MISSOURI’S LEADING DWI DEFENSE ATTORNEYS CHARGE MISSOURI DEPARTMENT OF HEALTH WITH GROSS INCOMPETENCE AND CONCEALMENT OF CRITICAL PROBLEMS WITH MISSOURI’S BREATH ALCOHOL TESTING MACHINES! CALL FOR IMMEDIATE INVESTIGATION BY ATTORNEY GENERAL.
On October 31, 2006, the Missouri Supreme Court accepted transfer of the case of Vanderpool v. Director of Revenue, 2006 Mo. App. LEXIS 1042 from the Western District Court of Appeals.
Vanderpool deals with the nature and applicability of the Missouri Department of Health’s regulation which requires the police to “observe” a driver for a period of 15 minutes immediately prior to a breath test for alcohol. The decision of the Supreme Court will have major consequences to Missouri motorists who are arrested and accused of driving while intoxicated.
To better explain the significance of the issues before the Court, it is necessary to first examine the already “pathetic” nature of Missouri’s breath testing program.
Due to the scientific and technical nature of blood and breath testing issues, the Missouri legislature has deferred to the “expertise” of the Missouri Department of Health to establish “satisfactory techniques, devices, equipment, or methods” to conduct blood and breath tests. 577.020 and 577.026. In State v. Peters, 729 S.W.2d 243, 244-245 (Mo. Ct. App. 1987), the Missouri Court of Appeals recognized that:
“The above legislative enactments (Sections 577.020 and 577.026) are a substitute for the common law foundation for the introduction of evidence of analyses for blood alcohol, and are mandatory… If the State has failed to comply with these statutes the blood analysis is inadmissible and prejudicial.” Id. (Citations omitted).
Pursuant to that legislative authority, The Missouri Department of Health adopted rules pertaining to the admission of chemical tests of a driver’s blood or breath for alcohol. One of the requirements is that the test subject be “observed’ for at least 15 minutes immediately preceding the breath test.
The regulations do not specify exactly what the breath test officer must “observe” the driver for, but do indicate that no smoking or oral intake is allowed during this time. The breath testing regulations then require that if vomiting occurs, the breath test operator must start over with the 15 minute observation period. The intended purpose of the 15 minute rule is to insure that nothing occurs during the observation period which may contaminate the breath sample, and affect the reliability of the driver’s breath test. Supposedly, we don’t want innocent people going to jail. So what’s the big deal?
THE MISSOURI DEPARTMENT OF HEALTH HAS NOT APPROVED SATISFACTORY “DEVICES” AND “EQUIPMENT” FOR USE IN BREATH TESTING!
The Missouri Department of Health is directly responsible for selecting the evidentiary breath testing devices that will be used to tests citizens arrested and accused of drunk driving.
Early on, The Missouri Department of Health adopted “Specifications for Evidential Breath Testing Instrumentation” setting forth the minimum performance requirements of the devices used during the evidential breath testing process.
These specifications are usually adopted in connection with the DOH’s testing and evaluation of various breath test machines submitted by the respective manufacturers. Among other things, those specifications require that breath testing instruments abort the test in every case where mouth alcohol is present on the breath.
Back in the early 1990’s, The Missouri Department of Health conducted its evaluation of the Intoxilyzer 5000, manufactured by CMI, Inc. At that time, the mouth alcohol detection capabilities of the 5000 was tested.
In order to evaluate the mouth alcohol detection capabilities of the device, three test subjects blew into the 5000 after rinsing their mouths with an ethanol/water solution. Breath tests were then administered every two minutes until the instrument gave zero readings on all three test subjects. None of the test subjects had actually consumed any alcoholic beverages and their blood alcohol levels were all “zero” at the start of the experiment.
According to the Missouri Department of Health’s specifications, whenever mouth alcohol was present, the instrument should have produced an “INVALID SAMPLE” reading and aborted the testing process. It didn’t!
Only during the initial test run on each of the three test subjects did the machine perform properly and abort each subject’s test by indicating an INVALID SAMPLE. During the second breath test conducted on one of the test subjects, the 5000 falsely reported the individual’s BAC was .147%. During the forth test run on another subject, the 5000 falsely reported that the subject’s BAC was .061%. During the sixth test on the remaining subject, the 5000 falsely reported that the individual’s BAC was .124%. All of the falsely reported tests were followed by successive erroneous readings until the readings were down to zero between 10-20 minutes later.
This suggests to the writers that the 15 minute observation period is not sufficient to allow for the dissipation of mouth alcohol. At least 20 minutes should be required!
In none of those cases, did the Intoxilyzer 5000 abort the test and report an INVALID SAMPLE.
In short, the mouth alcohol detection system of the Intoxilyzer 5000 was found to be defective by The Missouri Department of Health’s own tests. Nevertheless, the machine was “approved” by The Missouri Department of Health for use in the State of Missouri. Go figure! The expression: “Good enough for government work” comes to mind.
As an aside, The Missouri Department of Health also evaluated the 5000 to determine if the instrument could detect the presence of other interfering chemical substances which might be present in a person’s breath. During this part of the evaluation, small amounts of various chemical substances were introduced into a 0.100 simulator solution. The mix was poured into a simulator which was connected to the Intoxilyzer 5000 and multiple tests were done to see what effect, if any, the presence of these chemical substances would have on the test results.
Under The Missouri Department of Health specifications, the instrument was required to be able to detect the presence of these various chemicals and abort the test, indicating an error message: “INTERFERENCE.” The instrument failed to detect Methanol, Butanol, and Acetone.
Acetone may be a substantial problem, as it is present in the breath of persons who are fasting or who suffer from diabetes. The testing results indicated that the Intoxilyzer 5000 could not distinguish between acetone and ethanol, and added to the .100 expected value.
In one instance, the 5000 produced a result of .111 instead of a .100, and did not abort the test. The same thing occurred when checking for Butanol, which produced an erroneous test result of .182%, and Methanol, which produced a reading of .126. Only six chemical substances were used to evaluate the instrument. Nevertheless, the machine was “approved” by the Department of Health for use in the State of Missouri. Go figure!
The Missouri Department of Health also claims that records of their initial evaluation of the BAC Datamaster no longer exist. One might ask how The Missouri Department of Health could possibly lose the paperwork relating to their evaluation and approval of the most widely used breath testing instrument in the State of Missouri.
A reliable source claims that the documents were intentionally destroyed in 1998, at or around the time of the deposition testimony of a member the breath testing program. The writers are calling upon the Attorney General to immediately launch an investigation into the mysterious disappearance of these and other documents which were not produced in response to formal court discovery requests.
In any event, several of the writers all own BAC Datamaster breath testing devices and all will attest to the fact (and demonstrate publically) that the Datamaster, like the Intoxilyzer 5000, does not reliably detect mouth alcohol.
The results of an “informal” study conducted by The Missouri Department of Health and The Missouri State Highway Patrol in 2000 also confirm the failings of the Datamaster in this regard.
Similarly, the BAC Datamaster used in Missouri was disapproved for use in England, Australia and New Zealand, in part because of its inability to distinguish other non-alcohol chemical substances on the breath.
THE MISSOURI DEPARTMENT OF HEALTH HAS FAILED IN ITS RESPONSIBILITY BY NOT APPROVING SATISFACTORY “TECHNIQUES” AND “METHODS” FOR BREATH TESTING!
Failure to Address Operational Problems
Even in light of the inability of both the Intoxilyzer 5000 and the BAC Datamaster to reliably detect the presence of mouth alcohol, The Missouri Department of Health continues to fail to address problems with the operational procedures being followed by breath test operators across the State.
In particular, The Missouri Department of Health has failed to properly train their breath test operators in the procedures that should be followed when certain error codes or messages appear during the testing process.
The writers have cross-examined dozens of breath test operators, and many maintenance supervisors, most of whom were not even familiar with the various error codes. Of particular concern is the fact that many, if not most operators, do not even know that the error code for mouth alcohol is “INVALID SAMPLE.”
When this error code appears, proper scientific protocol requires that the operator assume that there is mouth alcohol present, and wait an additional 15 minutes before giving a second test. The Missouri Department of Health, unlike the regulatory agencies in many other states, has failed to adopt any regulations on the subject.
In September of 2004, the Missouri State Highway Patrol issued its own policy and mandated that all troopers wait 15 minutes before administering a second test following an INVALID SAMPLE reading. They also mandated that the mouthpieces be changed, a new checklist be completed with the second test, and that the INVALID SAMPLE breath test ticket be retained as evidence. The writers of this article appreciate the fact that at least one State agency recognizes the problem and has decided to address an issue The Missouri Department of Health refuses to even acknowledge publically.
The Missouri Department of Health training slides obtained by the writers indicate that after obtaining an INVALID SAMPLE reading, the breath test operator should wait 15 minutes before administering a second test. The Missouri Department of Health has been very careful not to write this down in any training materials provided to the breath test operators and maintenance supervisors. In most cases, breath test operators are not even furnished with a list of the various error codes for the instruments for fear that defense attorneys will obtain them from the officer and use them in court.
Another operational problem is the frequent use of the no volume (“NV”) or sample control override key to override the sample controls on the BAC Datamaster. Publically, The Missouri Department of Health explains that the NV or sample control override button on the Datamaster is intended to allow an alcohol analysis in a breath sample on a subject who cannot meet the minimum requirements for an automated breath test.
According to National Patent Analytical Systems, Inc., the maker of the BAC Datamaster, this was never the intended purpose of the key. Rather, it was placed there for the convenience and use by maintenance technicians when conducting maintenance procedures on the work bench.
Secretly, The Missouri Department of Health has recognized that by utilizing the NV or sample control override key, in addition to overriding the Datamaster’s breath sampling criteria, when the NV key is depressed, the instrument no longer monitors the breath sample for a mouth alcohol occurrence.
The Datamaster’s breath sampling critieria is the minimum breath flow rate into the instrument; a leveling off of the BrAC slope; the minimum amount of breath delivered of 1.5 liters; and a reduction in the breath flow rate into the machine. These are essential to insure that a sample of alveolar or “deep lung” air is obtained. Under The Missouri Department of Health regulations, this is the only type of air that a breath test operator is allowed to test for alcohol content.
Use of the NV or sample control override key on the BAC Datamaster also adds an unauthorized step to the approved checklist to be followed by breath test operators. The Missouri Department of Health had gone so far as to draft a proposed change in the checklist to allow the use of the NV or sample control override key, but apparently decided against it.
A reliable source informed the writers that the documents relating to the proposed change were ordered destroyed by Missouri Department of Health personnel. Unfortunately for The Department of Health, at least one copy survived.
In any event, The Missouri Department of Health’s specifications for evidential breath testing instruments require that all buttons and keys which influence the subject test must be enclosed within the instrument, accessed only by the use of a code, or locked behind a locked access panel.
The NV or sample control override key is not so restricted, even though its use clearly influences the subject sample. Again, the Missouri State Highway Patrol stepped forward in September of 2004, and banned the use of the NV key by its troopers, despite The Missouri Department of Health not bothering to mandate such precautions. All states but one have banned the use of the NV key by regulation and/or have deactivated the override function.
Improper Repairs Being Made to Breath Test Machines
Another problem not known to the public has to do with who should be making major repairs to both the Intoxilyzer 5000 and the BAC Datamaster. As far as instruments maintained by agencies other than The Missouri State Highway Patrol, it appears that The Missouri Department of Health has delegated a large part of this responsibility to the CMSU Safety Center in Warrensburg.
Written Missouri Department of Health documentation obtained by the writers indicate that there has been a great deal of controversy between the manufacturers and the Safety Center regarding the propriety of the Safety Center making repairs which the manufacturers believe must be done at their factories in order to maintain the reliability of the machines.
In July of 2001, a former employee of The Missouri Department of Health breath test program wrote a letter directly to Bill Whitmar, then in charge of the breath alcohol testing program, and warned that CMI (the manufacturer of the Intoxilyzer 5000) had cautioned against certain repairs being made without a subsequent factory calibration, and advised that the machines would not hold up in court.
A list of 25 machines from 25 different departments that had received unauthorized repairs was attached to the letter. Apparently, the warning was disregarded, as the Safety Center continues to conduct such repairs instead of the machines being sent back to the factory for repairs and factory calibration.
Similarly, the makers of Datamaster have notified The Missouri Department of Health about problems related to repairs made to their equipment at the Missouri Safety Center.
In a July 2004 letter written by the President of NPAS, Inc., to The Missouri Department of Health, the manufacturer warned the Department of Health that:
“Incorrect or careless maintenance techniques, along with the use of parts that
we specifically do not recommend, will unfairly reflect on the maintenance
history of the instrument and could present serious issues if brought to the
attention of the courts.”
In another letter issued the same month, NPAS, Inc. warned that unsanctioned repairs had apparently been made to one of the Fort Leonard Wood Datamasters.
In a letter to the Missouri Safety Center in November of 2004, the President of NPAS, Inc. warned that “activities regarding maintenance performed by your staff may be deficient in several areas. Among these are:
- A possible lack of competency on the part of technicians owing to the use of parts and procedures not sanctioned by us.
- A possible lack of competency on the part of technicians owing to the quality of work as seen in the incorrectly installed sample chamber assemblies.
- A failure to maintain complete and accurate records regarding the maintenance performed on these instruments.”
Because of these matters, the manufacturer indicated that it would not issue the Missouri Safety Center a “Service Center Certificate.”
Other repairs are being made by police officers in the field who have received a “Type II” permit from The Missouri Department of Health. A Type II permit “technically” authorizes such officers to make repairs to their police department’s breath test machine.
Pursuant to a subpoena served upon the manufacturer, a copy of an email sent to the President of NPAS, Inc. by Bob Welch at the Missouri Safety Center was recently obtained. In that e-mail, Welch stated that he agreed with the manufacturer of the Datamaster, and stated he also felt “it is unwise to train our Type 2 Supervisors to repair instruments in the field.”
Welch continued that he had “opposed this from the beginning, however it has also been drilled into us that we must keep instruments up and running and have fewer than 10% down statewide at any given time. So given this situation we must train our “field guys” at least in the basics of adjusting a voltage from time to time.”
The writers note that proper voltage settings are critical to the reliability of any breath test conducted on either the Intoxilyzer 5000 or the Datamaster. The writers also suggest that keeping the machines “running” is not a justification for delegating the responsibility for proper instrument repair in the field to those who are not capable of making the needed repairs.
Missouri Does Not Require Duplicate Breath Testing
In Missouri, under DOH regulations, a police officer is only required to administer one breath test following his or her arrest for Driving While Intoxicated. Currently, 28 states require that a motorist be given a second test to confirm the reliability of the first test.
The states are Alabama, Arizona, Arkansas, California, Connecticut, Florida, Georgia, Idaho, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, North Dakota, Oklahoma, Pennsylvania, Rhode Island, Texas, Vermont, Virginia, Washington, Wisconsin and Wyoming.
Good scientific principles require it. As early as 1986, the National Safety Council Committee on Alcohol and Other Drugs recommended that at least two separate breath samples collected and analyzed individually. The Committee further recommended that the breath samples be collected at intervals of at least two, and not more than ten, minutes apart. The results must agree within .02%. The Chairman of that Committee was Kurt Dubowski, the father of breath alcohol testing in the United States, if not the world.
Think about it. When you balance your check book, do you run the numbers once? No. You check them twice to make sure that you, or the calculator, didn’t make a mistake. Mandatory dual testing would help eliminate the possibility of both operator and machine error.
Assume, for example, that an individual belches or regurgitates a small amount of alcohol up from the stomach into the mouth as he or she is blowing into the 5000 or Datamaster, causing an erroneously high reading of say, .147%. The mouth alcohol detection system does not work, and the instrument does not indicate that the sample is INVALID.
In Missouri, the test result will then be used as prima facie evidence of the driver’s intoxication, and the driver will be subjected to criminal penalties and the loss of his or her driver’s license.
In a duplicate testing state, however, after a short waiting period, during which time the mouth alcohol is presumably dissipating, the driver will be instructed to furnish a second breath sample.
This time, the machine reports that the driver’s BAC is .070%, which may or may not be representative of the driver’s true BAC. Since the results do not agree within .02%, an additional waiting period must occur, and a third test must be The third test must then agree with the second.
In short, in duplicate testing states, there is a built in protection against breath samples being contaminated with mouth alcohol. Eventually, if the Department of Health and the legislature don’t have the will or courage to change things, it will be up to our Courts to intervene. Incompetence can only be tolerated so long.
Until Missouri requires duplicate testing, however, it is absolutely essential that police officers are required to “carefully watch” the driver during the critical 15 minute observation period. That brings us to the Vanderpool case.
In Vanderpool v. Director of Revenue, 2006 Mo. App. LEXIS 1042, Vanderpool was arrested and charged with DWI. The arrest occurred in a remote part of Benton County at about 2:00 in the morning. The State Trooper who made the arrest then transported Vanderpool and Vanderpool’s passenger (who was not handcuffed or searched) to the Sheriff’s office in Warsaw, Missouri.
On the way to the Sheriff’s Office, in addition driving the vehicle over dark country roads and on a major interstate highway, the trooper carried on conversations with both Vanderpool and his passenger. Once they arrived at the station, Vanderpool was escorted inside, and was given a breath test less than 10 minutes later.
During the trial, Vanderpool objected to the admission of the breath test on the grounds that he had not been properly observed for a full 15 minutes preceding his breath test. The trial court agreed, and the breath test was not admitted into evidence.
The Director of Revenue appealed. In affirming the trial court’s decision, the Western District Court of Appeals noted that “(c)ommon sense tells us that a member of the Missouri Highway Patrol, who is trained to be a careful and safe driver at all times, operating his patrol vehicle on a rural highway in the middle of the night, would be “observing” the road and not his passenger.” Citing their previous decision in Carr v. Dir. of Revenue, 95 S.W.3d 121, 129 (Mo. App. 2002), the Court reiterated that:
“It is our belief that the ‘observation requirement’ is critical to determining whether in fact an individual has driven while illegally intoxicated. The results of a breathalyzer test are given much weight, as they should be, in our judicial system. However, in order to insure the veracity and precision of this testing device does not become undermined, it is imperative for the police to follow minimum administrative guidelines in observing the driver before the test is given.” Id.
In Carr, the Western District previously emphasized that:
“Drinking and driving experts are resolute that this fifteen minute waiting period plays a critical role to insure that the breathalyzer test achieves an accurate result. See 3 DONALD H. NICHOLS & FLEM K. WHITED III, DRINKING/DRIVING LITIGATION CRIMINAL AND CIVIL § 19:9 (2d ed. 1998) (”The arresting officer or Breathalyzer operator must continuously observe the subject during the fifteen to twenty minutes prior to the test. This waiting period is necessary to reduce interference from alcohol or other substance that may have been present in the mouth… The presence of such compounds in the mouth at the time of breath collection will produce an extremely high breath alcohol value that is far from indicative of alveolar breath alcohol concentration.”); 4 DAVID L. FAIGMAN ET AL., MODERN SCIENTIFIC EVIDENCE, § 33-2.3.2(c) (2002) (”Some foreign objects in the mouth, such as chewing tobacco, may trap alcohol and affect the breath test . . . If the above are ruled out by observation, and the 15 minute waiting period is observed and documented, any interference with a valid test should not have occurred.”); HARVEY M. COHEN & JOSEPH B. GREEN, APPREHENDING AND PROSECUTING THE DRUNK DRIVER § 7.04(11)(e) (2002) (”The defendant should be observed for 15 to 20 minutes prior to blowing into the breath-alcohol analyzer to ensure that he or she ingests nothing and brings nothing up from the stomach (by burp, belch, regurgitation, etc.), since these can affect the accuracy of the test.”).” Id. at 129.
The reason that the Supreme Court’s decision in Vanderpool will have a major impact upon the reliability of breath testing in Missouri(and the rights of all motorists) is because the Supreme Court is being asked by the Director of Revenue to ignore The Missouri Department of Health regulations and to shift the burden to drivers to prove that something occurred during the 15 minute observation period that affected the reliability of the breath test.Incredibly, the Director of Revenue is arguing that even though The Missouri Department of Health regulations require that a driver be “observed” for 15 minutes prior to the breath test, such observation is not necessary, even when the driver isn’t in the same room or the same vehicle with the officer during all or part of that time.
What that means is that any motorist who is stopped at a checkpoint 5 minutes after finishing a drink at a local bar or restaurant can be immediately marched over to the breath test machine, told to blow, and then be forced to convince a judge or jury that he or she finished drinking a beer 10 minutes before, and that the (contaminated) test result of .147 is unreliable.
In Vanderpool, Justice Smith, writing for the majority, warned that:
“Other than Carr, the history of the Section 302.505 suspension and revocation
cases reflects a slow erosion of requiring compliance with the fifteen-minute
observation period. This is unfortunate. The “requirement imposes a relatively
insignificant administrative burden on the police, and . . . its benefits in
instilling confidence in the testing results far outweigh any inconvenience.”
Carr, 95 S.W.3d at 129.
On balance, given the purpose of the observation period and the slight inconvenience to law enforcement to effectuate that purpose, we can see no reason for allowing the observation period to be treated as just another administrative hurdle that can be ignored, in whole or part, in order to achieve a desired result.” Id.
The writers submit that shifting the burden to the driver in these cases is not only wrong, but that it is completely in opposite to the American system of justice. A learned judge one said: “Carnage on the highways, and all other crimes, are subservient to the carnage at Valley Forge, Yorktown, and Gettysburg, where the civil liberties now hanging in the balance were carefully shaped and hammered into rights so clean and pure that they stand the test of time and resist encroachment.” McDonnell v. Com’r of Public Safety, 460 N.W.2d 363 (Minn. App. 1991). The rights of all Missourians are hanging in the balance!
Carl M. Ward, Bernard Edelman, Jeffrey Eastman, J. Matthew Guilfoil, Michael Selby, Travis Noble, Michael McIntosh, Robert S. Adler, Branson Wood, Robert Murray, Joseph Passanisse, Robert Childress, Daniel Moore, Lawrence Wines, John Newsham, Kimberly J. Benjamin, Timothy R. Cisar, Daniel Dodson, H. Marvin Gilmore, Kerry Rowden.
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