Police Officer Charged

A West Bloomfield Police Officer by the name of Jeffrey Pindzia is being charged with a common law offense and conspiracy to commit a common law offense – this according to a recent Oakland Press article.  Apparently, the West Bloomfield officer was involved in a ticket-fixing scheme.

These allegations against the officer are just charges right now, and as any good defense attorney will tell you “an arrest is not a conviction.”  Nevertheless, the mere fact that these charges have been brought against officer Pindzia will likely have significant repercussions for this officer – at least insofar as his pending criminal cases, including drunk driving, are concerned.

Here is how this might work.  Officer Pindzia makes an OWI arrest in West Bloomfield Michigan.  The defendant for this West Bloomfield drunk driving then hires an attorney.  This attorney might learn of these charges, and might then use this information to cast doubt on the credibility of this officer at trial.  Since the crime charged against this West Bloomfield Officer apparently involves one of theft or dishonesty, it is fair game for cross-examination at trial; so the jury is bound to find out about these charges.  Then, at the conclusion of the trial, the judge will tell the jury that they may believe all, some or none of what this police officer (witness) said.

It seems highly likely that a jury in such a fictional West Bloomfield drunk driving case would be very concerned about a dishonest cop, and if that same dishonest cop made the drunk driving arrest in question, then it may decide to acquit or find the defendant in this West Bloomfield drunk driving case not guilty.

On the other hand, it is also possible that the prosecutor for this West Bloomfield OWI may just decide to “adjust” the OWI charges so as to avoid trial altogether.

If you’ve been arrest in West Bloomfield for OWI, and your case is pending in the 48^th District Court, you would be well advised to have your attorney carefully check over your case to see if officer Pindzia had any part in your OWI arrest.  If the answer is “yes” it could make a big difference in the outcome of your West Bloomfield drunk driving case.

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.

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.

DataMaster - Michigan's Breath Testing Equipment

If you are arrested for drunk driving in Michigan then you will most likely be asked to submit to a breath test.  The purpose of this test is to determine the amount of alcohol in your body.  The name of the device used in Michigan is the DataMaster.  The majority of the DataMasters in use today were manufactured in either 1993 or 1995.

Like Michigan, Wisconsin’s breath testing equipment is aging.  There is an interesting and alarming recent case involving this aging equipment where it seems that a pair of breath tests was done on a person arrested for drunk driving using an EC-IR fuel cell.  The EC-IR produced results of .224 and .228.  These breath tests were 7 minutes apart and there was a simulator test between them.

The person arrested then asked for his own test and was given a blood draw.  The sample was sent to the Wisconsin State lab and came back a .014. Nobody believed it so they did a confirmatory test at another lab and it also came back a .014.  When it comes to determining bodily alcohol levels, blood testing is thought to be far more reliable than is breath testing.

Now one state lab is pitted against another and everybody just wants to get rid of the problem.  Intoximeter (the manufacturer of the EC-IR) is blaming the blood lab – not surprising – and is refusing to acknowledge that their breath testing device made a mistake.

Everyone involved in Wisconsin appears to be afraid to investigate the issue.  Here are some possible explanations for what happened:

Problem with EC-IR in Wisconsin case might include:

1. Floating Decimal Point – The breath test results are .224 and .228 while state blood draw hour later is .014. If you just move the decimal point, then one hour earlier (when breath test occurred) the driver could actually have had a .0224 and .0228 breath alcohol reading. This result would comport with the possible parameters of alcohol metabolism.
2. Problems with chamber temperature.
3. Contamination.
4. Software extrapolation (algorithm integration problem ).
5. High calibration – check simulator solution or dry gas and regulators, true calibration problems.
6. Software degradation – Software ages and get corrupted with time or self-imposed degradation. This does happen and might have occurred on this unit.
7. Plunger problems and carryover contamination.

Michigan does not use the EC-IR in the investigation of drunk driving cases, but instead uses the DataMaster.  However, in the list above, the items of greatest concern is that involving the floating decimal problem and the software aging problem.  It is particularly this later issue that may cause problems in Michigan.

DMT Prototype - Set to go in Service in Michigan in Late 2009.

However, it is expected that sometime this year Michigan will replace the aging DataMaster units with a new and improved version called the DMT, an acronym which means “DataMaster Transportable.”  This new breath testing device is expected to be placed into service as soon as July 2009.  This at least will solve the aging software problem.

Currently there are about 260 “old” DataMasters in Michigan.  So far, the state has bought about 140 new DMTs.

In Michigan there are no known cases like the one in Wisconsin.  Many other types of anomalies have been observed, but these anomalies are not supported by a much lower blood test result.

Michigan DataMaster

The Michigan administrative rules for breath testing require that the breath test operator in a drunk driving case observe the suspect continuously for 15 minutes prior to administering the breath test.

The reason the 15 minute rule exists is because it takes about 15 minutes for mouth alcohol to evaporate.  If mouth alcohol exists then the result is likely to be a falsely elevated breath test result.  This is because the breath test machine is measuring mouth alcohol rather than breath alcohol.[i]

In theory, the administrative rules were promulgated to ensure the integrity of the breath testing.  In a science journal article written by Dr. K. M. Dubowski[ii]the four critical safeguard for breath testing are discussed.  In this article Dr. Dubowski indicates that there are four necessary scientific safeguards for breath testing (1) a pretest deprivation-observation period of at least 15 minutes, (2) a blank test, (3) analysis of at least two separate consecutive breath samples, and (4) an appropriate control test to accompany each subject test. [emphasis supplied].

This position is supported by several cases in Michigan including the People vs. Boughner, where a 35 minute videotape of the defendant showed that the operator of the Breathalyzer machine observed the defendant for no more than 8 minutes before the test was given.  The Boughner court concluded that the administrative rule had certainly been violated, and suppressed the results.[iii] Other Michigan cases[iv] have held that compliance with AC, R325.2655 (1)(e) is critical for an accurate test, and that failure to comply should result in suppression of the test results.

Another Michigan case[v]addressed the question “what is the proper observation period before administering the evidentiary breath test.”  Here the arresting officer testified that the defendant was in his presence for more than the required 15 minutes, but that at times the defendant was only in his peripheral vision.  In this case the court suppressed the test results after reviewing the videotape recording.  This tape showed, contrary to the police officer’s testimony, that there was a two minute period when the officer had his back to the defendant.  Because this “non-observation” was immediately before the test was administered, the court found that a 15 minute observation period was lacking.  In suppressing the test results the court specifically rejected the prosecutor’s argument that compliance with AC, R 325.2655(1)(e) only goes to the weight of the breath test results and not to the admissibility thereof.

However, there has been an attempt to largely eviscerate the 15 minute observation rule, and this attempt is clearly demonstrated by a review of the “new” administrative rules as well as by recent (albeit unpublished) case law.  The result of this rule and of these cases is that police officers can now violate the 15 minute rule with impunity.  This certainly can have a significant impact on the reliabily of breath tests in drunk driving cases, and can result in a wrongful conviction for DUI.

The new administrative rule states in part as follows:

Breaks in the observation lasting only a few seconds do not invalidate the observation if the operator can reasonably determine that the subject did not smoke, regurgitate, or place anything in his or her mouth during the break in the observation.

Although it would seem logical that if the drafters decided to be this specific in say partial breaks are not a violation, then the opposite interpretation is also true; i.e, that breaks in the observation period lasting more than a few seconds do invalidate the observation period.

Michigan DataMaster

Unfortunately, some recent Michigan DUI cases have come to the opposite conclusion.  For example, in the case of People v Kneisler[vi] the court stated that the results of the breathalyzer test were reliable and should not have been suppressed where the 15-minute observation rule was technically violated, but suppression of the test results was not the appropriate remedy, and People v. Mix[vii], which held that although the officer did not fully comply with the 15 minute observation period requirement,  he observed the defendant for approximately 9-10 minutes during which time there was nothing that led the officer to believe that the defendant had anything in his mouth, vomited, ate or drank. Accordingly, the officer’s failure to follow the rule was harmless error: and the trial court properly determined that suppression was not warranted.

Despite all this, it is still important to watch the videotape of the breath test being administered and for DUI defense lawyers to always raise the argument and ask for an evidentiary hearing.  This is because there are still a variety of published cases that have favorable language for the defense, and which stand for the following rules of law:

1. The administrative rules with respect to the administration of Datamaster tests indicates that their purpose is to ensure the accuracy of those tests. Failure to meet any of the foundational requirements will preclude the use of the test results.[viii]
2. In order for chemical test results to be admissible the test results must be both relevant and reliable.[ix]
3. The rules of statutory construction apply to the interpretation of the administrative rules.  Thus, meaning should be given to every word of a rule, and no word should be treated as surplusage or rendered nugatory if at all possible.[x]
4. If the language of the rule is clear and unambiguous, additional judicial construction is neither necessary nor permitted, and the language must be applied as written.[xi]
5. The administrative rules regarding the administration of the DataMaster were adopted pursuant to statutory authority [and therefore] have the force and effect of law.[xii]
6. When the rules regarding Datamaster tests have not been complied with, the accuracy of those tests is considered sufficiently questionable so as to preclude the test results from being admitted into evidence.[xiii]

If you were arrested in Michigan for drunk driving and took a breath test, please contact the Barone Defense Firm today for your FREE case evaluation.

We will discuss with you whether or not the breath test rules were violated in your case and how this fact can be used to help obtain a great result.

[i] A theory of breath testing is that the breath from the deep lungs is thought to be at equilibrium with blood alcohol.  This theory disregards somewhat the idea of partition ratio.  Some scientists also believe that this model of breath testing is flawed.

[ii] Quality Assurance in Breath Alcohol Analysis, 18 Journal of Analytical Toxicology 306-311 (1994),

[iii] 209 Mich. App. 397 (1995)

[iv] People vs. Willis, 180 Mich. App. 31 (1989).

[v] People vs. Andreason, 1997 WL 33331014 (Mich App Nov. 21, 1997),

[vi] Docket No. 262384, (unpublished January 9, 2007)

[vii] Docket No. 282948 (unpublished  May 14, 2009)

[viii]People v. Tipolt, 198 Mich. App. 44, 46; 497 N.W.2d 198 (1993). (citations omitted); People v. Willis, 180 Mich. App. 31, 35; 446 N.W.2d 562 (1989).

[ix] People v Wager, 460 Mich. 118,126; 594 NW2d 487 (1999).

[x]People v Fosnaugh, 248 Mich. App 444, 451; 639 NW2d 587 (2001).

[xi] Camden v Kaufman, 240 Mich. App. 389, 395; 613 NW2d 335 (2000).

[xii] Id. at 35.

[xiii]People v. Boughner, 209 Mich. App. 397, 398-399; 531 N.W.2d 746 (1995).