Combined Study Set

Daubert v. Merrell Dow Pharmaceuticals

1993 - Parents sued the manufacturer of Benedectin claiming it caused their children’s birth defects, offering expert testimony based on non-generally-accepted studies (animal/test tube studies, reviews of the chemical structure of Benedectin, reanalysis of previous studies). Under Rule 702 the trial judge acts as the gatekeeper regarding relevance and scientific validity. The courts must evaluate the reliability and relevance of expert testimony to ensure that the expert opinions presented are based on sound scientific principles.

Daubert Standards

1. Whether theory or technique can be or has been tested

2. Whether it has been subject to peer review and publication

3. Its known or potential error rate

4. The existence and maintenance of standards controlling its operation

5. Whether its attracted widespread acceptance within a relevant scientific community

Frye v. United States

1923 - Frye wanted to use a polygraph test as evidence of his innocence but its reliability was still unclear. The judge ruled that the polygraph test was inadmissible because there was not enough consensus among experts regarding its reliability. Established the “general acceptance” standard which requires scientific techniques are admissible only if accepted by the relevant community. This case set a precedent for the admissibility of expert testimony and emphasized the importance of acceptance from the scientific community for admissibility.

Frye Standard

Has to be generally accepted practice by the scientific community for expert testimony

Hill v. State

1953 - Texas - An objection was raised to the Harger breath test results because the officer was not qualified to interpret or explain the scientific basis of the instrument/formula. The court agreed with the defense regarding the inadmissibility of the breath test results. There was no proof of correct chemical preparation, no expert supervision, and an unqualified witness relied on a chart (hearsay) to interpret results.

Hill v State Essentials to Allow Test Results In

1. Proof controls were tested and approved

2. Proof the operator and instrument are both properly trained and maintained

3. Proof by the witness that they are qualified to give the analysis results

McKay v. State

1950 - Texas - McKay was convicted of DWI after agreeing to a breath test and admitted to drinking beer. An expert witness testified that the breath test results were accurate, providing reasons for it, and the court found the results to be admissible. The expert witness’s opinion agreed with the officer’s observations (alcohol on the breath). The court affirmed the conviction by finding that the evidence was sufficient to support the jury’s verdict of guilty.

Source Code Evidentiary Hearings in Implied Consent and Criminal Matters

2011 Order - Minnesota - The full analysis of the instrument led to the conclusion that the results

of the Intoxilyzer 5000EN are highly reliable and the error in the source code have no significant impact

State v. Chun

2013 - New Jersey - The court found the Alcotest 7110 with version 3.11 to remain scientifically reliable and able to generate results to prove driving under the influence of alcohol. However, this order included a remedy to protect the equal protection rights of women over the age of 60 due to a refusal from an insufficient air sample.

State v. Downie

1990 - New Jersey - The defense challenge to the use of a 2100:1 partition ratio because it leads to inaccurate/unreliable results was rejected because it will usually underestimate the amount of alcohol in the blood and the results are truncated. Therefore, it was established that breathalyzer results are valid if it is in proper working order, the test was administered by a qualified operator, and it was used according to accepted procedures

State v. Melendes

1994 - Texas - This case emphasized that it is not required that only one person observe the test subject, however, the subject must be continuously observed for 15 minutes immediately preceding the test. It is not required that the same operator both observe and perform the test. The requirement is that both officers are currently certified operators.

Rule 702 of the Texas Rules of Evidence

A witness who is qualified as expert based on knowledge, skill, training, experience, or education is allowed to testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact understand the evidence or to determine a fact in issue.

Miranda Warning and Breath Test

No, the Miranda warning does not have to be read beforehand for the breath test to be admissible in a criminal court.

Burden of Proof in Criminal Cases

Beyond a reasonable doubt.

Burden of Proof in Civil Cases

Preponderance of evidence (more likely than not).

Admissibility of Breath Test Results in ALR Hearing

Breath test results are admissible in ALR without retrograde extrapolation on the basis of Mireles v. Texas Department of Public Safety (1999) which found that 'If unextrapolated breath-test results are sufficient to sustain a criminal conviction for drunk driving, they are certainly sufficient to sustain an administrative license suspension.'

Time of Arrest

The defendant is being prosecuted based on signs of intoxication at the time of operating a motor vehicle and the alcohol concentration is later used for context along with retrograde extrapolation.

Time of Test

The defendant is being prosecuted based on the alcohol concentration at the time of test.

Texas DWI Law

The Texas DWI law is a 'time of test law'

Discovery Motion Compliance

If it is not signed by a judge, you are not required to comply and you should notify the prosecutor.

Motion in Limine

A pre-trial request made to the judge, may come from either the defense or prosecution, to exclude certain evidence or testimony from the trial.

Correcting Testimony

Immediately state that what you said previously was incorrect and request to state the correct information to correct the record.

Brady v. Maryland

1963 - Supreme court decision ruling that the defense has the right to examine all evidence that may be exculpatory in nature. The prosecution will not only release evidence that the defendant might be guilty of a crime, but also release all evidence that might show that the defendant is innocent as well. Withholding exculpatory evidence violates the due process clause of the 14th amendment irrespective of the intentions of the prosecutors. Material evidence must be disclosed upon request to ensure fair trials for the accused including evidence that could undermine a witness's credibility (impeachment evidence).

Bullcoming v. New Mexico

2011 - A blood-alcohol report was admitted through the testimony of a different analyst who neither performed nor observed the test. The surrogate testimony of a second forensic analyst, who did not observe or review the original blood alcohol content results, was inadmissible. The defendant has a right to confront the analyst who made the certification, unless the analyst is unavailable at trial, and the accused had a pre-trial opportunity to cross-examine the scientist.

Mata v. State

2001 - Retrograde may be admissible in a case only if minimal information is available about the physical aspects of the driver and their activities such as time of last drink, drinking pattern, food in the stomach, driving times, etc. The court found it abused its discretion in admitting that part of McDougall's testimony pertaining to the extrapolation of Mata's BAC since the state did not provide clear and convincing evidence that McDougall's retrograde was reliable.

Melendez-Diaz v. Massachusetts

2009 - Prosecution introduced affidavits from lab analysts certifying the seized substance was cocaine without calling the analyst to testify. The court found the affidavits to be testimonial and admitting them without live testimony violated the sixth amendment. Prosecution must have lab technicians testify in person unless the analyst is unavailable and the defendant has had a chance to cross-examine restricting the use of certificate-only evidence.

The Michael Morton Act

The Michael Morton Act is a Texas law enacted in 2013 that aims to reduce wrongful convictions by requiring prosecutors to disclose evidence to defendants. It was named after Michael Morton, who was wrongfully convicted of his wife's murder and spent nearly 25 years in prison before being exonerated by DNA evidence. It is an open file policy of all evidence regardless if it is material to guilt or punishment (Exculpatory, impeachment, or mitigating documents, items, or information).

According to the New Jersey Supreme Court in State v. Downie, this type of blood is the most accurate indicator of the amount of alcohol affecting the brain.

1990 - Arterial

Texas Rules of Evidence Rule 902

Texas Rules of Evidence Rule 902

Allows for one analyst's testimony regarding another analyst's reports.

Texas Rules of Evidence Rule 803

A case requiring all case-relevant documents to be turned over to the defense by the state

Brady v Maryland

Requires all documents to be turned over to the defense by the state regardless of relevance to guilt or punishment

Michael Morton Act

Voir dire

A procedure done outside of the presence of the jury to determine the expertise of the witness and their qualifications or to address confidentiality, privilege, competency, or admissibility issues.

Open records request response

Must respond (provide records or request exception) within 10 days.

Texas DWI and CDL Implied Consent laws

Found in the Transportation Code.

Texas DUI law

Found in the Texas Alcohol Beverage Code

Texas Boating While Intoxicated law

Found in the Texas Penal Code

Texas Consumption of Alcohol by a Minor law

Found in the Texas Alcohol Beverage Code.

DUI Minor enforcement

Class C Misdemeanor for under 21

Public Intoxication definition

Found at 49.02 of the Penal Code, a person has committed an offense if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another.

Minimum alcohol concentration for DWI

There is no minimum breath alcohol concentration (loss of normal use). 0.080 g/210L for both results.

Minimum alcohol concentration for ALR offense

0.080 g/210L for both results.

Duces tecum

Translates to 'you shall bring with you' meaning a subpoena duces tecum requires that you provide documents, records, or other physical/tangible forms of evidence.

Subpoena

A court order requiring your presence to provide testimony at a specific time and place.

DIC- 56

Breath Test Technical Supervisor Affidavit
An affidavit stating the alcohol concentration of an individual signed by the technical supervisor for ALR.

Consequence for CDL refusal

A person with a CDL is disqualified from driving a commercial motor vehicle for one year if they refuse to give a breath sample.

Consequence for CDL with 0.040 or above

A person with a CDL is disqualified from driving a commercial motor vehicle for one year if they have results of 0.040 or more when driving a commercial motor vehicle.

Consequence for CDL with 0.080 or above

A person with a CDL is disqualified from driving a commercial motor vehicle for one year if they have results of 0.080 or more when operating a noncommercial vehicle.

Widmark formula

A = (c)(Vd)(w)(X); A = ethanol consumed (g), c = ethanol concentration (g/210L), Vd = Volume of distribution (L/kg), w = weight (kg), X = Unit conversion (10 dL).

Top few inches of the small intestine

Duodenum.

Average hematocrit in men vs women

Men have a higher average hematocrit than women.

Beer-Lambert Law

A law stating that absorbance is proportional to concentration, used in breath alcohol testing.

Drunkometer

The first commercially available breath alcohol testing instrument, invented by Dr. Rolla Harger in 1937.

Breathalyzer

The first breath alcohol testing instrument used on a statewide basis in Texas, invented by Dr. Robert F. Borkenstein in 1954.

Quantitative Analysis

The determination of the numerical value or amount of a substance present.

Qualitative Analysis

The identification of a substance based on its features.

Channel 1

9.5 Microns - Ethanol Quantitative Channel.

Channel 2

9.2 Microns - Ethanol Confirmatory Channel.

Channel 3

9.7 Microns - Ethanol Confirmatory Channel.

Channel 4

8.1 Microns - Interferent Channel.

Specificity for ethanol

Accomplished through the use of multiple wavelengths of infrared and comparison of absorption ratios across four channels.

Fingerprint analogy

The absorption of ethanol is unique in a living person, similar to a fingerprint.

Non-volatile substances

Substances on human breath that are invisible to infrared and do not interfere with ethanol measurement.

Wavelength and energy relationship

Wavelength and energy/frequency are inversely proportional; longer wavelengths indicate lower energy/frequency.

Infrared energy comparison

Infrared energy has a longer wavelength and lower energy than visible light.

Texas custom Subject Test sequence

OACABAWABACAO: Operational Systems Check, Air Blank, Calibration Verification, Air Blank, Breath Sample, Air Blank, Waiting Period, Air Blank, Breath Sample, Air Blank, Calibration Verification, Air Blank, Operational Systems Check.

Operational Systems Check

Instrument performs an internal analysis of voltages and the system.

Air Blank

System purge of the sample chamber by drawing in room air to ensure that the ethanol concentration is reported at 0.000 before the next analytical step.

Calibration Verification

Analysis of a known sample to determine if the instrument is providing accurate results.

Breath Sample

Subject provides a breath sample to determine their breath alcohol concentration.

Waiting Period

Ensures at least two minutes separate the breath samples via a one minute waiting period to further ensure no mouth alcohol via the "No 0.020 Agreement"

Zero Set

Tells the instrument the baseline of how much infrared light is present in the instrument/sample chamber prior to any sample being introduced. The difference between the IR energy absorbed by the incoming sample and the value determined during the zero set is the quantity of energy used to determine the ethanol concentration.

Deficient Sample

Test stopped by instrument due to the subject not providing an adequate sample within 3 minutes. The subject did not meet the time, pressure, and slope requirements within the 3 minute period

Operational System Check Failure

An internal system check detected an error (breath tube not heating enough or consistently). The instrument has been disabled and should be inspected or possibly repaired by the technical supervisor. The operator should contact the technical supervisor ASAP.

Improper Sample

Test stopped by instrument because the subject sample was delivered at an improper time.

Unable to Zero Instrument

Test stopped by instrument due to the inability to establish a zero baseline. An instrument issue was detected. The electronics stability of the IR signal was not acceptable

Highest Reportable Value

0.400 g/210L; if exceeded, a report will state 'Limit of Detection Exceeded'.

Limit of Quantitation

The highest alcohol concentration reading possible in the sequence of analysis box, which is 0.650 g/210 L. Measurement Range Exceeded

Infrared Pre-Amp Control Module (IRPCM)

Provides the interface between the source, detector, and the SOM card.

Status Code #8

Indicates the simulator is out of calibration; requires calibration/temperature adjustment.

Operational Temperature Range of Sample Chamber

47°C +/- 0.2°C.

Nominal Operational Temperature of External Breath Hose

45°C +2°C -9°C.

Continuity Setting

A multimeter setting used to check for shorts in a circuit.

Heated Components of Intoxilyzer 9000

Front Solenoid, External Breath Hose, Internal Heated Breath Hose, Block Heater, and Heated Female Simulator Connector.

Measuring DC Voltage

Set the multimeter to the DC voltage setting, then ground the black probe and place the red probe on the test point. The display will show the voltage reading in volts.

Measuring AC Voltage

Set the multimeter to the AC voltage setting, then ground the black probe and place the red probe on the test point. The display will show the voltage reading in volts.

Troubleshooting Bad Pump or Side-Solenoid

If the standard deviation of multiple ACAs is high and the results are low then you may have a bad pump or side-solenoid. You may also test these by going to the monitors screen and pressing the pump and wet bath buttons to listen for the pump come on and the side-solenoid switch, checking for the presence of bubbles in the solution when both are on.

12V500 Reference Sample Device - Top Housing

Incorporates all the important features of the simulator, it is heated and controlled by use of a head space heater.

12V500 Reference Sample Device - Backlit LCD Graphics Display

Provides a display of the simulator temperature.

12V500 Reference Sample Device - Dual Ultra-Stable Precision Thermistor Beads

Consists of two separate thermistors. One is used to control the heat while the other is used to monitor.

12V500 Reference Sample Device - Heating Element

Provides heat for the solution.

12V500 Reference Sample Device - Baffle Plate

Prevents excess solution from entering the headspace or outlet port.

12V500 Reference Sample Device - Agitator

Stirs the solution to maintain uniform temperature.

12V500 Reference Sample Device - Dispersion Tube

Provides delivery of air uniformly throughout the solution to create a vapor sample.

12V500 Reference Sample Device - Laboratory Glass Container

Holds the solution.

12V500 Reference Sample Device - 500 mL Mark (+/- 5%)

Marks the solution level.

12V500 Reference Sample Device - Input Power Jack

12 VDC @ 8 amps: Provides power to the simulator.

12V500 Reference Sample Device - RS-232 Communication Port

Provides communication to the Intoxilyzer 9000.

12V500 Reference Sample Device - UHC

Universal Heating Conditioner: Moves the air to maintain uniform temperature.

Intoxilyzer 9000 - Power Supply

Receives AC power and converts to DC to send to the system board. 120 VAC to 12 VDC.