MissouriDWIBlog.com

Non-Invasive Alcohol Testing: The Potential Future of DWI Alcohol Tests

The future of alcohol testing in DWI cases will likely soon include non-invasive alcohol testing. One such company developing this technology is TruTouch Technologies, in Alburuerque, New Mexico. The testing will involve a light source directed into the driver’s skin which will measure alcohol in the blood stream based upon IR (infrared) absorption.

So far, I am unaware of any literature (there certainly is not any on the website of the manufacturer) that discusses what micron levels are measured, i.e.- in the 3.0 IR range and/or the IR 9.0 range. Until proven otherwise, these new devices which also rely on IR technology will likely have the same false positives as a breath test. Similarly, with breathtesting, we are at least aware of the algorithm being used by the breath testing devicces (2100/1), however faulty that algorithm is to assume for all individuals submitting to breath tests. Maybe the new technology is utilizing the same 2100/1 ratio? 1/1? It is doubtful since it would have to account for individual variances of fat concentration in the skin that the light would pass through to get to the blood.

The use of the new technology is certainly not yet widespread. However, it is known that one police department in Alburuerque, the Bernalillo County Sheriff’s Department, is hoping to be the first law enforcement agency in country to utilize the technology.  According to the DWI supervisor of that agency, the new machine has been field tested during a county-operated sobriety checkpoint in February 2007.  According to the DWI supervisor, arrested subjects, who had already submitted to an Intoxilyzer 8000 (a breath testing machine) for evidentiary purposes, were asked to voluntarily submit to Trutouch’s machine with understanding that the chemical test results would not be used in any criminal or civil proceeding.
It will be interesting to see how the technology progresses.

Benefit of DUI Court Questioned in Los Angeles

A study appearing in Evaluation Review (Vol. 31, No. 1, 2007) reports results from an evaluation of the experimental Rio Hondo driving under the influence (DUI) court of Los Angeles County, California. Interviews and official record checks with 284 research participants who were randomly assigned to a DUI court or a traditional criminal court were assessed at baseline and at 24-month follow-up. The interviews assessed the impact of the DUI court on self-reported drunk driving behavior, the completion of treatment, time spent in jail, alcohol use, and stressful life events. Official record checks assessed the impact of the DUI court on subsequent arrests for driving under the influence and other drinking-related behaviors. Few differences on any outcomes were observed between participants in the experimental DUI court and those assigned to the traditional court. The results suggest that the DUI court model had little additional therapeutic or public safety benefit over the traditional court process. The implication of these findings for the popularity of specialized courts for treating social problems is discussed. The study was conducted by J.M. Macdonald, A.R. Morral, B. Raymond and C. Eibner.

This summary is from ICADTS.org “Reporter” newsletter for Summer of 2007.

A Judge Sleeping During a Criminal Trial Does Not Overturn Two Convictions

Two men recently failed to get their drug convictions overturned where the judge in their trial was accused of sleeping during the hearings. Read the original article here.

Update on the New Jersey “Source Code” Litigation Regarding the Draeger Alcotest 7110 MKIII-C Breath Machine

There is mention in other posts of the source code litigation which is pending for breath testing machines around the country. Evan Levow and several other attorneys have been pursuing the source code litigation in New Jersey for more than two years. Defense Counsel was successful in obtaining the source code for the Draegar Alcotest 7110 MKIII-C breath testing machine in a case called State v. Chun.

Draegar, the manufacturer of the breath testing machine, had to comply with the New Jersey Supreme Court Order when it made itself a party to the litigation. Once the source code was ordered to be produced, the New Jersey lawyers hired a software analysis house, Base One, to analyze the source code of the breath machine for potential errors.

Both defense and the State are presenting summaries of finding from an independent software company and from the manufacturer, Draeger. The New Jersey Supreme Court will rule on the reliability of the breath machine sometime this month. If the machine is deemed “unreliable” it will be interesting to see what happens, to put it mildly, if the State of New Jersey attempts to recover from the manufacturer the near $7 million dollars that it has spent on these machines in the last four years.

The summary of the software house findings for the source code that the NJ Supreme Court will be considering is alarming.

The defense company’s summary first notes, that despite Draeger’s protestations that the code was proprietary, Base One found that the code consists mostly of general algorithms arranged in a manner to implement the breath testing sequence. “That is, the code is not really unique or proprietary. ”

In a report released August 28, 2007, Base One determined:

As a matter of public safety, the Alcotest should be suspended from use until the software has been reviewed against an acceptable set of software development standards, and recoded and tested if necessary. An incorrect breath test could lead to accidents and possible loss of life, because the device might not detect a person who is under the influence, and that person would be allowed to drive. The possibility also exists that a person not under the influence could be wrongly accused and/or convicted.

Draeger reviewed the code, as well, through its software house, SysTest Labs, which agreed with Base One, that the patchwork code that makes up the 7110 is not written well, nor is it written to any defined coding standard. SysTest said, “The Alcotest NJ3.11 source code appears to have evolved over numerous transitions and versioning, which is responsible for cyclomatic complexity.”

The best thing SysTest said about the machine was, “The translation from German to English of the comments within the major components shows the logical intent of the programmers to produce reliable and valid test results. SysTest was unable to find any evidence of any intention to mis-direct or re-direct the test results or report anything other than valid results.”

SysTest only looked for “mal-ware”, not for functioning of the code. Base One, however, did an extensive evaluation, finding 19,400 potential errors in the code.

Among its findings are:

1. The Alcotest Software Would Not Pass U.S. Industry Standards for Software Development and Testing:

The program presented shows ample evidence of incomplete design, incomplete verification of design, and incomplete “white box” and “black box” testing. Therefore the software has to be considered unreliable and untested, and in several cases it does not meet stated requirements. The planning and documentation of the design is haphazard. Sections of the original code and modified code show evidence of using an experimental approach to coding, or use what is best described as the “trial and error” method. Several sections are marked as “temporary, for now”. Other sections were added to existing modules or inserted in a code stream, leading to a patchwork design and coding style.

The software development life-cycle concept is governed by one of the nationally and internationally recognized development standards to prevent defects from entering the software during the design process, and to find and eliminate more defects as the software is coded, tested, and released to the field. This concept of software development using standards requires extensive and meticulous supporting data, and notations in source files, and a configuration management system. None of this methodology is evident in the Alcotest code. Further, the decision method of how to allocate the architecture and assignment of tasks does not match any of the software standards. This further substantiates that software development standards were not used to verify or test the software, including the ISO 9000 family of standards.

It is clear that, as submitted, the Alcotest software would not pass development standards and testing for the U.S. Government or Military. It would fail software standards for the Federal Aviation Administration (FAA) and Federal Drug Administration (FDA), as well as commercial standards used in devices for public safety. This means the Alcotest would not be considered for military applications such as analyzing breath alcohol for fighter pilots. If the FAA imposed mandatory alcohol testing for all commercial pilots, the Alcotest would be rejected based upon the FAA safety and software standards.

2. Readings are Not Averaged Correctly:

When the software takes a series of readings, it first averages the first two readings. Then, it averages the third reading with the average just computed. Then the fourth reading is averaged with the new average, and so on. There is no comment or note detailing a reason for this calculation, which would cause the first reading to have more weight than successive readings. Nonetheless, the comments say that the values should be averaged, and they are not.

3. Results Limited to Small, Discrete Values:

The A/D converters measuring the IR readings and the fuel cell readings can produce values between 0 and 4095. However, the software divides the final average(s) by 256, meaning the final result can only have 16 values to represent the five-volt range (or less), or, represent the range of alcohol readings possible. This is a loss of precision in the data; of a possible twelve bits of information, only four bits are used. Further, because of an attribute in the IR calculations, the result value is further divided in half. This means that only 8 values are possible for the IR detection, and this is compared against the 16 values of the fuel cell.

4. Catastrophic Error Detection Is Disabled:

An interrupt that detects that the microprocessor is trying to execute an illegal instruction is disabled, meaning that the Alcotest software could appear to run correctly while executing wild branches or invalid code for a period of time. Other interrupts ignored are the Computer Operating Property (a watchdog timer), and the Software Interrupt.

5. Implemented Design Lacks Positive Feedback:

The software controls electrical lines, which switch devices on and off, such as an air pump, infrared source, etc. The design does not provide a monitoring sensory line (loop back) for the software to detect that the device state actually changed. This means that the software assumes the change in state is always correct, but it cannot verify the action.

6. Diagnostics Adjust/Substitute Data Readings:

The diagnostic routines for the Analog to Digital (A/D) Converters will substitute arbitrary, favorable readings for the measured device if the measurement is out of range, either too high or too low. The values will be forced to a high or low limit, respectively. This error condition is suppressed unless it occurs frequently enough.

7. Flow Measurements Adjusted/Substituted:

The software takes an airflow measurement at power-up, and presumes this value is the “zero line” or baseline measurement for subsequent calculations. No quality check or reasonableness test is done on this measurement. Subsequent calculations are compared against this baseline measurement, and the difference is the change in airflow. If the airflow is slower than the baseline, this would result in a negative flow measurement, so the software simply adjusts the negative reading to a positive value.

If the measurement of a later baseline is taken, and the measurement is declared in error by the software, the software simply uses the last “good” baseline, and continues to read flow values from a declared erroneous measurement device.

8. Range Limits Are Substituted for Incorrect Average Measurements:

In a manner similar to the diagnostics, voltage values are read and averaged into a value. If the resulting average is a value out of range, the averaged value is changed to the low or high limit value. If the value is out of range after averaging, this should indicate a serious problem, such as a failed A/D converter.

9. Code Does Not Detect Data Variations

10. Error Detection Logic:

The software design detects measurement errors, but ignores these errors unless they occur a consecutive total number of times. For example, in the airflow measuring logic, if a flow measurement is above the prescribed maximum value, it is called an error, but this error must occur 32 consecutive times for the error to be handled and displayed. This means that the error could occur 31 times, then appear within range once, then appear 31 times, etc., and never be reported. The software uses different criteria values (e.g. 10 instead of 32) for the measurements of the various Alcotest components, but the error detection logic is the same as described.

11. Timing Problems:

The design of the code is to run in timed units of 8.192 milliseconds, by means of an interrupt signal to a handler, which then signals the main program control that it can continue to the next segment. The interrupt goes off every 8.192 ms, not 8.192 ms from my latest request for a time delay. The more often the code calls a single 8.192 ms interrupt, the more inaccurate the software timing can be, because the requests from the mainline software instructions are out of phase with the continuously operating timer interrupt routine.

12. Defects In Three Out Of Five Lines Of Code:

A universal tool in the open-source community, called Lint, was used to analyze the source code written in C. This program uncovers a range of problems from minor to serious problems that can halt or cripple the program operation. This Lint program has been used for many years. It uncovered that there are 3 error lines for every 5 lines of source code in C.

One item of particular interest is that while Draeger’s counsel claims that the “The Alcotest [7110] is the single best microprocessor- driven evidential breath tester on the market”, Draeger has already replaced the antiquated 7110 with a newer Windows® based version, the 9510. The computer code in the 7110 is written on an Atari®-styled chip, utilizing fifteen to twenty year old technology in 1970s coding style.

It will be interesting to see how the situation unfolds. More to come- Here’s a big good luck to our New Jersey brethren. 

MADD is Now Attending Missouri DWI Sobriety Checkpoints

A new national trend is for MADD representatives to attend sobriety checkpoints or roadblocks and “help” the police, despite thier lack of law enforcement training. Around the nation, the police have been attempting to hide the fact that many parties at checkpoints are not, in fact, actual officers, but MADD mothers. When pressed about the issue in recent articles, the police have often taken the position that MADD’s presence at sobriety checkpoints is “out of their control.” It has been reported in some cases that MADD is at the checkpoints serving the police coffee and doughnuts. In other cases, the MADD mothers are actually accosting drivers passing through with their own commentary and pictures of people killed in DWI incidents.

This national trend has recently hit Missouri, and the police in Missouri are less bashful about the possible impropriety of the MADD mothers at checkpoints. St. Louis new media recently reported that MADD is now joining police in sobriety checkpoints in the St. Louis area and are confronting all drivers that have been drinking whether at the checkpoint whether they are arrested for being above the legal limit or not.

The St. Louis news media indicated that MADD was “not sure what they would say,” but the police seemed pleased with the MADD presence at checkpoints, and that MADD’s “presence is enough.” Missouri is not even trying to hide MADD’s mothers at checkpoints as in other states. The MADD mothers are reported to be at the side of officers at stopped vehicles, showing drivers pictures of victims killed in drunk driving incidents whether the driver is above the legal limit or not.

It certainly appears legally improper to me that MADD mothers are present at DWI sobriety checkpoints in Missouri. There are very strict rules for sobriety checkpoints that the police must comply with, or else they are unconstitutional.

A vehicle checkpoint or stop is a seizure under the Fourth Amendment to the Constitution of the United States. Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L. Ed. 2d 412 (1990). The “essential purpose” of the Fourth Amendment “is to impose a standard of ‘reasonableness’ upon the exercise of discretion” by law enforcement officials in order to protect the “privacy and security of individuals” from “arbitrary invasions”. Delaware v. Prouse, 440 U.S. 648, 653-54, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979).

Generally, seizures that are not based upon a particularized suspicion of criminal activity are unreasonable. Terry v. Ohio, 392 U.S. 1, 21 n. 18, 88 S.Ct. 1868, 1879- 80 n. 18, 20 L.Ed.2d 889 (1968). However, stopping motorists on public highways may be reasonable even in the absence of particularized suspicion of crime as long as those stops are conducted under certain procedures. State v. Damask, 936 S.W.2d 565, n. 13 (Mo. En Banc. 1996) citing Sitz, 496 U.S. at 449-450, 110 S.Ct. at 2484-85. “This is NOT to say that a detention of the motorist and a subsequent search can be made without at least a reasonable suspicion. A differentiation between the initial stop and a subsequent detention and search is necessary to apply the Fourth Amendment’s ‘reasonable’ standard properly. Sitz, 496 U.S. at 450-51, 110 S.Ct. at 2485-86; Welch, 755 S.W.2d at 627).

The reasonableness of a seizure that is less intrusive than a traditional arrest depends on the balance between the public interest in preventing criminal activity and the individual’s right to be free from arbitrary interference by law officers. Brown v. Texas, 443 U.S. 47, 50, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979). The analysis involves a weighing of three factors: (1) the gravity of the State’s interest served by the checkpoint; (2) the checkpoint’s effectiveness in advancing the public interest; and (3) the degree to which the checkpoint interferes with or intrudes upon the traveling public. Id. at 50-51, 99 S.Ct. at 2640-41.
The central concern in balancing these elements is to ensure that a person’s “reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of” law enforcement officers. Id. at 51, 99 S.Ct. at 2640.

To satisfy the demands of the Fourth Amendment, seizures must be based either on specific, objective facts indicating the necessity of seizing a particular individual, or the seizure must be carried out in accordance with a plan that provides “explicit, neutral limitations” on the conduct of the law enforcement officers participating in the seizure. Brown at 51, 99 S.Ct. at 2640.

Vehicle checkpoints are not unconstitutional per se. However, they must be conducted in a manner the Court deems appropriate. In Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L. Ed. 2d 412 (1990), the United States Supreme Court held that a state’s use of a highway sobriety checkpoint does not per se violate the Fourth Amendment to the United States Constitution. Article I, Section 15 of the Missouri Constitution provides the same protection against unreasonable searches and seizures as the Fourth Amendment to the Constitution of the United States. State v. Sweeney, 701 S.W.2d 420, 425 (Mo. En banc. 1985). Thus, any analysis of search and seizure questions under the Fourth Amendment is identical to search and seizure questions arising under Missouri law. State v. Damask, 936 S.W.2d 565, 570 (Mo. En Banc 1996).

Properly operated checkpoints are constitutional under the Fourth Amendment. Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990); United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976); State v. Welch, 755 S.W.2d 624 (Mo.App.1988); State v. Vanacker, 759 S.W.2d 391 (Mo.App. S.D.1988); State v. Payne, 759 S.W.2d 252. (Mo.App. E.D.1988).

CHECKLIST FOR A CONSTITUTIONALLY VALID ROADBLOCK

In Missouri, Welch v. State, 755 S.W.2d 624, 626-27 (Mo. Ct. App. 1988) provides a checklist or criteria for determining whether or not a particular vehicular roadblock passes Constitutional muster. Since Welch, Appellate Courts have expressed extreme reluctance to sanction a checkpoint unless it is created and conducted with all the constitutional safeguards employed in the Welch checkpoint. See State v. Canton, 775 S.W.2d 352 (Mo.App.1989). See also State v. Payne, 759 S.W.2d 252 (Mo. App. 1988); and State v. Vanacker, 759 S.W.2d 391 (Mo. App. 1988).

While the Welch court held the sobriety checkpoint at issue therein constitutional, it emphasized there that the checkpoint had proceeded pursuant to the following criteria thus making it constitutional:

(1) the checkpoint was conducted pursuant to a designed plan based upon specific data concerning alcohol related accidents occurring in the area in the past;

(2) the procedures for the roadblock were in writing; the checkpoint was established by written order of a command officer; the operation of the checkpoint was supervised by high ranking officers, and that full instructions including a copy of the order, were given to field personnel; and,

(3) the checkpoint was established in a way to give maximum notice to the drivers of what was ahead and to provide for their safety; and finally, the delay to the drivers was minimal. Welch, 755 S.W.2d at 632-3.

In short, once upon a time there was a presumption of innocence in the United States, and citizens were presumed to be free from harassment and unreasonable searches without cause. Ordinary drivers, even those drinking a couple of drinks and driving home (which is of course not illegal), should not be subjected to this harassment. If the police want to take everyone at a checkpoint that is arrested for DWI and make them listen to the MADD mothers at that time, that is one thing.

However, I would note that Missouri drivers are already required in many instances to attend a MADD “VIP” “victim impact panel” (which makes MADD money, of course) when a driver pleads guilty to DWI. At the victim impact panel the driver is educated (properly in those instances) of loved ones killed by drunk drivers and the problems associated with DWI.

Further, I think it is legally obvious that the Welch Court did not envision MADD or similar non-law enforcement personnel or political groups at checkpoints, solely for the purpose of intimidating drivers passing through who are not arrested for DWI. These practices could arguably invalidate checkpoints according to the checklists discussed (although Court rulings never cease to amaze in the lengths they will go to say “harmless error”).

As discussed in other posts, the Kansas City Police routinely arrest drivers at checkpoints below the legal limit despite the law providing that these cases shall all be dismissed unless there is valid evidence of other observations of substantial observation. Imagine if citizens concerned with the Constitution being trampled also attended checkpoints handing out coffee and/or legal advice to these innocent drivers below the legal limit? Of course, these citizens would be treated slightly different than the MADD mothers.

Kansas City Police Routinely Arrest Drivers For DWI Who Blow Under the Legal Limit Despite the Law Providing That These Cases Must be Dismissed Without Valid Observations of Other “Substantial Impairment”

One misconception that the lay public has regarding being arrested for DWI, is that if they have had a couple of drinks and drive home and are stopped at a sobriety checkpoint, that they will be automatically turned loose if they blow under the applicable legal limit.

The legal limit for most adults in Missouri is, of course, 0.08% BAC (unless the adult over 21 has is in a commercial vehicle, or unless the driver is a minor).

577.037.5 specifically provides that any municipal ordinance equivalent of the Missouri DWI statute 577.010 or 577.012 shall be dismissed where any chemical test is less than 0.08% BAC unless any of the three criteria stated are present: (1) There is evidence that the chemical analysis is unreliable as evidence of the defendant’s intoxication at the time of the alleged violation due to the lapse of time between the alleged violation and the obtaining of the specimen; (2) There is evidence that the defendant was under the influence of a controlled substance, or drug, or a combination of either or both with or without alcohol; or (3) There is substantial evidence of intoxication from physical observations of witnesses or admissions of the defendant.

This law in Missouri provides that a DWI charge shall be dismissed for any adult who blows under 0.08% BAC (because they are presumably not intoxicated) unless there is other “substantial evidence” through observations of the driver’s impairment.

This “substantial evidence of observations of impairment” exception is mainly for drivers who are clearly under the influence of something other than alcohol due to their behavior at the scene of the stop but still blow a 0.0 (or less than the legal limit) for alcohol—i.e.—suspicion of driving under the influence of drugs. In a case where a reasonable officer truly believes that someone is driving impaired, even where the driver “blows a 0.0” or under the legal limit for alcohol, the law provides under the implied consent provisions that the officer may properly request a second chemical test of blood or urine for possible drug impairment.

Despite what the law says, the Kansas City Police Department has a policy of routinely writing DWI alcohol tickets for all cases at sobriety checkpoints where the driver blows between 0.05 and 0.08. Our office has handled several dozen of these nonsensical cases. In all cases our officer has encountered, the officer has never asked for a second test of urine or blood due to true suspicion of drug impairment where a driver at a sobriety checkpoint blew less than the legal limit, but where other observations “substantial evidence” of intoxication allegedly were present. Rather, they simply believe that everyone who blows between 0.05 and 0.08 at a checkpoint are intoxicated from alcohol despite what the law says, and the driver is arrested regardless. They show up to court and don’t even allege intoxication of drugs but impairment from alcohol despite the breath test being between 0.05 and 0.08 and the law saying the case must be dismissed.

This statute clearly provides that it supersedes any municipal ordinance providing otherwise, and there is not any Kansas City Municipal ordinance which covers this area of mandatory dismissals under 0.08 BAC, or which would circumvent the Missouri State Statute. Specifically, RSMo. Section 577.037 specifically provides that it applies to any municipal DWI ordinance violations. This, of course does not stop the Kansas City police from alleging any sign of any alcohol consumption in any amount for the notion that everyone who has a couple of drinks and drives home who blows between 0.05% and 0.08% BAC at a checkpoint is “observed to be substantially intoxicated.”

Our office has had at least 10 cases in the past year where sobriety checkpoint cases have been written for DWI where the driver has blown below 0.08% BAC. All of them have been eventually dismissed, particularly the cases where the driver has blown in the 0.05% to 0.06% BAC range.

However, in several of the cases where the chemical test has been in the 0.06% to 0.79% BAC range, the dismissal required unnecessary review with opposing counsel without the requisite automatic dismissal due to alleged “substantial evidence” of intoxication even though in each case the driver was shown on videotape to pass the standardized field sobriety tests. In short, in many of our cases the Kansas City police are writing all sobriety checkpoint cases for DWI where the result is above 0.05% BAC without any “substantial evidence” of intoxication, other than odor of alcohol or admissions of drinking. It is, of course, not illegal to drink and drive—only to drive impaired, and odor of alcohol and admissions of drinking (particularly where the driver passes the tests and gets arrested anyway) does not equal “observations of substantial impairment” regardless of what the police believe.

Don’t assume that if you have been stopped at a checkpoint in Kansas City but have been drinking at all, even if you are stone cold sober, that the officer you encounter will not allege “observations of substantial intoxication” based on the odor of alcohol and admissions of drinking alone, even if you do pass the field sobriety tests because you are sober. It does not particularly matter, apparently, what the law provides in the real world.

Fake Teen Police Officer is Arrested for Stealing a Breath Testing Machine After a Traffic Stop and Setting Up His Own Sobriety Checkpoint

A teenager in New Zealand recently plead guilty to more than a dozen criminal charges in connection with setting up his own “sobriety checkpoint” and impersonating a police officer. Apparently he stole a police officer’s high-visibility jacket and a breath-testing machine from the police station after he had been picked up earlier for a driving offense. He was subsequently arrested at his “checkpoint” when one of the drivers he stopped turned out to be an actual police officer. A Hamilton teenager who set up his own breath-testing road block has admitted charges of impersonating a police officer. The original story is at: http://www.stuff.co.nz/stuff/4095076a12855.html  

Police Training for DWI Arrests and Standardized Field Sobriety Testing at the Missouri Police Academies is Performed According to the NHTSA-Based Procedures

As discussed in posts elsewhere in this site, the National Highway Traffic Safety Administration, or NHTSA’s, guidelines are the standard used to train the police in Missouri regarding proper procedures for making DWI arrests and administering standardized field sobriety tests.

A common trial tactic encountered when a police officer has not administered field sobriety tests correctly (in other words, according to the NHTSA protocol) is for the officer to state that he does not know whether he was trained under NHTSA or to make some type of claim that NHTSA is not binding, and that the officer is free to perform the tests however he sees fit. An officer caught administering the tests incorrectly will often testify that even improperly administered field sobriety tests “go to the totality of the circumstances,” and that they are helpful even if not given correctly in making DWI arrest decisions.

Contrary to this position, it is clear that as far back as 1984, the Missouri police academies were teaching a NHTSA-based course that taught the walk-and-turn test, the one-leg stand test, and the horizontal gaze nystagmus (HGN) eye test. While the training is clearly done at the academies according to the NHTSA protocol, it is left up to the officers to maintain up-to-date DWI training, and the responsibility of each individual law enforcement agency to make sure that their officers stay current.

All of the training used in the individual Missouri police academies is approved by the POST Commission and The Missouri Department of Public Safety. It is also clear, despite many officers testimony at trial to the contrary, that the NHTSA course for making DWI arrests and for administering, interpreting and scoring standardized field sobriety tests is used in all nineteen Missouri police training academies throughout the state.

The NHTSA training itself indicates that proper procedures must be followed or the tests are invalid, as the standardization is compromised. Officers must learn to distinguish normal variations in the performance of sober subjects from the aberrations that constitute impairment clues. 1992 NHTSA Instructor Manual, 1–2. Further, officers administering SFSTs at roadside are expected not to deviate from the SFST administrative instructions described in the DWI Detection and Standardized Field Sobriety Testing course. 1995 NHTSA Instructor Manual, VII-4.

One of the few capitalized, bold-faced passages in the NHTSA manuals given to officers in their training at the academy is the following:

IT IS NECESSARY TO EMPHASIZE THIS VALIDATION APPLIES ONLY WHEN:

THE TESTS ARE ADMINISTERED IN THE PRESCRIBED, STANDARDIZED MANNER

THE STANDARDIZED CLUES ARE USED TO ASSESS THE SUSPECT’S PERFORMANCE

THE STANDARDIZED CRITERIA ARE EMPLOYED TO INTERPRET THAT PERFORMANCE

IF ANY OF THE STANDARDIZED FIELD SOBRIETY TEST ELEMENTS IS CHANGED, THE VALIDITY IS COMPROMISED.

2002 NHTSA Student Manual, VIII-19.

Further, the NHTSA Instructor Manuals state: “THE SFSTs ARE NOT AT ALL FLEXIBLE. THEY MUST BE ADMINISTERED EACH TIME, EXACTLY AS OUTLINED IN THE COURSE.” 1995 NHTSA Instructor Manual, at 10; 2002 NHTSA Instructor Manual, III-14.

See also the 1995 NHTSA Student Manual, which states: “[I]f any of the standardized elements of the test are changed, their validity will be threatened.” 1995 NHTSA Student Manual, VIII­10; 1995 NHTSA Instructor Manual, VIII-8. Finally, the 1992 NHTSA Instructor Manual states: “[T]he administrative procedures are somewhat complicated and cannot be given from memory without considerable practice.” 1992 NHTSA Instructor Manual, at 25.

Any determination of whether an officer has probable cause to make an arrest decision has to be made by viewing the situation as it would have appeared to a reasonably prudent, cautious, trained officer, Mayberry v. Dir. of Revenue,  983 S.W.2d 628 (Mo. App. 1999), and when there is substantial evidence that field sobriety tests have been improperly administered, the fact finder (i.e. the judge or jury) may properly disregard the test results when making a probable cause determination. Brown v. Dir. of Revenue, 85 S.W.3d 1 (Mo. 2002).

Defensive End Jared Allen Suspended From The Chiefs for Four Games

Defensive end Jared Allen was recently suspended from the Chiefs for four games. The League announced that he will be suspended the first four games of the upcoming 2007-08 season. Allen’s had two DUI offenses occurring in the past year.

He entered a “diversion” program on the first DUI offense, and pled up no contest on the second, where he served two days in lockdown treatment and one day on house arrest. Allen is currently a restricted free agent, but had thus far refused to sign the $2.35 million dollar offer that has been sitting on the table from the Chiefs prior to his suspension, apparently not pleased that he has not been offered a multiyear package. Now that he will be sitting down a quarter of the upcoming season, the sports message boards and blogs are lit up with talk that the Chiefs may withdraw their offer to the restricted free agent.

Allen has been asking to be traded, and he may now get his wish, but whoever signs him is going to certainly utilize his DUI offenses against him in negotiations. Because he is a restricted free agent, the Chiefs can “high tender” him, meaning that even if another team signs him where the Chiefs choose not to match the offer, the other team will have to give up a first and third round pick- in other words, the price will likely be too high for another team to justify, giving Allen little or no negotiating leverage. He may even end up sitting out the year. He either has to sign the Chiefs tender, praying another team signs him and is willing to give up the high price of a first and third round pick, in addition to the salary they have to pay him (not likely), or sit out. 

In light of the situation, Allen might consider himself fortunate to only receive a four game suspension. The new NFL Commissioner, Roger Gooddell, is obviously making a priority of stiffening the penalties for players with off-the-field incidents. Prior to issuing Allen a four-game suspension, Gooddell had made a public showing of disciplining Pacman Jones and Chris Henry, although many characterized their penalties as too lenient. He has also stated a loose rule that he intends to suspend any player with a DUI / DWI or other drunk driving offense for two games, but in Allen’s case their was speculation that he might have been suspended up to eight games for receiving two DUIs in a year. He is fortunate, all things considered, to only be suspended four games.

A recent article in the San Diego Union-Tribune determined that 1/3 of NFL player arrests since 2000 are DUI / DWI or other drunk driving arrests. In fairness to the players, the article also does point out that that the arrest rate of the general population is higher than that among NFL players. However, one might wonder why players making as much as they do in the NFL cannot figure out how much cheaper it is to have one of their entourage drive them home or take a cab, then facing a DWI, or in Allen’s case, multiple DUIs.

This is particularly true in cases like Allen, who was in a contact year and will now likely lose millions from his original bargaining position prior to his multiple DUI offenses, whether he is ultimately resigned by the Chiefs for a fraction of what he would have otherwise commanded in salary, or whether he is low balled by some other clubs as a risk.

“Source Code” Litigation Around the Country on Breath Testing Machines Used in DUI / DWI / or Other Drunk Driving Cases

There is much press on the “source code” litigation around the country in DUI cases where the manufacturers of the breath testing machines are refusing to provide the source code for their machines by claiming that they are a “trade secret.”

The source code is the underlying computer program which runs the breath testing machines. The computer, through its underlying program, must take the raw breath sample blown into it by the driver, and then make calculations to convert this raw sample into the final number which is printed out on the ticket.

No one knows how the underlying program actually works because the manufacturers will not release this information, and this is what defense attorneys are seeking in the source code litigation around the country. Is the source code accepted in the scientific community? Has it been changed by the manufacturer since the devices were originally approved by the States as meeting the criteria of acceptable devices?

In order for the machines used in Missouri to get to the “final number” that it ultimately spits out, the original breath sample measurement of the driver is converted to a comparative blood alcohol measurement. See the previous post on partition ratio. Basically, the machine takes the sample and converts it with a 2100 to 1 ratio to a blood calculation. The point is that the source code which the manufacturers largely refuse to produce is how this is done with the machine.

The main question is whether or not the math used by the machine to make the conversions were originally properly made and whether or not the source code properly makes the calculation. The purpose of the source code litigation is that defense attorneys believe that Defendants in DWI cases around the country have a right to have an independent evaluation of the source code to determine whether the machines make these calculations correctly or not.

It appears that the machines have not had any meaningful testing outside of the manufacturers themselves. No one has independently evaluated whether or not the source codes of the breath testing machines have been written correctly or not for such calculations.

If the source code is valid, why are the manufacturers so hesitant to provide the source code to independent peer review by the general scientific community?

Florida was a state to recently receive much publicity for it’s source code litigation. Judges in some counties in Florida have decided that the defense attorneys in those cases are entitled to the breath machine’s source codes. Source code litigation has also occurred in Washington, and other states.

Evan Levow, and other defense attorneys, are leading the charge in the source code litigation in New Jersey, where the case has been going on for months.

Tom Workman is an expert witness that is speaking on source code litigation in Texas at the Mastering Scientific Evidence seminar for lawyers next week. He has a lot of interesting things to say on the topic, and I am looking forward to hearing him speak in the future.

In recent source code litigation, he has stated that on the Intoxilyzer 5000 breath testing machine (the same machine often used in Missouri DWI cases), that based on the number of Z-80 chips that are in an Intoxilyzer 5000 (three chips) that once he is permitted to look at the “source code” (assuming CMI, the manufacturer of the Intoxilyzer 5000 is forced to turn it over) that he would expect to uncover about 250 “errors” in the coding, which is 25 per 1000 lines of “code”. 

He explains that this is using “an industry standard” for error occurrence (for computer source code writing). (Note: the Z-80 chip used in Intoxilyzer 5000s is the same “state of the art” chip that was in spin cycles on washing machines and the original “Atari” video game from the 70s).

Even more damning, he has indicated that if CMI is using the argument that to allow a court-appointed expert to look at its “source code” would violate their “trade secrets,” this position is contrary to federal patent law, since Intoxilyzer is legally bound to disclose the reasonably necessary data to allow anyone to build their own knock-off Intoxilyzer machines because:

1. To get a patent, the patent holder MUST disclose the technology under the U. S. Constitution and federal law, for which the patent holder gets 20 years of exclusive, monopoly use. He used Xerox as his example to the judge. After this, anyone in the WORLD is entitled to get it and use it to expand and improve the technology.

2. That if CMI tries to claim it withheld this data, both the patent holder and its attorneys (who filed the patent) are both liable for $1 million fine or 10 years in federal prison, or can be assessed both penalties.

Missouri, in it’s usual demeanor, recently passed statutory changes to the law saying that defense attorneys are not entitled to source code information from the manufacturers of the breath testing machines by statutory definition.