For the last 15-20 years or so the Washington State Patrol has utilized a machine to test, via breath samples, for an estimate of ethanol in a subject's system named the BAC DataMaster and BAC DataMaster CDM. Why do I say it is an "estimate" of a person's ethanol level? Because the principles utilized are just that, an estimate. For example, as stated in the title of my post, every single person who submits to a sample of their breath, who has consumed any alcohol at all, will have an increased ethanol estimate of 6.5%.
The reason is that the Washington State Patrol utilizes an old theory of internal checks via what is called a simulator solution to check that the machine is reading a .08 mixture (prepared by the Washington State Toxicology Lab). The Tox Lab prepares this mixture and it is heated up to 34 degrees Celsius to simulate the mouth temperature of all persons on earth. The problem with this assumption is that the figure 34 degrees Celsius is based upon a small sample study conducted in the 1940s wherein it was concluded that the mean temperature of persons (only in that sample group) mouth was 34 degrees Celsius. A more recent study with a much larger sample size concluded that the average temperature is actually 35 degrees Celsius.
This means that every single person who submits to a sample of their breath on the DataMaster who has consumed any alcohol recently will automatically have an increased estimate of their breath based upon this outdated theory the government still utilizes to this day! Seem unfair? Of course it is but they don't care. It is only when I cross examine the State's "expert" in breath testing (really only a glorified button pusher) that this revelation is made to the jury.
We at the Webb Law Firm make it a priority to keep up with the most recent studies and treatises on breath testing, especially how it relates to physiology and biology, in defense of those accused of a DUI. Call today to find out more about how the government's machine is being used in a false manner each and every time.
Call us today! (425) 398-4323 to speak with Seattle's Premier DUI Defense Attorney.
About the author: In his 10 plus years of practice, Seattle DUI Attorney, Nate Webb, has been repeatedly named a Super Lawyer Rising Star by Washington Law and Politics Magazine and a Top Attorney for DUI Defense by Seattle Metropolitan Magazine and has numerous Not Guilty DUI verdicts and dismissals under his belt.
Wednesday, November 26, 2014
Friday, November 14, 2014
Seattle DUI Attorney, Nate Webb, represented a client in Upper Kittitas County District Court (Cle Elum) and acquired a Not Guilty verdict from a jury on November 13, 2014. State of Washington versus C.H.
Facts: The trooper alleged my client was speeding well in excess of the posted limit, had bloodshot, watery eyes, slurred speech, the odor of alcohol, continually swayed throughout their contact, had continually unsteady balance, failed to follow simple directions, he also alleged the client failed three field sobriety tests, took a portable breath test and was deceptive while doing it, and refused a breath test after arrest at the station. Further, the trooper testified that there were at least three open containers in the vehicle.
The State presented two witnesses, one was the trooper who made the above allegations and the second was a toxicologist from the Washington State Patrol Toxicology Lab. Mr. Webb was able to succesfully impeach the trooper's testimony via the State's own witness, the toxicologist. The trooper, an apparent 16 year veteran of the Washington State Patrol, testified as to the proper administration of the field sobriety tests pursuant to the National Highway Traffic Safety Administration standards and protocols only to be contradicted by the toxicologist after Mr. Webb challenged the trooper's conclusions.
The jury returned a verdict of Not Guilty.
State v. C.H. (Cle Elum - Upper Kittitas County District Court - November 2014).