Direct Examination of the Defense Expert

Direct Examination of the Defense Expert Prepared by: Law Office of Felipe Plascencia 15851 Whittier Blvd., 2nd Floor Whittier, CA 90603 (562) 947-8218 TEL (562) 947-8323 FAX 1

DIRECT EXAMINATION OF THE DEFENSE EXPERT Doing direct examination of an expert is not one of my favorite parts of a DUI trial. However, if the police officer is properly cross-examined on all the relevant physiological issues, your expert can hit mostly home runs when he testifies during direct examination. following: Some of the essential points you should try to get from the police officer are the 1. Client had a strong odor of alcohol. a. Your expert can counter your client s foolish answer of I stopped drinking two hours ago. Strong odor simply means he recently stopped drinking. It has nothing to do with the level of intoxication; 2. Client had normal pupils (establish that they were not dilated). a. People who are under the influence should have dilated pupils. 3. Client did not use the bathroom from the time of the stop to the time the client was booked. a. This is especially important if your client has a high blood alcohol level. b. High levels mean that he/she must have drank many beers. If he did drink many beers, every juror will wonder why your client did not go to the bathroom. c. Alcohol increases urine production. 4. The PAS test is only a field sobriety test. a. Establish that if your client gave a PAS test but did not give a breath test at the station or a blood test, he would be charged with a refusal. You are trying to establish that the PAS test is not really a valid chemical test. 5. Whenever possible, read the vehicle code if it describes the PAS as field sobriety test. a. In California, Vehicle Code 23612 (h) states the following: A preliminary alcohol screening test that indicates the presence or concentration of alcohol based on a breath sample in order to establish reasonable cause to believe the person was driving a vehicle in violation of Section 23140, 23152, or 23153 is a field sobriety test and may be used by an officer as a further investigative tool. 6. The police officer did not change mouthpieces between breath samples. a. Contamination is more likely when you have a strong odor of alcohol because the person may still have alcohol the stomach. This increases the chance of regurgitation. 7. The police officer did not do a proper 15-minute observation period. a. According to most experts, the best way to avoid contamination of breath samples is to do a proper 15-minute observation period. 2

The above information is not meant to be an exhaustive list of the key points that should be obtained during the cross-examination of the police officer. However, it is essential to lay the proper groundwork for your defense expert to discredit the validity of breath results or blood results. The material included in this packet should help you guide your plan of attack with the help of your defense expert. The following questions outlined below are made possible with the help of Attorney Vince Tucci. Even if you have never done a DUI trial, by simply reading the questions to your defense expert during direct examination should enable you to sound like an experienced DUI lawyer. Remember not to worry about going to trial even if you do not have any good material to impeach the prosecutor s witnesses. Don t forget that most of us defense attorneys try cases by looking for fumbles through out the trial. Often times that is all we have. Good things happen when you say ready for trial. Background, Training & Experience What is your current position? What does an expert in forensic toxicology mean? What is your educational background? What is your work experience in this area? Do you know the state s expert? Prior to retirement from the Los Angeles Sheriff s Department, did you do the same thing as the people s expert in coming to court to testify? How many times have you testified as an expert? You say the people called you approximately 2500 times as their expert, have they contacted you since your retirement? 3

Have you told any member of the District Attorney s office that you would not testify as an expert for them? Would you testify as an expert for the District Attorney s office if they called you as an expert? Count 1 A Count Discussion = Under the Influence at Time of Driving Alcohol s Affect on People How does alcohol affect a person? When does alcohol affect a person? 3 Phases of Alcohol Ingestion What is the Absorptive Phase? What is Peak or Plateau Phase? What is the Elimination Phase? Is there a problem associated breath testing in the absorptive phase? Has Dr. Forney and/or Dr. Dubowski expressed an opinion about giving a breath test during the absorptive phase? What is that problem? Can this machine tell us when a person blows into it which of the 3 phases of alcohol ingestion a person is in at the time of the test? Opinion & Case Review What is your opinion as to when all people are under the influence for driving purposes? Ever change your opinion from working at Los Angeles Sheriff s Department Crime Lab (LASD) to working on the defense side? What do you utilize to form your opinion whether or not someone is impaired by alcohol for driving purposes? In this case, what did you review in order to form your opinion? 4

Any problems? What are they? FST s & Divided Attention What is divided attention? Is driving a divided attention task? Is responding to police lights a divided attention task? Is continued driving a divided attention task? Is parking of the vehicle a divided attention task? Is speaking with an officer and retrieving documents a divided attention task? Is a Field Sobriety Test a divided attention task? As it relates to a charge of driving while.08 or above, do you have any expertise regarding FST s? What is the significance of those tests? What conclusions did you draw from how my client performed? Mental & Physical Impairment Mental impairment comes before physical impairment? If you are not mentally impaired, you can t be physically impaired? No mental impairment, no DUI? Would you expect to see some mental impairment even with someone with a high tolerance? Have you read Dr. Forney s articles on Tolerance? Did you personally hear Dr. Forney speak at Indiana University regarding the issue of tolerance? What does he say about Tolerance? Consistent with sobriety? 5

Count 2 B Count Discussion.08 or above BAC at Time of Driving Title 17 What is Title 17? So it is the law in the State of California regarding how Forensic Alcohol Analysis should be conducted? Is it fair to say that Title 17 sets up the minimum standards of procedure for Forensic Alcohol Laboratories to follow in conducting Forensic Alcohol Analysis? (a) Inherent Margin of Error Does Title 17 allow for an inherent margin of error in a breath machine? what is that allowed variance? If so, Does Dr. Jones have an opinion about the inherent margin of error regarding breath testing instruments? (b) 15 Minute Observation Period Is there a 15 minute continuous observation required by Title 17? What is the purpose for the 15 minute continuous observation required by Title 17? What happens if there is a violation/noncompliance with the 15 minute continuous observation required by Title 17? What is your confidence in a breath sample obtained if there is a violation or noncompliance with the 15 minute continuous observation required by Title 17? Is a 15 minute continuous observation a LASD Crime Lab procedure as well as a requirement of Title 17? Is a 15 minute continuous observation a manufacturer guideline as well as a requirement of Title 17? So if there is a violation or noncompliance with the 15 minute continuous observation, then an officer is violating the law in the State of California Title 17 with respect to breath testing? So if there is a violation or noncompliance with the 15 minute continuous observation, then an officer is violating a LASD Crime Lab procedure with respect to breath testing? 6

So if there is a violation or noncompliance with the 15 minute continuous observation, then an officer is violating manufacturer guideline with respect to breath testing? Preliminary Alcohol Screening Device As it relates to a charge of driving while.08 or above, do you have any expertise regarding PAS Device? How does it work? What do you think of its reliability in general? What do you think of its reliability in this case? Can you get a reading from the PAS machine by simply eating Wonder Bread even if you have not consumed alcohol? How is that possible? Is the PAS test a chemical test or just a field sobriety test? Are you suppose to change mouth pieces between samples? Why is that important? What is a slope detector? Does the PAS machine have a slope detector? Are you suppose do a check list when using any breath testing instrument? How expensive is a PAS machine? What happens when there is trapped mouth alcohol? What is volatile mouth alcohol? Breath Machine As it relates to a charge of driving while.08 or above, do you have any expertise regarding the breath test machine IR-3000, Intoxilyzer 5000, Data master, EC-IR? How does it work? Are these breath machines perfect? 7

What do you think of its reliability in general? What do you think of its reliability in this case? Mouth Alcohol When you perform a calibration check, does that check for mouth alcohol? When you perform a air blank, does that check for mouth alcohol? When you perform a standard cycle, does that check for mouth alcohol? Can this machine be fooled? Can the slope detector be fooled? How about the odor of alcohol that the officer smell does that possible tell you anything about residue of alcohol in the mouth possibly? Looking at Exhibit, (Breath Test Checklist) was the test given in a proper manner? What would have been done for the breath test to have been properly collected and reliable? Is that your opinion or is that actually being done? Blood more accurate than breath to determine BAC? Safeguards Duplicate breath samples within two minutes and registering within an.02 of each other is a safeguard which insures against any possible contamination, do you agree? Is two tests within two minutes enough time to rule out mouth alcohol contamination? What is one of the most important safeguards against mouth alcohol? Can officers in the filed easily detect a silent burp? How bout a silent regurgitation? Should the officers check the subject s mouth prior to giving him/her a breath test? What can happen if you do not check the mouth? 8

Absorptive Phase Is there a problem associated breath testing in the absorptive phase? What is that problem? Can this machine tell us when a person blows into it which of the 3 phases of alcohol ingestion a person is in at the time of the test? Any doubt in your mind that my client was still in the absorptive phase when tested? How about the odor of alcohol that the officer smell does that possible tell you what phase of alcohol ingestion a person may be in? So you indicating that when someone is tested in the absorptive phase as we have here that it will overstate or overestimate their true BLOOD ALCOHOL LEVEL? How much? This has nothing to do with whether or not the machine is working accurately does it? ERROR MARGIN What is the error margin in this machine? Do other prominent experts in the field have the same opinion? Rising Blood Alcohol Hypothetical Driving FST s Physical problems Drinking Pattern PAS Breath Test Results How much alcohol would he/she have had to drink between (time frame of drinking pattern) to be a (Breath Test Results) at (Time of Breath Test)? Given the fact that he/she finished drinking just prior to (time of last drink) at his/her (location of last drink), what would you expect his/her blood alcohol level to have been at time of last driving? What effects would you expect to see in an individual whose BAC is (Breath Test Results)? 9

How would a person with low tolerance or a social drinker react to a BAC of (Breath Test Results)? In evaluating the driving in this case, if the officer stated (driving behavior) is that consistent with a person whose BAC is (Breath Test Results)? Why? Can this machine tell you with scientific certainty what my client s true Blood alcohol content was at the time of driving when he takes his test? ULTIMATE OPINION In your expert opinion, was my client impaired to operate a motor vehicle at the time of last driving? In your expert opinion, was my client an.08 or above at the time of driving? 1. Were the tubes from Becton-Dickinson? 2. How much NaFl (preservative)? Should be 100 mgs. 3. How much potassium oxalate (anti-coagulant)? Should be 20 mgs. 3a. Were these in liquid form? 4. EXPIRATION DATE? 5. Shaken after blood in tube? 6. How much blood drawn into each tube? (Should be 10 milliliters) 6a. The proper volume of blood is important because the type and amount of chemicals included as a preservative and anti-coagulant are based on an assumed volume of blood? 6b. And a different volume of blood would invalidate the test result? 6c. How much blood should have been drawn into each tube? 6d. Is that the amount of blood specified by DFS? 7. Where did the blood go after you drew it? 7a. Had you put integrity tape over the top of the stoppers? 7b. Doesn t DFS require that? 10

8. Not refrigerated? 9. Did you take Mr. Hurston s blood sample from a vein? 10. Isn t it true that in the post-absorptive (elimination) phase BAC is lower in the arteries than the veins? 10b. It is the blood in the arteries that is carrying alcohol into the brain, resulting in intoxication? 11. Does the Division of Forensic Sciences mandate or require venous blood? 12. Back to the collection kit - was it sealed when the officer gave it to you? 9. What is an organic compound? 10. Blood is an organic compound? For crime lab person 11. It will decompose as a result of reaction of enzymes to heat and as a result of bacterial action? 12. When blood decomposes alcohol is actually created in the blood? 13. Sometimes referred to as endogenous alcohol? 14. Did you check the sample for decomposition by analyzing carbon dioxide content? 15. Did you check the sample for indications of bacteria growth? Bacteria growth would indicate an insufficient amount of preservative? 16. Radio frequency interference can affect the results of a blood test? 17. More broadly, electromagnetic interference can do the same thing? 18. Source of EMI can be a radio, TV, or computer? 19. Are there computers in the crime lab? How about electric door locks? 20. What protocol has the crime lab adopted to ensure that the GC is not affected by EMI? 21. What was the expiration date on the tubes of blood you received at the crime lab? 11

22. Do the approved methods for blood testing require that the tubes not be past their expiration dates? 23a. The expiration date actually refers to the vacuum in the tube? 23b. The vacuum is designed to pull the proper amount of blood into the tube when punctured by the vacutainer needle? The tube actually sucks blood into it? 23c. Also important because the vacuum, when properly sealed, maintains the sterile environment? 23d. If the vacuum has been compromised the correct amount of blood will not be drawn into the tube? 23e. Meaning you could have too much or too little anti-coagulant or preservative? 23f. AND, if the vacuum is compromised, the tube is not longer sterile and bacteria may have entered the tube, which could cause fermentation of a blood sample? 23g. If the vacuum is compromised, could the tube suck in ambient contaminants? 23h. And what are ambient contaminants? 23i. Would candida albicans be an example of an ambient contaminant? 24. You use a known alcohol concentration to perform cal checks? 25. What was the expiration date on the test package used to calibrate the machine? 26. Does DFS impose any requirement that a tube be used only before its expiration date? 27. It is important for the person who drew the blood to use a non-alcohol antiseptic wipe? 28. Was the wipe used in this case submitted to you for testing? 29. Let me ask you about the approved methods for calibrating the GC. 30. Calibration means that the instrument is tested at various known levels of an identifiable substance such as ethyl alcohol? 31. For example, it would be tested at.05,.10,.15,.20 and so forth, and those results should graph out in a linear fashion to show the machine is capable of measuring alcohol at those levels and all levels in between? 32. That was not done in this case, was it? 12

33. Are there regulations for the use of whole blood standards from chemical supply houses or for the creation of aqueous alcohol solutions? If so, what are they and how are they enforced? 34. Is there a written policy regarding the periodic inspection and maintenance of the GC and its components? 35. If so, where is it? What does it say? How is compliance documented? 36. Does any outside agency conduct any maintenance or inspections of the GC? 37. How many different blood samples were run at the same time as Mr. Hurston s? 38. How many control samples were included in the run? 39. Out of these (40 or 50 or whatever), where in line was Mr. Hurston s? 40. What measures were taken to ensure there was no buildup or contamination from all of those earlier samples? 41a. What is headspace? 41b. What is a salting agent? 42. In other words, the salting agent helps the alcohol get into the headspace? 43. How much salting agent was used to test Mr. Hurston s blood? 44. Is it possible to use too much so that it could drive up into the headspace more alcohol than was actually present in Mr. Hurston s blood? 45. What are the approved methods for ensuring this does not happen? 46. The blood collection kit already contained two salt compounds? 47. And you don t know how much of these were present before you added your own compound? 48. GO BACK TO 11 and then 10 RE:VENOUS BLOOD ON PAGE 1. 49. A positive differential, which may be as great as 50-100%, persists between the arterial and venous blood alcohol concentrations? 50 (In the event of a negative response) You are not familiar with the work of Professor R.B. Forney entitled General Pharmacology of Alcohol? 13

51. What rules or regulations does DFS have in place to adjust for changes in hematocrit level caused by trauma? 14

Allen: I tried a Veh. Assault case earlier this year and the jury refused to convict and wouldn't find that the blood alcohol was.19 because: We established that after blood was taken from arm it was sealed in a styrofoam container (thus keeping it WARM) and not refrigerated until it got to crime lab two - three days later (thus the argument for endogenous alcohol)...but the kicker was the first question I asked our toxicologist: "You don't even test the BLOOD do you?" Ours had to agree because they do headspace GC. Next Question: You test the AIR above the blood don't you" yes. "And before testing the blood, you add alcohol to it? " Yes, but... you could add that"even though the machine you use has the capacity to test the liquid blood, you don't do you?" The jury told me afterward that they were STUNNED to learn that the blood isn't even tested...it was a great lead in, and the prosecutor never did recover them. Hope this helps...its snowing like the dickens here..very picturesque! Jeanette Dalton, Kingston WA 15