GET YOUR PROGRAM HERE
DUI BREATH TESTS, COMPUTERS, AND . . . DISMISSALS
STEP OUT OF THE CAR! Toxic, fearsome, authoritative words used by police to control your clients, to control your clients= movement, attitude, and compliance. All DUI clients, or potential clients, have heard these words before, and all relate the same emotion . . . FEAR. Fear of arrest, failure, loss of freedom, license, and employment. As they are consumed by this fear, they are asked, told, or threatened to provide a breath sample for a machine that will decide between freedom and prison. Defense attorneys who specialize in DUI practice have been attempting to obtain the computer program for these machines for several years with varying success rates in different states.
ANATOMY OF A BREATH TEST MACHINE
Breath test machines typically measure alcohol concentration in a breath sample by two methods. Infrared light absorption has been the most popular method and is now challenged by chemical fuel cell analysis. In its simplest form, an infrared light absorption analysis of a breath sample begins with the motorist blowing long and hard into a tube connected to the breath test machine. The breath passes through this tube and is eventually captured in a long sample chamber. A known quantity of infrared light is shined into one end of the sample, and a light meter measures the remaining light at the end of the sample chamber. The machine then takes the difference in light and converts it into an electrical signal and, by use of the computer program in the machine, performs a series of mathematical calculations and then spits out a piece of paper.
An analysis of the breath sample by a chemical fuel cell is somewhat different in its final approach. It begins with the same sample of breath taken from the motorist through a breath tube connected to the machine. However, the actual analysis bypasses any infrared light absorption technique and concentrates on the change of electricity created by the free-flowing hydrogen electron contained in the outer orbit of a molecule of alcohol. By adding and subtracting electrical current to the breath sample, electricity is created and, again, the machine, using the computer program, performs a series of mathematical calculations; and the measurement of alcohol is completed and printed on a breath test strip.
To measure breath alcohol, the breath test machine must compare the breath reading to some sort of reference standard to be able to calculate the result. In the final analysis, the reference is contained in the breath test machine and is referred to by experts in the industry as a differential volt meter. As can be expected, this analysis simply measures the difference in electrical voltage before the test sample and after the test sample. At this point, the computer program takes over and performs a series of mathematical functions using algorithms to convert the voltage change into a measurement of alcohol contained in the motorist=s breath.
To accurately measure a breath sample, a breath testing machine must be able to properly obtain an appropriate breath sample from the motorist. For example, the EC/IR 2 measures the flow rate of the breath sample as it is delivered by the motorist; and in order for the sample to be accepted, certain preprogrammed parameters must be met. (That computer program again). This is itself a critical calculation because a fundamental aspect of breath testing for forensic purposes is that only deep lung air be analyzed.
A related calculation is based on a blood-to-breath conversion ratio; and in the forensic setting, this conversion is necessary because breath alcohol is relevant only as it relates to a comparative blood alcohol level. Thus, the EC/IR 2, or other breath test machines, must convert the breath alcohol measurement to a comparative blood alcohol measurement. This conversion is required because breath alcohol does not impair or intoxicate. It is only delivered to the machine after the alcohol has been distributed through the body via the blood and, therefore, can cause the brain to be affected. This conversion is based loosely on AHenry=s Law,@ a law of analytical chemistry, which states basically that in a closed system, the amount of alcohol in a liquid will reach equilibrium with the amount of alcohol in the air directly above the liquid. When applied to breath testing, the liquid is, of course, blood, and the air involved is the breath in the closed system, which is the lungs. Henry=s Law says that for drunk driving purposes, a particular ratio, at a constant pressure and temperature, can be assigned to this system; and the ratio commonly accepted for law enforcement purposes is that 2100 molecules of alcohol in the breath would be equal to one molecule of alcohol in blood. Therefore, in order for this breath test result to have relevance in the enforcement of drunk driving, the computer program used in the EC/IR 2, or other breath testing machines, must incorporate mathematical functions that will allow it to successfully apply Henry=s Law and the correct, or at least accepted, partition ratio.
Another mathematical calculation preprogrammed into the breath test machine is loosely termed Aslope detection.@ As defense attorneys know, this is referred to as a Aresidual mouth alcohol@ protector. The purpose of slope detection is to allow the EC/IR 2, or other breath test machines, to discern the presence of mouth alcohol and, therefore, invalidate the test result. The breath test operator should know mouth alcohol has been detected because the breath test machine should produce an error message or status code that reads Ainvalid sample,@ or sometimes Amouth alcohols.@ Slope detectors are also used to help assure that alveolar (deep lung) air actually composes the breath that is being tested. This is essential because, in order for Henry=s Law to have any forensic reliability, deep lung air must be measured, since the lung tissue at the base of the lung most closely approximates a closed system. Slope detection is an essential safeguard over the breath
test results of most breath machines, including the EC/IR 2; and like Henry’s Law, it is totally dependent upon a properly formatted computer program.
COMPUTER PROGRAM FOR BREATH TEST MACHINES
The term Acomputer program@ basically refers to the source code or instructions that run the breath test machine. What makes the EC/IR 2 and other breath test machines unique among measuring devices is that after the amount of alcohol in the breath sample has been measured, a variety of mathematical calculations must be performed to make the numbers relevant to the human system, in other words, to make the raw number relevant to the question at hand, ADoes the motorist have a prohibited blood alcohol level
The questions posed by the computer program litigation are essentially fourfold. First, are the mathematical equations employed by the EC/IR 2, or other breath test machines, properly formulated, calculated, and applied? Second, is the source code in the program acceptable to the relevant scientific community? Third, has the program been subjected to an appropriate level of scientific scrutiny and peer review, both inside and outside of the industry itself? Lastly, have any changes to the computer program and its code been made after the machine was approved in Tennessee for use by law enforcement? The answers to these questions govern whether or not it can be persuasively argued that the test results should be excluded on the basis that the State cannot guarantee their reliability. Unreliable evidence should not be introduced in a criminal trial, pursuant to Rule 703 of the Tennessee Rules of Evidence.
EC/IR 2 BREATH TEST MACHINES IN TENNESSEE
The breath test program in Tennessee began administratively in 1992 with the Tennessee Supreme Court=s opinion in State v. Sensing.1 Prior to this time, individual law enforcement agencies in Tennessee were free to purchase and use any breath test instrument which met the needs of their department. The Intoxilyzer 3000, manufactured by CMI, Inc., the PAC 1400, manufactured by CMI, Inc. (a portable version), and some later models of the Intoxilyzer 5000, manufactured by CMI, Inc., were the machines of choice throughout the state. Other machines were used, but these seemed to be the most popular by sheer numbers. As defense attorneys began to acquire these machines, many problems with accuracy and reliability were discovered.
In 1992, the Supreme Court authorized the Tennessee Bureau of Investigation to administer a state-wide breath testing program for law enforcement use, as a result of the legislature codifying the administrative breath test program in T.C.A. 38-6-103. However, the Supreme Court eliminated any particular scientific knowledge of the breath test operator for evidentiary purposes by stating in Sensing . . . Athat the tests were performed in accordance with the standards and operating procedure promulgated by the forensic services division of the Tennessee Bureau of Investigation: . . 2 As a result of the language by the Supreme Court, the breath test would be admitted into evidence if it met the parameters set forth in the opinion, without the operator having any scientific knowledge of how the breath test machine worked. It is very important for defense counsel to be aware of the last sentence in the Sensing opinion, which states: AA defendant is free to rebut the State’s evidence by the introduction of any relevant evidence admissible under the Tennessee Rules of Evidence.3 This sentence has allowed defense counsel to introduce into evidence testimony that the Intoxilyzer 1400, manufactured by CMI, Inc., does not meet the minimum requirements for the scientific appraisal of breath testing devices by the Tennessee Bureau of Investigation. Specifically, the 1400 does not have data storage capability as is required under the administrative regulations set forth by the Tennessee Bureau of Investigation.
This has caused the Tennessee Bureau of Investigation to eliminate the 1400 from its list of recommended breath test machines and ushered in the use of the EC/IR, manufactured by Intoximeters, Inc., of St. Louis. This was a first generation machine and used a combination of infrared light absorption and fuel cell analyzation technique. However, this machine was short lived in this state, due to its update by the manufacturer, and was touted as new and approved with the introduction of the EC/IR 2.
Defense attorneys have discovered many problems with the EC/IR mouth alcohol detector and radio frequency interference detector contained on the machines. The minimum standards for the scientific appraisal breath test machines by the Tennessee Bureau of Investigation provide that these machines must have these safeguards installed on these machines, such as an ability to detect mouth alcohol and an ability to prevent radio frequency interference. Radio frequency interference can best be explained by those wavy lines on your television set when someone runs the vacuum cleaner. In the field situation for breath tests, the interference can come from police radios, cell phones, and even the air conditioner compressor cycling on and off in patrol cars where the breath test machine is used in mobile applications. The Tennessee Bureau of Investigation began placing the EC/IR 2 in field situations in November of 2004.
EC/IR 2 COMPUTER PROGRAM
The Tennessee Supreme Court in Sensing requires that A. . . the machine itself has been tested, inspected, and certified in accordance with forensic division regulations to assure its accuracy before the results of an evidentiary breath test may be introduced.4 The Tennessee Bureau of Investigation has stated in letters to the manufacturer of the machine, Intoximeters, Inc., that the Acontroller software is a critical part of the breath test machine and must be evaluated prior to its certification.@5 The computer program for the EC/IR has been received, tested, and approved by the Tennessee Bureau of Investigation.6 It is not known at this time if the computer program for the EC/IR 2 has ever been received, tested, and approved by the Tennessee Bureau of Investigation. Therefore, defense counsel must ascertain if the computer program for the EC/IR 2 is relevant, discoverable, and admissible.
OTHER STATE LITIGATION
Florida uses an Intoxilyzer 5000 and a newer version, the 8000, manufactured by CMI, Inc., headquartered in Owensboro, Kentucky. This litigation has received the most publicity; but even within the state of Florida, there is incomplete agreement among the judiciary as to whether or not the computer program must be produced or even if it is relevant. An order from one case in Florida has held:
AWhen the law especially provides that the defendants are entitled to full information about the instrument that is used to establish their guilt, such full information logically includes making the instrument available for open inspection. Full information should include the software that runs the instrument. To construe this statute otherwise, is tantamount to granting the State authority to use confidential information (i.e., source code) to establish the guilt of the criminal defendant without disclosing the information to the defendant for inspection and possible impeachment. Unless the defense can see how the breathalyzer works and verify it is an approved machine, it remains nothing more than a mystical machine used to establish an accused’s
This issue has now worked its way to the Florida Supreme Court, and many cases have been dismissed in Florida because the manufacturer that makes the machine has refused to comply with the court order to release the source codes to the defense.
It is important to note that the successful defendants in some of the Florida counties were able to establish that several Intoxilyzers in use at the time each contained different hardware from one another and, in some instances, different software. What was even more troubling to the judges was that the State agency charged with assuring the scientific reliability of these devices had no explanation for why these machines were not exactly alike. Had these changes not already been established, then the judges certainly may have ruled otherwise. To a large extent, this is why the judges determined that the defense was entitled to examine the source code. Defense attorneys in the state of New Jersey have likewise been successful in obtaining orders from the trial courts, appellate courts, and now the Supreme Court of New Jersey, which requires the manufacturers to turn over the computer software program and source codes to the defense. The Supreme Court in New Jersey has entered an order which requires the computer program and source codes to be disclosed to defense counsel with a protective order requiring certain safeguards to prevent disclosure to unauthorized persons.8 However, to date, no actual computer program or its source codes has ever been turned over to defendants, either in the state of Florida, the state of New Jersey, the state of Arizona, the state of Virginia or, specifically, the state of Tennessee.
BREATH TEST LITIGATION IN TENNESSEE
There are no appellate opinions in Tennessee regarding this issue, since this issue is still in the trial courts in Tennessee. A trial court in Memphis has ordered a full evidentiary hearing to confront discrepancies between the manufacturer of the Intoxilyzer EC/IR, the forensic services division of the Tennessee Bureau of Investigation, testimony of special agents for the Tennessee Bureau of Investigation, and letters from the general counsel of the Tennessee Bureau of Investigation.9
It appears from internal documents of the Tennessee Bureau of Investigation that the controller software package for the EC/IR has been received, tested, and approved by the Tennessee Bureau of Investigation. However, a recent letter from the manufacturer of the machine denies that the controller software package has ever been delivered to the Tennessee Bureau of Investigation or any other state agency.10 A letter from the general counsel of the Tennessee Bureau of Investigation states categorically that the Tennessee Bureau of Investigation has never been in possession of the computer program for the EC/IR breath test machine.11 However, sworn testimony from special agents of the Tennessee Bureau of Investigation Forensic Services Division admits that the agency possessed, tested, and approved the computer software program for the EC/IR breath test machine.12 This matter remains at issue in the trial court until some resolution of the actual location of the computer program and the Ashell game@ played by the manufacturer, the Tennessee Bureau of Investigation, and the prosecutor.
PROPOSED LEGISLATION TO PREVENT DISCOVERY
At a recent conference of the International Association of Chemical Testers, proposed legislation to prohibit disclosure of the computer program was discussed. It did not take very long for this to become reality. A newspaper article in the Orlando Sentinel, published in the state of Florida on May 5, 2006, stated in part:
AThe Florida legislature voted Thursday to close a gaping loophole in a state law that has resulted in hundreds of breath alcohol tests being thrown out of court. By unanimous vote, the House outlawed the release of computer software secrets at the core of the breath alcohol testing machine used by every law enforcement agency in the state. The bill, approved earlier by the Senate, now goes to Governor Jeb Bush, who has not indicated whether he will sign it into law.
Also discussed at the International Association of Chemical Testers meeting was the possibility of passing federal legislation to prohibit disclosure of the computer software program. This would be passed under the guise of the administrative authority of the Department of Transportation and its subagency, the National Highway Traffic and Safety Administration. It is this agency that has threatened to withhold federal highway funds if states refused to lower the acceptable limits of blood alcohol.
Even if states or the federal government pass such legislation, defense attorneys realize that whatever the legislature does is not necessarily the end of relevant discovery. Ultimately, the questions of admissibility of evidence and obligations or rights of discovery are encompassed in the due process and compulsory process confrontation clauses of the federal constitution. A court may
very well decide these protections outweigh this legislation, and an ally from the most unexpected resource has now appeared.
THE UNITED STATES SUPREME COURT
The United States Supreme Court has just ruled in the criminal case of Holmes v. South Carolina, __________ Supreme Court __________, 2006, Westlaw 1131853 (2006). Holmes concerned a defendant accused and convicted of murder. Part of the State=s evidence against him was fingerprints and other forensic evidence found at the scene. Holmes alleged throughout the investigation, trial, and appellate procedures that he had been framed for the murder. Defense counsel attempted to introduce forensic evidence which would, if admitted, discredit the State=s forensic evidence. An evidentiary rule of law in South Carolina prohibited the defendant from introducing such forensic evidence when Athere is strong evidence of defendant=s guilt, especially where there is strong forensic evidence, the proffered evidence about a third party=s alleged guilt may or must be excluded@ (361 S.C., at 342605 SE 2nd at 24). This was the ruling in the trial court, the intermediate appellate court, and the Supreme Court of South Carolina. The matter was eventually decided by the Supreme Court of the United States, and this rule was held unconstitutional. The United States Supreme Court cited Crane v. Kentucky, 476 U.S. 683, in its ruling, stating:
AWhether rooted directly in the due process clause of the Fourteenth Amendment or in the compulsory process or confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense.
The Holmes case is very compelling to DUI practitioners seeking the discovery and evaluation of the computer program for breath test machines because it addresses the strengths of the prosecution=s case versus the strength of the defendant=s case without having access to the same
evidence. ABy evaluating the strength of only one party=s evidence, no logical conclusion can be reached regarding the strength of contrary evidence offered by the other side to rebut or cast doubt.13 What would be the outcome if the defendant=s forensic case was very strong? Would the State be prohibited from prosecuting the defendant? This exact issue was used by the United States Supreme Court in Holmes to allow introduction of forensic evidence for the defendant. The opinion, the first by Justice Alito, stated:
AThe rule applied in this case is no more logical than its converse would be, i.e., a rule barring the prosecution from introducing evidence of defendant=s guilt if the defendant is able to proffer, at a pretrial hearing, evidence that, if believed, strongly supports a verdict of not guilty. In the present case, for example, the petitioner proffered evidence that, if believed, squarely proved that White, not petitioner, was the perpetrator. It would make no sense, however, to hold that this proffer precluded the prosecution from introducing its evidence, including the forensic evidence that, if credited, provided strong proof of petitioner=s guilt. The point is that by evaluating the strength of only one party=s evidence, no logical conclusion can be reached regarding the strength of contrary evidence offered by the other side to rebut or cast doubt. Because the rule applied by the State Supreme Court in this case did not heed this point, the rule is >arbitrary= in the sense that it does not rationally serve the end that other similar third party guilt rules were designed to further. Nor has the State identified any other legitimate end that the rule serves. It follows that the rule applied in this case by the State Supreme Court violates a criminal defendant=s right to have >a meaningful opportunity to present a complete defense (Crane, 476 U.S. at 690, 106 S. Ct. 2142 quoting Trombetta, 467 U.S. at 485, 104 S. Ct. 2528).
Within Tennessee, this Holmes opinion certainly is supported by the previously quoted language in State v. Sensing, A. . . A defendant is free to rebut the State=s evidence by the introduction of any relevant evidence admissible under the Tennessee Rules of Evidence.@14 So the question becomes, is the computer program for the breath test machine Arelevant@ under Rule 401 of the Tennessee Rules of Evidence? While there may be some discussion on both sides of the issue, the Tennessee Bureau of Investigation has in its written correspondence with the manufacturer of the EC/IR 2, Intoximeters, Inc., and by testimony of its special agents in the trial court, established that the evaluation of the controller software is “critical” to the certification of the machine by the Tennessee Bureau of Investigation.15 Therefore, since the state agency in charge of the breath test program deems the controller software to be critical, any allegations by the prosecution that the computer program would be irrelevant would be faced with the Tennessee Bureau of Investigation=s written documentation and testimony of special agents.
If the source codes and the computer program for the breath test machine are relevant, are they discoverable under Rule 16 of the Tennessee Rules of Criminal Procedure, or any other method for discovery? Rule 16 states in part . . .
A(C) Documents and tangible objects. B Upon request of the defendant, the State shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody, or control of the State, and which are material to the preparation of the defendant=s defense or are intended for use by the State as evidence in chief at the trial, or were obtained from or belong to the defendant.
(D) Reports of examination and tests. B Upon request of the defendant, the State shall permit the defendant to inspect and copy or photograph any results or reports of physical or mental examinations, and of scientific tests or experiments, or copies thereof, which are within the possession, custody, or control of the State, the existence of which is known or by the exercise of due diligence may become known, to the District Attorney General and which are material to the preparation of the defense or intended for use by the State as evidence in chief at the trial.
Thus, it seems clear under Rule 16, that the computer program and its source codes would be discoverable by the defendant, both under subsection (C) as a Atangible object and under subsection (D) as Ascientific tests or experiments.@ This is based on the controller software package being a critical part of the evaluation of the EC/IR 2 breath test machine and the tests performed (or should have been performed) by the Tennessee Bureau of Investigation in order to certify the machine under the forensic guidelines set forth by the Tennessee Bureau of Investigation. To allow the prosecution to have access to the computer program, its codes, and the method by which the breath test machine delivers a number and then to use that number to convict the defendant under
T.C.A. 55-10-401, without allowing the defense access to the same forensic evidence and its evaluation, is exactly what the United States Supreme Court addressed in Holmes (supra).
Justice Alito, in his opinion, ruled that it was impossible to test the strength of the prosecution=s forensic proof without allowing the defendant access to the same forensic proof. If the converse were true, then the State could simply produce volumes of paperwork, computer programs, and scientific evidence that the defendant was guilty. The defendant then would not be allowed to introduce proof to the contrary, because the State=s proof was Aoverwhelming.@ While there seem to be many exceptions in the United States Constitution to the criminal charge of DUI, at least Justice Alito is not willing to extend the DUI exceptions to include the defendant=s inability to mount a defense based on forensic evidence that is in fact in possession of the State.
Lastly, the admissibility issue of the computer program seems quite simple. Seldom is anything quite as simple as it seems. This is particularly true in computer software litigation where the manufacturer of the machine and the prosecution both want to prevent the defense from obtaining the controller software program. Again, the Tennessee Rules of Evidence address this issue.
Rule 402 provides in part that evidence that is relevant is generally admissible. The definitions of writings and recordings include a computer program as numbers or magnetic impulses in Rule 1001. All computer programs that have zeroes and ones for the code contain real numbers that function in combination to actually comprise the computer controller program. Fortunately for the defense, Rule 1003 of the Tennessee Rules of Evidence provides that a copy of the program may be admissible unless there is a question as to its authenticity. Since the source of the Defendant’s copy of the program will be from the prosecution, or ultimately from the manufacturer, there will probably be no question as to authenticity. But, just in case, Rule 1004 provides in case the original is not produced, a copy is admissible if at a time when an original was under the control of the party against whom it is offered, that party was put on notice by the pleadings or otherwise that the contents would be a subject of proof at the hearing but does not produce the original at the hearing. This may very well occur, since the manufacturer and the State do not wish to disclose the program, and the defense may have to obtain it in pieces and from different sources.
Certainly the defense of DUI matters, and those with extensive forensic evidence, are very difficult to successfully defend. If it were not so, then the State Supreme Court of Tennessee would not have recently recognized DUI Defense as a specialty by the Commission on Continuing Legal Education Specialization. However, the difficulty of a successful defense of DUI charges where the scientific evidence is great does not mean that it is impossible. The more scientific evidence that the defense is able to possess, the easier it is to rebut the State=s mythical machine.
And what of those lawyers who choose to do battle with the State’s now-you-see-it/now-you-don=t computer program for breath test machines? Are they at a disadvantage? Are they being hopelessly hoodwinked by the appearance and disappearance of the controller software for the EC/IR 2 breath test machines currently in use in the state of Tennessee? The answer is yes, if the defense bar is willing to sit back and do nothing. Where there is no vision, the people perish.
Jason McElwain will forever be a hero. At 5’6″, he was too small to make the basketball team; but because he loved basketball, he signed on as a team manager for the Greece Athena High School located in Greece, New York. In addition to his height, Jason lives with autism. Only those who are blessed with having friends or relatives who endure autism can appreciate Jason=s accomplishment. At the final home game of the season, the seventeen-year-old senior, who usually sits on the bench in a white shirt and black tie, put on a uniform and entered the game. Jason did not know his limitations and did not know that he was not supposed to be able to play basketball. However, Jason loved basketball and loved his high school teammates.
In four minutes, Jason scored twenty points, making six out of ten three-point shots. Jason missed a few shots on the way and would have made another three pointer, but his foot was on the line and he had to settle for two points. Greece Athena won the game 79 to 43. At the end of the game, Jason signed autographs, posed for pictures, and was hoisted on the shoulders of his teammates.
Most defense lawyers are not prepared to file discovery motions for the computer software program for the breath test machines currently in use in the state of Tennessee because they do not know how. Even if they knew how, they are not sure what they would do with the results. However, organizations like the Tennessee Association for Criminal Defense Lawyers and the National College for DUI Defense exist to provide quality continuing legal education and specialized training for those defense lawyers who, like Jason, can play, and even win, if just given the chance.
How many innocent people does the State need to convict using a breath test machine that is inaccurate, unreliable, and protected by the prosecutors? The State buys these breath test machines with public money, but they won=t let the public look under the hood of the machine. We as defense attorneys are indeed the true Public Defenders. The information exists, the training is available through continuing legal education, and your comrades in defense are willing to help. Do not focus on your limitations, but be a hero to your client. Get off the bench of complacency and get into the game of competency. Represent your client zealously and find those documents that are being hidden from you and your client.
As Sir Winston Churchill addressed the graduating class of a school in London during the 1940′s, England was embroiled in a war that no nation believed she could win. With this as a backdrop, Churchill spoke these words, ANever, never, never, never, never give up.@ Be a hero to your client and never give up.
1State of Tennessee v. James D. Sensing, No. 01-S-01-9109-CC-00090, 1992.TN.2045, 843 S.W. 2d 412.
2Sensing, supra at 416.
3Sensing, supra at 418.
4Sensing, supra at 418.
5Tennessee Bureau of Investigation internal memorandum, July 3, 1995.
6Tennessee Bureau of Investigation internal memorandum, July 3, 1995.
7State of Florida v. Carole Mae Bjorldaud, et. Al. No. 2 DO6-47, District Court of Appeals of Florida Second Circuit, (Florida App. 4-7-06).
8State of New Jersey v. Jane H. Chun, et. Al. Docket 58,879 (Supreme Court of New Jersey 2-3-06).
9State of Tennessee v. Kenneth Willis, No. 05-01311, Shelby County Criminal Court, Div. 2.
10Letter from Intoximeters, Inc., dated April 21, 2006.
11Letter from Jeanne Broadwell, General Counsel to the Tennessee Bureau of Investigation, dated May 1, 2006
12State of Tennessee v. Kenneth Willis, supra.
13Holmes v. South Carolina, supra.
14See Note 3.
15See Note 5.
ABOUT THE AUTHOR
Paul E. Lewis is a member of the Tennessee Association of Criminal Defense Lawyers and is board certified in DUI defense by the National College for DUI Defense. He is a certified breath test machine operator, a certified field sobriety test instructor, and a certified phlebotomist. As a former municipal court judge, he has disposed of over one thousand DUI cases and tried to verdict over one hundred DUI trials.
As a defense attorney, Mr. Lewis has successfully defended blood, breath, and urine cases since 1996, and was responsible for the elimination of the Intoxilyzer 1400 breath test machine in Shelby County. Mr. Lewis has lectured at DUI seminars for the Tennessee Association of Criminal Defense Lawyers, other state organizations, and national organizations. His e-mail address is [email protected].
ABOUT THE AUTHOR
Patrick T. Barone is the founding member of the Barone defense firm located in Birmingham, Michigan. His practice is limited exclusively to the defense of drinking drivers. Mr. Barone has written many articles on trial practice and drunk driving defense tactics, and these articles have been published both locally and nationally. He is a frequent lecturer on these topics and has also appeared on television and radio as a drunk driving defense expert. He is a new author of the well known and very well respected legal treatise entitled, ADefending Drinking Drivers@ (James Publishing) and the author for the Michigan supplement to AThe DUI Book.@ He may be reached at www.mi-dui-central.com.
Find Michigan DUI Lawyer | GERD Can Falsely Raise Breath Test Results
It is possible for a person arrested for drunk driving who is suffering from GERD to have a breath test
Find Michigan DUI Lawyer | The Breath Test Defense of Breathing Pattern
There are many reasons why the breath test results in any particular case might be
Find Michigan DUI Lawyer | Radio Frequency Can Cause Falsely High Breath Test Results
In reviewing videotapes of our client’s DUI arrests we often see cell phones being used