Chemical testing for dummies --Topic of criminal law section meeting

By Roberta M. Gubbins

Legal News

Subsection six of MCL 257.625a, the implied consent statute," said Mike Nichols, opening the discussion at the ICBA criminal law section meeting, "states that a sample of urine or breath must be collected in a reasonable manner and refusing an officer's request to take a test will result in suspension of license and six points on the driving record.

702 and 703 is the Michigan Daubert standard for admission of expert testimony. First, will the expert's testimony help the trier of fact--if you meet that threshold in a drunk driving case--then is that testimony based on facts or data admitted in evidence. Does that mean the Michigan State Police Lab have to show they meet the prongs of Daubert?

In the case of People v Jabrocki, District Court Judge found that the requirements of Daubert applied to the blood test results and that, because the Prosecutor had not met that standard, defendant was not bound over on an unlawful blood alcohol level.

Cases on admissibility of breath, urine or blood tests, include Melendez-Diaz v Massachusetts, where the court found that "drug lab analyses are testimonial and prove an element of the crime therefore the defendant has a right to confront analyst who did the cocaine test in this case. The question is: Is this only limited to drug cases? In Michigan we have three cases on confrontation:

* People v Bryant--a victim tells police that defendant shot him and then dies. The Michigan Supreme Court held the statement was testimonial and thus the defendant had a right to confront the witness. Since the witness was dead and thus unavailable, the statement is inadmissible.

* People v Dendel is about a toxicology report, similar to a Michigan State Police lab analysis, so that toxicologist must be available to the defendant.

* People v Buie says if you want to have someone testify via video conference even if it is an expert or an analyst, you have to present that person live.

Nichols concluded recommending that practitioners argue for the application of MRE 702/703 in appropriate cases to preserve the record for your client.

Karin Phillips, certified in the operation of the Datamaster and the DMT, explained in detail how the Datamaster, the instrument currently being used by the police to test breath for alcohol content. "The datamaster uses infrared spectrophotometry--an infrared light heats the breath sample in the chamber, it goes through two filters, which measure ethanol, and then the detector indicates the blood alcohol content of the breath."

There can be some confusion in the filters, for example, if someone is diabetic. A high blood sugar can create a false reading. The DMT, the new Datamaster, which was scheduled to be installed and testing in Lansing in late October, will have three filters which should pick-up just the ethanol. Other factors that can affect reading are the volume of breath and the temperature of breath. Deep lung air or alveolar air is where the ethanol registers in your lungs. That is why you have to breath so long. The temperature of the breath should be 34 degrees Celsius--a variance of one degree can increase the reading by 4%. The machine will give an error message for an invalid sample. Mouth alcohol can cause an invalid reading, which is the purpose of the 15-minute observation period--to allow the mouth alcohol to dissipate.

There are lots of error messages and the most common is 'invalid sample' due to mouth alcohol. The other is refusal, which can be a technical refusal due to a sneeze or cough. Radio frequencies can create an error message--such things as cell phones--that can alter the result.

Other alcohols can interfere such as acetone found in the breath sample of diabetics. Others include toluene, methanol, isopropanol, acetaldehyde or methyl ethyl keytone. She recommended that practioners check with the client regarding what was eaten or medications taken.

Karl Ebner, PhD, DABT, explained the testing of the instrument, to assure its accuracy. He stressed that there can be errors, which are random, systemic with the instrument or actual blunders. Ebner can be consulted when a lawyer has concerns about the testing done. He can be reached at karl.ebner

The next meeting of the Criminal Law Section will be on Tuesday, January 12th at the State Bar of Michigan. Tom Halsted will discuss adult probation in Ingham County.

Published: Thu, Nov 19, 2009


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