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On significance of the opinion is that administration of field sobriety tests and the scoring thereof, is not a subjective decision for the officer to make contrary to the belief of many officers and unfortunately, as prosecutors sometimes argue in the trial of a case.

This summary is taken from the Ohio Supreme Court website.

As reported at bradentonherald.com a Manatee, Florida judge applied the law, which is the responsibility of the court to do. Read the article below:

MANATEE — A Manatee County judge issued an order Thursday suppressing all evidence gathered at a DUI checkpoint last year.
Manatee County Judge Doug Henderson threw out evidence at the March 22, 2008, DUI checkpoint on the Green Bridge in Palmetto after three area criminal defense attorneys, Charlie Britt, Mark Lipinski and Chris Pratt, argued the Manatee County Sheriff’s Office did not follow their guidelines.
“You have to have the written operational guidelines and you have to stick by them,” Britt said. “They never did that. Doing a checkpoint is a privilege according to the Supreme Court … because you’re stopping people with no probable cause, you have to have a written plan. You can’t do what you feel like doing, which is essentially what they were doing.”
According to the guidelines, the sheriff’s office would stop every vehicle going through the checkpoint. If the traffic were to become backed up, law enforcement would then stop every sixth vehicle, according to the order.
Manatee County Sheriff Brad Steube said the Sheriff’s Office is in the process of rewriting DUI checkpoint guidelines.
“We’ve never had this problem in any other checkpoints we’ve done,” he said.
Manatee County Sheriff’s Office Traffic Sgt. Paul Fieber testified in court that on two occasions traffic had become so backed up that he had to allow 20 cars to pass.
“The Manatee Players had just let out downtown and the traffic was backed up over the bridge and into downtown because of our checkpoint. Sgt. Fieber made a decision to allow more than six cars to go through to alleviate that traffic point. If the judge finds we violated the procedure and he is suppressing the evidence, then we have to abide by that,” Steube said.
In Sept. 2008, Fieber told the judge he changed the sheriff’s office guidelines to stop every 10th, 20th and 30th vehicle if safety issues arose, according to the order.
Henderson made the ruling based on a previous Florida Supreme Court case in Charlotte County in Sept. 2008.
Lipinski said it’s rare a suppression is granted for a checkpoint. This is the second suppression for a checkpoint he has won in 20 years.
“I think for sometime now the Manatee County Sheriff’s Office has been doing them wrong,” Lipinski said. “Paul Fieber testified he didn’t follow his own guidelines and never has.”
In another DUI case Thursday, Sarasota County Judge David Denkin indicated a written order would most likely be issued two weeks from now on whether evidence from the Intoxilyzer 5000 will be upheld in Sarasota and Manatee county DUI cases.
The validity test has been challenged for more than three years by hundreds of defendants in Manatee and Sarasota counties involved in stalled DUI cases. Kentucky-based CMI Inc., the company that makes the machines, has refused to release its source code.
Both Henderson and Denkin ordered CMI to divulge the code, but CMI said it is a protected trade secret.

Well worth reading. See the post below.

Ed Brayton is a participant in the Center for Independent Media New Journalism Program. However, all of the statements, opinions, policies, and views expressed on this site are solely Ed Brayton's. This web site is not a production of the Center, and the Center does not support or endorse any of the contents on this site.

Breathalyzer Source Code Required for Use as Evidence
Category:
Posted on: January 21, 2009 9:30 AM, by Ed Brayton

Here's a very interesting case from Florida, where an appeals court has upheld a lower court ruling that threw out evidence from a breathalyzer test in a drunk driving case because the manufacturer of the device refused to release the source code and allow defense experts to analyze the accuracy of the machines.

The results of breath tests in more than 100 local drunken-driving cases will not be allowed at trial, a judge announced Tuesday.
The validity of those breathalyzer tests has been challenged for more than three years because of the Intoxilyzer 5000, a machine that uses a breath sample to measure a person's blood-alcohol content.

Manatee County Judge Doug Henderson ruled two years ago that any Intoxilyzer 5000 tests were inadmissible in trial, but prosecutors appealed. On Tuesday, Henderson told lawyers that his ruling had been affirmed by the Second District Court of Appeal and Circuit Court.

Breath analysis machines are notoriously inaccurate and this has been a problem for a very long time. Dr. David Hanson, a sociologist who has written on this issue for decades, writes:

Breath analyzers (Breathalyzer, Intoxilyzer, Alcosensor, Alcoscan and BAC Datamaster are common brand names) don't actually test blood alcohol concentration (BAC), which requires the analysis of a blood sample. Instead, they estimate BAC indirectly. Different types of machine use different techniqes and larger machines generally yield better estimates than do hand-held models. Therefore, some states don't permit data or "readings" from hand-held machines to be presented as evidence in court. South Dakota does not even permit evidence from any type or size breath tester but relies entirely on blood tests to ensure accuracy and protect the innocent.
A major problem with some machines is that they not only identify the ethyl alcohol (or ethanol) found in alcohol beverages, but also other substances similar in molecular structure. Those machines identify any compound containing the methyl group structure. Over one hundred compounds can be found in the human breath at any one time and 70 to 80 percent of them contain methyl group structure and will be incorrectly detected as ethyl alcohol. Important is the fact that the more different ethyl group substances the machine detects, the higher will be the false BAC estimate.

The National Highway Traffic Safety Administration (NHTSA) has found that dieters and diabetics can have acetone levels hundreds and even thousand of times higher than that in others. Acetone is one of the many substances that can be falsely identified as ethyl alcohol by some breath machines.

One investigator has reported that alcohol-free subjects can generate BAC readings of about .05 after eating various types of bread products.

Substances in the environment can also lead to false BAC readings. For example, an alcohol-free subject was asked to apply a pint of contact cement to a piece of plywood and then to apply a gallon of oil-base paint to a wall. The total activity lasted about an hour. Twenty minutes later the subject was tested on an Intoxilyzer, which registered a BAC of .12 percent. This level is 50% higher than a BAC of .08, which constitutes legal intoxication in many states.

Similarly, a painter with a protective mask spray painted a room for 20 minutes. Although a blood test showed no alcohol, an Intoxilyzer falsely reported his BAC as .075.

Any number of other products found in the environment can cause erroneous BAC results. These include compounds found in lacquers, paint removers, celluloid, gasoline, and cleaning fluids.

Other common things that can cause false BAC levels are alcohol, blood or vomit in the subject's mouth, electrical interference from cell phones and police radios, tobacco smoke, dirt, and moisture.

Breath testers can be very sensitive to temperature and will give false reasings if not adjusted or recalibrated to account for ambient or surrounding air temperatures. The temperature of the subject is also very important. Each one degree of body temperature above normal will cause a substantial elevation (about 8%) in apparent BAC.

Many breath testing machines asume a 2,100-to-1 ratio in converting alcohol in the breath to estimates of alcohol in the blood. However, this ratio varies from 1,900 to 2,400 among people and also within a person over time. This variation will lead to false BAC readings.

Physical activity and hyperventilation can lower apparent BAC levels. One study found that the BAC readings of subjects decreased 11 to 14% after running up one flight of stairs and 22-25% after doing so twice. Another study found a 15% decrease in BAC readings after vigorous exercise or hyperventilaion.

Some breath analysis machinnes assume a hematocrit (cell volume of blood) of 47%. However, hematocrit values range from 42 to 52% in men and from 37 to 47% in women. A person with a lower hematocrit will have a falsely high BAC reading.

It's about time a judge took a stand on this issue.

As noted in the Bradenton Herald opinion page, these companies should be eager to resolve the issue as opposed to running from it.

Read the article for yourself....

As opined at BradentonHerald.com on January 16, 2009

http://www.bradenton.com/opinion/story/1159488.html


Outrage over a judicial ruling on drunk driving on what could be perceived as a “technicality” decision came swiftly this week. But the court justifiably stuck to a strong adherence to the rule of law.
Since the introduction of breath tests in drunk-driving investigations decades ago, defense attorneys have attacked the validity of the results.
Now Florida’s Second District Court of Appeal has affirmed a Manatee County judge’s ruling that bars the results of breath tests in more than 100 DUI cases because the manufacturer of the testing equipment refuses to reveal the inner workings of its device.
This is not a dilemma unique to Manatee and Sarasota counties. This is a legal quandary across the nation, with similar court rulings in Louisiana, Arizona, New Jersey and Massachusetts.
Defense attorneys assert that DUI defendants hold the due process right to have the Intoxilyzer, manufactured by Kentucky-based CMI Inc., analyzed by programmers, biologists and physicists to determine whether the device provides precise results.
The company refused orders from both Manatee County Judge Doug Henderson and Sarasota County Judge David Denkin to reveal the source code, claiming the software is a protected trade secret.
Even though both judges agreed with the company on that point, they ruled the defendant’s due process rights had been violated and breathalyzer evidence should not be allowed into evidence.
All local DUI prosecutions dependent on Intoxilyzer results are in jeopardy.
DUI lawyers suspect that the Intoxilyzer’s internal calculations are based on certain assumptions, including the weight, size and sex of a defendant, that would not apply to everyone taking the test.
The rule of law must apply here, not the emotion surrounding the drunk-driving issue. Everybody wants to rid our roadways of reckless lawbreakers and potential killers, but that does not justify accepting as an article of faith that this product produces solid evidentiary results each and every time.
That would deny defendants the right to a fair trial.
We must determine if this commercial product does indeed have flaws. Are there bugs in the software? Defects in the machine?
Have we not learned our lesson from the numerous bad products exposed in the past year alone, especially imports from China, from toys with lead-based paint to deadly pet food? And now tainted drywall.
CMI should not be allowed to hide behind the “trade secrets” defense. An independent testing group, under a vow of secrecy, should check out this product thoroughly.
Only then will law enforcement agencies and prosecutors around the nation have confidence in their drunk-driving cases.
Law enforcement officers already deal with various rules and regulations covering the operation, inspection and calibration of the Intoxilyzer. DUI lawyers have been attacking their credibility in those areas for years — and will no doubt continue to cite operator error, improper calibration and device inspection failures, among other defense strategies.
Why not remove the major questions surrounding source code from the court’s consideration?
Society must have greater confidence in DUI prosecutions, too. CMI should put this issue to rest.

Now, $2 million dollars in contempt fines against the device manufacturer, CMI, as pending.

After defenses of copyright, trademark and other stonewalling failed for some of the companies, the defense of trade secrets was waived like a Don't Tread on Me flag. Courts were sympathetic to a company's interest in preservation of that which, if learned by a competitor, could effect the companies financial well being.

But what trumps in a criminal case? The right to a fair trial or the health of a company which refuses to allow verification of the very indispensable component of the machine-software?

Well, for now, the issue in the state of Florida is resolved-the right to a fair trial in a criminal case prevails. See the story below.....

Manatee judge tosses DUI breath tests
By NATALIE NEYSA ALUND - nalund@bradenton.com

BRADENTON — The results of breath tests in more than 100 local drunken-driving cases will not be allowed at trial, a judge announced Tuesday.
The validity of those breathalyzer tests has been challenged for more than three years because of the Intoxilyzer 5000, a machine that uses a breath sample to measure a person’s blood-alcohol content.
Manatee County Judge Doug Henderson ruled two years ago that any Intoxilyzer 5000 tests were inadmissible in trial, but prosecutors appealed. On Tuesday, Henderson told lawyers that his ruling had been affirmed by the Second District Court of Appeal and Circuit Court.
Henderson instructed attorneys to draft an order reflecting the court’s decision, and that he planned to sign it, he told the Bradenton Herald.
The announcement could mean long-awaited conclusions to a legal fight that has stalled the cases in Manatee and Sarasota counties. It was unclear late Tuesday whether other appeals were possible.
Prosecutors must now decide whether to take the cases to trial without that evidence or reduce or dismiss the DUI charges.
Defense attorneys have challenged the machines, saying their clients have a right to have DUI defense experts analyze whether the machines function properly.
But Kentucky-based CMI Inc., the company that makes Florida’s breath-test machines, refused to release its source code, or computer software. Both Henderson and Sarasota County Judge David Denkin ordered CMI to divulge the code, but CMI said it is a protected trade secret.
Although Henderson and Denkin agreed, they determined the refusal was a violation of due process. The judges ruled the breath-test evidence should be tossed from trial.
“The defendant’s right to a fair trial outweighed the manufacturer’s claim of a trade secret,” Henderson said Tuesday.
The appeals court ruling could cripple many of the cases.
“We are going to wait until we have reviewed the written order to determine whether we have any appellate fights and what sort of action we should take with the cases,” said Assistant State Attorney Erica Arend, chief of the misdemeanor division in the 12th Judicial Circuit, which consists of Manatee, Sarasota and Desoto counties.
Mark Lipinski, who represents seven defendants challenging the source codes, said the state likely will be forced to reduce charges — or drop the cases entirely.
Prosecutors could still take their cases to trial using other evidence, including field sobriety tests, admissions of guilt and other indicators of impairment.
Some of Lipinski’s clients have been waiting for a conclusion to their case for more than three years.
“My clients didn’t get swift justice, but at least they got justice,” Lipinski said.
“What this really means is that outside corporations cannot sell equipment to the state of Florida and expect to hide the workings of their machine by saying they are trade secret,” he added. “It means the state has to give full disclosure concerning important and critical aspects of the case.”
To date, CMI is facing more than $2 million in fines because of their refusal to release the source codes, Lipinski noted.
“Even in today’s economy, a million here and a million there amounts to real money,” he said.

The rule is old-you cannot cherry pick evidence.

South Carolina has a law requiring records maintenance:

56-5-2954. Breath testing sites; records of problems with devices.
ARTICLE 23. RECKLESS HOMICIDE; RECKLESS DRIVING; DRIVING WHILE UNDER THE INFLUENCE OF INTOXICATING LIQUOR, DRUGS OR NARCOTICS

The State Law Enforcement Division and each law enforcement agency with a breath testing site is required to maintain a detailed record of malfunctions, repairs, complaints, or other problems regarding breath testing devices at each site. The records required by this section are subject to compulsory process issued by any court of competent jurisdiction in this State and are public records under the Freedom of Information Act.

Here is the story.

Drunken-driving case overturned by appeals court
Man may withdraw plea because of breath-test uncertainty
BY RUSS ZIMMER • ADVOCATE REPORTER • DECEMBER 27, 2008
Read Comments(16) Recommend(1)Print this pageE-mail this articleShare

NEWARK -- A controversial drunken-driving case is back in Licking County Municipal Court after a successful appeal, according to an appellate opinion, a move that might pave the way for other challenges to local OVI convictions.

The Fifth District Court of Appeals decided 3-0 that a New Albany man should have been allowed to withdraw his 2006 no-contest plea after information surfaced earlier this year that cast doubt on the validity of a breath test, states the opinion that was released Tuesday.

In April, local attorney Rob Calesaric filed a motion to reverse his client's plea after officials learned the Licking County Sheriff's Office had not been calibrating its BAC Datamaster properly, putting as many as 100 tests in doubt, Calesaric said. The Newark Law Director's Office, which is handling the prosecution, could not be reached for comment Friday.

Municipal Court Judge Michael Higgins rejected the motion the next month, writing in a judgment entry that the defense had failed to prove a manifest injustice -- the burden borne by defendants who ask to change their pleas after sentencing.

The Fifth District disagreed, stating in its opinion the test results should have been thrown out at the suppression hearing, which likely would have affected the defendant's decision to change his plea.

REGULATIONS NOT FOLLOWED

The deputy had testified during an October 2006 suppression hearing for the case at hand that he had followed all state regulations.

However, Calesaric filed a transcript from a November 2007 suppression hearing in a separate OVI case where the same deputy gives testimony about his procedure that shows it to be in direct opposition to some sections of the law.

A sheriff's office internal investigation in April found the deputy, who has been removed from that duty, had not followed state regulations, but had not done so maliciously, according to investigation materials.

Specifically, he had thrown away records of instrument checks that fell outside the acceptable range.

According to the Ohio Administrative Code, the BAC Datamaster must be checked for accuracy at least every seven days. This calibration check on the breath test machine is conducted by using an ethyl alcohol solution with a known value -- the equivalent of the 0.08 blood alcohol content, the legal limit in Ohio.

For the machine to pass the weekly test, it must register a reading within 0.005 grams of the listed value on the ethyl alcohol solution. If it falls outside that range, a new bottle of solution should be opened and tested, and if a failing result is again registered, the machine must be serviced.

All calibration check records -- pass or fail -- must be retained for at least three years, the law states.

The case will return to Higgins' docket, but Calesaric said he is uncertain what will happen next.

He said the case should be dismissed, but he admits there is some "wiggle room" in the higher court's ruling.

"What I would like to do is sit down with the law director's office and the court and fashion a game plan for where we need to go from here," he said.

MORE CHALLENGES POSSIBLE

The appellate court's decision could have far-reaching effects if those already convicted make the effort, Calesaric said.

"Anyone that was convicted of a breath-test case on the Licking County Sheriff's Office machine in that time frame (for two years before December 2007) needs to re-evaluate the validity of their case," he said.

People facing a felony charge for their fourth OVI in six years might be able to challenge a previous conviction if one was based in part on a BAC Datamaster reading from the sheriff's office, he said.

Other scenarios, with less at stake, exist where people could fight previous penalties, but Calesaric said it was more likely those who already have fulfilled the terms of their sentence will not push to have it overturned.

The defendant, who will not be named by The Advocate because the charge is a misdemeanor, has not served any jail time or completed a mandatory driver's intervention class, Calesaric said.

Russ Zimmer can be reached at (740) 328-8548 or razimmer@newarkadvocate.com.

REMEMBER, the law states that only those persons who are UNDER ARREST for DUI can be asked to provide a breath sample. You cannot be asked to provide a breath sample UNLESS you are under arrest based upon probable cause for the offense of DUI.

The schedule is:

Saturday evening the 20th of December, from 12:30pm until 2:00 am. LOCATION will be the Hungryneck area and the Newmarket area

Sunday evening the 21st of December from 11pm until midnight. LOCATION will be Bowman Road and K-Mart area

Sunday evening the 22nd in the area of Whipple Road and the Sports Complex.

RESTATEMENT: The law prohibits the operation of a motor vehicle if the driver is impaired-defined as a person whose mental faculties are materially and appreciably impaired as a result of the ingestion of an alcoholic beverage or controlled substances. As well, the law provides that a person who registers a .05 of 1 percent alcohol is conclusively presumed to NOT be under the influence.

The decision to drive a motor vehicle after consuming alcohol, under our law, may subject you to arrest and prosecution. The decision is a personal one that should be based upon an appreciation of the law that applies.

Tuesday,  December 9, 2008 3:04 AM
By James Nash
THE COLUMBUS DISPATCH
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Some Ohio police could begin using a controversial portable device to test suspected drunken drivers as early as January after a legislative panel declined to sidetrack the device yesterday.

State safety officials want to buy 700 Intoxilyzer 8000 instruments to distribute to police agencies around Ohio. The devices can be used in the field, unlike stationary blood-alcohol testers.
The $9,000 devices have drawn legal challenges in other states that have used them, and critics in Ohio have urged the state public-safety and health departments to hold off on approving them.
On Dec. 1, the state Controlling Board reversed its decision to approve buying the Intoxilyzers and rescheduled the matter for Dec. 15.
Ohio Department of Public Safety spokesman Tom Hunter said he's confident that the Controlling Board will approve the purchase next week, which would put the devices in the hands of some police as early as January. He said a pilot program likely will begin in southwestern Ohio.
The Joint Committee on Agency Rule Review, a legislative panel, took no action against the Intoxilyzer yesterday. An association of local judges that had warned that using the device would clog courts with appeals dropped its objection yesterday. The judges association did not explain its reasoning.
Lance Himes, assistant general counsel for the Ohio Department of Health, said he doesn't expect the device to draw legal challenges in Ohio because state law forbids drunken-driving defendants from challenging the accuracy of the breath tester.
jnash@dispatch.com

With this provision in Ohio, would it really matter what kind of machine they use?

-suspension of your driver's license for 6 months or longer depending upon whether you have prior DUI convictions,

-the requirement that you register for and complete the ADSAP program.

-that to drive during the six month period of suspension, (longer suspension periods do not qualify for this), you must register for ADSAP, secure SR-22, assigned risk, insurance, allowing you to be issued a provisional license during the period of the six month suspension. After six months, you can have your regular license back, but you must continue SR-22 insurance coverage for an additional two and a half years and take the written and road test again.

-if, as a result of your arrest, your license was suspended administratively, for refusal to submit a breath or blood sample, or if your breath test reading was .15 or above, this suspension runs consecutively to any suspensions for a conviction for DUI such as discussed in the preceding paragraph.

-ancillary complications or negative consequences arise as well. Applications for life, health and other insurance policies may require information about any convictions for DUI. Employers, particularly where security clearances are required, seek information regarding DUI convictions. Here in the “age of information as a commodity”, an application for credit may very well ask about DUI convictions.

The device Ohio choose was not the Datamaster but the Intoxilyzer 8000 made by CMI, Inc. It is reported that Ohio bypassed the Datamaster, despite the fact that several states around the country including Arizona and Florida have been or are in the middle of litigation with the maker of the Intoxilyzer over how the machine operates.

CMI has refused to produce the source code software in electronic media format for defense lawyers to have independently tested according to currently accepted software engineering testing standards.

Interestingly, National Patent (Datamaster) has offered its source code software for a price via a message on its website, but subject to an “agreement.” I am requesting a copy of the agreement and I will followup with another post.

As I have said before, without the software, the device is useless for anything other than an oversized paperweight. The software directly governs the breath alcohol test readings that the machine produces.

But is nonetheless interesting to see that by name at least, the S.C. device taxpayers state and federal paid for is available on Ebay for a tenth of its original cost.

Click on the link below.

http://cgi.ebay.com/NPAS-BAC-Datamaster-Breathalyzer-ALCOHOL-BREATH-TEST_W0QQitemZ120300676765QQcmdZViewItemQQptZLH_DefaultDomain_0?_trksid=p3286.m20.l1116

And this information is on the internet for your review.

http://www.sled.sc.gov/ImpliedConsent.aspx?MenuID=ImpliedConsent

Clicking on the above link will take you there. Once there, you will see a number of options. For lawyers use, they will usually have a client's breath test ticket. This document will yield the date, machine number and other information that aides in locating the database records for that individual test as display in table format of other tests.

It is useful to click on or bring up a range of data. Interpretation of it is another thing, but some things are interesting to say the least.

I will upload a sample page that is marked/annotated by me to show an interpretation of a section of listed tests that certainly makes one pause.

BUT, the most interesting aspect to review are the “inspection records” which are not called “repair records.“ I will also post a sample elsewhere here. You might find interesting the fact that SLED, not the manufacturer of the devices, repairs (ok, inspects), the machines.

Compare the detail and logic of the ”inspection report“ contents against your invoice from an oil change at Jiffy Lube. Which informs you more about what happened during the ”inspection?“

An ”inspection“ might take a few minutes. Or it might take a few hours. Nonetheless, any field notes that are made during this process are destroyed when the ”inspection report“ is drafted and posted on the net. The explanation of the interaction with the machine might very well be one line.

My favorite one is this- ”THE VOLTAGES WERE INSPECTED AND/OR REPAIRED.”

Remember, this machine produces evidence used in criminal cases to prosecute citizens accused of violation of a criminal law.

So. Were the voltages inspected or repaired. As well, if repaired, and how would you know, several other questions remain.

-why did the voltages break?
-what tests were effected by the break over what period of time?
-was this failure reported to the manufacturer for consideration?
-what “repair” procedures were used? A turn of a screw? Replacement of a component?

In fact, SLED insists that these “inspection reports” comply with the law. And there is a law on point.

Section 56-45-2954 of the SC Code, as amended is entitled, Breath Testing Devices; records of problems with devices.

“The State Law Enforcement Division and each law enforcement agency with a breath testing site is required to maintain a detailed record of malfunctions, repairs, complaints, or other problems regarding breath testing devices at each site. The records required by this section are subject to compulsory process issued by any court of competent jurisdiction in the State and are public records under the Freedom of Information Act.” [Emphasis added]

Thing is, some agencies keep local records. Some don't. SLED's position is that despite the clear language “and each law enforcement agency...” the requirements of the statute are met by the preparation and posting of the “Inspection Reports” you can examine on the website as I have described. And, that the local agencies don't have to do so.

Fortunately, you, the citizen, can form your own opinion as to statutory compliance.