Seattle DUI Attorney, Nate Webb, discloses how everyone's alleged breath test result is elevated by 6.5% automatically!

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who has consumed any alcohol recently will automatically have an increased estimate of their breath based upon this outdated theory the government still utilizes to this day!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.

Persistence is key with any DUI case!

Recently (August 2014) I resolved a client's case regarding a DUI charge.  The significance of this resolution was due to our persistence in litigating this matter. This particular client came to me after having driven his car off the road at Sand Point Way in Seattle, WA.  The client was taken to the hospital for a blood draw which revealed he had a .37 ethanol reading (BAC of .37).  Yes that is extremely high, and in some instances a person can die from a concentration of that amount.

Nevertheless, I took the case on and we litigated this matter over the course of a year and a half. After numerous motions were filed back and forth (between the prosecutor and myself), and we appeared in court at least a dozen times, the case was finally set for an evidentiary hearing the day of trial.  The prosecutor made an offer to my client to plea as charged and they would only recommend 3 days in jail (the mandatory minimum in this case was 2 days in jail), but that if my client proceeded to trial and lost the prosecutor would ask for 10 days in jail.  My client, following my advice, politely declined the offer.

Our arguments at the evidentiary hearing included (1) whether the government could prove my client was the actual driver of the vehicle involved in the accident (corpus delicti) and (2) whether the officer had probable cause to arrest.  The hearing involved an independent witness who heard the accident and found my client face down outside of the car moments later.  There was also testimony from one officer.  The officer testified there were numerous broken alcohol containers outside of the vehicle and some alcohol containers inside the vehicle.  The officer also testified my client had bloodshot, watery, eyes, told others he was the driver, smelled of alcohol, had slurred speech, was incoherent and admitted to consuming ¾ of a gallon of whiskey!

I know a lot of attorneys who would have convinced their client to accept the government's offer based upon the allegations, but I simply have a standard of not pleading anyone as charged unless they insist.  After the hearing, and after my cross examination of the witnesses, prior to the ruling of the court, the government offered a plea deal.  The reasoning was that if the court agreed with my arguments the case could have been dismissed, conversely if the judge agreed with the government my client would have not been able to accept the offer and would have had to take his chances in front of a jury.  Prior to the ruling the government stated it would offer a Negligent Driving in the First Degree and not ask for any jail.  After careful consideration, my client accepted the offer.  After the plea was entered, the judge stated she would have ruled against the defense on our issue, so it was a wise decision by my client.

Now normally I don't necessarily post a Negligent Driving in the First Degree as a victory as many of my competitors do, I only like to post dismissals or not guilty verdicts but in this particular case, a DUI accident with a .37 blood draw reduced down to a Negligent Driving (misdemeanor) was an excellent outcome.  The outcome was only achieved due to the persistence of my client and myself.  It is not to toot my own horn that I post this, but it is to show that as a DUI attorney you have to take on the most difficult of cases and try your best despite the evidence.

I know a lot of attorneys who would have put forth the same effort as I did but there are many out there claiming to be “experienced” DUI attorneys who would have caved at the first hearing and convinced their client to plead guilty and "throw themselves upon the mercy of the court."  

Did you have an experience like that with your so-called “trial experienced DUI attorney?”  My point is, if your attorney was not or is not willing to put in the effort as a truly experienced aggressive DUI attorney, they are likely performing a disservice to their client and should probably exit this particular area of law.

We are truly aggressive, experienced, courtroom and trial tested DUI attorneys and have the results to back it up! Contact us today if that is what you are looking for in your Seattle DUI Attorney (425) 398-4323.

 

 

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About the author:

Nathan Webb, is a seasoned Seattle DUI Lawyer.  His practice of 10 years emphasizes DUI defense.  He has been repeatedly recognized as one of Seattle's Best Attorneys! He has been repeatedly recognized as a Top Seattle DUI Attorneys by Seattle Met Magazine, and Repeatedly named a Super Lawyer Rising Star in the area of DUI Defense by Washington Law and Politics Magazine, and is Rated Superb for DUI Defense (perfect 10.0 out of 10.0) by Avvo.com

 

Uncertainty in Breath Testing - BAC Datamaster and Datamaster CDM

I'm no scientist, let's get that out of the way right off the bat, but I do have a basic understanding of breath testing principles utilized in garnering results with a BAC Datamaster and Datamaster CDM.  Both of these "instruments' (or as I say, machines) are approved for the quantitative measurement of alcohol in a person's breath.  See WAC 448-16-020.  Essentially, the State Toxicologist has approved these machines for use in testing person's breath alcohol concentration when arrested for an alcohol related driving offense in Washington State.

Breath testing for evidentiary purposes in Washington consists of an operator collecting two separate samples of breath independently from an arrested subject.  The operator (usually the arresting law enforcement officer) enters some basic information into the machine, such as date of birth of the subject, etc. then just waits 15 minutes or more and has someone blow into the tube attached.  Each time a DUI subject blows the operator is to ensure a new mouthpiece is used.  After the samples are collected, if everything went right, meaning there were no errors for an invalid sample, samples outside of 10% of the mean, ambient air, radio frequency interference, etc., it will produce a ticket showing two subject samples, that is the two numbers related to the persons breath alcohol concentration.  The State of Washington's legislature has made it very simple for prosecutor's to admit these samples (two numbers on the ticket) into evidence and present to a jury.  Literally an elementary student could ask the breath test technician the necessary questions for admissibility, I'm not kidding.

Once the prosecution ends its' direct of the technician, this is where a trained DUI defense attorney needs to pounce.  As an experienced Seattle DUI attorney I have cross examined breath test technicians on many many occasions when challenging the results of a breath test document.  The prosecutor's job is done once they get the number in front of the jury, but the DUI defense attorney's is just beginning.  What do I mean by pounce, well you need to hammer home to the jury that the alleged numbers are really a probability fraught with uncertainty and the technician will have no choice but to admit the numbers are not perfect.  Any measured value has uncertainty, as I understand it, that is how science works!  No scientifically produced value is perfect and each measured "subject sample" could be much lower or much higher given uncertainty.  Why didn't the prosecutor ask the technician about that and disclose it to the jury?  Well, of course they want that precious numbered to be free from any speculation.  That is why it is absolutely necessary to discuss that with the technician on cross and to make sure and point out in summation that the prosecutor essentially hid that information from them.  

Once you discuss uncertainty, make sure and then discuss what a partition ratio is with the technician. The jury needs to know everything about how these measured values are based upon presumptions.  A partition ratio is, in layman's terms, an assumed value that it utilized to compare blood to breath.  The dumbed down version is this, the ratio assumes that 2100 mL of breath contains the same amount of alcohol as 1 mL of blood.  However, just by doing some minimal research on partition ratio's will reveal numerous treatises wherein scientists, medical students, doctors, etc. have concluded the 2100:1 value is incorrect and can have vast ranges, meaning that someone's measured breath test on a Datamaster presumes this 2100:1 value but if the partition ratio is actually lower or higher, as has been concluded by these treatises, the actual breath test result is vastly skewed.  Make sure you bring this out of technician and discuss the revelation to the jury.  Again, a great point to make in summation is "why didn't the prosecutor inform you of this presumption when they presented their case?"  It shows that the prosecutor doesn't want the jury to speculate on things that are clearly speculative!

One additional argument I commonly make is that the presumed temperature of the simulator is also based upon skewed conclusions.  The simulator solution is a mixture of ethyl alcohol and some type of distilled water to simulate a known value, e.g. .04, .08. 10 or .15.  The toxicology lab prepares a simulator solution to be approximately .08 for use in the datamaster.  The mixture is tested by several toxicologists an certified for use. The measured value also has an uncertainty and that should also be exposed to the jury, especially if the simulator solution is closer to the .072 to .088 ranges (that is the allowable range of a simulator solution for use with the datamaster).  The mixture, for use in the datamaster, must be heated to a known value and the common value is 34 degrees Celsius plus or minus .2.  In between a subject's sample, the simulator solution runs into the datamaster for an "external" check to make sure the datamaster is reading a .08 mixture (although if the reading is anywhere between .0-72 and .088 it is acceptable?  Really? Anyway, that is an argument for another day).  Why is that 34 degrees value important?  Well that is the presumed temperature of a person's mouth when exhaling.  Again, there are many treatises and experts who agree that 34 degrees is not the correct average temperature of every person, and technician's and toxicologists who testify in DUI trials must agree, there is too much proof to the contrary and science simply doesn't support we are all the same.  Here is where it is necessary for your DUI attorney to expose the speculative nature of breath testing.  If someone's mouth temperature is lower or higher, invariably the breath test measured on the datamaster will be either lower or higher.  Again, in summation it is essential your DUI attorney points out this non-disclosure of information to the jury. 

At the end of the day, a trained DUI defense attorney can show that these alleged measured values are fraught with speculation, yet when determining the guilt or innocence of a citizen the government has no problem with presumptions.  There are numerous other situations in which a trained Washington State DUI attorney can expose speculative breath tests results to a jury.  

If you find yourself in need of a renowned, trial tested DUI Defense attorney, look no further than the Webb Law Firm.  Call today (425) 398-4323

 

 

 

 

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About the author:

Nathan Webb, is a seasoned Seattle DUI Lawyer.  His practice of 10 years emphasizes DUI defense.  He has been repeatedly recognized as one of Seattle's Best Attorneys! He has been repeatedly recognized as a Top Seattle DUI Attorneys by Seattle Met Magazine, and Repeatedly named a Super Lawyer Rising Star in the area of DUI Defense by Washington Law and Politics Magazine, and is Rated Superb for DUI Defense (perfect 10.0 out of 10.0) by Avvo.com

 

 

 

Inconsistent rulings on CDL (Commerical Driver's License) issues...

Over the past few weeks I have argued an issue that has arisen for two clients who were CDL holders.  These individuals were driving in their non-commercial motor vehicles (i.e. personal vehicles) and arrested for suspicion of DUI.  Now both of these individuals were presented with the same form, required by the Washington State Patrol in any DUI investigation, that form is called the Implied Consent Warnings (ICWs) for Breath.  Essentially when you obtain a driver's license in Washington it is implied you will submit to a test of your breath if stopped for suspicion of DUI and the same applies for CDL holders.  The issues in these two cases was that neither of the individuals arrested were informed there would be any impact to their CDL whether they submitted to a test or refused.  The ICWs inform any driver arrested for DUI that they face at least a 90 days suspension of their personal driver's license if their blood or breath test is over .08 and that if they refuse they face at least a one year driver's license suspension. 

In the cases I'm discussing the ICWs have an additional piece of language directly related to CDL holders which informs them they face a possible suspension of their CDL even if they are not driving a commercial motor vehicle.  Neither of my clients were read this additional portion when presented with the ICWs.  To their credit during cross examination, both WSP Troopers admitted that they either forgot to read the additional language related to CDL holders or that they didn't know they had to read it.  Surprisingly the first time I argued this to a King County District Court judge, that particular judge found no error since the driver was told he would lose his license for at least a year if he refused.  If a CDL holder is convicted of a DUI, even in their non-commercial motor vehicle, they face a minimum one year CDL suspension. 

This particular judge said that by warning my client of the effects of a refusal on his personal license (that is, at least a one year suspension) that somehow satisfied the warnings regarding his CDL and he was not prejudiced!  What!!!! 

I again argued this same issue to a separate King County District Court judge who did find it to be an issue and suppressed the breath test results.  It is amazing the inconsistency we often find when judges at the same level (District Court in this case) reach differing opinions on obvious violations of Due Process which prejudice drivers, in this case, specifically CDL drivers. 

The moral of the story is, if at first you don't succeed, try a different judge!

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About the author:

Nathan Webb, is a seasoned Seattle DUI Lawyer.  His practice emphasizes DUI defense.  He has been repeatedly recognized as one of Seattle's Best Attorneys! He was recognized as a Top Seattle DUI Attorneys by Seattle Met Magazine, Repeatedly named a Super Lawyer Rising Star in the area of DUI Defense by Washington Law and Politics Magazine, and Rated Superb for DUI Defense (perfect 10.0 out of 10.0) by Avvo.com.