Michigan DataMaster

If you’ve been arrested in Michigan for drunk driving then there is an excellent chance that you were asked to take a breath test.  If that breath test result was above .08, then the state can use this as the only evidence needed to prove that you had an unlawful bodily alcohol level at the time you were driving.  (UBAL).  In other words, you can be convicted based only on this breath test evidence.

But what if the test was wrong?   A wrong breath test result can mean a wrongful conviction, and this was the major problem with cases from September 2009 to November 2010 in Philadelphia.  According to reports the police found the problem and notified defense attorneys.  Furthermore:

“Besides the cost of reviewing thousands of DUI prosecutions and likely retrying some, the police and city could face civil lawsuits by people wrongly convicted – some of whom may have lost their driver’s license, their job, or their freedom.”

It is interesting to note that it was the police and not the defense attorneys who found most of the problems, but understanding how the machines are maintained, this is really not surprising.

In Michigan and every other state, the breath test machines are calibrated and maintained by the police or by people working closely with the police.  Although logs are kept it is nearly impossible to know if something is wrong by simply looking at the logs.

According to the Michigan Administrative Rules for Breath Testing, calibration checks are performed by the police once every calendar week.  This process consists of the police preparing a solution of alcohol and water, and passing the vapor from this solution into the breath testing device.  The idea is to prepare a .08 solution, and so long as the machine reads this .08 solution as between .076 to .084 the machine is said to have passed the calibration check.

Actual calibration however takes place at the factory before the machines are placed into service, then possibly every 120 days when an employee of the manufacturer checks the machine.  This employee is a former State Trooper.

There is no outside person or agency whoever comes into the police station to independently check the machine to make sure that it is working properly.  This is a significant problem, and in part this is why problems with calibration are so difficult to find.  But, as has been reported here, and in many other places around the country, problems do occur. For example, In February 2010, a consultant hired by Washington’s police confirmed that Breathalyzers had not been checked for accuracy; a programming error went undetected.

The best thing to do if you think the breath test machine was wrong in your case is to have a well-qualified lawyer review your case.  The worst thing that could happen would be for you to plead guilty or be found guilty based on faulty evidence.

Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (248) 594-4554, or filling out this consultation request form. Call now, there’s no obligation!

DataMaster DMT

It is possible for a person arrested for drunk driving who is suffering from GERD to have a breath test result that is way too high.  So what does ”way too high” really mean?  It’s impossible to say, but with GERD the breath test result could be as much as 100% too high.  It is more likely however that the breath test result is closer to between 20% and 80% too high.

GERD is an acronym meaning “Gastroesophageal Reflux Disease.”  The common name for this is condition heart burn. The reason the breath test result is falsely high is because with GERD the machine, called in Michigan the DataMaster, is not measuring breath alcohol or deep lung air.

Instead, the breath test machine is measuring alcohol gases or vapors erupting from the stomach into the mouth which are then blown into the DataMaster.  In this case the DataMaster is measuring stomach gas alcohol rather than breath alcohol collected from a sample of deep lung air.

Another problem occurs when the machine measures mouth alcohol rather than deep lung air. In this case the raw alcohol erupts into the mouth, thereby causing a false DataMaster result.  Either way, GERD causes a breath test result that is falsely high.

If you have been arrested for DUI, have been diagnosed with GERD and you think that your GERD may have impacted the DataMaster result, then it is important to substantiate this diagnosis. In other words, you must undergo confirmatory testing.

The first confirmatory test is called an endoscopy.  According to Wikipedia, “endoscopy means looking inside and typically refers to looking inside the body for medical reasons using an instrument called an endoscope.” During this test, a small catheter is placed into the esophagus and photographs are taken of the esophagus and the Lower Esophageal Sphincter (LES).

The more detailed way to describe this is as follows: “Esophagogastroduodenoscopy (EGD) (a form of endoscopy) involves insertion of a thin scope through the mouth and throat into the esophagus and stomach (often while the patient is sedated) in order to assess the internal surfaces of the esophagus, stomach, and duodenum.” Id.

After the test is complete, the specialist will look at these results (including photographs) to determine if there is evidence of damage caused by acid erupting into the esophagus from the stomach.  The photographs will also be inspected for evidence of a possible hiatal hernia, which “increases the likelihood of GERD due to mechanical and motility factors.” Id.

If the EGD reveals that the LES is open, then the patient has a Gastroesophageal Reflux Disease (GERD) condition with a constant reflux/regurgitation.  This is significant as it pertains to breath testing because with an open LES there is essentially an uninterrupted or open chamber beginning in the stomach, continuing into and through the throat and finally into the mouth.

With this condition stomach gases are able to escape (back flow/regurgitate) into the mouth from the stomach.  The defective sphincter (LES) allows the gases/molecules, including of course alcohol molecules, to leave the stomach and pass into the mouth.  During a breath test these alcohol gasses mix with the deep lung air, which also contains alcohol, and the accumulated gasses are “read” by the machine in a cumulative fashion thereby causing a false breath test result.

Another problem with GERD is the potential of raw alcohol to erupt from the stomach into the mouth. While it is true that mouth alcohol will dissipate rapidly the problem is that with an open LES the patient suffers from a condition that may produce constant reflux/regurgitation.  If this condition exits, and if the conditions during the breath test are appropriate, then a 15 minute observation period will not stop a false high breath test result.

The presence or absence of this condition is confirmed by a second test, called a 24 hour pH test (pH denoting the acidity level in a person).  According to Wikipedia, Esophageal pH monitoring is the current gold standard for diagnosis of Gastroesophageal Reflux Disease (GERD). It provides direct physiologic measurement of acid in the esophagus and is the most objective method to document reflux disease, assess the severity of the disease and monitor the response of the disease to medical or surgical treatment.  Id.

Esophageal pH monitoring is being performed using one of the following three techniques:

• Single sensor pH monitoring using a pH catheter
• Dual sensor pH monitoring using a pH catheter
• Wireless pH monitoring using Bravo pH capsule

The duration of the test is 24 hours in the first and second techniques and 48 hours or more for the Bravo capsule.  Id.

Unless the Bravo capsule is used an esophogeal pH test requires a catheter to be inserted through the nostril, into the throat, and down into the esophagus where it is stopped slightly above the LES.  The catheter remains in the subject for 24 hours.  The recorder monitors every episode of reflux/regurgitation during this time period.

If the appropriate medical tests are given and if they confirm the existence of GERD and the extent of the problem, then you will have an excellent potential defense to the breath test.

Barone and Dr. A. W. Jones - 2008.

This defense is not without its detractors, and you should expect the government lawyer to argue that the slope detector will cure this breath testing problem. To substantiate this claim, the government relies on a single, limited study published in the Journal of Forensic Science nearly ten years ago.  The author of this study was none other than A.W. Jones. This study used only ten subjects, and only four of whom were definitely experiencing GERD effects at the time of the study.  The fact that the authors concluded from this very limited study that a false breath test was “highly improbable,” only underscores that an erroneous result is certainly possible.

In a later article that appeared in the DWI Journal: Law & Science, Dr. Jones explains his 1999 study cited above.  In this subsequent article Dr. Jones acknowledges that the DataMaster’s slope detection is inadequate to detect mouth alcohol.  Dr. Jones reiterated this position in Fitzgerald, Intoxication Test Evidence, where he again acknowledges that GERD can cause false results.

In another more recent DWI Journal: Law  & Science article, published in 2007, Jones indicated:

It is widely known that many breath alcohol instruments currently used by law enforcement worldwide are inept at detecting mouth alcohol under some circumstances.  For example, there is no published evidence that the more dangerous form of mouth alcohol, namely that which might erupt from the stomach in connection with a burp, belch, or regurgitation is successfully detected and distinguished from alcohol originating from the lungs.

Id. at Pg. 2.

Thus, even Jones, the author of the study relied upon by the government, has acknowledged that slope detectors don’t work well enough to detect mouth alcohol that originates from GERD.

The so-called GERD defense has been recognized as a valid breath test defense in drunk driving cases in at least one state. In People v Bonutti, 212 Ill 2d 182; 817 NE2d 489 (2002), the Illinois Supreme Court recognized the potential danger that GERD could have in creating a false breath reading.  The Bonutti Court upheld the suppression of breath test results of a defendant who was suffering from GERD at the time of test.

There, the court said:

In closing, we note that this is not the type of suppression case in which clear evidence of criminal wrongdoing is withheld from the fact finder because of a prosecutorial misstep.  Section 1286.310(a) [of the breath-testing administrative rules] exists because regurgitation within 20 minutes of a breath-alcohol test can render a false positive. In other words, a lack of compliance with section 1286.310(a) has the potential to create criminals out of people who are not. This is not a “technicality,” and it is not a contingency that this court will countenance.

Bonutti at 192; 817 NE2d at 495

While the Bonutti decision was subsequently superseded by statute, which precludes suppression of a breath test result from regurgitation short of a test-taker’s vomiting, a defendant is still permitted to argue the validity of the test results using expert testimony. See, People v Lindmark, 381 Ill App 3d 638, 660; 887 N.E.2d 606, 625 (2008).

WARNING: If you suffer from GERD and have been arrested and charged with OWI based on UBAL (unlawful bodily alcohol level) you could be wrongly convicted of drunk driving. Contact the Barone Defense Firm today for your FREE consultation.

RFI Breath Test Defense

In reviewing videotapes of our client’s DUI arrests we often see cell phones being used in the booking room at the same time that the breath test is being administered.  The problem is that cell phones create radio waves, and these waves can interfere with the breath test.  Here is a videotape regarding this problem.  The videotape addresses the Intoxilyzer.  In Michigan we use the DataMaster, but the underlying concepts are the same.

Today cell phones are ubiquitous, and it is not unusual to see them in and around the breath testing equipment.  The prohibition against using portable radio transmitters, including cell phones, is grounded in well-known limitations in infrared breath testing technology.

The problem originally dates back to 1982, when “Smith & Wesson, a major manufacturer of breath-testing devices, notified law enforcement agencies that its Breathalyzer Model 1000 had been found to experience interference from radio frequency transmissions under certain test conditions, resulting in false test results.  Subsequent investigation suggested that the Breathalyzer Models 900 and 900A also were affected by various power levels.”[i]

But the problem of radio frequency interference didn’t go away with better more modern equipment. Such breath testing equipment typically has RFI detectors incorporated within them.  The problem with these detectors is that they are not predictable.  Thus, it is impossible in many cases to determine whether or to what extent any particular breath test was tainted. With an instrument such as the Breathalyzer, where someone’s rights and freedoms are at stake, unpredictable performance is unacceptable.”[ii] And, according to at least one source, RFI can potentially lead to breath test scores inflated by as much as 100%.[iii]

Additionally, as repeated tests have demonstrated, there is a segment of the frequency band to which the detector is essentially blind.  If there is a source of interference from a device emitting electromagnetic waves in this frequency range, it will not be detected.[iv]

Manufacturers and state experts will often point to the infalability of the RFI detectors that exist in modern breath testing equipment.  The problem is that, like slope detectors, and as shown by Mr. Biss in the video above, RFI detectors don’t work.  Thus, the incorporation of the RFI detector does not necessarily ensure that the breath testing equipment will be protected from RFI.  In order to pick up radio waves, the antenna connected to the RFI detector must be oriented in the proper position.

This situation can best be understood if one thinks about trying to pick up a station with an old fashioned portable radio or a television station with the new digital tuners.  It is important for the antenna of the radio or television to be oriented in the right position to receive the desired station.  Thus, even though the RFI detector may be capable of sensing RFI, the electronic circuitry of the particular breath testing machine could possibly be located in a position that it will not pick up the existing radio waves.[v]

Contact the Barone Defense Firm today to discuss whether or not RFI may have caused a false result in your drunk driving case.

[i] Lawrence Taylor, Drunk Driving Defense § 6.04[J] (6th ed.) (2006).

[ii] Feldman and Cohen, “The Questionable Accuracy of Breathalyzer Tests,” 19 Trial 6, 54 (1983). Excerpted from: Patrick T. Barone, Defending Drinking Drivers § 226 (2nd ed.) (2009)

[iii] See, Paul Schop, Is DWI DOA?: Admissibility of Breath Testing Evidence in the Wake of Recent Challenges to Breath Testing Devices, 20 SW. U. L. REV. 247 n.22 (1991)

[iv] Lawrence Taylor, Drunk Driving Defense § 6.04[J] (6th ed.) (2006).

[v] Don Nichols and Flem Whited, Drinking/Driving Litigation Criminal and Civil, § 22:8 (2nd ed.1998).

Wrongful Conviction?

The lynchpin of Michigan drunk driving prosecution is a reliable breath testing program.  Prosecutors have big problems when this reliability is legitimately called into question.

This is exactly what has happened recently in Texas where it is reported that between 1200 and 4000 breath tests were fraudulently verified.

According to the Huston Chronicle a Department of Public Safety contractor by the name of Deetrice Wallace fraudulently manipulated the state’s breath testing machines causing thousands of wrongful DUI convictions.  Instead of changing the reference sample every month as required Wallace instead falsified the tests and pocketed $146,000 in profit.

Something similar happened not long ago in the state of Washington where the state police faced fraudulent breath testing on an even larger scale.  The breath test scandal in that state caused Barry Logan, director of the Washington State Patrol Forensic Laboratory Services Bureau, to resign.  According to the Seattle Times:

Logan’s resignation comes just two weeks after a panel of King County judges ruled that the state toxicology lab — one of the two labs overseen by Logan — engaged in “fraudulent and scientifically unacceptable” practices while preparing and analyzing breath tests used to prosecute suspected drunken drivers. The judges called for the suppression of the tests and laid much of the blame on Logan, finding he bore “a good deal of the responsibility for [the lab's] shortcomings.”

Michigan has not suffered from a similar debacle, but Michigan’s breath testing program is certainly not immune from such problems.

Michigan’s breath testing administrative rules in part read as follows:

Rule 3. (1) An evidential breath alcohol test instrument shall be verified for accuracy at least once at any time during each calendar week, or more frequently as the department may require, by an appropriate class operator pursuant to R 325.2658(4). The tests need not be performed within 7 days of each other, but shall be performed less than 14 days apart.  The test for accuracy shall be made in a prescribed manner using an alcohol standard that is approved by the department.  For the instrument to meet the requirements for accuracy, a test result of .076 to .084 shall be obtained when using a controlled device that delivers an alcohol vapor concentration of .080 grams of alcohol per 210 liters of vapor.

Typically Class II operators of the various police departments, jails and other law enforcement agencies prepare and run the weekly simulator tests.  These are simply police officers who have only a single 6 hour day of training with at least a 70% on the written test.  There is no proficiency testing and no oversight regarding this aspect of Michigan’s breath testing quality assurance program.

A Class IV operator will run the 120 day inspections.  In neither case is there a state agency charged with oversight.

If fraud is every to be uncovered it will be due to the efforts of the criminal defense bar. Without oversight thorough discovery and exhaustive cross-examination is the only hope a falsely accused driver has to vindicate his wrongful drunk driving charge.

If you’ve been arrested in Michigan for drugged driving, call the Barone Defense Firm today for your FREE case review.

I teach a course entitled “Drunk Driving: Law and Practice” at the Auburn Campus of the Thomas M. Cooley Law School.  One two hour class session is devoted to the science and administration of infrared breath testing.  A special emphasis is given to the DataMaster because that is the instrument used for law enforcement purposes throughout Michigan.

Exams are next week, and a student emailed me the following question relative to the DataMaster filters.  My answer follows.

Question:

When reviewing breath testing and discussing the filters in the optical bench, I was stumped by what the filters are looking for in Michigan. It is my understanding that there are 2 and 1 is looking for acetone. My notes are void for what the other is looking for.

Answer:

I probably did say that one filter was for acetone, and while that is in many ways accurate it is also somewhat misleading.  This is the problem when we get in depth into the science in a law class because it’s difficult to accurately cover everything without getting into too much confusing detail or otherwise becoming pedantic.

As I did indicate, these are not really filters as such because they don’t “filter” as much as they change the characteristics of the light passing through the lens and being measured by the DataMaster’s detector.  As we discussed, the DataMaster target frequency is 3.37.  However, certain molecules, like Acetone, also absorb heavily at 3.37, but may absorb more heavily at other wavelengths such as 3.44 or 3.5.  By testing the breath with the different filters in the optical path, and then comparing the measurements at these different wavelengths the machine can try to determine if something other than alcohol is present.

The filters are part of the optical bench, which is pictured here.

DataMaster Optical Bench

They are “centered” at specific wavelengths, one of which (3.44) which is on the shoulder of ethanol.  The other is at a peak of acetone (3.37) and the third, if used, is at 3.50 which plugs a gap for some of the exotic stuff like dyethyl ether.  Michigan does not use the 3.5 filter.

These wavelengths were ostensibly selected to provide a distinguishable ratio between them, not to specifically to identify anything.  It just so happens that the compounds that we are interested in distinguishing do affect the ratio and therefore allow the DataMaster to be reasonably specific for ethanol.  It is usually best, for purposes of a good understanding, to not attempt to identify the filter by any substance (such as Acetone), but rather to infer to that certain substances may be present if certain deviations between the measurements exist.

In a sense the filters change the characteristic of the infrared, but only by eliminating all wavelengths except those that are meant to be perceived, measured and compared  (as in Michigan the DataMaster “filters” are 3.37 and 3.44).

So, understanding that, you can see how a colored lens does not actually filter anything specific, and why, strictly speaking, it is improper to say that these filters are specific for any one molecule.

Additionally, it is easier to understand how things like Acetone can cause falsely high breath test readings if the filters are not present, are not working properly, or have been insufficiently tested or maintained.

Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (248) 306-9159, or filling out this consultation request form. Call now, there’s no obligation!