Here is an email question recently received from a new lawyer:

I hope all is going well.  I had a question regarding retrograde extrapolation.  I was told that the statute says we cannot use retrograde extrapolation.  So if a person blows a pbt of .06 at 12:30, and refuses the data master at the station (forgetting about all the implied consent stuff), and cops get a warrant and take person to clinic, and at 1:45 the blood reveals a .10, I was told that retrograde extrapolation is no longer valid because of statutory law, and that the person is presumed to be .10 at the time of the incident.  Is this correct?  I have been trying to look this up.

Here is our answer:

What crazy person told you that??  It’s preposterous really.  The instruction was changed so it says there’s an inference BAC at time of test is same as at time of driving, but what this person is suggesting is that this change creates a presumption, which is not permissible.  (Almost) the only presumption in a criminal case is the presumption of innocence.

Lawyers handling a lot of DUI cases might consider purchasing the BAC-Tracker software.  This software assists in alcohol calculations, including retrograde extrapolation.  The software is provided by BAC-Tracker International, Inc.  Their web site indicates:

We are a forensic consulting company providing forensic alcohol litigation services internationally to the criminal justice community. Headquartered in Atlanta, Georgia, BAC-Tracker International, Inc. provides training, expert witness consultation, and software solutions for the extrapolation of blood alcohol concentration (BAC) and the management of scientific uncertainty for alcohol related cases.

BAC-Tracker International, Inc. has just completed their update to BAC Tracker software v3.1. A.  This update offers a number of additional improvements. The most significant improvements include (1) the addition of a new report type – The Retrograde Alcohol Extrapolation Report. This report will extrapolate the alcohol level to a time of interest from a known BAC; (2) greater freedom of generating reports using various combinations of volume distribution formulae while accounting for uncertainties associated with absorption and/or elimination; (3) and the ability to include the uncertainty associated with the known BAC based on QA/QC data of the analytical method thus allowing BAC Tracker to account for every major source of uncertainty in the extrapolated result.

BAC Tracker v3.1 offers users the ability to generate up to 506 different reports using various combinations of volume distribution formulae while accounting for absorption rates and/or elimination rate uncertainties.

The software can be purchased from the manufacturer’s web site.

Team Work

Make no mistake about it, what Mike Nichols accomplished in obtaining his order of suppression in the Jabrocki case is nothing short of astonishing.  It might also be a source of inspiration for all of us, but before I tell all of you about the backdrop of this victory; let me first tell you about the Red Wings.  Please indulge me in this as I often use sports analogies to metaphorically explain to others what happens in the court room.

Last night the Red Wings pulled-off another unbelievable victory against an impressive opponent.  The Wings are trying to do what only three teams have ever done in NFL history – come back from a 3 – 0 deficit to win a playoff series.  Last night they tied the series at 3 games each.  It was perhaps the best hockey game I’ve ever seen.  The intensity was incredible, and even when it looked like the Wings would lose again, they pulled it off, got another victory; and put themselves in a position to win the cup.  They did it through great leadership, coaching, and great teamwork and by simply having the gritty determination to never give up.  Even when faced with great odds.

Mike Nichols did the same thing in winning his suppression motion based on the Michigan Lab’s failure to report uncertainty.   Like the Red Wings facing a 3-0 deficit, Mike was facing a .30 blood test result.  How many of us would have the gritty determination to take on a number that high?  The prosecutor did everything he could to block Mike’s efforts, just as the Shark’s goal tender did everything possible last night to keep the Wings from scoring. But like the Wings, Mike never gave up.

One inspiring and important thing Mike did, and something we can all learn from, is reached-out to his colleagues in his own State and others.  As lawyers we are by nature extremely competitive and as it turns out, Mike and I do “compete” for clients.  But that didn’t stop Mike from reaching out to me to assist him with this case.  He even asked me to co-counsel the case (due to scheduling and distance this was not tenable for me).  Think about that for a minute.  Here is Mike Nichols’ opportunity to obtain a huge victory and most of us, in the face of that, would want to keep all the accolades, all the glory for ourselves.  Certainly, we wouldn’t want to share the spotlight with another DUI lawyer.  But Mike made this offer because he knew the potential significance of the ruling for all of us, and he wanted to do everything possible to assure a positive outcome, both for his client and for the defense community.  Mike and I have discussed this concept on several occasions and we agree that we are all Constitutional warriors in same army.  We fight on the same team, and when we fight together, we’re tough to beat.  Too often I think we forget this.

In looking at the case and his own knowledge and skill level, Mike was aware that his understanding of science was not what he wanted or needed it to be, so he aligned himself with a toxicology expert who was, in his own words “whispering in his ear” as the case progressed.  He talked and emailed Ted Vosk regularly to discuss the case and the science of measurement and uncertainly.  He immersed himself in the science, and as the case progressed over several weeks Mike shared transcripts and articles with me, and he and I discussed the science; and we strategized and hypothesized on various aspects of his hearing, including his cross-examination of Dr. Adatsi.

Mike also had a co-counsel to assist him in court.  Someone not well known as a DUI expert, but someone who could help Mike with the science in court room; again demonstrating that he was willing to share the spot-light in a way that would increase his odds of winning.

Mike won because he never gave up, and because he knew what he didn’t know, worked hard to learn the science, then assembled a team to assist him.  While this may not be at the level of team-work displayed by the source-code battle fought by Evan Levow, the HGN battle fought by Don Ramsell and many other similar examples; it is nevertheless something from which we can all gain inspiration.

Working together we can win these battles, even against what seem like (and often are) unbelievable odds. And sometimes, as Mike and the Wings have shown us, coming from behind and “forcing a game seven,” even against a talented opponent, is possible.  But sometimes it requires nothing less than great leadership, coaching, teamwork and simply having the gritty determination to never give up.

For more information read: 10,000 plus DUI Cases Now in Jeopardy Due to Laboratory Deficiency

DataMaster DMT

On June 3rd, 2011 in Lansing at the Cooley Law School, Chuck Rathburn and Mary McMurray, two of the nation’s top instructors in breath testing and the DMT will present the basics of breath testing and the specifics of Michigan’s new instrument, the DMT.

You may have read the coverage in the Detroit News regarding the DMTs that are on order by the State of Michigan awaiting the word to be called into service. Here is a brief part of that article, written by Laura Berman:

The Michigan State Police has coughed up $1.4 million for 228 state-of-the-art alcohol breath analyzers since 2008.

So where are they? Three years after a Mansfield, Ohio, company began taking Michigan’s money for a spiffy new fleet of Datamaster DMTs, only 40 machines have been built — and even they haven’t been deployed.
The story of the Datamaster DMTs is a bureaucratic classic: Why will it take almost four years to roll out the $6,500 machines that take minutes to install and practically operate themselves?

Read the entire article.

On June 3, 2011, the legal seminar “Understanding the Mystery of Breath Testing” will be presented in Lansing Michigan. In one day Michigan lawyers will learn about how alcohol works in the body from DUI Guru Patrick Barone; how breath testing works and specifically the new DMT from Chuck Rathburn and Mary McMurray and … how to communicate all this to the jury from Lansing DUI lawyer Mike Nichols. Download the brochure: Michigan 060311 brochure final.

This 9.5 hour seminar will cover calibration and simulation of the DataMaster DMT, Henry’s Law, Lambert-Beer law, and the basic science of infrared breath testing.

Mr. Rathburn and Ms. McMurray are instructors in breath testing and the datamaster dmt approved by the manufacturer of the instrument, National Patent Analytical Systems (NPAS). This is a can’t miss presentation.

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!

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!