath testing devices generally - Breath testing devices there are several different evidential breath testing devices used throughout the United States, and they are all based on the same scientific principles. This principle is “Henry’s Law”, which states that if a gas and liquid are in a closed container, the concentration of the gas in the air above the liquid is proportional to the concentration of the gases which is dissolved in the liquid. Relative to ethanol, if a volume of water in which a volume of ethanol is dissolved is placed into a stoppered bottle, the ethanol will evaporate until it reaches an equilibrium with the air above it. Human lungs are composed of bronchial tubes that branch into ever smaller passageways, which eventually end with tiny balloon like spaces called alveoli. In the deep lung it is thought that the air in these alveoli have reached the equilibrium dictated by Henry’s Law, and this is way it is essentially for the subject to expel enough air into the breath testing device so that deep lung air is tested.
The actual breath test proceeds when a sample of the subject’s breath is captured in a sample chamber through which an infrared light source is passed. The intensity of the light at the source is know, and the devices measure the decrease in the intensity at the opposite end of the sample chamber, where a detector is located. This difference is then converted using a mathematical formula to a numerical blood alcohol concentration (Bac).. In arriving at this Bac, a number of assumptions are made, including that the subject being tested has a core body temperature of 37 deg Celsius, and that the subject tested has a breath blood ratio of 2100/1. It is also assumed that the subject does not have any potential chemicals on his or her breath that “look” to the device like ethanol (in other words, contain a methyl group), and therefore, that will be measured as blood alcohol.
There are at least three breath testing devices in use for evidential purposes throughout the United States, and these include the DataMaster, the Intoxilyzer, and the Drager 700. Of these, the DataMaster is perhaps the least precise.
5.1.1 The DataMaster - The DataMaster is the trade name for the infrared
spectrometer manufactured by the National Patent Analytical Systems, Inc. It
is used exclusively throughout the State of Michigan for evidential breath
alcohol detection in drunk driving enforcement. Like all infrared
spectrometers, the device produces a blood alcohol reading by passing an
infrared light source through a sample chamber containing the driver’s
breath. (See section 4.1).
While there are many ways to measure alcohol in a breath sample, the manufacturer of the DataMaster opted for the faster and cheaper infrared method of analysis, hoping to minimize the problem of lack of specificity by utilizing two wavelengths. The microcomputer was integrated to control sequencing, calibration, and self-checking -- making it easier to use and less susceptible to operator error. Additionally, the software can be custom-designed to meet the requirements of a given jurisdiction or the specific needs of an agency.
5.1.2 The DataMaster result as “unreliable evidence” - there are a variety of constitutional and scientific shortcomings assignable to the DataMaster result. For example, there are basic problems in predicting probable BAC’s from breath tests, as well as specific problems related to individual differences, and sex related differences. Most of these arise out of the fact that breath tests all must make certain assumptions in order to arrive at a probable BAC, because the blood is not being directly analyzed, but instead, a sample of breath that is assumed to have reached equilibrium with the blood, an assumption that may or may not hold true under closer scrutiny.
The basic equation for converting breath alcohol to blood alcohol, or the number of alcohol drinks consumed, arises out of the work done by Swedish physiologist E.M.P. Widmark. Unfortunately, this formula is obtuse, and does not easily lend itself to court room use. Suffice to say that any such equations assume that one is dealing with the unobtainable “average” person.
Individual differences include differences in absorption. There is a great deal of variety among individuals insofar as the manner in which alcohol increases after consumption. The rate of decline however, is relatively uniform. Thus, it is very difficult to know, based on a single result, when full abortion has occurred. When viewed in this way, it becomes clear how a single breath test result, or even two results taken less than two minutes apart, tell the jury very little about what is actually happening with the drivers Bac.
There are also sex related differences, and these are a result of differences in metabolism and differences in the amount of lean muscle tissue versus body fat, and the overall higher water content in women when compared with men. One might argue that this biases the results against the female offender.
5.1.3 Overestimation of true BAC from DataMaster results - Dubowski concludes in his seminal work on alcohol breath testing (Dubowski, K., “Alcohol Analysis”: Clinical Laboratory Aspects, Part I,” Lab. Management 20: 43-54 (1982)) that 86% of the population would have actual BAC underestimated using infrared spectrometry. This conclusion was based on a sample of healthy men known to be “fully post-absorptive. This immediately suggests an overestimation of BAC in14% of the same population. However, this later conclusion was clarified by Dubowski when he indicated that based on his study of 390 paired results (breath and blood tests collected at the same time), the actual amount of “harmfully overestimated” BAC at the 0.10% level was actually 2.3%. Critical analysis of this data suggests that the actual overestimation is likely to be much higher than 2.3%.
5.1.4 Inherent limitations of the DataMaster - As with all measuring devices, the DataMaster has an inherent degree of error, or stated another way, inherent degree of. unreliability. This is because no measuring device can ever be completely precise, and the range of error is directly proportional to the manner in which the device is set up, maintained or calibrated. Consequently, it is important for the practitioner to thoroughly explore these issues during the discovery process.
The DataMaster is also limited simply by the manner in which is attempts to measure blood alcohol. The device is itself non-specific for alcohol. The manufacturer attempts to compensate for this deficiency by adding two or three filers, but these are not infallible.
Also, the DataMaster is subject to error by being subject to radio frequency inference. Although the device does have an antenna meant to detect such interference, the device will continue to operate after this antenna is removed.
Mouth alcohol is also a significant potential problem. Like radio frequency interference, the DataMaster does have a “slope detector”, which is meant to revel the process of mouth alcohol, but this mechanism has also been demonstrated to be unreliable. This makes the requirement of a 15 minute waiting period all the more important from a scientific standpoint. From a legal standpoint, in Michigan at least, the failure to observe the 15 minute observation rule is found to go to weight rather than admissibility.
It should also be understood that the operator must rely on the DataMaster itself, and its self diagnostic mechanism to know that there is a problem. The maintenance protocol in Michigan however does not require that these self diagnostics be tested and the ability of the device to produce a particular error message is rarely if ever confirmed independently.
5.1.5 Tying the “unreliable” result into your client - In order to successfully persuade a jury to disregard a DataMaster result, it is often necessary to specifically connect the theoretical unreliability directly to your client and the results obtained. So for example, if it can be shown that there was an imperfect 15 minute observation period, then the jury will inevitably be more receptive to an explanation of slope detectors, and why they don’t safeguard the reliability of the result. This argument might be bolstered by the fact that your client wears dentures that might have actually trapped the mouth alcohol.
5.2 Blood testing - Drunk driving cases with blood intoxication evidence are
significantly more complex to defend than are those involving DataMaster
results, and if the method used in determining the ethanol concentration of
the subject’s blood is gas chromatography, then it is also true that the
results are more reliable. However, the trade off is that the foundational
requirements imposed on the prosecutor for use of the blood test results are
significantly more onerous than the relatively simple foundations
requirements of the DataMaster breath test.
5.2.1 The Search Warrant requirement - Michigan’s implied consent law
provides that the driver must take the test offered by the peace officer.
Most often the officer will request a breath test, but the law is
non-exclusive, so the officer may initially request a blood rather than a
breath test. This seems to be the trend with certain State Police Troopers,
and if the driver consents to the blood draw then no warrant required
There is also an accident exception to the warrant requirement, and this is found at MCLA 257.625a(6)(e), MSA 9.2325(1)(6)(e). This statute has been subject to numerous Court opinions, and a detailed explanation of it is beyond the scope of this presentation. However, the statute does require on its face that when blood is drawn without a warrant after an accident, that the blood be drawn “at that time for medical purposes”. Id. Thus, if there is no “medical purpose” for drawing the blood (and often times there is not), then this may be a legitimate issue as to the admissibility of the results.
When a warrant is obtained, the affidavit should always be reviewed to determine if it is supported by probable cause. Probable cause to issue a search warrant exists only if the facts and circumstances warrants a person of reasonable prudence to conclude that there is a substantial basis for the determination that probable cause existed to believe that the evidence of a crime is in the stated place sought to be searched.
A preliminary breath test (PBT) result may be used in support of a search warrant for blood. People vs. Tracy, 435 Mich. 853 (1990). However, the PBT itself must be supported by sufficient “reasonable cause”. Reasonable cause is something less than probable cause, but substantially more that a reasonable suspicion. People v. Bloyd, 416 Mich. 538, 554; 331 NW2d 447 (1984). However, a police officer who seizes a person and keeps him available for arrest in case probable cause is later developed unreasonably seizes that person. People v. Bloyd, supra. See also MCLA § 257.625a(2); MSA § 9.2325(1)(2),
5.2.2 The Blood Draw - The statute indicates that a qualified licensed health care professional or his/her delegate who is otherwise qualified by education, training, or experience may draw the blood. MCLA §333.16215. This term is rather loosely defined, and is usually not an issue in most drunk driving cases. It is still worthwhile to see that this person is produced at the exam/evidentiary hearing because their experience at drawing blood for forensic purposes, as well as their skill as a witness, should be accessed well before trial. The manner in which the blood is drawn, and how it is handled after the blood draw, should also be the subject of exhaustive cross-examination, as further described below.
Here the statute indicates that the blood must be drawn in a “medical environment”. This is potentially an issue, and is something that should be delved into during the initial client consultation, and again during the preliminary examination or evidentiary hearing. There are situations where blood is not drawn in a medical environment, or there is a legitimate question as to whether or not the location of the blood draw reasonably fits into this category. For example, in an accident situation, blood is sometimes drawn roadside. Also, when the emergency room is overcrowded, the blood may be drawn in a conference room usually used for medical consultations. Finally, in some counties it is not uncommon for the blood to be drawn at the jail.
In each of these examples an argument should be made that the statute was not strictly complied with, and that the blood intoxication evidence should therefore be suppressed.
In the typical drunk driving case, that is, where there is no accident and blood is sent to the State Lab for testing, the blood is drawn using one of the standard blood draw kits provided to the police agencies by State Forensic Lab. These kits are manufactured by an outside company, are uniform in nature, and the same kits are used throughout the State.
The kits will contain everything needed for the blood draw, including a non-alcohol swipe, and two grey stoppered vacuum vials. These are both important factors. Make sure during cross-examination of the person who drew the blood that the vials were in fact “grey stoppered”. The color of the vial denotes its purpose, and only the grey stoppered vials contain the appropriate preservative and anticoagulant (sodium fluoride / potassium oxalate respectively). See Administrative Rule 325.2675. After the blood is drawn, the samples should be “slowly inverted several times” to mix the preservative. If the samples are sent to an outside Laboratory for testing, then they are to be “sealed in a manner that ensures their integrity”. See FSD 93. If there is no integrity seal, or if it was removed or broken, then it is possible that the sample might have been contaminated with air-born bacteria and/or fungi, and this can cause spoilation of the evidence.
In drawing the blood, the individual must use a sterile dry needle and syringe expelled into a clean specimen tube containing the sodium fluoride/potassium oxalate. Additionally, the blood draw must be witnessed to assure authentication. The samples are to be labeled by entering the name of the subject, the date and time of the blood draw, the tube number if more than one tube is drawn, and the individual’s name who drew the blood. The samples are placed into a plastic bag, then back into the box, and the box is dispatched to the State Lab for testing.
5.2.3 Chain of Evidence - A perfect chain of custody is not required for admission of cocaine and other relatively indistinguishable items of real evidence. Such evidence is admissible where the absence of a mistaken exchange, contamination or tampering has been established to a reasonable degree of certainty. The threshold question is whether an adequate foundation for admission has been laid under the circumstances of each case. Once a proper foundation has been established, deficiencies in the chain of custody go to weight rather than admissibility. People v Prentis Mario White, 208 Mich App 126 (1994).
In the majority of drunk driving cases, the blood draw takes place at a hospital where it is handled by at least two individuals. These include the one drawing the blood, and the police officer who collects and packages it. The next step in the chain may differ from case to case, and should be carefully investigated and evaluated. For example, does the police officer simply take the blood kit and drop it in the nearest mail box, or does he/she bring it back to the station and lock it into an evidence locker? This determination can be important, because the best opportunity for spoilation is between the time of the draw, and the time the blood reaches the State Lab. If the evidence is checked into an evidence locker, then the property book (if any) should be examined for errors or omissions.
The next link in the chain will occur at the State Lab where the Lab tech in the accession area opens the blood draw kits received that day, generated a distinct number for each sample and places all like samples into a tray. She is supposed to inspect note the condition of the blood, and this notation is usually made on the FSD-93 form (the same form that accompanies the samples to the Lab).
Once collated, these samples are then handed off to one of six “forensic scientists”, and this election depends only on who is assigned that day to the task of ethanol determinations. After the samples are tested, the vials will be placed into the Lab’s refrigerator for storage.
5.2.4 Integrity of the Blood Sample - Like the lab tech, the forensic scientist is also supposed to inspect and make notations as to the condition of the blood. These notations are made on the toxicology worksheet prepared by him/her. Ultimately the question that must be raised and investigated is whether or not it is possible for coagulation or any other type of spoilation to have occurred. If so, then it is also possible that there was the neo-generation of alcohol through microbial fermentation. When human blood decomposes, naturally occurring microbes can change the sugars in the blood into alcohol. This might occur with an expired kit, or if the person who drew the blood did not gently tip the vial back and forth to mix the anti-coagulant and the preservative with the sample. If the sample was coagulated, or if it is possible for the samples to have been exposed to high temperatures during transportation and/or storage, then inquiry should be made as to whether or not the sample centrifuged prior to testing. This procedure removes the solid portion of the blood, and thereby artificially concentrates the liquid portion. When this concentrated liquid portion is tested, the alcohol concentration is necessarily also artificially increased.
5.2.5 Serum/Plasma vs. Whole Blood - The administrative rules indicate that it is acceptable in Michigan to test for ethanol concentration by using the direct distillation/dichromate oxidation method, the enzymatic method, or gas chromatography (GC). Both the direct distillation/dichromate oxidation method and the enzymatic method require that the blood be placed into a centrifuge prior to testing, and the concentrated blood serum/plasma is then tested. When evaluating a serum test, keep in mind that the reported ethanol concentration values are higher than whole blood values. On the average serum values are about 16% higher, and may be 18 to 20% higher, or more, in some cases. See Edward F. Fitzgerald, Intoxication Test Evidence, 2 Ed, §19:12 (1995). If the sample is close to the “per se” limit, then this analysis can become crucial.
The Michigan State Lab typically performs whole blood testing, i.e., the liquid portion of the blood, together with all the solid cellular components utilizing the gas chromatography method. In preparing the samples for testing, one of the two tubes is opened and tested twice. The unopened vial is stored for testing by the defense provided an appropriate request is timely made.
5.2.6 Overview of gas chromatography. - Gas chromatography is a type of automated chromatography in which the sample, dissolved in a solvent, is vaporized and carried by an inert gas through a column packed with a sorbent to any of several types of detectors. Each component of the sample, separated from the others by passage through the column, produces a separate peak in the detector output, which is graphed by a chart recorder. The sorbent may be an inert porous solid or a nonvolatile liquid coated on a solid support. The Michigan State Forensic Lab uses a column packed with tiny glass beads coated with carbowax.
In very simple terms, gas chromatography separates chemicals based on time and temperature. In running the test, the sample is first mixed with one of two reagents, either n-propanol or t-butanol as an internal standard. Each sample is then tested separately by two different chromatograms, and the Lab reports lower of the two results. The result is expressed to three decimal places, but the third digit is truncated (dropped). There may not be a difference of greater than .02 or the tests must be repeated.
Once the sample is diluted with the reagent, it is then heated to produce a vapor. The vapor is then removed by an injector, and passed through a glass column, together with an inert carrier gas, usually Helium. This is called “head space analysis” (as opposed to the more precise direct injection method).
The constituents (chemicals) in the vapor are then timed and measured as they pass out of (“elute” out of) the other end of the column. As the vapor passes through the column, the various molecules separate by molecular weight and polarity. In this way gas chromatography is very specific, and unlike the enzymatic method, can distinguish between different types of alcohol. Consequently, if the blood is tested using gas chromatography, it is not significant if the wipe used to disinfect the skin contains rubbing alcohol because gas chromatography can distinguish rubbing alcohol from beverage alcohol.
The measurement of the different molecules takes place in the GC’s “Flame Ionization Detector”, where the effluent is ignited. The flame produces ions and electrons. The number of ions are “measured” by the Detector, and this measurement is turned into an electronic signal that is converted into a blood alcohol level by the GC’s computer. The ions themselves are non-specific, and so the molecule is identified based totally on when the molecule elutes out of the column at a standardized temperature and flow condition. Consequently, the precise determination of both time and temperature are critical to the integrity of the testing protocol.
The chromatograph itself produces a chromatogram, which is a readout that looks something like an EKG. The peak measurement or curve on the chromatograph is then compared with an alcohol calibration curve, and the amount of blood alcohol is determined by reading where this sample peak passes over or meets the calibration curve. Like the precise determination of time and temperature, the precise preparation of the calibration curve, and the methodology used to confirm it, are also critical determinations.
5.2.7 Challenging the Results - In order to mount a viable challenge to the gas chromotagrphy report, the practitioner must review and understand administrative rule requirements and State Lab’s written methods or standard operating procedure. Both of these documents can be obtained from the State Lab with a Freedom of Information Act Request (FOIA), and a sample FOIA request is attached to these materials. The rules and Laboratory protocol documents should serve as the foundation for preparing your cross-examination. The State Lab is frequently changing their protocol so make sure you are working off of the latest incarnation. It is also helpful to review transcripts from previous hearings.
Once these documents are obtained, reviewed and understood, the practitioner should plan to cross-examine everyone involved in obtaining, transporting and testing the subject’s blood. This can be done either at preliminary hearing (but only if prior notice is timely made to prosecuting attorney see MCLA § 600.2167) or at an evidentiary hearing. These opportunities should never be waived as they are the only way the practitioner can be appropriately prepared for trial. They are also the only ways that issues can be developed that might lead to either a suppression of the blood evidence, or at least a plausible challenge to the reliability of the test results at or before trial.
The most persuasive arguments for suppression are bound to come out of the cross-examination of the person who withdraws the blood, and from the police office who witnesses the blood draw. This is because it is the greatest likelihood for spoilation will occur prior to the sample reaching the State Lab. Based on the current state of Michigan case law, any problems at the Lab or even a failure to strictly comply with the administrative rules and/or testing protocol might be viewed by the trial courts as going to “weight’ rather than “admissibility”. However, because arguing weight is tantamount to arguing reasonable doubt, the practitioner should never stipulate to the toxicology report.
5.2.8 Cross-examining the testing forensic scientist- (add sample questions): when cross-examining the forensic scientist that testing the defendant’s blood, determine the following:
- Education and relevant training of forensic scientist;
- How subject sample was handled by Lab personnel both before, during and after testing.
- How the calibration curve was prepared and by whom;
- How the test run sequence was set up, number of samples tested per run, when the test sequence started and ended, and the specific GC used;
- How subject sample was labeled and by whom;
- How calibration curve was verified and by whom;
- How results are reported and by whom.
- How and when column was calibrated;
- When the column was last replaced and by whom;
- Maintenance history of GC used
- Range of error of the human blood, aqueous, and negative controls.
- Column, injection port, and detector temperature, and how these are
determined and verified.
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