28th Annual Mastering Scientific Evidence

MSE 28TH ANNUAL

Mastering Scientific Evidence in DUI/DWI Cases National College for DUI Defense Texas Criminal Defense Lawyers Association

28TH ANNUAL NCDD/TCDLA MASTERING SCIENTIFIC EVIDENCE SEMINAR INFORMATION Date Location Course Director Total CLE Hours

March 24-25, 2022 Royal Sonesta Hotel, 300 Bourbon Street, New Orleans, LA 70130 Troy McKinney, Doug Murphy, Mimi Coffey, and Gary Trichter Murphy 14.75Doug Ethics: .50

Wednesday, March 23, 2022 12:00 pm 6:30 pm

Golf at English Turn Golf Club - Contact Troy McKinney for details wtmhousto2@aol.com Bourbon Street Balcony Hospitality Suite Opens

Thursday, March 24, 2022 Time

CLE

Topic

7:30 am

Registration and Breakfast

8:30 am

Opening Remarks

Daily CLE Hours: 7.25 Ethics: 1.0 Speaker

8:45 am

1.0

Standardized Field Sobriety Testing

Tony Palacios, GA

9:45 am

1.0

Jury Selection in Breath & Blood Test Cases

Troy McKinney, TX

10:45 am 11:00 am

Break 1.0

12:00 pm 1:00 pm

Dr. Kevin Schug, TX

Lunch on Your Own .50 Ethics

1:30 pm

Gas Chromatography & Validation

.50

Dean’s Address: Dealing with Ethical Challenges During the Pandemic

Don Ramsell, IL

Ethically Plowing the Fields with the State’s Experts

Don Ramsell, IL

Drug Toxicology

Dr. Jimmie Valentine, MS

Ethics

2:00 pm

1.0

3:00 pm

Break

3:15 pm

.75

Exposing Pre-Analytical Error in Blood Testing

Dr. Jimmie Valentine, MS

4:00 pm

.75

Winning Breath/Blood Test Cases

Courtney Miller, TX

4:45 pm

.75

Blood Test Discovery: Using Blood Discovery to Win

Tyler Flood, TX

5:30 pm

Adjourn

5:30 pm

Alcohol Absorption Research Project

TCDLA :: 6808 Hill Meadow Drive :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

28TH ANNUAL NCDD/TCDLA MASTERING SCIENTIFIC EVIDENCE SEMINAR INFORMATION Date Location Course Director Total CLE Hours

March 24-25, 2022 Royal Sonesta Hotel, 300 Bourbon Street, New Orleans, LA 70130 Troy McKinney, Doug Murphy, Mimi Coffey, and Gary Trichter Murphy 14.75Doug Ethics: .50

Friday, March 25, 2022

Daily CLE Hours: 7.50 Ethics: 0

Lecture Track

Trial Track

7:30 am

Registration and Breakfast

8:30 am 1.0

A.R.I.D.E.: Brief Overview ~ Tony Palacios, GA

8:30 am 1.25

Jury Selection

9:30 am 1.0

Persuasive Breath Testing Tactics that Win ~ Doug Murphy, TX

9:45 am .50

Opening Statements

10:30 am

Break

10:15 am 1.75

Direct and Cross Examination of the Arresting Officer & Direct of State’s Expert

10:45 am 1.0

Cannabis & Cars: Marijuana DUI/DWIs – Part 1 ~ George Bianchi, WA

12:00 pm

Lunch on Your Own

11:45 am

Lunch on Your Own

1:15 pm 1.0

Cross Examination of State’s Expert

1:15 pm 1.0

Cannabis & Cars: Marijuana DUI/DWIs – Part 2 ~ George Bianchi, WA

2:15 pm 1.25

Defense Expert – Direct and Cross

2:15 pm 1.0

Cross Examination of the Arresting Officer ~ Tyler Flood, TX

3:30 pm

Break

3:15 pm

Break

Jury Arguments

3:30 pm 1.0

Exposing Drug Recognition Expert Evidence as Junk ~ Steve Hernandez, NJ

3:45 pm .50 4:15 pm 1.25

4:30 pm 1.0

Persuasive Motion Practice & Bench Trial Techniques~ Lenny Stamm, MD

5:30 pm

Adjourn

5:30 pm

Adjourn

Jury Deliberations and Debriefing

Trial Lawyers: Prosecutors: 1) Courtney Miller, TX 2) Christopher McKinney, TX Defense Lawyers: 1) Michelle Behan, AZ 2) Justin Spizman, GA

TCDLA :: 6808 Hill Meadow Drive :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

28th Annual NCDD/TCDLA Mastering Scientific Evidence Table of Contents Speakers

Tony Palacios Troy McKinney

Topic

Standardized Field Sobriety Testing Jury Selection in Breath & Blood Test Cases

Dr. Kevin Schug

Gas Chromatography & Validation

Donald Ramsell

Dealing with Ethical Challenges During the Pandemic

Donald Ramsell

Ethically Plowing the Fields with the State’s Experts

Jimmie L. Valentine, B.S., B.S., M.S., Ph.D.

Drug Toxicology

Jimmie L. Valentine, B.S., B.S., M.S., Ph.D. Courtney Miller Tyler Flood

Exposing Pre-Analytical Error in Blood Testing Winning Breath/Blood Test Cases Blood Test Discovery: Using Blood Discovery to Win

Tony Palacios

A.R.I.D.E.: Brief Overview

Doug Murphy

Persuasive Breath Testing Tactics that Win

George Bianchi Tyler Flood Steve Hernandez Lenny Stamm

Cannabis & Cars: Marijuana DUI/DWIs Cross Examination of the Arresting Officer Exposing Drug Recognition Expert Evidence as Junk Persuasive Motion Practice & Bench Trial Techniques

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

28th Annual NCDD/TCDLA Mastering Scientific Evidence March 24-25 Royal Sonesta New Orleans, LA

Topic: Standardized Field Sobriety Testing

Speaker:

Tony Palacios 12600 Deerfield Pkwy Ste 100 Alpharetta, GA 30004 (678) 566-3787 Phone apalacios@impaireddrivingspecialists.com Email www.impaireddrivingspecialists.com Website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Medical Impairment The examinations you conduct to assess possible medical impairment include: • Equal Pupil Size • Resting Nystagmus • Equal Tracking Pupil size will be affected by some medical conditions or injuries. If the two pupils are distinctly different in size, it is possible the subject: • Has a prosthetic eye • Is suffering from a head injury • Has a neurological disorder Resting Nystagmus is referred to as jerking as the eyes look straight ahead. This condition is not frequently seen. Its presence usually indicates a pathology or high doses of a drug such as a Dissociative Anesthetic like PCP. Resting Nystagmus may also be a medical problem. Tracking ability will be affected by certain medical conditions or injuries involving the brain.

This observation is a medical assessment. If the two eyes do not track together, the possibility of a serious medical condition or injury is present. _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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By passing a stimulus across both eyes, you can check to see if both eyes are tracking equally. If they don't (i.e., if one eye tracks the stimulus, but the other fails to move or lags behind the stimulus) there is the possibility of a neurological disorder.

If a person has sight in both eyes, but the eyes fail to track together, there is a possibility the person is suffering from an injury or illness affecting the brain. _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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Procedures to Assess Possible Medical Impairment Prior to administration of HGN, the eyes are checked for Equal Pupil Size, Resting Nystagmus, and Equal Tracking (can they follow an object together). If the eyes do not track together, or if the pupils are noticeably unequal in size, the chance of medical disorders or injuries causing the nystagmus may be present. If the eyes track together, continue with the test and document the results.

Officers are reminded to ask questions about the subject’s eye and general health conditions prior to administering the HGN test. If a subject responds or volunteers information that he or she is blind in one eye or has an artificial eye, and the subject has equal tracking, the officer should make note of the abnormality and proceed with the HGN test. If there are any abnormal findings on the preͲtest checks, the officer may choose not to continue with the testing. If HGN testing is continued, officers are reminded this does not follow the standardized protocol and should acknowledge such in any report.

If HGN testing is conducted on a person with a blind eye, typical inconsistent findings could be related to the blind eye not being able to see or track the stimulus, or when the normal eye can no longer see the stimulus, e.g., when checking Distinct and Sustained Nystagmus at Maximum Deviation on the blind eye side. _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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Procedures of Horizontal Gaze Nystagmus Testing: The Three Clues The test you will use at roadside is HGN – an involuntary jerking of the eyes occurring as the eyes gaze to the side. When a person is impaired by alcohol or certain drugs, some jerking will be seen if the eyes are moved far enough to the side.

• Lack of Smooth Pursuit (Clue Number One) – The eyes can be observed to jerk or "bounce" as they follow a smoothly moving stimulus, such as a pencil or penlight o The eyes of an impaired person will not follow smoothly, i.e., windshield wipers moving across a dry windshield • Distinct and Sustained Nystagmus At Maximum Deviation (Clue Number Two) – Distinct and sustained nystagmus is evident when the eye is held at maximum deviation for a minimum of four seconds and continues to jerk toward the side • Onset of Nystagmus Prior To 45 Degrees (Clue Number Three) – The point at which the eye is first seen jerking. If the jerking begins prior to 45 degrees it is evident the person has a BAC above 0.08, as shown by recent research.

The higher the degree of impairment, the sooner the nystagmus will be observable. _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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HGN and VGN can be observed directly and does not require special equipment. You will need a contrasting stimulus for the subject to follow with their eyes. This can be a penlight or pen. The stimulus used should be held slightly above eye level so the eyes are wide open when they look directly at it. It should be held approximately 12 Ͳ 15 inches in front of the nose. Remain aware of your position in relation to the subject at all times.

OFFICER SAFETY IS THE NUMBER ONE PRIORITY ON ANY TRAFFIC STOP. Administrative Procedures 1. Check for eyeglasses 2. Verbal instructions 3. Position stimulus (12Ͳ15 inches and slightly above eye level) 4. Check for Equal Pupil Size and Resting Nystagmus 5. Check for Equal Tracking _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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6. Lack of Smooth Pursuit 7. Distinct and Sustained Nystagmus at Maximum Deviation 8. Onset of Nystagmus Prior to 45 Degrees 9. Total the clues 10. Check for Vertical Nystagmus _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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Administrative Procedures for HGN It is important to administer the HGN test systematically using the following steps to ensure nothing is overlooked.

There are 10 steps in the systematic administration of the HGN test.

Step 1: Check for Eyeglasses (Note if subject wears contacts especially colored contacts because some colored contacts may affect the ability to compare pupil size) Begin by instructing the subject to remove eyeglasses, if worn.

It does not matter whether the subject can see the stimulus with perfect clarity. The subject just needs to see it and be able to follow it.

Step 2: Verbal Instructions Give the subject the appropriate verbal instructions: • Put feet together, hands at the side • Keep head still • Look at the stimulus • Follow movement of the stimulus with the eyes only • Keep looking at the stimulus until told the test is over Sep 3: Position the Stimulus Position the stimulus approximately 12 Ͳ 15 inches (30 Ͳ 38 cm) in front of subject's nose and slightly above eye level to commence the test.

Resting Nystagmus may be observed at this time. Officers should note whether the subject displays Resting Nystagmus. _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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Step 4: Equal Pupil Size and Resting Nystagmus Check for Equal Pupil Size and Resting Nystagmus.

Step 5: Equal Tracking Check for Equal Tracking. Move the stimulus from center to far right, to far left, and back to center.

The speed of the stimulus should be approximately the same speed used as checking for the Lack of Smooth Pursuit. This check may be done more than once. _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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Step 6: Lack of Smooth Pursuit Check the left eye for lack of the "Smooth Pursuit" clue. If the eye is observed to jerk while moving, that is one clue.

Check the right eye for lack of the "Smooth Pursuit" clue and compare.

Step 7: Check the right and left eye for the “Distinct and Sustained Nystagmus at Maximum Deviation" clue. If the jerkiness is distinct and sustained, that is one clue.

Step 8: Onset of Nystagmus Prior to 45 Degrees Check the left eye for the "Onset of Nystagmus Prior to 45 Degrees" clue. If the jerking begins prior to 45 degrees, that is one clue.

Check the right eye for "Onset of Nystagmus Prior to 45 Degrees" clue and compare. _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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Step 9: Total the clues Maximum number of clues possible for each eye: 3 Total maximum number of clues possible for both eyes: 6 Step 10: Check for Vertical Nystagmus It is possible all three clues definitely will be found in one eye, while only two (or sometimes only one) will show up in the other eye. It is always necessary to check both eyes and to check them independently. Notwithstanding, it is unlikely the eyes of someone under the influence of alcohol will behave totally different. Thus, if one eye shows all three clues distinctly while the other eye gives no evidence of nystagmus, the person may be suffering from one of the pathological disorders covered previously. _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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Test Interpretation You should look for three clues of nystagmus in each eye.

• Lack of Smooth Pursuit (The eye cannot follow a moving object smoothly) • Distinct and Sustained Nystagmus at Maximum Deviation (nystagmus is distinct and sustained when the eye is held at maximum deviation for a minimum of four seconds) • Onset of Nystagmus Prior to 45 Degrees Based on recent research, if you observe four or more clues it is likely the subject's BAC is at or above 0.08. Using this criterion, you will be able to classify about 88% of your subjects accurately. This was determined during laboratory and field testing and helps you weigh the various SFSTs as you make your arrest decision. _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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Three Clues of Horizontal Gaze Nystagmus When we administer the HGN test, we look for three specific clues as evidence of alcohol influence.

We check each eye independently for each clue.

For standardization, begin with the subject's left eye. Check for the first clue. Next, check right eye for same clue. Repeat this procedure for each clue starting with left eye, then right eye. Compare and document the results.

When we are checking an eye, it is good practice to administer the test by the numbers each time, to make sure no step is overlooked. _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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Clue No. 1: Lack of Smooth Pursuit The first clue requires the subject move the eye to follow the motion of a smoothly moving stimulus.

The stimulus may be the eraser on a pencil, the tip of a penlight, the tip of your finger, or any similar small object.

Begin by holding the stimulus vertically approximately 12 Ͳ 15 inches (30 Ͳ 38 cm) in front of the subject's nose and slightly above eye level. _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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Move the stimulus smoothly all the way out to the right (checking subject's left eye first) then move the stimulus smoothly all the way across the subject's face to the left (checking the subject's right eye), then back to center. Carefully watch the subject’s left eye then right eye and determine if they are able to pursue smoothly.

Make at least two complete passes with the stimulus.

If a person is not impaired by alcohol (or drugs that cause HGN), the eyes should move smoothly as the object is moved back and forth.

Analogy: movement of the eyes of a person not impaired by alcohol (or drugs that cause HGN) will be similar to the movement of windshield wipers across a wet windshield versus an impaired person and windshield wipers moving across a dry windshield. _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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The Mechanics of Clue Number 1 It is necessary to move the object smoothly in order to check the eye’s ability to pursue smoothly.

The stimulus should be moved from center position, all the way out to the right (checking subject's left eye) where the eye can go no further, and then all the way back across subject's face all the way out to the left where the eye can go no further (checking subject's right eye) and then back to the center.

The object must be moved steadily, at a speed that takes approximately 2 seconds to bring the eye from center to side.

In checking for this clue, make at least two complete passes in front of the eyes.

If you are still not able to determine whether or not the eye is jerking as it moves, additional passes may be made in front of the eyes. _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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Live Demonstration of the Mechanics of Clue No. 1 _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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Participant Practice of the Mechanics of Clue No. 1 _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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Participant Led Demonstration _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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Clue No. 2: Distinct and Sustained Nystagmus at Maximum Deviation Once you have completed the check for Lack of Smooth Pursuit, you will check the eyes for distinct and sustained nystagmus when the eye is held at maximum deviation, beginning with the subject's left eye.

The Mechanics of Clue Number 2 Once again, position the stimulus approximately 12 Ͳ 15 inches (30 Ͳ 38 cm) in front of subject's nose and slightly above eye level.

Move the stimulus off to the right (checking subject's left eye) until the eye has gone as far as possible.

Hold the stimulus steady at that position for a minimum of four (4) seconds and carefully watch the eye.

Then, move the stimulus back across the subject's face all the way out to the left (subject's right eye). _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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Four seconds will not cause fatigue nystagmus. This type of nystagmus may begin if a subject’s eye is held at maximum deviation for more than 30 seconds.

Hold the stimulus steady and carefully watch the eye.

If the person is impaired, the eye is likely to exhibit definite, distinct and sustained jerking when held at maximum deviation for a minimum of 4 seconds.

In order to "count" this clue as evidence of impairment, the nystagmus must be distinct and sustained for a minimum of 4 seconds.

If you think you see only slight nystagmus at this stage of the test or if you have to convince yourself nystagmus is present, then it isn't really there. _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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Live Demonstration of the Mechanics of Clue No. 2 _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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Participant practice of the mechanics of Clue No. 2 Participant Led Demonstrations _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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Clue No. 3: Onset of Nystagmus Prior to 45 Degrees Once again, position the stimulus approximately 12 Ͳ 15 inches (30 Ͳ 38 cm) in front of subject's nose and slightly above eye level.

The angle of onset of nystagmus is simply the point at which the eye is first seen jerking.

Examples: With someone at a very high BAC (0.20+), the jerking might begin almost immediately after the eye starts to move toward the side. For someone at 0.08 BAC, the jerking might not start until the eye has moved nearly to the 45 degree angle.

Generally speaking, the higher the BAC, the sooner the jerking will start as the eye moves toward the side.

If the jerking begins prior to 45 degrees, that person’s BAC could be 0.08 or above. _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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It is not difficult to determine when the eye has reached the 45 degree point, but it does require some practice.

If you start with the stimulus approximately 12 Ͳ 15 inches (30 Ͳ 38 cm) directly in front of the nose, you will reach 45 degrees when you have moved the stimulus an equal distance to the side. Another important indicator that can be used to determine if the eye is within 45 degrees is at 45 degrees, some white usually will still be visible in the corner of the eye (for most people). (Although rare, there may be times when a person’s eye may be at a 45 degree angle and no white in the corner of the eye is visible.) _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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The Mechanics of Clue No. 3 The stimulus is positioned approximately 12 Ͳ 15 inches from (30 Ͳ 38 cm) subject's nose and slightly above eye level. It is necessary to move the stimulus slowly to identify the point at which the eye begins to jerk.

Start moving the stimulus towards the right (left eye) at the speed that would take approximately 4 seconds for the stimulus to reach a 45 degree angle.

As you are slowly moving the stimulus, watch the eye carefully for any sign of jerking.

When you see the jerking begin, immediately stop moving the stimulus and hold it steady at that position.

With the stimulus held steady, look at the eye and verify the jerking is continuing.

If the jerking is not evident with the stimulus held steady, you have not located the point of onset.

Therefore, resume moving the stimulus slowly toward the side until you notice the jerking again.

When you locate the point of onset of nystagmus, you must determine whether it is prior to 45 degrees.

Verify some white is still showing in the corner of the eye. _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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Live Demonstration of the Mechanics of Clue No. 3 _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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Participant practice of the mechanics of Clue No. 3 Coaching and critiquing participants practice.

Participant led demonstration. _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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Training Aid: The 45 Degree Template A training aid has been provided to help you practice estimating a 45 degree angle.

• The outline of a square, with its diagonal line, gives us a 45 degree angle • This outline, or template, is provided for practice only • It is not to be used with actual DWI subjects To use the template, have your training partner hold the corner of the square under the nose.

When you line up your stimulus with the diagonal line, your partner will be looking along a 45 degree angle. _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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Coaching and Critiquing Participants' Practice Participant led Demonstration _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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Test Interpretation Based upon the original developmental research into HGN, the criterion for this test is 4.

If a person exhibits at least 4 out of the possible 6 clues, the implication is a BAC above 0.08.

Using this criterion, the test is 88% accurate. _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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Test Demonstration _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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D. Vertical Gaze Nystagmus (VGN) The VGN test is simple to administer. During the VGN test, look for jerking as the eyes move up and are held for a minimum of four seconds at maximum elevation.

• Position the stimulus horizontally, about 12 Ͳ 15 inches in front of the subject's nose • Instruct the subject to hold the head still and follow the object with the eyes only • Raise the object until the subject's eyes are elevated as far as possible • Hold for a minimum of four seconds • Watch closely for evidence of the eyes jerking upward

Participant led demonstration.

For VGN to be recorded, it must be distinct and sustained for a minimum of four seconds at maximum elevation.

VGN may be present in subjects under the influence of high doses of alcohol for that individual, and some other drugs. _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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E. Walk and Turn Test Stages Like all divided attention tests, WAT has two stages. They are: • Instruction stage • Walking stage Both stages are important because they can affect the subject's overall performance on the test. _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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Test Conditions Whenever possible, the WAT test should be conducted on a reasonably dry, hard, level, nonͲslippery surface. There should be sufficient room for subjects to complete nine heelͲtoͲtoe steps. Recent field validation studies have indicated varying environmental conditions have not affected a subject’s ability to perform this test.

Standardizing this test for every type of road condition is unrealistic. The original research study recommended this test be performed on a dry, hard, level, non slippery surface and relatively safe conditions. If not, the research recommends: 1) subject be asked to perform the test elsewhere, or 2) only HGN be administered The original SCRI studies suggested individuals over 65 years of age or people with back, leg, or inner ear problems had difficulty performing this test. Less than 1.5% of the test subjects in the original studies were over 65 years of age. Also, the SCRI studies suggest individuals wearing heels more than 2 inches high should be given the opportunity to remove their shoes. Officers should consider all factors when conducting SFSTs. _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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Procedures for Walk and Turn Testing _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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Instruction Stage: Initial Positioning and Verbal Instructions For standardization in the performance of this test, have the subject assume the heelͲtoͲtoe stance by giving the following verbal instructions, accompanied by demonstrations: Place your left foot on the line (real or imaginary).

Place your right foot on the line ahead of the left foot, with the heel of your right foot against the toe of the left foot.

Place your arms down at your sides.

Maintain this position until I have completed the instructions. Do not start to walk until told to do so.

Do you understand the instructions so far? (Make sure subject indicates understanding.) _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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Demonstrations and Instructions for the Walking Stage Explain the test requirements by giving instructions, accompanied by demonstrations: When I tell you to start, take nine heelͲtoͲtoe steps on the line, turn, and take nine heelͲtoͲtoe steps down the line.

When you turn, keep the front (lead) foot on the line, and turn by taking a series of small steps with the other foot, like this.

While you are walking, keep your arms at your sides, watch your feet at all times, and count your steps out loud.

Once you start walking, don't stop until you have completed the test.

Do you understand the instructions? (Make sure subject understands.)

Instruct the person to begin the test. _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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Test Interpretation You may observe a number of different behaviors when a subject performs this test. Original research demonstrated the behaviors listed below are likely to be observed in someone with a BAC at or above 0.08. Look for the following clues each time this test is given: • Cannot keep balance while listening to the instructions. Two tasks are required at the beginning of this test. The subject must balance heelͲtoͲtoe on the line, and at the same time, listen carefully to the instructions. Typically, the person who is impaired can do only one of these things. The subject may listen to the instructions, but not keep balance. Record this clue if the subject does not maintain the heelͲtoͲtoe position throughout the instructions. (Feet must actually break apart or step off the line.) Do not record this clue if the subject sways or uses the arms to balance but maintains the heelͲtoͲtoe position. _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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• Starts too soon. The impaired person may also keep balance, but not listen to the instructions.

Since you specifically instructed the subject not to start walking "until I tell you to begin," record this clue if the subject does not wait.

• Stops while walking. The subject stops while walking. Do not record this clue if the subject is merely walking slowly.

• Does not touch heelͲtoͲtoe. The subject leaves a space of one half inch or more between the heel and toe on any step. _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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• Steps off the line. The subject steps so that one foot is entirely off the line.

• Uses arms for balance. The subject raises one or both arms six or more inches from the sides in order to maintain balance.

• Improper turn. The subject removes the front foot from the line while turning. Also record this clue if the subject has not followed directions as instructed, i.e., spins or pivots around or loses balance while turning.

• Incorrect number of steps. Record this clue if the subject takes more or fewer than nine steps in either direction. _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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If subject can't do the test, record observed clues and document the reason for not completing the test, e.g., subject’s safety.

Remember the SFSTs are a tool to assist you in seeing visible signs of impairment and are not a pass/fail test.

Subject gets into a "leg lock" position (legs crossed, unable to move.)

If the subject has difficulty with the test (for example, steps off the line), continue from that point, not from the beginning. This test may lose its sensitivity if it is repeated several times.

Observe the subject from a safe distance and limit your movement which may distract the subject during the test. Always consider officer safety. _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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Based on recent research, if the subject exhibits two or more clues on this test or fails to complete it, classify the subject's BAC as at or above 0.08. Using this criterion, you will be able to accurately classify 79% of your subjects.

Review of Divided Attention Definition WAT is a field sobriety test based on the important concept of divided attention.

The test requires the subject to divide attention among mental tasks and physical tasks.

The mental tasks include comprehension of verbal instructions, processing of information, and recall of memory.

The physical tasks include balance and coordination. The subject is required to maintain balance and coordination while standing still, walking, and turning. _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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Instruction Stage Test Demonstrations _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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F. One Leg Stand Test Stages Like all divided attention tests, OLS has two stages. They are: • Instruction stage • Balance and counting stage Both stages are important because they can affect the subject's overall performance on the test. _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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Test Conditions OLS requires a reasonably dry, hard, level, and non slippery surface. Subject's safety should be considered at all times.

Standardizing this test for every type of road condition is unrealistic. The original research study recommended this test be performed on a dry, hard, level, non slippery surface and relatively safe conditions. If not, the research recommends: 1) subject be asked to perform the test elsewhere, or 2) only HGN be administered However, recent field validation studies have indicated that varying environmental conditions have not affected a subject’s ability to perform this test.

The original SCRI studies suggested individuals over 65 years of age, people with back, leg or inner ear problems, or people who are overweight by 50 or more pounds may have difficulty performing this test. Less than 1.5% of the test subjects in the original studies were over 65 years of age. There was no data containing the weight of the test subjects included in the final report. Also, the SCRI studies suggest individuals wearing heels more than 2 inches high should be given the opportunity to remove their shoes. _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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_________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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Instruction Stage: Initial Positioning and Verbal Instructions Initiate the test by giving the following instructions, accompanied by demonstrations.

Please stand with your feet together and your arms down at the sides, like this.

Do not start to perform the test until I tell you to do so.

Do you understand the instructions so far? _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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Demonstrations and Instructions for the Balance and Counting Stage Explain the test requirements using the following verbal instructions accompanied by demonstrations: When I tell you to start, raise either leg with the foot approximately six inches off the ground, keeping your foot parallel to the ground.

Keep both legs straight and your arms at your side.

While holding that position, count out loud in the following manner: “one thousand one, one thousand two, one thousand three,” and so on until told to stop.

Keep your arms at your sides at all times and keep watching the raised foot.

Do you understand?

Go ahead and perform the test. (Officer should always time the 30 seconds. Test should be discontinued after 30 seconds.)

Observe the subject from a safe distance. _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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Test Interpretation You may observe a number of different behaviors when a subject performs this test. The original research found the behaviors listed below are the most likely to be observed in someone with a BAC at or above 0.08. When administering the OLS test, we look for certain specific behaviors. Each behavior or action is considered one clue. There is a maximum number of 4 clues on this test. Look for the following clues each time the OLS test is administered.

The subject sways while balancing – This refers to side to side or back and forth motion of the body, or a swaying motion of the foot, while the subject maintains the OLS position.

Slight tremors of the foot or body should not be interpreted as swaying.

Uses arms for balance – Subject moves arms 6 or more inches from the side of the body in order to keep balance. _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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Hopping – Subject is able to keep one foot off the ground, but resorts to hopping in order to maintain balance.

Puts foot down – The subject is not able to maintain the OLS position, putting the foot down one or more times during the 30 second count.

If the subject puts the foot down, give instructions to pick the foot up again and continue counting from the point at which the foot touched.

If subject can't do the test, record observed clues and document the reason for not completing the test, e.g. subject’s safety.

Remember time is critical in this test. The original SCRI research has shown a person with a BAC above 0.10 can maintain balance for up to 25 seconds, but seldom as long as 30. _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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Based on recent research, if an individual shows two or more clues or fails to complete the OLS, there is a good chance the BAC is at or above 0.08. Using that criterion, you will accurately classify 83% of the people you test as to whether their BAC's are at or above 0.08.

Observe the subject from a safe distance and minimize movement during the test so as not to interfere. If the subject puts the foot down, give instructions to pick the foot up again and continue counting from the point at which the foot touched the ground. If the subject counts very slowly, terminate the test after 30 seconds.

Review of Divided Attention Definition OLS is another field sobriety test that employs divided attention.

The subject's attention is divided among such simple tasks as balancing, listening, and counting out loud.

Although none of these is particularly difficult in itself, the combination can be very difficult for someone who is impaired. _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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3/1/2022

NHTSA’s Standardized Field Sobriety Testing Mastering the Basics

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Phase III – PreArrest Screening • Horizontal Gaze Nystagmus Test • Walk and Turn Test • One Leg Stand Test

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Horizontal Gaze Nystagmus Test Involuntary jerking of eyes, occurring as eyes gaze to the side.

session VIII, page 18

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HGN ‐ Two Main Components • Medical Assessment • Rule out medical impairment

• Alcohol/Drug Assessment • Clues

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HGN ‐ Medical Assessment Component • Equal Pupil Size • Resting Nystagmus • Equal Tracking

session VIII, page 27

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3/1/2022

HGN ‐ Medical Impairment “If the person has sight in both eyes but the eyes fail to track together, there is a possibility the person is suffering from an injury or illness affecting the brain.”

session VIII, page 28

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HGN ‐ Medical Impairment “If the eyes do not track together, or if the pupils are noticeably unequal in size, the chance of medical disorders or injuries causing the nystagmus may be present.”

session VIII, page 29

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HGN ‐ Medical Impairment “If the eyes track together, continue with the test and document the results.”

session VIII, page 29

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HGN ‐ Medical Impairment “If there are any abnormal findings on the pre‐test checks, the officer may choose not to continue with the testing.”

“If HGN testing is continued, officers are reminded this does not follow the standardized protocol and should acknowledge such in any report.”

session VIII, page 29

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HGN – Medical Assessment Question “Officers are reminded to ask questions about the subject’s eyes and general health conditions prior to administering the HGN test.”

session VIII, page 29

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HGN ‐ Administrative Procedures 1.

2.

3.

4.

5.

Check for eyeglasses Verbal instructions Position stimulus Check for Equal Pupil Size and Resting Nystagmus Check for Equal Tracking

session VIII, page 33 & 34

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HGN ‐ Administrative Procedures 6. Check for Lack of Smooth Pursuit 7. Check for Distinct and Sustained Nystagmus at Maximum Deviation 8. Check for Onset of Nystagmus Prior to 45 Degrees 9. Total the clues 10.Check for Vertical Gaze Nystagmus session VIII, page 35 & 36

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HGN ‐ 45 Degree Template

45

o

session VIII, page 54

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HGN ‐ Standardized Clues • Lack of Smooth Pursuit • Distinct and Sustained Nystagmus at Maximum Deviation • Onset of Nystagmus Prior to 45 Degrees

session VIII, page 38

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HGN ‐ Standardized Scoring Criterion 4 or more clues indicates BAC at or above 0.08 (88% accurate)

session VIII, page 56

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Walk and Turn Test Divided Attention Test Mental Task and Physical Task • Instruction Stage • Walking Stage

session VIII, page 61

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W&T ‐ Test Conditions ‐ Surface Reasonably dry, hard, level, non‐slippery surface If not, the research recommends: 1. subject be asked to perform the test elsewhere, or 2. only HGN be administered

session VIII, page 62

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Test Conditions – Age & Physical Problems “The original SCRI studies suggested individuals over 65 years of age or people with back, leg, or inner ear problems had difficulty performing this test.”

session VIII, page 62

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W&T ‐ Test Conditions – Footwear “Individuals wearing heels more than 2‐inches high should be given the opportunity to remove the shoes.”

session VIII, page 62

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W&T ‐ Test Conditions – Footwear “Subjects with heels two inches or more or any other form of unusual footwear (i.e., flip flops, platform shoes, etc.) should be afforded the opportunity to remove that footwear prior to the test.”

session VIII, page 62 (Instructor)

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W&T ‐ Physical Assessment Question “Remind participants prior to administering psychophysical tests to ask the subject if they have any physical problems or disabilities.”

session VIII, page 62 (Instructor)

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W&T ‐ Administrative Procedures 1. Put left foot on the line, right foot in front touching heel‐ to‐toe.

2. Demonstrate.

3. Place your hands down by your sides.

4. Demonstrate.

5. Maintain this position.

6. Do not start the test until instructed to do so.

7. Do you understand the instructions so far? session VIII, page 64

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W&T ‐ Administrative Procedures 8. Take 9 heel‐to‐toe steps down the line.

9. Demonstrate minimum of 3 heel‐to‐toe steps.

10.On your 9th step, leave your lead foot on the line and turn taking several small steps.

11.Demonstrate turn.

12.Take 9 heel‐to‐toe steps back up the line.

session VIII, page 65

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W&T ‐ Administrative Procedures 13.Watch your feet.

14.Count out loud.

15.Keep your hands down to your sides.

16.Once you start walking do not stop walking until the test is completed.

17.Do you understand the instructions?

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W&T ‐ Standardized Clues 1. Cannot maintain balance.

2. Starts too soon.

3. Stops while walking.

4. Misses heel‐to‐toe.

5. Steps off line.

6. Raises arms for balance 7. Turns improperly/loses balance while turning.

8. Wrong number or steps.

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W&T ‐ Standardized Scoring Criteria 2 or more clues indicates BAC at or above 0.08 (79% accurate)

session VIII, page 70

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One Leg Stand Test Divided Attention Test Mental Task and Physical Task • Instruction Stage • Balance & Counting Stage

session VIII, page 72

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OLS ‐ Test Conditions ‐ Surface Reasonably dry, hard, level, non‐slippery surface If not, the research recommends: 1. subject be asked to perform the test elsewhere, or 2. only HGN be administered

session VIII, page 73

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Test Conditions – Age & Physical Problems “The original SCRI studies suggested individuals over 65 years of age or people with back, leg, or inner ear problems, or people who are overweight by 50 or more pounds may have difficulty performing this test.”

session VIII, page 73

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OLS ‐ Test Conditions – Footwear “Individuals wearing heels more than 2‐inches high should be given the opportunity to remove their shoes.”

session VIII, page 73

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OLS ‐ Test Conditions – Footwear “Subjects with any form of any unusual footwear (i.e., flip flops, platform shoes, etc.) should be afforded the opportunity to remove that footwear prior to the test.”

session VIII, page 74 (Instructor)

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OLS ‐ Physical Assessment Question “Remind participants prior to administering this test to check if the subject has any physical problems or disabilities.”

session VIII, page 72 (Instructor)

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OLS ‐ Administrative Procedures 1.

2.

3.

4.

5.

Put your feet together.

Hands down to your sides.

Demonstrate stance.

Do not start the test until instructed to do so.

Do you understand the instructions so far?

session VIII, page 75

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OLS ‐ Administrative Procedures 6. Raise 1 foot approximately 6 inches off the ground.

7. Elevated foot parallel to the ground.

8. Demonstrate.

9. Keep both legs straight.

session VIII, page 76

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OLS ‐ Administrative Procedures 10. Keep your arms to your sides.

11. Look at your elevated foot.

12. Count out loud in the following manner: “one thousand one, one thousand two, one thousand three, and so on until told to stop.

13. Do you understand? session VIII, page 76

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OLS – Timing 30 seconds “Officer should always time the 30 seconds. Test should be discontinued after 30 seconds.”

session VIII, page 76

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OLS – Standardized Clues 1. Puts foot down 2. Uses arms for balance 3. Sways while balancing 4. Hopping

session VIII, page 77 & 78

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OLS ‐ Standardized Scoring Criterion 2 or more clues indicates BAC at or above 0.08 (83% accurate)

session VIII, page 79

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Anthony D. Palacios Consultant to Attorneys on DRE/SFST Issues Impaired Driving Specialists, LLC ap@impaireddrivingspecialists.com fieldsobrietytraining.com 678.410.1120

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Texas Criminal Defense Lawyers Association

28th Annual NCDD/TCDLA Mastering Scientific Evidence March 24-25 Royal Sonesta New Orleans, LA

Topic: Jury Selection in Breath & Blood Test Cases Speaker:

Troy McKinney 440 Louisiana St Ste 800 Houston, TX 77002-1637 (713) 951-9994 Phone (713) 224-6008 Fax wtmhousto2@aol.com Email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

10/21/2021

State of Texas v. __________ County Criminal Court at Law No. ___ Honorable __________, Presiding Troy McKinney Schneider & McKinney

Why We Are Here

Why We Are Here • Not in defiance of DWI Laws.

• We support DWI Laws

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Why We Are Here • We say – Gonzalo was not driving while intoxicated.

Why We Are Here • We say – Gonzalo was not driving while intoxicated.

• They say – they think Gonzalo may have been driving while intoxicated.

Jury Selection “Myths”

• #1: Jurors are “selected”

• #2: If you are quiet, you do not end up serving

• #3: You are required to ignore or set aside your personal feelings or beliefs.

• #4: It is “wrong” to admit you have a bias or prejudice (a leaning) of some sort

10/21/2021

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10/21/2021

What We Want – Good Jurors

What We Want – Good Jurors • Not all people are good jurors for all kinds of cases.

What We Want – Good Jurors • Not all people are good jurors for all kinds of cases.

• We want people who want to be as good a juror as I want to be a lawyer.

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10/21/2021

What We Want – Good Jurors • Not all people are good jurors for all kinds of cases.

• We want people who want to be as good a juror as I want to be a lawyer.

• Thoughtful, attentive, inquisitive, questioning, and open-minded.

What We Want – Good Jurors • Not all people are good jurors for all kinds of cases.

• We want people who want to be as good a juror as I want to be a lawyer.

• Thoughtful, attentive, inquisitive, questioning, and openminded.

• Jurors who will follow the law – not all can, will, or want to – and that is okay. Just tell us your honest opinions and beliefs.

Everyone will respect you for your honesty.

What We Want – Good Jurors • Not all people are good jurors for all kinds of cases.

• We want people who want to be as good a juror as I want to be a lawyer.

• Thoughtful, attentive, inquisitive, questioning, and openminded.

• Jurors who will follow the law – not all can, will, or want to – and that is okay. Just tell us your honest opinions and beliefs.

Everyone will respect you for your honesty.

• Most importantly: HONEST. Your oath requires you to tell us you disagree with us if you do. Just be honest: I promise we will respect your honesty.

4

10/21/2021

Definition of DWI • • • • • •

On or about a date, in Harris County, operate, a motor vehicle, in a public place, while intoxicated.

Definition of DWI • DWI – on a date, in Harris county, operate, a motor vehicle, in a public place, while intoxicated.

• "Intoxicated" means: • (A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol . . . into the body; or • (B) having an alcohol concentration of 0.08 or more

The Law • “Not Guilty” if – Not hGonzalong normal mental or physical faculties not proven Beyond a Reasonable Doubt • “Not Guilty” if – Blood or breath alcohol level of .08 or more at the time of driving not proven Beyond a Reasonable Doubt • “Not Guilty” if – By reason of the Introduction of Alcohol not proven beyond a reasonable doubt • “Not Guilty” if – ANY of the elements alleged not proven Beyond a Reasonable Doubt 10/21/2021

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10/21/2021

Three Rules of Trial

To Prevent Wrongful Convictions To Protect the Innocent

Three Rules of Trial

To Prevent Wrongful Convictions To Protect the Innocent • Presumption of Innocence.

Three Rules of Trial

To Prevent Wrongful Convictions To Protect the Innocent • Presumption of Innocence.

• Level of Proof – beyond and to the exclusion of all reasonable doubt.

6

10/21/2021

Three Rules of Trial

To Prevent Wrongful Convictions To Protect the Innocent • Presumption of Innocence.

• Level of Proof – beyond and to the exclusion of all reasonable doubt.

• Burden of Proof – responsibility for the evidence is always and only on the State.

PRESUMPTION OF INNOCENCE • All persons are presumed innocent and no person may be convicted of any offense unless each element of the offense is proved beyond a reasonable doubt. The law does not require a defendant to prove his innocence or produce any evidence at all.

The presumption of

innocence alone is sufficient to acquit the defendant.

10/21/2021

Presumption of Innocence • What is a presumption?

7

10/21/2021

Presumption of Innocence • What is a presumption?

• Assumption, Favoritism, Leaning, Prejudgment, Strongly Held Belief • Must be True – a State of Mind

Bias,

Presumption of Innocence

Examples of Common Presumptions • Lightening and Thunder….presume ______?

Presumption of Innocence

Examples of Common Presumptions • Lightening and Thunder….presume a storm.

8

10/21/2021

Presumption of Innocence

Examples of Common Presumptions • Lightening and Thunder….presume a storm.

• Dark clouds and wet ground…presume _____?

Presumption of Innocence

Examples of Common Presumptions • Lightening and Thunder….presume a storm.

• Dark clouds and wet ground…presume it rained.

Presumption of Innocence

Examples of Common Presumptions • Lightening and Thunder….presume a storm.

• Dark clouds and wet ground…presume it rained.

• Person in handcuffs on TV….presume ______?

9

10/21/2021

Presumption of Innocence

Examples of Common Presumptions • Lightening and Thunder….presume a storm.

• Dark clouds and wet ground…presume it rained.

• Person in handcuffs on TV….presume innocence?

Presumption of Innocence

Examples of Common Presumptions • Lightening and Thunder….presume a storm.

• Dark clouds and wet ground…presume it rained.

• Person in handcuffs on TV….presume innocence?

• Person on the side of the road pulled over by police…presume ________?

Presumption of Innocence

Examples of Common Presumptions • Lightening and Thunder….presume a storm.

• Dark clouds and wet ground…presume it rained.

• Person in handcuffs on TV….presume innocence?

• Person on the side of the road pulled over by police…presume innocent and done nothing illegal?

10

10/21/2021

Presumption of Innocence • What is a presumption?

• Assumption, Favoritism, Leaning, Bias.

• Must be True – a State of Mind.

• If there was a presumption of guilt, you would have to be biased in favor of ________?

Presumption of Innocence • What is a presumption?

• Assumption, Favoritism, Leaning, Bias.

• Must be True – a State of Mind.

• If there was a presumption of guilt, you would have to be biased in favor of the State?

Presumption of Innocence • • • •

What is a presumption?

Assumption, Favoritism, Leaning, Bias.

Must be True – a State of Mind.

If there was a presumption of guilt, you would have to be biased in favor of the State?

• Because there is a presumption of innocence, you must be biased in favor of ________?

11

10/21/2021

Presumption of Innocence • • • •

What is a presumption?

Assumption, Favoritism, Leaning, Bias.

Must be True – a State of Mind.

If there was a presumption of guilt, you would have to be biased in favor of the State?

• Because there is a presumption of innocence, you must be biased in favor of Gonzalo?

Presumption of Innocence What is a presumption?

Assumption, Favoritism, Leaning, Bias.

Must be True – a State of Mind.

If there was a presumption of guilt, you would to be biased in favor of the State?

• Because there is a presumption of innocence, you must be biased in favor of Gonzalo?

• • • •

• To be fair and follow the law (rules of trial) in this case, the law requires that you must be biased in favor of Gonzalo.

Presumption of Innocence What is a presumption?

Assumption, Favoritism, Leaning, Bias.

Must be True – a State of Mind.

If there was a presumption of guilt, you would have to be biased in favor of the State?

• Because there is a presumption of innocence, you must be biased in favor of Gonzalo?

• To be fair and follow the law (rules of trial) in this case, the law requires that you must be biased in favor of Gonzalo.

• • • •

• Who will not or cannot be biased in favor of (have a strongly held belief in favor of) Gonzalo’s innocence?

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Presumption of Innocence

What is a presumption?

Assumption, Favoritism, Leaning, Bias.

Must be True – a State of Mind.

If there was a presumption of guilt, you would have to be biased in favor of the State?

• Because there is a presumption of innocence, you must be biased in favor of Gonzalo?

• To be fair and follow the law (rules of trial) in this case, the law requires that you must be biased in favor of Gonzalo.

• Who cannot be biased in favor of (have a strongly held belief in favor of) Gonzalo’s innocence?

• • • •

• Who will be biased in favor of Gonzalo’s innocence?

Presumption of Innocence Real Beliefs v. Theory

Presumption of Innocence Real Beliefs v. Theory • Not everyone can, will, or wants to really presume someone innocent – because they do not honestly (or really) believe it.

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Presumption of Innocence Real Beliefs v. Theory • Not everyone can, will, or wants to really presume someone innocent – because they do not honestly (or really) believe it.

• That is okay. It is normal and human.

Presumption of Innocence Real Beliefs v. Theory

Despite knowing what the law requires….

Presumption of Innocence Real Beliefs v. Theory

Despite knowing what the law requires….

• Who believes or thinks Gonzalo must have done something illegal or he would not be here?

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Presumption of Innocence Real Beliefs v. Theory

Despite knowing what the law requires….

• Who believes or thinks Gonzalo must have done something illegal or he would not be here?

• Has Gonzalo already lost some of the presumption of innocence? Some leaning against him or for the State?

Presumption of Innocence Real Beliefs v. Theory

Despite knowing what the law requires….

• Who honestly still has a doubt about Gonzalo’s innocence?

Presumption of Innocence Real Beliefs v. Theory

Despite knowing what the law requires….

• Who still has a doubt about Gonzalo’s innocence?

• Will that doubt about his innocence cause you to not fully and really presume him completely innocent?

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Second Rule of Trial Proof Beyond and to the Exclusion of All Reasonable Doubt

Second Rule of Trial Proof Beyond and to the Exclusion of All Reasonable Doubt • What does it mean?

• You get to decide – with some guidance and context, but no definition. It is what you decide it is.

• You must be 100 percent free of reasonable doubt.

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Second Rule of Trial Proof Beyond and to the Exclusion of All Reasonable Doubt • If the State only proves that there was probable cause (maybe), the verdict must be ________?

Second Rule of Trial Proof Beyond and to the Exclusion of All Reasonable Doubt • If the State only proves that there was probable cause (maybe), the verdict must be NOT GUILTY.

Second Rule of Trial Proof Beyond and to the Exclusion of All Reasonable Doubt •

If the State only proves that there was probable cause (maybe), the verdict must be NOT GUILTY.

• If the State only proves DWI to a preponderance of the evidence (greater weight of the evidence – more than 50 percent), the verdict must be ___________?

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Second Rule of Trial Proof Beyond and to the Exclusion of All Reasonable Doubt •

If the State only proves that there was probable cause (maybe), the verdict must be NOT GUILTY.

• If the State only proves DWI to a preponderance of the evidence (greater weight of the evidence – more than 50 percent), the verdict must be NOT GUILTY.

Second Rule of Trial Proof Beyond and to the Exclusion of All Reasonable Doubt • •

If the State only proves that there was probable cause (maybe), the verdict must be NOT GUILTY. If the State only proves DWI to a preponderance of the evidence (greater weight of the evidence – more than 50 percent), the verdict must be NOT GUILTY.

• If the State only proves DWI by clear and convincing evidence (where you have a firm belief that the allegations are true), the verdict must be ________?

Second Rule of Trial Proof Beyond and to the Exclusion of All Reasonable Doubt • •

If the State only proves that there was probable cause (maybe), the verdict must be NOT GUILTY. If the State only proves DWI to a preponderance of the evidence (greater weight of the evidence – more than 50 percent), the verdict must be NOT GUILTY.

• If the State only proves DWI by clear and convincing evidence (where you have a firm belief that the allegations are true), the verdict must be NOT GUILTY.

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• •

•

Second Rule of Trial Proof Beyond and to the Exclusion of All Reasonable Doubt

If the State only proves that there was probable cause (maybe), the verdict must be NOT GUILTY. If the State only proves DWI to a preponderance of the evidence (greater weight of the evidence – more than 50 percent), the verdict must be NOT GUILTY. If the State only proves DWI by clear and convincing evidence (where you have a firm belief that the allegations are true), the verdict must be NOT GUILTY.

• If after hearing the evidence, you are just not sure if the State has proved guilt beyond and to the exclusion of all reasonable doubt (you just do not know one way or the other), the verdict must be ______?

• •

•

Second Rule of Trial Proof Beyond and to the Exclusion of All Reasonable Doubt

If the State only proves that there was probable cause (maybe), the verdict must be NOT GUILTY. If the State only proves DWI to a preponderance of the evidence (greater weight of the evidence – more than 50 percent), the verdict must be NOT GUILTY. If the State only proves DWI by clear and convincing evidence (where you have a firm belief that the allegations are true), the verdict must be NOT GUILTY.

• If after hearing the evidence, you are just not sure if the State has proved guilt beyond and to the exclusion of all reasonable doubt (you just do not know one way or the other), the verdict must be NOT GUILTY.

• • • •

Second Rule of Trial Proof Beyond and to the Exclusion of All Reasonable Doubt

If the State only proves that there was probable cause (maybe), the verdict must be NOT GUILTY. If the State only proves DWI to a preponderance of the evidence (greater weight of the evidence – more than 50 percent), the verdict must be NOT GUILTY. If the State only proves DWI by clear and convincing evidence (where you have a firm belief that the allegations are true), the verdict must be NOT GUILTY. If after hearing the evidence, you are just not sure if the State has proved guilt beyond and to the exclusion of all reasonable doubt (you just do not know one way or the other), the verdict must be NOT GUILTY.

• If after hearing the evidence you believe beyond a reasonable doubt that Gonzalo did not have the normal use of his mental or physical faculties, but you are not sure if it was because of alcohol or for some other reason, the verdict must be _______?

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• • • •

Second Rule of Trial Proof Beyond and to the Exclusion of All Reasonable Doubt

If the State only proves that there was probable cause (maybe), the verdict must be NOT GUILTY. If the State only proves DWI to a preponderance of the evidence (greater weight of the evidence – more than 50 percent), the verdict must be NOT GUILTY. If the State only proves DWI by clear and convincing evidence (where you have a firm belief that the allegations are true), the verdict must be NOT GUILTY. If after hearing the evidence, you are just not sure if the State has proved guilt beyond and to the exclusion of all reasonable doubt (you just do not know one way or the other), the verdict must be NOY GUILTY.

• If after hearing the evidence you believe beyond a reasonable doubt that Gonzalo did not have the normal use of her mental or physical faculties, but you are not sure if it was because of alcohol or for some other reason, the verdict must be NOT GUILTY.

Second Rule of Trial

Proof Beyond and to the Exclusion of All Reasonable Doubt

Where Can Reasonable Doubt Come From?

• From the evidence itself.

Second Rule of Trial

Proof Beyond and to the Exclusion of All Reasonable Doubt

Where Can Reasonable Doubt Come From?

• From the Evidence Itself.

• From the Lack of Evidence.

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Second Rule of Trial

Proof Beyond and to the Exclusion of All Reasonable Doubt

Where Can Reasonable Doubt Come From?

• From the Evidence Itself.

• From the Lack of Evidence.

• From Unanswered Questions that you have.

Second Rule of Trial

Proof Beyond and to the Exclusion of All Reasonable Doubt

• • • •

Where Can Reasonable Doubt Come From?

From the Evidence Itself.

From the Lack of Evidence.

From Unanswered Questions that you have.

Inconsistencies in the Evidence.

Second Rule of Trial

Proof Beyond and to the Exclusion of All Reasonable Doubt

• • • • •

Where Can Reasonable Doubt Come From?

From the Evidence Itself.

From the Lack of Evidence.

From Unanswered Questions that you have.

Inconsistencies in the Evidence.

Credibility of the Evidence – do not believe some or all.

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Second Rule of Trial

Proof Beyond and to the Exclusion of All Reasonable Doubt

Where Can Reasonable Doubt Come From?

From the Evidence Itself.

From the Lack of Evidence.

From Unanswered Questions that you have.

Inconsistencies in the Evidence.

Credibility of the Evidence – do not believe some or all.

• Weight of the Evidence – just not enough.

• • • • •

Second Rule of Trial

Proof Beyond and to the Exclusion of All Reasonable Doubt

Where Can Reasonable Doubt Come From?

From the Evidence Itself.

From the Lack of Evidence.

From Unanswered Questions that you have.

Inconsistencies in the Evidence.

Credibility of the Evidence – do not believe some or all.

• Weight of the Evidence – just not enough.

• Not proven to you.

• • • • •

Second Rule of Trial

Proof Beyond and to the Exclusion of All Reasonable Doubt

• • • • • • • •

Where Can Reasonable Doubt Come From?

From the Evidence Itself.

From the Lack of Evidence.

From Unanswered Questions that you have.

Inconsistencies in the Evidence.

Credibility of the Evidence – do not believe some or all.

Weight of the Evidence – just not enough.

Not proven to you.

Specific Reasonable Doubt – one or several.

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Second Rule of Trial Proof Beyond and to the Exclusion of All Reasonable Doubt • You do not need to have the same reasonable doubt as anyone else.

• Each person may have their own even if it is not shared by anyone else.

• It is personal to you.

Third Rule of Trial Burden of Proof • The prosecution has the burden of proving the defendant guilty and it must do so by proving each and every element of the offense charged beyond a reasonable doubt and if it fails to do so, you must acquit the defendant.

Third Rule of Trial Burden of Proof • Only and always on the State.

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Third Rule of Trial Burden of Proof • Only and always on the State.

• We (the defense) never have to prove or disprove anything.

Third Rule of Trial Burden of Proof • Only and always on the State.

• We (the defense) never have to prove or disprove anything.

• It means that the State has the Responsibility for the Evidence.

Third Rule of Trial Burden of Proof • Only and always on the State.

• We (the defense) never have to prove or disprove anything.

• It means that the State has the Responsibility for the Evidence.

• If you want more evidence, who do you hold the lack of evidence against?

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Third Rule of Trial Burden of Proof • Only and always on the State.

• We (the defense) never have to prove or disprove anything.

• It means that the State has the Responsibility for the Evidence.

• If you want more evidence, who do you hold the lack of evidence against? The State because they have the Responsibility for the Evidence and the Burden of Proof.

Third Rule of Trial Burden of Proof • Who is on trial here?

Third Rule of Trial Burden of Proof • Who is on trial here?

• Gonzalo ______________ ???????

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Third Rule of Trial Burden of Proof • Who is on trial here?

• Gonzalo ______________ ???????

• NO – The State, its case, and its evidence is on trial because it has the Burden of Proof and Gonzalo has the presumption of innocence.

Third Rule of Trial Burden of Proof • Who is on trial here?

• Gonzalo ______________ ???????

• NO – The State, its case, and its evidence is on trial because it has the Burden of Proof and Gonzalo has the presumption of innocence.

• The State’s evidence is what is on trial and what you have to judge.

Third Rule of Trial Burden of Proof • Some say that if the defense produces no evidence, the Defendant must be guilty.

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Third Rule of Trial Burden of Proof • Some say that if the defense produces no evidence, the Defendant must be guilty.

• Does anyone feel that way?

Third Rule of Trial Burden of Proof • Some say that they must hear something from the defense before they could ever find the Defendant not guilty and that if they hear nothing from the defense they cannot find the Defendant not guilty.

Third Rule of Trial Burden of Proof • Some say that they must hear something from the defense before they could ever find the Defendant not guilty and that if they hear nothing from the defense they cannot find the Defendant not guilty.

• Does anyone feel that way?

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Third Rule of Trial Burden of Proof • If the State rests, and you have a reasonable doubt or are not sure if it has been proven beyond and to the exclusion of all reasonable doubt, and the defense produces no evidence, the verdict has to be ______?

Third Rule of Trial Burden of Proof • If the State rests, and you have a reasonable doubt or are not sure if it has been proven beyond and to the exclusion of all reasonable doubt, and the defense produces no evidence, the verdict has to be NOT GUILTY.

DEFENDANT’S RIGHT NOT TO TESTIFY • Our law provides that a defendant may testify on his own behalf if he elects to do so. This however, is a right accorded a defendant, and if in the event he elects not to testify, that fact cannot be considered by you or used against him in any way.

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Third Rule of Trial Burden of Proof • Some say that if the Defendant does not testify, he must be guilty because anyone who is innocent would testify.

Third Rule of Trial Burden of Proof • Some say that if the Defendant does not testify, he must be guilty because anyone who is innocent would testify.

• Does anyone feel that way?

Third Rule of Trial Burden of Proof • Some say that if the Defendant does not testify, he must be guilty because anyone who is innocent would testify.

• Does anyone feel that way?

• What are innocent valid reasons for someone not to testify?

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Third Rule of Trial Burden of Proof • Some say that if the Defendant does not testify, he must be guilty because anyone who is innocent would testify.

• Does anyone feel that way?

• What are innocent valid reasons for someone not to testify?

• Lawyer says not necessary.

Third Rule of Trial Burden of Proof • Some say that if the Defendant does not testify, he must be guilty because anyone who is innocent would testify.

• Does anyone feel that way?

• What are innocent valid reasons for someone not to testify?

• Lawyer says not necessary • State has not proven guilt – no need.

Third Rule of Trial Burden of Proof • Some say that if the Defendant does not testify, he must be guilty because anyone who is innocent would testify.

• Does anyone feel that way?

• What are innocent valid reasons for someone not to testify?

• Lawyer says not necessary • State has not proven guilt – no need.

• Fear – Nervousness – Do not speak well – Anxiety.

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Decision To Take or Not to Take A Breath or Blood Test • Is it legal or illegal to decline to take a breath or blood test?

Decision To Take or Not to Take A Breath or Blood Test • Is it legal or illegal to decline to take a breath or blood test? Legal

• The law gives every person the option to decline to take a breath or blood test and requires that if a person declines none shall be taken unless the police get a search warrant. It is legal to just say no.

Decision Not to Take a Breath or Blood Test • Is it legal or illegal to decline to take a breath or blood test?

• The law gives every person the option to decline to take a breath or blood test and requires that if a person declines none shall be taken unless the police get a search warrant.

It is perfectly legal to just say no.

• Does anyone fundamentally disagree with that law?

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Decision To Take or Not to Take A Breath or Blood Test

• Is it legal or illegal to decline to take a breath or blood test?

• The law gives every person the option to decline to take a breath or blood test and requires that if a person declines none shall be taken unless the police get a search warrant. It is legal to just say no.

• Does anyone believe that a person who declines to provide a breath or blood specimen would only do so because they know they are guilty?

Decision To Take or Not to Take A Breath Test

• Is it legal or illegal to decline to take a breath or blood test?

• The law gives every person the option to decline to take a breath or blood test and requires that if a person declines none shall be taken unless the police get a search warrant. It is legal to just say no.

• Does anyone believe that a person who declines to provide a breath or blood specimen would only do so because they know they are guilty?

• What would a person who believes they are innocent and had nothing to hide do?

Intaxilyzer 5000 • A machine brought to you by the government.

• Insert your tax return, it will read it and then decide whether you have committed tax fraud. If it says you have, you go to jail.

• It will destroy (not keep) what you insert into it. You must just trust it and the government.

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Intaxilyzer 5000 • A machine brought to you by the government.

• Insert your tax return, it will read it and then decide whether you have committed tax fraud. If it says you have, you go to jail.

• It will destroy (not keep) what you insert into it. You must just trust it and the government.

• They ask you to do it – would you?

Intaxilyzer 5000 • A machine brought to you by the government.

• Insert your tax return, it will read it and then decide whether you have committed tax fraud. If it says you have, you go to jail.

• It will destroy (not keep) what you insert into it. You must just trust it and the government.

• You also have the choice to have a committee of six look at your return (and they will not destroy it) and decide whether you have committed tax fraud.

Intaxilyzer 5000 • A machine brought to you by the government.

• Insert your tax return, it will read it and then decide whether you have committed tax fraud. If it says you have, you go to jail.

• It will destroy (not keep) what you insert into it. You must just trust it and the government.

• You also have the choice to have a committee of six look at your return (and they will not destroy it) and decide whether you have committed tax fraud.

• What would you choose – the committee of six or the machine?

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Decision not to Cooperate with Police • Who is the American “reasonable person” when it comes to police interactions?

Decision not to Cooperate with Police • Who is the American “reasonable person” when it comes to police interactions?

• He is someone who knows his rights and feels free to exercise them.

Decision not to Cooperate with Police • Who is the American “reasonable person” when it comes to police interactions?

• He is someone who knows his rights and feels free to exercise them.

• He is not intimidated by the police, whether they are alone or in a group, in uniform or in plain clothes.

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Decision not to Cooperate with Police • Who is the American “reasonable person” when it comes to police interactions?

• He is someone who knows his rights and feels free to exercise them.

• He is not intimidated by the police, whether they are alone or in a group, in uniform or in plain clothes.

• He knows that when questioned, he can refuse to answer . . . .

Decision not to Cooperate with Police • • • •

Who is the American “reasonable person” when it comes to police interactions?

He is someone who knows his rights and feels free to exercise them.

He is not intimidated by the police, whether they are alone or in a group, in uniform or in plain clothes.

He knows that when questioned, he can refuse to answer.

• He always feels free to end the encounter even if physically constrained by his surroundings and even if the police persist in their attempts to engage him in conversation.

Decision not to Cooperate with Police • • • • •

Who is the American “reasonable person” when it comes to police interactions?

He is someone who knows his rights and feels free to exercise them.

He is not intimidated by the police, whether they are alone or in a group, in uniform or in plain clothes.

He knows that when questioned, he can refuse to answer.

He always feels free to end the encounter even if physically constrained by his surroundings and even if the police persist in their attempts to engage him in conversation.

• He rests secure in the knowledge that no physical harm will result and that the police cannot legally draw an inference of criminality from his refusal to cooperate.

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Decision not to Cooperate with Police • • • • •

•

Who is the American “reasonable person” when it comes to police interactions?

He is someone who knows his rights and feels free to exercise them.

He is not intimidated by the police, whether they are alone or in a group, in uniform or in plain clothes.

He knows that when questioned, he can refuse to answer.

He always feels free to end the encounter even if physically constrained by his surroundings and even if the police persist in their attempts to engage him in conversation.

He rests secure in the knowledge that no physical harm will result and that the police cannot legally draw an inference of criminality from his refusal to cooperate.

• In short, he regards an encounter with police as no different from one with a panhandler on the street, a religious proselytizer at his doorstep, or a Hare Krishna in the airport."

Decision not to Cooperate with Police • • • • •

• •

Who is the American “reasonable person” when it comes to police interactions?

He is someone who knows his rights and feels free to exercise them.

He is not intimidated by the police, whether they are alone or in a group, in uniform or in plain clothes.

He knows that when questioned, he can refuse to answer.

He always feels free to end the encounter even if physically constrained by his surroundings and even if the police persist in their attempts to engage him in conversation.

He rests secure in the knowledge that no physical harm will result and that the police cannot legally draw an inference of criminality from his refusal to cooperate.

In short, he regards an encounter with police as no different from one with a panhandler on the street, a religious proselytizer at his doorstep, or a Hare Krishna in the airport.“

• Texas Court of Criminal Appeals, September 11, 2013 – Wade v. State.

Drinking and Driving • Highway Slogan -- Drink, drive, _______?

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Drinking and Driving • Highway Slogan -- Drink, drive, go to jail.

Drinking and Driving • Highway Slogan -- Drink, drive, go to jail.

• Is it the law -- True or false?

Drinking and Driving • Highway Slogan -- Drink, drive, go to jail.

• Is it the law -- True or false?

• False: it is not the law: because it is not the law, should anyone be arrested simply for drinking and driving?

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Drinking and Driving • Highway Slogan -- Drink, drive, go to jail.

• Is it the law -- True or false?

• False: it is not the law: because it is not the law, should anyone be arrested simply for drinking and driving?

• If you believe that Gonzalo was drinking and driving, but you are not sure beyond all reasonable doubt if he was intoxicated, the verdict has to be _______?

Drinking and Driving • Highway Slogan -- Drink, drive, go to jail.

• Is it the law -- True or false?

• False: it is not the law: because it is not the law, should anyone be arrested simply for drinking and driving?

• If you believe that Gonzalo was drinking and driving, but you are not sure beyond all reasonable doubt if he was intoxicated, the verdict has to be NOT GUILTY.

Mental and Physical Faculties • "Intoxicated" means: • (A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol . . . into the body; or • (B) having an alcohol concentration of 0.08 or more.

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Mental and Physical Faculties • Are all persons mental and physical faculties the same?

Mental and Physical Faculties • Are all persons mental and physical faculties the same?

• Are all people’s mental and physical faculties the same as an average person?

Mental and Physical Faculties • Are all persons mental and physical faculties the same?

• Are all people’s mental and physical faculties the same as an average person?

• Are your normal faculties always at the same level all of the time or are they in a range?

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Mental and Physical Faculties • Are all persons mental and physical faculties the same?

• Are all people’s mental and physical faculties the same as an average person?

• Are your normal faculties always at the same level all of the time or are they in a range?

• What affects the range?

Mental and Physical Faculties • Are all persons faculties the same?

• Are all people’s faculties the same as an average person?

• Are your normal faculties always at the same level all of the time or are they in a range?

• What effects the range?

• Time of day – Coordination – Physical Condition – Fatigue – Tired – Nervousness – Stress – Fear – Distrust – Surprise -- Anxiety

Mental and Physical Faculties • Are all persons faculties the same?

• Are all people’s faculties the same as an average person?

• Are your normal faculties always at the same level all of the time or are they in a range?

• What effects the range?

• Time of day – Coordination – Physical Condition – Fatigue – Tired – Nervousness – Stress – Fear – Distrust – Surprise – Anxiety

• To know if a person does not have normal mental or physical faculties because of alcohol or for some other innocent reason, do you need to know what is usual (normal) for that person?

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Mental and Physical Faculties • Are all persons faculties the same?

• Are all people’s faculties the same as an average person?

• Are your normal faculties always at the same level all of the time or are they in a range?

• What effects the range?

• Time of day – Coordination – Physical Condition – Fatigue – Tired – Nervousness – Stress – Fear – Distrust – Surprise – Anxiety • To know if a person does not have normal mental or physical faculties because of alcohol or for some other innocent reason, do you need to know what is usual (normal) for that person?

• Who would I ask to know what is usual (normal) for you?

Mental and Physical Faculties • Why do we not require demonstrations of normal (the average person’s) mental and physical faculties to get a driver’s license?

Mental and Physical Faculties • Why do we not require demonstrations of normal (the average person’s) mental and physical faculties to get a driver’s license?

• What would happen if we required all people to pass field sobriety tests before they could get a driver’s license?

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Mental and Physical Faculties • If we want to a test to tell us whether someone does not have normal mental or physical faculties, should we test things that people normally do or things they do not normally do?

Mental and Physical Faculties • If we want to a test to tell us whether someone does not have normal faculties, should we test things that people normally do or things they do not normally do?

• What are some innocent reasons why someone may not look perfect on police tests but not be intoxicated?

Mental and Physical Faculties • If we want to a test to tell us whether someone does not have normal faculties, should we test things that people normally do or things they do not normally do?

• What are some innocent reasons why someone may not look perfect on police tests but not be intoxicated?

• Time of day – Coordination – Physical or Medical Condition – Fatigue – Tired – Nervousness – Stress – Fear – Distrust – Surprise – Anxiety

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Police Exercises • Do you think that the exercises police ask people to do are a reliable way of distinguishing between someone who is intoxicated and someone who is not?

Police Exercises • Do you think that the exercises police ask people to do are a reliable ways of distinguishing between someone who is intoxicated and someone who is not?

• Is any test or exercise meaningful if it cannot tell the difference between someone who is intoxicated and someone who is tired, uncoordinated, nervous, scared, has a medical condition, or is otherwise not able to do the test when not intoxicated?

Police Exercises • Who is certain they could do the police exercises perfectly right now?

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Police Exercises • Who is certain they could do the police exercises perfectly right now?

• If your failure to do them perfectly was going to result in the judge ordering you into custody right now, would you still be confident you could do them perfectly?

Police Exercises • Who is certain they could do the police exercises perfectly right now?

• If your failure to do them perfectly was going to result in the judge ordering you into custody right now, would you still be confident you could do them perfectly?

• Who is not sure if they could do the police exercises perfectly right now?

Breath Testing • What do you know about the breath and blood test machines in Texas?

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Breath Testing • What do you know about the breath test machine in Texas?

• Is any machine always accurate and reliable?

Breath Testing • What do you know about the breath test machine?

• Is any machine always accurate and reliable?

• Can you know that the results of a machine are wrong without knowing why it is wrong?

What is this?

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What is this?

This is a Great Dane.

True or false?

What is this?

This is a Chihuahua?

True of false?

This is a Great Dane.

True or false?

What is this?

This is a Chihuahua?

True of false?

This is a Great Dane.

True or false?

I have a government DNA test report that says this is a Chihuahua?

Do you believe it?

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What is this?

This is a Chihuahua?

True of false?

This is a Great Dane.

True or false?

I have a government DNA test report that says this is a Chihuahua?

Do you believe it?

Do you have to know why the DNA lab report is wrong to know that it must be wrong?

Accurate or Reliable?

Accurate or Reliable?

Do you have to know why the scale is wrong to know that it must be wrong?

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10/21/2021

Breath and Blood Testing and .08 • The law requires that you believe beyond a reasonable doubt that the results of a breath or blood test machine are accurate and reliable.

Breath and Blood Testing and .08 • The law requires that you believe beyond a reasonable doubt that the results of a breath or blood test machine are accurate and reliable.

• If a machine reports a result of .25 and you either do not believe it or are not sure that the result is accurate or reliable, what does the verdict have to be?

Breath and Blood Testing and .08 • The law requires that you believe beyond a reasonable doubt that the results of a breath or blood test machine are accurate and reliable.

• If a machine reports a result of .25 and you either do not believe it or are not sure that the result is accurate or reliable, what does the verdict have to be? NOT GUILTY

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10/21/2021

Breath and Blood Testing and .08 • The law requires that the State prove that a person had an alcohol concentration of .08 or more at the time of driving and not just at the time of the test.

Breath Testing and .08 • The law requires that the State prove that a person had an alcohol concentration of .08 or more at the time of driving and not just at the time of the test.

• If the State only proves an alcohol concentration of .08 or more at some time later than the time of driving and does not prove that the alcohol concentration was .08 or more at the time of driving, what does the verdict have to be?

Breath Testing and .08 • The law requires that the State prove that a person had an alcohol concentration of .08 or more at the time of driving and not just at the time of the test.

• If the State only proves an alcohol concentration of .08 or more at some time later than the time of driving and does not prove that the alcohol concentration was .08 or more at the time of driving, what does the verdict have to be? NOT GUILTY

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10/21/2021

Intaxilyzer 5000 • A machine brought to you by the government.

• Insert your tax return, it will read it and then decide how much you owe.

• You must just blindly trust it and the government.

Intaxilyzer 5000 • Anything wrong with the idea of this machine?

• Anyone willing to blindly trust it to always reach the right result?

Intaxilyzer 5000 • You insert your return and it says you owe one million dollars in taxes.

• On the other hand, you have evidence that you only made $50,000 and you believe the machine is obviously wrong and could not possibly be right.

• But, the government says all that matters is the results of the machine and that if you do not pay the one million dollars, you are going to be guilty of tax evasion and go to jail.

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10/21/2021

Intaxilyzer 5000 • You insert your return and it says you owe one million dollars in taxes.

• On the other hand, you have evidence that you only made $50,000 and you believe the machine is obviously wrong and could not possibly be right.

• But, the government says all that matters is the results of the machine and that if you do not pay the one million dollars, you are going to be guilty of tax evasion and go to jail.

• Should anyone be guilty of a crime just because a machine says so when there is other evidence showing that the machine could be or is obviously wrong?

Police Officer Witnesses

10/21/2021

Police Officer Witnesses • Would you tend to believe a police officer over someone else just because they are a police officer?

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10/21/2021

Police Officer Witnesses • Would you tend to believe a police officer over someone else just because they are a police officer?

• Are police officers more believable than other people?

Police Officer Witnesses • Would you tend to believe a police officer over someone else just because they are a police officer?

• Are police officers more believable than other people?

• Some people say that even before a police officer testified, they would already lean towards believing what the police officer was going to say. Do you feel that way?

Police Officer Witnesses • Would you tend to believe a police officer over someone else just because they are a police officer?

• Are police officers more believable than other people?

• Some people say that even before a police officer testified, they would already lean towards believing what the police officer was going to say. Do you feel that way?

• Can a police officer’s opinion ever be mistaken or wrong?

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10/21/2021

Police Officer Witnesses • Would you tend to believe a police officer over someone else just because they are a police officer?

• Are police officers more believable than other people?

• Some people say that even before a police officer testified, they would already lean towards believing what the police officer was going to say. Do you feel that way?

• Can a police officer’s opinion ever be mistaken or wrong?

• Should a verdict is a criminal case be based on opinions or facts?

Police Must Follow the Law • May the police violate the law in gathering evidence?

• Why? • What should happen if they do?

Police Must Follow the Law • No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

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10/21/2021

Police Must Follow the Law •

No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

• If the jury believes, or has a reasonable doubt, that the evidence was obtained in violation of [the law], then and in such event, the jury shall disregard any such evidence so obtained.

Police Must Follow the Law • Officer says he saw person run a red light and makes a traffic stop. After making the stop, the officer arrests the person for the traffic violation. In the course of inventorying the vehicle, the officer finds a dead child in the trunk. The person admits that he killed the child.

Police Must Follow the Law • Officer says he saw person run a red light and makes a traffic stop. After making the stop, the officer arrests the person for the traffic violation. In the course of inventorying the vehicle, the officer finds a dead child in the trunk. The person admits that he killed the child.

• There happens to be a video showing that the person clearly did not run the light.

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10/21/2021

Police Must Follow the Law • Officer says he saw person run a red light and makes a traffic stop. After making the stop, the officer arrests the person for the traffic violation. In the course of inventorying the vehicle, the officer finds a dead child in the trunk. The person admits that he killed the child.

• There happens to be a video showing that the person clearly did not run the light.

• If the person did not run the light, the traffic stop violated the law.

Police Must Follow the Law • Unless you believe beyond all reasonable doubt that the person ran the red light, of if you have a reasonable doubt, the law requires you, as a juror, to disregard all evidence that was obtained as a result of the violation of the law.

Police Must Follow the Law • Unless you believe beyond all reasonable doubt that the person ran the red light, of if you have a reasonable doubt, the law requires you, as a juror, to disregard all evidence that was obtained as a result of the violation of the law.

• This means that you could not consider either the child’s dead body or the confession.

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10/21/2021

Police Must Follow the Law • Unless you believe beyond all reasonable doubt that the person ran the red light, of if you have a reasonable doubt, the law requires you, as a juror, to disregard all evidence that was obtained as a result of the violation of the law.

• This means that you could not consider either the child’s dead body or the confession.

• Unless there was other evidence, the law would require you to find the person not guilty.

Police Must Follow the Law • Some people could not and would not be able to disregard the evidence clearly showing guilt because it would set a guilty person free.

Police Must Follow the Law • Some people could not and would not be able to disregard the evidence clearly showing guilt because it would set a guilty person free.

• Other people would disregard it even though they did not like the idea of setting a clearly guilty person free.

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10/21/2021

Police Must Follow the Law • Some people could not and would not be able to disregard the evidence clearly showing guilt because it would set a guilty person free.

• Other people would disregard it even though they did not like the idea of setting a clearly guilty person free.

• Could you and would you follow the law if faced with the decision?

Police Must Follow the Law • •

Some people could not and would not be able to disregard the evidence clearly showing guilt because it would set a guilty person free.

Other people would disregard it even though they did not like the idea of setting a clearly guilty person free.

• Could you and would you follow the law if faced with the decision?

• Choices: • (1) I could and would follow the law and find a guilty person not guilty.

• (2) I could not and would not follow the law and would find the person guilty despite the law.

Questions – Rate 1 to 5 1 Strongly Agree - 2 Agree -3 No opinion 4 Disagree - 5 Strongly Disagree

• Anyone who drinks and drives should be guilty of DWI.

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10/21/2021

Questions – Rate 1 to 5 1 Strongly Agree - 2 Agree -3 No opinion 4 Disagree - 5 Strongly Disagree

• Anyone who drinks and drives should be guilty of DWI. • Police only arrest people for DWI if the person is guilty of DWI?

Questions – Rate 1 to 5 1 Strongly Agree - 2 Agree -3 No opinion 4 Disagree - 5 Strongly Disagree

• Anyone who drinks and drives should be guilty of DWI. • Police only arrest people for DWI if the person is guilty of DWI? • Anyone who fails a breath or blood test is guilty of DWI without regard to anything else?

Questions – Rate 1 to 5 1 Strongly Agree - 2 Agree -3 No opinion 4 Disagree - 5 Strongly Disagree

• Anyone who drinks and drives should be guilty of DWI. • Police only arrest people for DWI if the person is guilty of DWI? • Anyone who declines to fully cooperate with the police investigating them for a suspected DWI is likely guilty of DWI?

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10/21/2021

Group Decision • Assume 10 people are charged with a crime.

Also assume that you know that nine are absolutely guilty and that one is absolutely innocent.

• However, you must decide whether to convict all ten or find all ten not guilty.

• If you convict all ten, then one innocent person gets convicted. If you acquit all ten, then nine guilty people go free.

Group Decision • Assume 10 people are charged with a crime.

Also assume that you know that nine are absolutely guilty and that one is absolutely innocent.

• However, you must decide whether to convict all ten or find all ten not guilty.

• If you convict all ten, then one innocent person gets convicted. If you acquit all ten, then nine guilty people go free.

• What is your decision? Convict or Acquit the group?

Relationships and Groups • Do you have a close friend or relative who is in law enforcement, is a prosecutor, is a judge, or is otherwise involved with the criminal justice system?

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10/21/2021

Relationships and Groups • Do you have a close friend or relative who is in law enforcement, is a prosecutor, is a judge, or is otherwise involved with the criminal justice system?

• Are you a member of or have you donated money to MADD or similar groups?

Relationships and Groups • Do you have a close friend or relative who is in law enforcement, is a prosecutor, is a judge, or is otherwise involved with the criminal justice system?

• Are you a member of or have you donated money to MADD or similar groups?

• Have you ever been a member of the 100 Club or donated money to Crime Stoppers?

Relationships and Groups • Do you have a close friend or relative who is in law enforcement, is a prosecutor, is a judge, or is otherwise involved with the criminal justice system?

• Are you a member of or have you donated money to MADD or similar groups?

• Are you a non drinker and why?

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10/21/2021

Relationships and Groups • Do you have a close friend or relative who is in law enforcement, a prosecutor, a judge, or otherwise involved in the criminal justice system?

• Are you a member of or have you donated money to MADD or similar groups?

• Have you ever been a member of the 100 Club or donated money to Crime Stoppers?

• Are you a non drinker?

• Any bad experiences with alcohol or alcohol related crimes?

Do you know any of the possible witnesses?

• • • • • •

Salvador Carrillo (Pct 4 Constable) Gustavo Deltoro Josie Hollowell (Harris County IFS) Guale Fessessework (Harris County IFS) David Ciers (HPD) Joseph Abellar (HPD – civilian)

Jury Function • Some say it is acceptable to find someone charged with a crime guilty simply to send a message to that person or society.

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10/21/2021

Jury Function • Some say it is acceptable to find someone charged with a crime guilty simply to send a message to that person or society.

• Does anyone feel that way?

Jury Function • Some say it is acceptable to find someone charged with a crime guilty simply to send a message to that person or society.

• Does anyone feel that way?

• Others say that it is only acceptable to find someone guilty if the State has proven them guilty beyond and to the exclusion of all reasonable doubt.

Jury Function • Some say it is acceptable to find someone charged with a crime guilty simply to send a message to that person or society.

• Does anyone feel that way?

• Others say that it is only acceptable to find someone guilty if the State has proven them guilty beyond and to the exclusion of all reasonable doubt.

• Is sending a message ever a reason to find someone guilty?

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10/21/2021

Decision Making • 6 Jurors means 6 verdicts.

• Each person has the right to their own verdict.

• If all six agree, then there is a group verdict.

• If all six do not agree then there is not a group verdict. This is acceptable.

Decision Making 6 Jurors means 6 verdicts.

Each person has the right to their own verdict.

If all six agree, then there is a group verdict.

If all six do not agree then there is not a group verdict. This is acceptable.

• Some people stick to their beliefs and others go along to get along with the group.

• Which kind of person are you?

• • • •

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10/21/2021

Decision Making 6 Jurors means 6 verdicts.

Each person has the right to their own verdict.

If all six agree, then there is a group verdict.

If all six do not agree then there is not a group verdict. This is acceptable.

• Some people stick to their beliefs and others go along to get along with the group.

• Which kind of person are you?

• Some people give up their beliefs just to be done. Would you ever do that?

• • • •

Last Three Questions • Is there anyone who has anything that you want or need to talk to us privately about?

Last Three Questions • Is there anyone who has anything that you want or need to talk to us privately about?

• Is there any reason you cannot be here for trial through Thursday or Friday?

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10/21/2021

Last Three Questions • Is there anyone who has anything that you want or need to talk to us privately about?

• Is there any reason you cannot be here for trial through Thursday or Friday?

• Is there anything else about you we should know? If we just asked you the right question, we would learn something important that you would want to know if you were us.

Thank You • We look forward to seeing six of you serving on this jury to judge the State’s case.

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Texas Criminal Defense Lawyers Association

28th Annual NCDD/TCDLA Mastering Scientific Evidence March 24-25 Royal Sonesta New Orleans, LA

Topic: Gas Chromatography & Validation Speaker:

Dr. Kevin Schug Box 19498 Arlington, TX 76019 (817) 272-3541 Phone kschug@uta.edu Email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

3/11/2022

Gas Chromatography & Method Validation…

Issues in Modern BAC Analysis & Litigation Kevin A. Schug, Ph.D. Professor, Department of Chemistry & Biochemistry, The University of Texas Arlington Partner, Medusa Analytical, LLC

NCDD Mastering Scientific Evidence, New Orleans, March 24, 2022

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An Epiphany

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Headspace – Gas Chromatography – Flame Ionization Detection (HS‐GC‐FID) P = Pressure T = Temperature t = Time F = Flow rate P

Regulator

P, T, F P, T, F

P

FID FID2

SAMPLE PREP Helium or Hydrogen

P

INJECTOR

P, T, F

H2

COLUMN

Air DATA STATION

HS SAMPLER

P, T, t COLUMN 2 COLUMN OVEN

T

DATA ANALYSIS

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The Method

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The Method “Volatile Multipoint” ‐ A Blood Volatiles Method ‐ A specific application of HS‐GC‐FID

“HOGC701” – A specific instrument ‐ There are different types of HS‐GC‐FID ‐ A lot of settings to optimize ‐ Each instrument is different

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Different HS‐GC Configurations SHIMADZU

PERKIN‐ELMER

AGILENT 6

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3/11/2022

The Method

‐ The “Method” includes an “Analysis Method” and “Sample Preparation”

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The Method Dual‐Column HS‐GC‐FID Column 1

Column 2

‐ A specific set of columns ‐ Note install date and serial numbers ‐ Are these the same columns used in your client’s analysis? No? Uh‐oh.

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The Method Dual‐Column Dual‐Detector HS‐GC‐FID Column 1

Column 2

‐ Specific and precise settings for reliable operation of each FID detector

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3/11/2022

The Method GC Injection Port Settings

‐ Specific and precise settings for reliable sample introduction

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The Method GC Column Oven Settings

‐ Specific temperature of column oven has a profound impact on chromatography

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The Method Headspace Sampler Settings

Volume Temperature

Time Time Time Temperature

Rate Time Temperature

Rate Time 12

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3/11/2022

The Method Automatic Peak Integration Settings

Automatic Quantitation Parameters

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The Method Retention Times for Blood Volatiles

‐ Specific and precise expected retention times of these chemical compounds based on method settings.

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These Instruments and Methods are Complicated!

Each Instrument is Different and Each Needs to be Individually Validated!!

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3/11/2022

Method Validation • The comprehensive performance and documentation of measurements to verify a method is reliable and fit for purpose.

• Essential to any reported analytical measurement.

• The failure to appropriately validate and document a method makes it impossible to prove the validity of the scientific test performed by that method on that instrument. Results from such a test would be scientifically unacceptable.

Schug, K.A. Forensics, Lawyers, and Method Validation—Surprising Knowledge Gaps. The LCGC Blog.

June 8, 2015. http://www.chromatographyonline.com/lcgc‐blog‐forensics‐lawyers‐and‐method‐ validation‐surprising‐knowledge‐gaps

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Method Validation Technician

Analytical Chemist/ Instrument Specialist

Routine Operation

• • • •

Day‐to‐day use (real samples) Quality controls, calibration Maintenance  re‐validation/verification Reporting, documentation

Method Validation

• • • •

Devise/document method validation plan

Manufacturer

Governing Bodies

Instrument Installation

Method Validation Guidance

Method optimization According to Std 036 Full validation, documentation Designate required QC • • • •

Appropriate for method Meets specifications Installation checks and verification Documentation

ISO 17025, ANSI/ASB 036

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ANSI/ASB Standard 036 • ANSI – American National Standards Institute – U.S. member of ISO • ASB – AAFS Standards Board • Acc. to ANSI/ASB… The minimum standard of procedures for method validation to satisfy ISO 17025 in forensics toxicology www.asbstandardsboard.org/wp‐ content/uploads/2019/11/036_Std_e1.pdf

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ANSI/ASB Standard 036 • When to validate methods • Method development • Establishing validation plan • Required validation: Scope • Specific experiments for validation • When to revalidate

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ANSI/ASB Standard 036 Specific experiments for validation

• • • • • •

Bias (Accuracy) and Precision Calibration Model Carryover Interference Studies Limit of Detection Lower Limit of Quantitation

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ANSI/ASB Standard 036 – Key Terms • Matrix The chemical components of a sample; everything except the target analyte Can exert “matrix effects” that compromise accuracy; absence must be confirmed

• Blank matrix sample A biological fluid without target analyte or internal standard Used to check for matrix effects that interfere with signals of interest

• Fortified matrix sample A blank matrix spiked with target analyte and/or internal standard Used to check accuracy of the calibration model, especially when using “surrogate” calibration standards (e.g. aqueous calibrators)

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3/11/2022

Blank and Fortified Matrix Samples • Interference Studies Blank matrix samples from minimum of ten (10) different sources without addition of internal standard.

Demonstrate absence of matrix interferences at retention times of interest (analyte and internal standard); no extra signals/ ghost peaks

• Bias and Precision Pooled fortified matrix samples prepared at high, medium, and low concentration (n = 3 for each), analyzed five times.

Demonstrate that the [surrogate] calibration model provides accurate and precise results.

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According to Standard 036

When to… Validate / Re‐validate

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According to Standard 036

When to Validate / Re‐validate

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3/11/2022

According to Standard 036

When to Validate / Re‐validate

Accuracy and precision are key performance metrics.

Implications: ‐ Need instrument maintenance logs (> 2yrs to lifetime) Change or clip column; other significant hardware changes (to HS, GC, and/or FID); new data software … Re‐validate

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Batch Design Batch design must include a number of control samples.

• How long before the analysis was the calibration performed?

Matrix effects can develop over time and must be evaluated with each batch.

• How many calibration points?

Minimum 5, no points excluded during data analysis

• High, medium, and low levels of quality control samples?

Assess precision and accuracy

• Blank and fortified matrix samples?

Assess matrix effects and accuracy, based on a matrix‐matched quality control.

• Blanks to assess carryover?

• Randomized replication of positive samples?

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Key Points • ANSI/ASB Standard 036 is the minimum standard to comply with ISO17025 in the forensic toxicology laboratory.

Did the lab perform proper method validation?

• Most BAC measurements use a surrogate (aqueous) calibration model. Must have (validation and batch quality control): Are there blank matrix samples to demonstrate lack of interferences?

Are there fortified matrix samples to demonstrate accuracy?

I am flummoxed…

Schug, K.A. Full Method Validation is Still a Glaring Deficiency in Many Forensics Laboratories. The LCGC Blog. August 30, 2021. https://www.chromatographyonline.com/view/the‐lcgc‐blog‐full‐method‐validation‐is‐ still‐a‐glaring‐deficiency‐in‐many‐forensics‐laboratories

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Other Important Questions • Sample collection and storage? – chain of custody Time to analysis? Proper collection? Variable storage?

• Does the analytical protocol used match the SOP? • Do you see extra signals/peaks in the chromatogram?

• What provides a preponderance of doubt in terms of propagated uncertainty?

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Propagation of Error (Uncertainty)

 2Tot   2a   2b   2c   Total variance of the measurement in question

Variance from a perfectly executed test

5%

σ2 from ethanol σ2 from σ2 from sample coelution improper contamination sample storage (matrix effect) during collection 25% 15%

15%

σ2 from internal standard coelution (matrix effect)

15%

σ2Tot = (5%)2 + (15%)2 + (25%)2 + (15%)2 + (15%)2

σTot = 36.4% Here, a 0.15 g/dL BAC is arguably indistinguishable from 0.07 g/dL at the 95% confidence level

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DiscoveryCheckTM

DISCOVERY CHECK

 Lab Accreditation  Audit Reports  Standard Operating Procedures  Case Sample Report  Chain of Custody and Sample Storage  Chromatogram Reports (Raw/processed data)  Batch Sequence Design  QC Reports and Calibration Model  Validation Reports (Instrument Install, Full & Partial Method Validation)  Instrument Maintenance Logs  Qualifications of Analyst

Send queries to: info@medusaanalytical.com

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3/11/2022

DiscoveryCheckTM

DISCOVERY CHECK

 Blood alcohol concentration  Drugs of abuse (GC or LC)  Cannabis potency and product testing $300 per check, ~1 week turn‐around Follow on consultation for reporting and testimony available.

We will tell you what is missing, what is wrong, and what you may need to still ask for. www.medusaanalytical.com

Send queries to: info@medusaanalytical.com

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Texas Criminal Defense Lawyers Association

28th Annual NCDD/TCDLA Mastering Scientific Evidence March 24-25 Royal Sonesta New Orleans, LA

Topic: Dealing with Ethical Challenges During the Pandemic Speaker:

Don Ramsell 2735 W. Avenida Azahar Tucson, AZ 85745 (520) 220-5047 Phone (630) 665-9599 Fax donald.ramsell@dialdui.com Email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

3/4/22

MSE – ETHICS IN THE PANDEMIC Donald J. Ramsell President & Dean National College for DUI Defense

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Ramsell - Ethics During the Pandemic 2022

Dealing with Ethical Challenges During the Pandemic

Financial Issues

Depression

Because I got COVID

Alcoholism Drugs

Remote Behavior

Absenteeism

Increased Social Media Posts

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Ramsell - Ethics During the Pandemic 2022

'Dramatic Uptick' in Judges' Social Media Slipups Law.com

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• Daily social media usage in the U.S. has significantly increased during the pandemic, understandably so with remote work and desires to connect with others. Legal professionals are also in that mix, Law.com reported • “There’s actually been a dramatic uptick in lawyers and judges, especially, getting into trouble, including disciplinary trouble, for inflammatory or controversial, politically oriented posts. That’s a big problem,” reported Law.com.

• The ever-growing list extends to issues involving COVID-19 vaccine and mask mandates, the Jan. 6 attack on the U.S. Capitol, support for (or opposition to) political candidates and government leaders, and commentary on immigration, police and race issues.

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3/4/22

Ramsell - Ethics During the Pandemic 2022

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In the fa ll of 2021 a ha nd ful of jud g e s a cross the country ha ve fa ce d d iscip lina ry a ction for Fa ce b ook p osts, ra ng ing from se e m ing ly innocuous conte nt to b ord e rline ha ra ssm e nt.

'Dramatic Uptick' in Judges' Social Media Slipups Law.com

•

O n N ov. 5, the Te nne sse e Boa rd of Jud icia l C ond uct p ub licly re p rim a nd e d H a m ilton C ounty Se ssions C ourt Jud g e G e ra ld W e b b for sha ring w ha t w a s m e a nt to b e a hum orous le g a l tip of the d a y.

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“[D ]ow nrig ht d a m n hum ilia ting w he n [p olice a re ] p ulling cra ck from your cra ck! Find som e p la ce e lse to hid e your sta sh,” the jud g e w rote in a Fa ce b ook p ost A ug . 5, 2020. La te r, he sha re d a d vice on how to g e t a w a y w ith shop lifting a t W a lm a rt.

•

“[T]he Te nne sse e Sup re m e C ourt ha s ca utione d tha t ‘[l]a w ye rs w ho choose to p ost on socia l m e d ia m ust re a lize the y a re ha nd ling live a m m unition,’” b oa rd cha irm a n D e e D a vid G a y w rote . “Jud g e s choosing to p a rticip a te in inhe re ntly p ub lic p la tform s m ust e xe rcise ca ution in the inte g rity, ind e p e nd e nce , a nd im p a rtia lity of the jud icia ry.”

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Ramsell - Ethics During the Pandemic 2022

'Dramatic Uptick' in Judges' Social Media Slipups Law.com

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• In 2020, the New York State Commission on Judicial Conduct admonished Justice of the Brunswick Town Center Court Judge Robert H. Schmidt for posting a meme implying that former President Bill Clinton killed Jeffrey Epstein, linking to another Facebook post supporting a candidate for town council, among other things.

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Ramsell - Ethics During the Pandemic 2022

'Dramatic Uptick' in Judges' Social Media Slipups Law.com

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• Even private messages sent via social media can have very public consequences.

• The Ohio Supreme Court ordered that Hamilton County Municipal Court Judge Theodore Berry attend eight hours of sexual harassment training, in lieu of a six-month suspension, for sending inappropriate messages to a court reporter on Facebook.

• “Berry sent numerous inappropriate Facebook messages to a court employee; many of the messages were politically partisan and some contained vulgar and sexually explicit content,” the court wrote.

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3/4/22

Ramsell - Ethics During the Pandemic 2022

'Dramatic Uptick' in Judges' Social Media Slipups Law.com

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In O ctob e r 2021, the South C a rolina Sup re m e C ourt susp e nd e d O cone e C ounty Prob a te Jud g e Ke nne th Johns for a sking for d ona tions to the Re d C ross for his b irthd a y to he lp those a ffe cte d b y H urrica ne Flore nce . W hile Johns’ ca se d id n’t involve infla m m a tory p olitica l sta te m e nts or vulg a r m e ssa g e s, he g ot into troub le for using his p osition for w ha t could se e m like a n ina p p rop ria te influe nce involving m one y, Ja cob ow itz e xp la ine d .

•

“Tha t’s a n inte re sting tw ist b e ca use you d on’t ha ve to b e a la w ye r to b e a p rob a te jud g e in South C a rolina ,” she sa id . “But w e g o b a ck to the fa ct tha t he ’s still w e a ring the rob e . H e ’s w e a ring the rob e , he ’s sub je ct to the jud icia l ca nons, a nd the jud icia ry ha s d e cid e d tha t the inte g rity of the jud icia l syste m com e s b e fore a nyb od y’s m ista ke n se nse of hum or or e ve n w e llinte ntione d p le a for cha rity.

•

“N ot only ca n the y not b e b ia se d or e ng a g e in im p rop rie tie s, the y ca nnot e ve n a ct in a w a y tha t cre a te s the a p p e a ra nce of a n im p rop rie ty,” Ja cob ow itz a d d e d .

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Attorney Suspended for Being Intoxicated During Virtual Court Proceeding

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An Arizona attorney was suspended for six months and one day last month after appearing inebriated during a status conference while working remotely during the pandemic, according to a report from the state’s disciplinary judge.

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The lawyer served as deputy county attorney on a criminal case in Maricopa County Superior Court when he appeared remotely for a virtual status conference before a commissioner

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In a March 1 court filing, he admitted to violating several of Arizona’s Rules of Professional Conduct, including making

in June 2021. During the conference, his speech was “very slurred,” and he could not turn on his computer camera at the judges’s request, the report said.

false statements to a tribunal, having conduct prejudicial to the administration of justice, unprofessional conduct, breaking his duty to respect court and judicial members, and the duty to avoid unprofessional conduct, court records show.

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Attorney Suspended for Being Intoxicated During Virtual Court Proceeding

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According to the report, the judge recognized the lawyer’s impairment, and she ordered him to appear in her courtroom with his supervisor the following day. The lawyer emailed the judge to apologize, and said he was sleep deprived from addressing a family emergency.

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During the meeting in her chambers, the lawyer“falsely denied” being inebriated during the hearing and reiterated his sleep deprivation claims. His supervisor, told the judge that the Maricopa County Attorney’s Office would address the matter internally, according to the report.

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The lawyer went on administrative leave June 22, 2021, one day after the incident. The report stated that he falsely denied his inebriation to the judge, his supervisor, the defendant and defense counsel. It also said he misrepresented the truth to hide his embarrassment over being intoxicated and an alcoholic.

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3 Silicon Valley Lawyers the Federal Circuit Chastised Last Week for Violating COVID Protocols

Ramsell - Ethics During the Pandemic 2022

• The U.S. Court of Appeals for the Federal Circuit issued a precedential opinion criticizing unnamed lawyers for violating the court’s COVID protocols for in-person oral arguments.

• The court’s per curiam opinion in In re: Violation of the Revised Protocols for In-Person Arguments and Related Order said that a party had brought four individuals into the courtroom—two more than the maximum allowed when the judges were holding inperson hearings last fall. But the court declined to sanction them because of the first-of-its-kind nature of the violation.

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3 Silicon Valley Lawyers the Federal Circuit Chastised Last Week for Violating COVID Protocols

Ramsell - Ethics During the Pandemic 2022

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The Federal Circuit’s revised protocols, originally adopted Aug. 12, 2021, state that only “arguing counsel and no more than one attendee whose presence is necessary to assist or supervise arguing counsel (e.g., a client, lawyer sitting second chair, or paralegal)” are “permitted access to the National Courts Building and the courtroom.”

The protocols also require that entrants be vaccinated or have received a negative COVID test in the previous 48 hours.

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The court chastised three of the lawyers for flouting the protocols and an order the court had issued just two days earlier rejecting their request for additional attendees. They were hoping that circumstances had changed and the additional two lawyers would be allowed to attend. Security permitted them to enter the building, and two of the four took seats at the rear of the courtroom. But it wasn’t long before a deputy clerk spotted them and ordered them out of the courtroom. According to the court’s opinion, they were then told “that they were not permitted in the building and escorted out.”

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Attorney Suspended for Publicly Challenging Opposing Counsel's Mental Health, 'Reinforcing One of the Worst Stereotypes for Attorneys'

• A Cleveland-area attorney was suspended for six months by the Ohio Supreme Court last week for asking a judge to refer an opposing attorney for a mental health screening in order to gain advantage in a contentious estate-planning case.

• Douglas Paul Whipple, a solo practitioner at Whipple Law in University Heights, filed a public motion in the case, requesting that Cuyahoga County Common Pleas Court Judge Emily Hagan refer opposing counsel, Roger Synenberg, to the Ohio Lawyers Assistance Program, which is intended to be a confidential resource.

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Attorney Suspended for Publicly Challenging Opposing Counsel's Mental Health, 'Reinforcing One of the Worst Stereotypes for Attorneys'

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The Board of Professional Conduct concluded Whipple didn’t file the motion out of legitimate concern for Synenberg, but rather in an effort to force Synenberg to either drop an issue or dismiss the case entirely, the high court said in its Thursday filing.

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Whipple was suspended by the high court for one year, with six months stayed, for making threats of filing criminal charges or professional misconduct charges for the sole purpose of gaining an advantage in a civil matter. He was also ordered to pay the costs of the disciplinary proceedings.

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“An attorney’s most valuable asset is his or her professional reputation for competency, honesty, and integrity. See Kala v. Aluminum Smelting & Refining Co., Inc., 81 Ohio St.3d 1, 12, 688 N.E.2d 258 (1998). Here, Whipple went far beyond the previously publicized incident of witness retaliation to make unfounded allegations that Synenberg’s performance as an attorney was adversely affected by some unidentified condition,” the per curiam opinion said. “There can be no doubt that those allegations— made in a public filing—caused at least some harm to Synenberg’s reputation for competence, though the harm is not quantifiable.

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The Board of Professional Conduct concluded Whipple didn’t file the motion out of legitimate concern for Synenberg, but rather in an effort to force Synenberg to either drop an issue or dismiss the case entirely, the high court said in its Thursday filing.

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Whipple was suspended by the high court for one year, with six months stayed, for making threats of filing criminal charges or professional misconduct charges for the sole purpose of gaining an advantage in a civil matter. He was also ordered to pay the costs of the disciplinary proceedings.

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“An attorney’s most valuable asset is his or her professional reputation for competency, honesty, and integrity. See Kala v. Aluminum Smelting & Refining Co., Inc., 81 Ohio St.3d 1, 12, 688 N.E.2d 258 (1998). Here, Whipple went far beyond the previously publicized incident of witness retaliation to make unfounded allegations that Synenberg’s performance as an attorney was adversely affected by some unidentified condition,” the per curiam opinion said. “There can be no doubt that those allegations— made in a public filing—caused at least some harm to Synenberg’s reputation for competence, though the harm is not quantifiable.

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The Board of Professional Conduct concluded Whipple didn’t file the motion out of legitimate concern for Synenberg, but rather in an effort to force Synenberg to either drop an issue or dismiss the case entirely, the high court said in its Thursday filing.

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Whipple was suspended by the high court for one year, with six months stayed, for making threats of filing criminal charges or professional misconduct charges for the sole purpose of gaining an advantage in a civil matter. He was also ordered to pay the costs of the disciplinary proceedings.

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“An attorney’s most valuable asset is his or her professional reputation for competency, honesty, and integrity. See Kala v. Aluminum Smelting & Refining Co., Inc., 81 Ohio St.3d 1, 12, 688 N.E.2d 258 (1998). Here, Whipple went far beyond the previously publicized incident of witness retaliation to make unfounded allegations that Synenberg’s performance as an attorney was adversely affected by some unidentified condition,” the per curiam opinion said. “There can be no doubt that those allegations— made in a public filing—caused at least some harm to Synenberg’s reputation for competence, though the harm is not quantifiable.

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Attorney Suspended for Publicly Challenging Opposing Counsel's Mental Health, 'Reinforcing One of the Worst Stereotypes for Attorneys'

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Attorney Suspended for Publicly Challenging Opposing Counsel's Mental Health, 'Reinforcing One of the Worst Stereotypes for Attorneys'

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Appeals Court: No Sanctions Against Attorney Who Sued Client Over Negative Online Review • Linda Lamore appealed various superior court rulings, including its decision to decline sanctions against her former attorney.

• In 2019 lawyer filed a defamation and false light invasion of privacy lawsuit against her after she allegedly posted a negative online review in 2017.

• Client counterclaimed for fraud and breach of fiduciary duty relating to the 1998 lawsuit, but she also filed a separate complaint against McKee for defamation and false light invasion of privacy for his rebuttal post.

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Appeals Court: No Sanctions Against Attorney Who Sued Client Over Negative Online Review • Judge issues $300 sanctions against client for repeatedly violating its vexatious litigant order.

• At trial judge finds that lawyer’s work was competent and appropriate and he did nothing wrong.

• Judge also denies clients request for sanctions against lawyer.

• But…Lawyer loses at trial because he filed outside the one year statute of limitations.

• Client then appeals denial of sanctions. On appeal, client argued that the Superior Court erred by not granting various requests to sanction lawyer for perjury allegations and for filing a frivolous lawsuit in bad faith. Additionally, she claimed that Judges’s rulings in the case were allegedly biased, according to the opinion. All issues raised were denied.

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Florida Lawyer Strips Naked in Bar: 'She Got Really Drunk, Took Her Clothes Off,' Police Say.

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• "Being naked in Florida is not necessarily a crime," said ethics expert Brian Tannebaum.

• The Florida Bar has opened a case into an attorney whom officers arrested for allegedly stripping naked in a busy bar, after an employee told her she was too drunk to get served—and less than a couple of hours after authorities released her from jail.

• According to online records, Elkins, 49, was initially arrested for ordering drinks at a Thai restaurant without paying her bill. When authorities discharged Elkins from jail, she went to a different restaurant.

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Florida Lawyer Strips Naked in Bar: 'She Got Really Drunk, Took Her Clothes Off,' Police Say.

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The lawyer walked into the restroom and returned “unclothed and completely naked,” causing the manager to order her to leave. At that point, Elkins created a scene and refused to leave, according to the arrest report.

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Soon after, officers responded to the scene and instructed her to “get dressed,” at which the “uncooperative” 49-year-old put a “zip-up hoodie on and did not zip the shirt up. Defendant refused to put her pants on,” saying she was “too tired,” according to the arrest report.

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“One thing I always say in these situations is you‘re a lawyer 24 hours a day, seven days a week,” Tannebaum said. “Lawyers need to be aware that whether you’re in an argument with somebody at a restaurant, drunk at a bar, or driving under the influence, if it winds up with an arrest, you’re going to have to face the bar.”

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The arrested lawyer, a licensed attorney for more than 20 years, did not respond to a Law.com request seeking comment.

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Texas Criminal Defense Lawyers Association

28th Annual NCDD/TCDLA Mastering Scientific Evidence March 24-25 Royal Sonesta New Orleans, LA

Topic: Ethically Plowing the Fields with the State’s Experts Speaker:

Donald Ramsell 2735 W. Avenida Azahar Tucson, AZ 85745 (520) 220-5047 Phone (630) 665-9599 Fax donald.ramsell@dialdui.com Email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

3/4/22

Ethically Handling Their Experts: Getting the Best and Exposing the Worst

Donald J. Ramsell President & Dean National College for DUI Defense

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Rule 701

OPINION TESTIMONY AS A LAY WITNESS

n

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:

a.

Rationally based on the witness’s perception

b.

Helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and Not based on scientific, technical, or other specialized knowledge within the scope of Rule 702

c.

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Rule 702

TESTIMONY BY EXPERT WITNESSES

n

a.

b. c.

d.

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; The testimony is based on sufficient facts or data; The testimony is the product of reliable principles and methods; and The expert has reliably applied the principles and methods to the facts of the case.

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Rule 703

BASES OF AN EXPERT’S OPINION TESTIMONY

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An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

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Rule 704

OPINION ON AN ULTIMATE ISSUE

n

n

(a) In General — Not Automatically Objectionable.

An opinion is not objectionable just because it embraces an ultimate issue. (b) Exception. In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.

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Rule 704

OPINION ON AN ULTIMATE ISSUE

n

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(a) In General — Not Automatically Objectionable.

An opinion is not objectionable just because it embraces an ultimate issue. (b) Exception. In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or

condition that constitutes an element of the crime

charged or of a defense. Those matters are for the trier of fact alone.

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Their Expert n

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Three Primary Grounds for Attack: Credentials or Qualifications Methodology Employed Conclusions or Opinions Drawn

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Their Expert – Discovery Digging for Gold

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Their Expert – Discovery Digging For Gold • • • • • •

Salary and compensation benefits?

Overtime for court?

Outside cases?

If so what fees?

Emails?

Subpoena tech to provide all data relied upon in reviewing result for accuracy and validity 9

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Their Expert – Discovery Digging For Gold • • • •

Resume Memberships Minutes of meetings Past transcripts • • •

of witness or superiors or coworkers

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Their Expert – Discovery Digging For Gold • •

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Coverdell Reports Organizational Standards Ethics and Procedures – SOFT – ISO 17025 Lab Protocols • What sources do they reference?

Proficiency Testing Quality Issue Reports ISO 17025 Accreditation Audits 11

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Their Expert – Discovery Digging For Gold

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Coverdell Reports The Paul Coverdell Forensic Science Improvement Grants Program.

42 USC 3797 Involves the highest standards of integrity in the practice of forensic science Recipient will report external investigations Recipient will refer allegations of serious negligence or misconduct

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Their Expert – Discovery Digging For Gold • •

Coverdell Reports For each fiscal year of an award, recipients will be required to report to the National Institute of Justice on an annual basis: 1.

The number and nature of any such allegations(of negligence or misconduct).

2.

Information on the referrals of such allegations (e.g., the government entity or entities to which referred, the date of referral).

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The outcome of such referrals (if known as of the date of the report).

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If any such allegations were not referred, the reason(s) for the non-referral.

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Their Expert – Discovery Organizational Standards Ethics and Procedures SOFT / AAFS Forensic Laboratory Guidelines – 2006

5. STANDARD OPERATING PROCEDURES 5.1 The laboratory should have a standard operating procedure manual (SOP) that is complete, up-to-date, and available to all personnel who are performing tests.

5.2 The SOP manual should include detailed descriptions of procedures for sample receiving, accessioning, chain-of-custody, analysis, quality assurance and quality control, review of data, and reporting.

5.3 The SOP manual should include administrative procedures as well as analytical methods and be reviewed, signed, and dated whenever it is first placed into use or changed.

5.4 The SOP manual should include, for each analytical procedure if appropriate, the following: a) theory and principle of the method, b) instructions for preparation of reagents, c) details of the analytical procedure, d) instructions for preparation of calibrators and controls, e) information about any special requirements for handling reagents or for ensuring safety, f) validation parameters (e.g. LOQ, linearity), g) criteria for the acceptance or rejection of qualitative or quantitative results and h) 18 references.

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Their Expert - Discovery •

Laboratory Protocols • What sources do they reference?

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Their Expert - Discovery •

Laboratory Protocols • What sources do they reference?

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Their Expert – Discovery Digging For Gold •

Proficiency Testing – ISO 17025

For example, Illinois has 4 types of performance tests that may be used as quality assurance measures: 1.

2.

3.

4.

criterion tests, internal proficiency tests, external proficiency tests and blind proficiency tests.

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Their Expert - Discovery •

Quality Issue Reports

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Their Expert - Discovery •

Quality Issue Reports

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Their Expert - Discovery •

Quality Issue Reports

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Their Expert – Discovery ISO 17025 Accreditation

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Their Expert – Discovery ISO 17025 Accreditation Audits

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Their Expert – Discovery ISO 17025 Accreditation Audits

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Their Expert – Discovery ISO 17025 Accreditation Audits

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Their Expert – Discovery ISO 17025 Accreditation Audits

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Their Expert – Discovery ISO 17025 Accreditation Audits

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Their Expert – Discovery Organizational Standards Ethics and Procedures SOFT / AAFS Forensic Laboratory Guidelines – 2006

11.9 Retention of Records Records should be retained as long as practical, but for at least 5 years. Records should include a copy of the report, request and custody forms, work sheets, laboratory data, quality control and proficiency testing records.

Laboratories are strongly encouraged to archive electronic data files for a similar period as the paper records, by backup to suitable media such as CD or DVD disk.

This is particularly important for full scan screening data, where because of the nature of the data it is impractical to keep a complete paper copy.

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Their Expert – Discovery Organizational Standards Ethics and Procedures

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Their Expert – Discovery Organizational Standards Ethics and Procedures

5.10.3 Test reports 5.10.3.1 In addition to the requirements listed in 5.10.2, test reports shall, where necessary for the interpretation of the test results, include the following: a) deviations from, additions to, or exclusions from the test method, and information on specific test conditions, such as environmental conditions; b) where relevant, a statement of compliance/non-compliance with requirements and/or specifications; c) where applicable, a statement on the estimated uncertainty of measurement; information on uncertainty is needed in test reports when it is relevant to the validity or application of the test results, when a customer's instruction so requires, or when the uncertainty affects compliance to a specification limit; d) where appropriate and needed, opinions and interpretations (see 5.10.5); e) additional information which may be required by specific methods, customers or groups of customers.

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Pre-Trial Motions Their Expert Motion to Prevent State From Moving, And Judge Ruling, That The Witness Is An ‘Expert’ In Front Of The Jury n

n

Rulings regarding the admissibility of evidence are irrelevant to the jury’s role, and a jury is normally instructed to disregard such rulings Finding the witness to be an ‘expert’ in front of the jury may mislead them into thinking that this is the judges personal opinion on the evidence. “The trial court’s acceptance, in the presence of the jury, of (the party) as an expert might well have affected the jury…” Galloway 145 S.E.2d at 866; Sherrod v. Nash 487 SE2d 151,155 (1997) 43

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Pre-Trial Motions Their Expert Rulings regarding the admissibility of evidence are irrelevant to the jury’s role, and a jury is normally instructed to disregard such rulings

n

n

From Illinois IPI Jury Instruction 1.01: “From time to time it has been the duty of the court to rule on the admissibility of evidence. You should not concern yourselves with the reasons for these rulings. You should disregard questions [and exhibits] which were withdrawn or to which objections were sustained.”

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Pre-Trial Motions Their Expert Finding the witness to be an ‘expert’ in front of the jury may mislead them into thinking that this is the judges personal opinion on the evidence. n

“The judge may not express during any stage of the trial, any opinion in the presence of the jury on any question of fact to be decided by the jury.”

N.C.G.S.A. § 15A-1222

n

Under article IV, section 16, of the Washington constitution, judges may not comment to the jury on matters of fact. “Thus, the judge may not convey to the jury his or her opinion concerning the testimony.” Whether a judge has expressed his or her opinion turns on whether the judge's feeling as to “the truth value of the testimony of a witness has been communicated to the jury.”

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Their Expert - Tips n

Send copies of articles, publications, treatises, et cetera to their expert, with letter asking them to review and be prepared to discuss at trial.

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Their Expert - Tips •

•

•

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Remember, that the letter itself might be admissible as evidence at trial, so be nice!

Ask the witness to call you to discuss – many states allow into evidence the fact that a witness refuses to speak to an investigator or attorney pre-trial Offer to provide them with anything else they might need, such as more time, or more articles Ask them to provide you with anything that they have which is supportive of their side of the case.

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Their Expert n

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First Ground for Attack: Credentials or Qualifications

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Their Expert Credentials

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Their Expert Credentials

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Their Expert Outside Credentials or Certifications

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Their Expert Outside Memberships and Associations

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Their Expert Outside Memberships and Associations

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Their Expert

Minimizing Credentials and Diminishing the Lab Technicians Value

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Their Expert n

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Second Ground for Attack: Methodology Employed

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Their Expert n n

Methodology Employed – Non Lab Evidence Consider using a Daubert-styled cross:

(1) whether the scientific evidence has been tested and the methodology with which it has been tested; (2) whether the evidence has been subjected to peer review or publication; (3) whether a potential rate of error is known; (4) whether the evidence is generally accepted in the scientific community; and (5) whether the expert's research in the field has been conducted independent of litigation.

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Their Expert Using Expert’s Credentials To Establish Violation of Outside Standards

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Their Expert

Using Expert’s Credentials To Establish Violation of Outside Standards

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Their Expert

Using Expert’s Credentials To Establish Violation of Outside Standards

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Their Expert

Using Expert’s Credentials To Establish Violation of Outside Standards

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Their Expert

Using Expert’s Credentials To Establish Violation of Outside Standards

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Their Expert

Using Expert’s Credentials To Establish Violation of Outside Standards

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Their Expert

Using Expert’s Credentials To Establish Violation of Outside Standards

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Their Expert Attacking the Labs Credentials

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Their Expert Suggesting that Vials Were Misplaced (Switched)

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Their Expert

Using Expert’s Credentials To Establish Violation of Outside Standards

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Their Expert The Anticoagulant and Preservatives Problem

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Their Expert The Anticoagulant and Preservatives Problem

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Their Expert The Anticoagulant and Preservatives Problem

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Their Expert The Anticoagulant and Preservatives Problem

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Their Expert The Anticoagulant and Preservatives Problem

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Their Expert The Anticoagulant and Preservatives Problem

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Their Expert The Anticoagulant and Preservatives Problem

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Their Expert The Anticoagulant and Preservatives Problem

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Their Expert n

•

Third Ground for Attack: Conclusions or Opinions Drawn

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Their Expert n

•

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Third Ground for Attack: Conclusions or Opinions Drawn Leave Most of It For Closing or For the Jury 118

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Their Expert The Anticoagulant and Preservatives Problem

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Their Expert The Anticoagulant and Preservatives Problem

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Their Expert Jury Instructions

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Their Expert Jury Instructions

In examining an expert witness counsel may propound to her or him a type of question known in the law as a hypothetical question. You heard the Prosecutor say assuming this and assuming that. That was the form of the hypothetical question.

By such question the witness is asked to assume to be true a hypothetical state of facts and to give an opinion based on that assumption.

In permitting such a question the Court does not rule and does not necessarily find that all the assumed facts have been proved. It only determines that those assumed facts are within the possible range of the evidence.

It is for you, the jury, to determine and to find from all the evidence whether or not the facts assumed in a hypothetical question have been proved. And if you should find that any assumption in such a question has not been proved, you are to determine the effect of the failure of proof on the value and weight of the expert opinion based on that assumption.

State v. Reeds 197 N.J. 280, 288-289, 962 A.2d 1087, 1092 (N.J.,2009)

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Their Expert Jury Instructions

“Here, the trial judge correctly instructed the jury on its proper role. The judge twice gave the jurors the model charge on expert testimony, explaining that the jury is not bound by an expert's opinion and may give it as much weight as they think is proper. The judge told the jurors that in reaching that determination, they may consider the reasons given for the opinion, the qualifications and credibility of the expert, and the facts upon which the opinion is based.

State v. Buccheri 2013 WL 844362, 8 (N.J.Super.A.D.) (N.J.Super.A.D.,2013) 128

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The Arresting Officer “The police officer in this case is not an expert, and his opinions are not entitled to any greater weight than you would give to any other lay witness’s opinions.”

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Thank You!

Donald J. Ramsell President & Dean

National College for DUI Defense

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Texas Criminal Defense Lawyers Association

28th Annual NCDD/TCDLA Mastering Scientific Evidence March 24-25 Royal Sonesta New Orleans, LA

Topic: Drug Toxicology Speaker:

Dr. Jimmie Valentine 15 Cedarwood Ln Gulfport, MS 39503-6206 (501) 258-9242 Phone (228) 818-8733 Fax jimmielvalentine@sbcglobal.net Email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Drug Toxicology ‐ Dr. Jimmie L. Valentine

3/24/2022

DRUG TOXICOLOGY

Jimmie L. Valentine, B.S., B.S., M.S., Ph.D. Medical Pharmacology and Forensic Toxicology Consultant Gulfport, Mississippi Retired Professor of Pediatrics, Pharmacology, and Myeloma Research, University of Arkansas College of Medicine

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NET EFFECT OF ALCOHOL & DRUGS • Alcohol and most psychoactive Drugs • depress the Central Nervous System (CNS) • Exception is CNS stimulants

Dr. Jimmie L. Valentine - Copyright 2022

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CNS can be thought of as brain, spinal column, and nerves coming from them

Dr. Jimmie L. Valentine - Copyright 2022

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Drug Toxicology ‐ Dr. Jimmie L. Valentine

3/24/2022

DRUGS OF INTEREST FOR AFFECTING DRIVING PERFORMANCE Mainly those with action in the Central Nervous System (CNS) • • • • •

Narcotic Analgesics Marijuana (synthetic marijuana) Sedatives/Hypnotics Antianxiety/Antidepressant Stimulants Dr. Jimmie L. Valentine - Copyright 2022

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SIDE EFFECTS OF CNS DRUGS – ARE THEY A CONCERN FOR DRIVING PERFORMANCE? CNS side effects include: • • • • •

Euphoria Somnolence Lassitude Incoordination Mental clouding Dr. Jimmie L. Valentine - Copyright 2022

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EFFECT OF DRUGS ON DRIVING PERFORMANCE IS NOT CLEAR • Drug has greater effect on a person not using it for a therapeutic purpose • Person using a drug therapeutically will develop a tolerance to most sedating effects that would affect driving performance Dr. Jimmie L. Valentine - Copyright 2022

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Drug Toxicology ‐ Dr. Jimmie L. Valentine

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DOGMA TAUGHT TO POLICE AND CRIME LAB PERSONNEL Drugs that affect driving performance either: • Stimulate the CNS or • Depress the CNS and • More than one drug is additive in its effect

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DOGMA TAUGHT TO POLICE AND CRIME LAB PERSONNEL (cont’d) If the concentration of drug found in blood is in a therapeutic range, the accused is impaired!

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THERAPEUTIC RANGE • The range of blood concentration for a given drug where its therapeutic effect is observed

Dr. Jimmie L. Valentine - Copyright 2022

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Drug Toxicology ‐ Dr. Jimmie L. Valentine

3/24/2022

Therapeutic range

Pharmacological Effect

Concentration in plasma

Therapeutic vs Pharmacological Effect

Time since administration

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SOURCES FOR THERAPEUTIC OR TOXIC LEVELS OF DRUGS • Winek Table – http://www.abmdi.org/documents/winek_tox_data_2001.pdf listed as µg/mL • Welzen and Uges Table (updated TIAFT table) http://www.gtfch.org/cms/images/stories/Updated_TIAFT_list_2 02005.pdf listed as mg/L • Schulz et al Table http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3580721/ listed as mg/L

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QUESTION – IS THERE A DIFFERENCE IN EFFECT ON DRIVING PERFORMANCE BETWEEN USING A DRUG FOR A PHYSIOLOGICAL CONDITION OR ABUSE?

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Drug Toxicology ‐ Dr. Jimmie L. Valentine

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THERAPEUTIC DRUG USE Taking an over-the-counter or prescription drug as indicated by label or prescription directions

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DRUG ABUSE Taking an illegal, over-thecounter or prescription drug to achieve a separation from the current physiological state.

Often taken in excessive amounts.

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THERAPEUTIC RANGE • The range of blood concentration for a given drug where its therapeutic effect is observed Example – therapeutic range for Alprazolam (Xanax) – 25-102 ng/mL

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Drug Toxicology ‐ Dr. Jimmie L. Valentine

3/24/2022

SOURCES FOR THERAPEUTIC OR TOXIC LEVELS OF DRUGS • Winek Table – http://www.abmdi.org/documents/winek_tox_data_2001.pdf listed as µg/mL • Welzen and Uges Table (updated TIAFT table) http://www.gtfch.org/cms/images/stories/Updated_TIAFT_list_202005.pdf listed as mg/L • Schulz et al Table http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3580721/ listed as mg/L •

Baselt – “Disposition of Toxic Drugs and Chemicals in Man” – 12th Edition

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listed as µg/mL or ng/mL

listed as µg/L

1 µg = 1,000 ng

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Drug Toxicology ‐ Dr. Jimmie L. Valentine

3/24/2022

ALPRAZOLAM • Therapeutical approved for anxiety and panic attack • Available as 0.25, 0.5, 1.0, and 2 mg dosages – not to exceed 4 mg/day • Long half-life of 10-11 hours

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ALPRAZOLAM • Widely available on street • “Xanzie bar”

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WARNINGS FOUND IN PACKAGE INSERT CNS Depression and Impaired Performance • Because of its CNS depressant effects, patients receiving XANAX should be cautioned against engaging in hazardous occupations or activities requiring complete mental alertness such as operating machinery or driving a motor vehicle. For the same reason, patients should be cautioned about the simultaneous ingestion of alcohol and other CNS depressant drugs during treatment with XANAX.

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3/24/2022

PHARMACOLOGICAL CONSIDERATIONS WITH ALPRAZOLAM • Tolerance can occur to side effects of sedation, lassitude, and drowsiness • 1-2 weeks of dosing required to acquire a tolerance to these side effects

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Verster et al.

Current Psychiatry Reviews 1:215-25, 2005

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PHARMACOLOGICAL CONSIDERATIONS WITH ALPRAZOLAM • A patient with anxiety could be considered to have a stimulated CNS • Alprazolam being classified as a CNS depressant would place that patient back in a “normal” CNS state

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Drug Toxicology ‐ Dr. Jimmie L. Valentine

3/24/2022

PHARMACOLOGICAL CONSIDERATIONS WITH ALPRAZOLAM (continued) • Opining that since the accused has alprazolam in their blood and because it is a CNS depressant, they were impaired for driving would be scientifically disingenuous without other supporting facts

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Conclusion – alprazolam is a fairly innocent drug when used as monotherapy, but toxicity increases with co-ingestion of illicit drugs and/or psychoactive medication

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PHARMACOLOGICAL CONSIDERATIONS WITH OPIATES • Opiates are used to suppress pain Examples: Morphine Codeine Meperidine Oxycodone

Hydrocodone Hydromorphone Methadone Fentanyl

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3/24/2022

PHARMACOLOGICAL CONSIDERATIONS WITH OPIATES • Pain could be considered a stimulation of the CNS • Opiates classified as CNS depressants would place the patient back in a “normal” CNS state

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Clinical Journal of Pain 21:345-52, 2005

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“The evidence in this review indicates that opioids do not appear to be associated with intoxicated driving, MVA and MVA fatalities, and consistently indicated that opioids are not associated with MVA.”

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3/24/2022

THC PHARMACOLOGICAL CONSIDERATIONS • Initially could be considered a CNS stimulant – euphoria, increased cardiovascular effects • After 1-2 hours could be considered a CNS depressant – “mellowing out”

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TWO TYPES OF STUDIES ON THC AND DRIVING • Driving – on-road and simulators • Epidemiology studies

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TWO TYPES OF STUDIES ON THC AND DRIVING (Continued) • Driving – on-road and simulators measure SDLP, following, speed, etc.

• Epidemiology studies – data on accidents and fatal crashes

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3/24/2022

SDLP – Measure of Lane Deviation

100 k/hr = 62 mph; 25 cm = 9.84 inches; 30 cm = 11.8 inches

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Inches 0.102 0.205 0.512 0.709 1.204 2.048 0.165 0.331 0.827 1.339 1.654 1.024 1.339 Hartman, et al. Drug Alc Dep 154:25-37, 2015; Cannabis effects on driving lateral control with and without alcohol

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3/24/2022

13.2 ng/mL THC equivalent to 0.08 BrAC

Hartman, et al. Drug Alc Dep 154:25-37, 2015; Cannabis effects on driving lateral control with and without alcohol

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13.2 ng/mL would be seen only in the 1 hr. period after smoking marijuana

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12.2 inches

Alcohol (≈ 0.05 g%) and various doses of THC effects on SDLP

10.2 inches

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3/24/2022

Alcohol (≈ 0.05 g%) and various doses of THC effects on Reaction Time

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LARGEST EPIDEMIOLOGY STUDY TO DATE ON THC AND ACCIDENTS

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SUMMARY OF VIRGINIA BEACH THC RESULTS

THC showed no significant increase in crash risk !

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Drug Toxicology ‐ Dr. Jimmie L. Valentine

Dr. Jimmie L. Valentine - Copyright 2022

3/24/2022

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DRUG TOXICOLOGY- CONCLUSIONS • Therapeutic use of CNS drugs may only affect driving performance following initial therapy • Illicit or therapeutic drugs may impair driving when abused • Therapeutic range of drugs ≠ Impairment

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ADDITIONAL CANNABIS CONSIDERATIONS • Medical marijuana • Hemp products

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Drug Toxicology ‐ Dr. Jimmie L. Valentine

3/24/2022

HEMP FARM BILL - 2018 Since passage of the Hemp Farm Bill • Acreage planted in US has exploded • Cannabidiol (CBD) begin to be sold practically everywhere as oil and in countless OTC products

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CANNABIS (MARIJUANA) Technically, Hemp and Marijuana come from the same plant with the botanical name Cannabis sativa • Marijuana contains lot of THC • Hemp contains very little THC

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3/24/2022

Is CBD oil really THC free?

Can one test positive for THC from using CBD?

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CBD OIL BOUGHT LEGALLY CAN BE USED TO OBTAIN THC • Smoking in e-cigarette • Converting with acid

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Drug Toxicology ‐ Dr. Jimmie L. Valentine

3/24/2022

Δ9‐THC

CBE 2-3%

8-16%

CBD CBC 2-6%

Δ8‐THC CBN

2-3%

5-10%

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HCl or H2SO4

Δ9‐THC Δ8‐THC

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Texas Criminal Defense Lawyers Association

28th Annual NCDD/TCDLA Mastering Scientific Evidence March 24-25 Royal Sonesta New Orleans, LA

Topic: Exposing Pre-Analytical Error in Blood Testing Speaker:

Dr. Jimmie Valentine 15 Cedarwood Ln Gulfport, MS 39503-6206 (501) 258-9242 Phone (228) 818-8733 Fax jimmielvalentine@sbcglobal.net Email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Exposing Pre-Analytical Error in Blood Testing - Dr. Jimmie L. Valentine

3/24/2022

EXPOSING PRE-ANALYTICAL ERROR IN BLOOD TESTING Jimmie L. Valentine, B.S., B.S., M.S., Ph.D. Professor of Pediatrics, Pharmacology, and Myeloma Research (Retired), University of Arkansas College of Medicine

Medical Pharmacology & Forensic Toxicology Consultant Gulfport, Mississippi

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WHAT HAPPENS IN A LABORATORY? • Once a specimen is collected it is eventually sent to a laboratory • The laboratory cannot control what happens prior to receiving the specimen Dr. Jimmie L. Valentine - Copyright 2022

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SPECIMEN ARRIVES AT LABORATORY • Shipping kit opened and security seal verified – lab should not accept specimen without a valid chain of custody

Dr. Jimmie L. Valentine - Copyright 2022

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Exposing Pre-Analytical Error in Blood Testing - Dr. Jimmie L. Valentine

3/24/2022

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Exposing Pre-Analytical Error in Blood Testing - Dr. Jimmie L. Valentine

Dr. Jimmie L. Valentine - Copyright 2022

3/24/2022

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TUBE INFORMATION

Lot Number

Expiration Date

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Dr. Jimmie L. Valentine - Copyright 2022

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Exposing Pre-Analytical Error in Blood Testing - Dr. Jimmie L. Valentine

3/24/2022

CHAIN OF CUSTODY • Blood specimen received must be sealed • External chain of custody initiated • Specimen properly handled and stored Dr. Jimmie L. Valentine - Copyright 2022

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Example of an external chain of custody Appears to have been stored in Police cruiser for 11-days

Dr. Jimmie L. Valentine - Copyright 2022

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STORAGE CONDITIONS • Extended storage at room temperature most critical with ethanol (fermentation) • Effect of storage conditions on drugs not entirely known Dr. Jimmie L. Valentine - Copyright 2022

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propanol

ethanol

Exposing Pre-Analytical Error in Blood Testing - Dr. Jimmie L. Valentine

Figure 2

3/24/2022

Additional peaks suggesting fermentation

Dr. Jimmie L. Valentine - Copyright 13 2022

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Courtesy of Dr. Stefan Rose Dr. Jimmie L. Valentine - Copyright 2022

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SOME HOSPITAL TUBES

Clot activating (Serum)

NaF/Oxalate - glucose

EDTA – whole blood

No additive (Serum)

Dr. Jimmie L. Valentine - Copyright 2022

Heparin (Plasma)

Gel clot separator (Serum) – “Tiger Tube”

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Exposing Pre-Analytical Error in Blood Testing - Dr. Jimmie L. Valentine

Forensic Tube

Dr. Jimmie L. Valentine - Copyright 2022

3/24/2022

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SPECIMEN ARRIVES AT LABORATORY (cont’d)

• Shipping kit opened and security seal verified • Assigned an accessioning number and internal chain of custody begun

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Exposing Pre-Analytical Error in Blood Testing - Dr. Jimmie L. Valentine

3/24/2022

Accessioning No.

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SPECIMEN ARRIVES AT LABORATORY (cont’d)

• Shipping kit opened and security seal verified • Assigned an accessioning number and internal chain of custody begun • Prepare specimen for analysis

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Exposing Pre-Analytical Error in Blood Testing - Dr. Jimmie L. Valentine

3/24/2022

PATHWAYS FOR FORENSIC ANALYSIS No chain of custody Serum/plasma/urine

Hospital

Alcohol Crime Lab

100 µL specimen + Int. Std.

Hospital Chemical Analyzer

Headspace (HS)Gas Chromatography (GC)Flame Ionization Detector (FID)

Enzymatic test - indirect Estimated BAC

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Specimen pipetted for alcohol analysis • Typically, 100 µL blood pipetted • Never put pipette tip in specimen • Pipette system must be flushed between specimens

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Specimen pipetted for alcohol analysis • Specimen transferred to headspace vial along with Internal Standard (IS) • Then sealed with a crimper

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Exposing Pre-Analytical Error in Blood Testing - Dr. Jimmie L. Valentine

3/24/2022

CONCEPT OF INTERNAL STANDARD • Similar chemical properties • Never found in physiological fluids • Added in a constant amount to physiological fluid prior to processing Dr. Jimmie L. Valentine - Copyright 2022

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INTERNAL STANDARDS FOR ETHANOL ANALYSIS • Most commonly used – n-propanol • Best choice – t-butanol (tert-butanol)

n-propanol can be found in blood as a fermentation by-product Dr. Jimmie L. Valentine - Copyright 2022

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INTERNAL STANDARDS FOR DRUG ANALYSIS • Most used – a deuterated form of the drug to be analyzed Example – to analyze methamphetamine Use d3- methamphetamine

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Exposing Pre-Analytical Error in Blood Testing - Dr. Jimmie L. Valentine

3/24/2022

PATHWAYS FOR FORENSIC ANALYSIS Alcohol

Drugs 0.1 – 1 mL specimen + Int. Std.

100 µL specimen + Int. Std. Separate from physiological matrix Headspace (HS)Gas Chromatography (GC)Flame Ionization Detector (FID)

Gas Chromatography (GC)/ Mass Spectrometry (MS) or Liquid Chromatography (LC)/ Mass Spectrometry (MS)

Dr. Jimmie L. Valentine - Copyright 2022

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PHYSIOLOGICAL MATRIX Prior to analysis of either antemortem or post-mortem specimens for drugs, some pre-analytical preparations is generally required Dr. Jimmie L. Valentine - Copyright 2022

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PHYSIOLOGICAL MATRIX (cont’d) Types of physiological matrices typically used Ante-Mortem Whole blood Plasma or serum Urine Saliva (Oral Fluid) Hair/nails Sweat

Post-Mortem Whole blood (femoral preferred over central) Vitreous humor Urine Bile Hair/nails Tissue specimens Dr. Jimmie L. Valentine - Copyright 2022

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3/24/2022

PRE-ANALYTICAL PROCEDURES Solid Phase Extraction (SPE) • Used to remove drug from its physiological matrix  SPE tubes purchased  Specimen added to SPE tubes Dr. Jimmie L. Valentine - Copyright 2022

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Vacuum manifold

Solid Phase Extraction (SPE) tubes

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MeOH

H2O

1. Condition

Specimen matrix

5% EtOH/ Dilute acid H2O or base

3. Load 5. Elute drug(s) specimen 4. Wash impurities

2. Equilibrate

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3/24/2022

SPE EXTRACTED DRUG GC/MS

LC/MS

Derivatize

Dissolve in mobile phase

Inject on GC/MS Inject on LC/MS Dr. Jimmie L. Valentine - Copyright 2022

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DERIVATIZATION • Most drugs are non-volatile • Metabolites of drugs are polar • Above characteristics are not compatible with gas chromatography Dr. Jimmie L. Valentine - Copyright 2022

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DERIVATIZATION (cont’d) • Drug is chemically converted into a compound that is volatile and less polar

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Exposing Pre-Analytical Error in Blood Testing - Dr. Jimmie L. Valentine

3/24/2022

DERIVATIZATION (cont’d) • Chemical reaction is conducted in a test tube • Chemical reaction may or may not require heating

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DERIVATIZATION (cont’d) Drug – OH + (CH3)3-Si-Cl Drug – O – Si-(CH3)3 Drug – NH2 + (CH3)3-Si-Cl Drug – N – [Si-(CH3)3]2

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HOW TO VERIFY PREANALYTICAL PROCEDURES Obtain a litigation packet

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3/24/2022

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SUMMARY OF PRE-ANALYTICAL ISSUES • Chain of custody – documentation • Specimen storage prior to analysis • Pipetting – crucial • Separation from physiological matrix Dr. Jimmie L. Valentine - Copyright 2022

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QUESTIONS?

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Texas Criminal Defense Lawyers Association

28th Annual NCDD/TCDLA Mastering Scientific Evidence March 24-25 Royal Sonesta New Orleans, LA

Topic: Winning Breath/Blood Test Cases Speaker:

Courtney Miller 4444 South Freeway Ft. Worth, TX 76115 (214) 800-2086 Phone (972) 330-2449 Fax CourtneyM@diazlf.com Email www.diazlf.com Website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

3/11/2022

The H.E.R.D. Method

British Airways Flight 5390 – June 10, 1990

British Airways Flight 5390 – June 10, 1990

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3/11/2022

British Airways Flight 5390 – June 10, 1990

HUMAN ERROR = REASONABLE DOUBT

HUMAN ERROR = REASONABLE DOUBT

2

3/11/2022

Step 1: Prepare your Panel

Step 1: Prepare your Panel

3

3/11/2022

Step 2: Design Your Cross Examination

Room for Error – Intoxylizers

Waiting to Exhale

4

3/11/2022

Waiting to Exhale – Texas

Waiting to Exhale - Georgia

The 60 Minute Breath Test

5

3/11/2022

Policies and Protocols vs. Science

Intoxilyzer 9000 – Do Less with More

Room for Error – Blood Test

6

3/11/2022

Treat evidence like garbage

The Trainee Nurse

Brady Notice

7

3/11/2022

Wrong label; wrong defendant

Switch vials; Switch words

Overwhelmed and Overworked

8

3/11/2022

The H.E.R.D. Method

9

Texas Criminal Defense Lawyers Association

28th Annual NCDD/TCDLA Mastering Scientific Evidence March 24-25 Royal Sonesta New Orleans, LA

Topic: Blood Test Discovery: Using Blood Discovery to Win Speaker:

Tyler Flood 2019 Washington Ave Houston, TX 77007 (713) 224-5529 Phone (713) 224-5533 Fax Tyler@tylerflood.com Email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

BLOOD TEST DISCOVERY: USING BLOOD DISCOVERY TO WIN MASTERING SCIENTIFIC EVIDENCE – 2022 MARCH 24TH, 25TH ROYAL SONESTA – BOURBON STREET – NEW ORLEANS NCDD/TCDLA

TYLER FLOOD 2019 Washington Ave. #300 Houston, TX 77007 p. 713.224.5529 f. 713.224.5533 tyler@tylerflood.com

CASE #1 THE DONKEY DOCTOR

Curriculum Vitae

Fessessework Guale. MS, DVM, D-ABVT, FTS-ABFT Harris County Institute of Forensic Sciences 1885 Old Spanish Trail Houston, TX 77054 Phone: 713-796-6908 Fax: 713-796-6838 Fessessework.guale@ifs.hctx.net

Education 1993-1996: Oklahoma State University, Stillwater, OK  MS: Toxicology, Physiological Sciences, College of Veterinary Medicine  Thesis: Evaluation of Chick Embryo Motoneurone cultures for the study of Neurotoxicity. Published in 1997.

1985-1990: Addis Ababa University, Ethiopia  DVM: College of Veterinary Medicine  Thesis: Prevalence of Coccidiosis and Identification of Eimeria Species 1981-1983: Addis Ababa University, Ethiopia  BS: Animal Science, College of Agriculture

Professional Experience

May 2013-present: Toxicology Analytical Operations Manager: Harris County Institute of Forensic Sciences          

Manage the daily operation of the Laboratory Perform technical, administrative and expert review of completed cases Provide consultations and toxicological interpretations to pathologists and law enforcement personnel Provide expert testimony in court Oversee the QA/QC operation of the laboratory Oversee the training and continuing education of staff members Hire subordinate staff Prepare annual budget for the laboratory Perform yearly performance evaluation of toxicology laboratory employees Prepare and present scientific articles

May 2011-May 2013: Assistant Chief Toxicologist: Harris County Institute of Forensic Sciences, Forensic Toxicology Section.            

Manage the daily operation of the toxicology laboratory Perform technical, administrative and expert review of completed cases Provide consultations and toxicological interpretations to pathologists and law enforcement personnel Provide expert testimony in court Plan and execute method development projects Prepare and present scientific articles Oversee the QA/QC operation of the laboratory Oversee the training and continuing education of staff members Hire subordinate staff Prepare annual budget for the laboratory Perform yearly performance evaluation of toxicology laboratory employees Prepare and present scientific articles

June 2008- May 2011: Toxicologist I: Harris County Institute of Forensic Sciences, Forensic Toxicology Section  Manage and plan the daily operation of the toxicology laboratory  Technical and administrative review completed cases  Maintain laboratory compliance with quality control and quality assurance and accreditation by ABFT and ASCLAD/LAB.  Provide expert witness in the court of law June 2006- June 2008: Toxicologist II Specialist: Harris County Medical Examiners Office, Forensic Toxicology Section.  GC/MS Section Team Leader: Provide leadership in all the activities of the section  Technically review analytical data in the section  Perform technical review and expert review of completed cases  Facilitate the completion of cases in a timely manner  Responsible for troubleshooting instrument malfunctions and contact service technicians when necessary  Review standard operating procedures, make necessary adjustments and/or changes to improve the efficiency of the analytical methods  Assign team members daily duties  Responsible for training and continuing education of team members  Manages personnel issues in the section, including time sheets, time off requests, schedules, etc.  Conduct the performance evaluation of team members

2000-2006: Professional Research Associate/ Toxicologist. Colorado State University Health Sciences Center, Forensic Toxicology Laboratory  Laboratory Manager: Manage the day to day activity of the Forensic Toxicology laboratory  Responsible for maintaining the laboratory’s accreditation  Organize the basic research activity in the laboratory  Responsible for employee training and counseling  Develop and validate new analytical methods  Analyze, review and report analytical data  Consult with law enforcement agencies, pathologists, and veterinarians on toxicology issues  Provide expert testimony 1991-2000; Analytical Toxicologist: Oklahoma Animal Disease Diagnostic Laboratory, Oklahoma State University  Analyze biological and environmental samples for drugs, pesticides, heavy metals, mycotoxins, feed additives, petroleum hydrocarbons, water pollutants and etc.  Used, GC/MS, GC-FID, HPLC, AA, TLC, ELISA and bench chemistry  Write and review standard operation procedures  Analyze data, interpret and report results  Consult with veterinarians and provide diagnostic service  Perform research to improve and develop analytical methods  Provide training to residents in analytical toxicology

Awards and Certificates 2007-Forensic Toxicology Specialist: American Board of Forensic Toxicology 1999-Diplomate: American Board of Veterinary Toxicology 1990-Academic Excellence Award; College of Veterinary Medicine 1981-Academic Excellence Award, College of Agriculture

Publications Fessessework Guale, Shahriar Shahreza, Jeffrey P. Walterscheid, Hsin-Hung Chen, Crystal Arndt, Anna T. Kelly and Ashraf Mozayani: Validation of LC-TOF-MS screening for drugs, metabolites and collateral compounds in Forensic Toxicology specimens. Journal of Analytical Toxicology, Vol. 37. No. 1, 2013 pages 17-25.

K. Bischoff, F. Guale; Australian Tea Tree ( Melaleuca alternifolia) oil Poisoning in three purebred cats. Journal of Veterinary Diagnostic Investigations, Volume 10, 1998 pages 208-210 Fessessework G. Guale, George E. Burrows: Evaluation of Chick Embryo Motoneuron Cultures for the Study of Neurotoxicity. Natural Toxins, Volume 5, Number 3,1997, pages 115-120 FG. Guale, EL. Stairs, WB. Johnson, WC. Edwards, JC. Haliburton: Laboratory Diagnosis of Zinc Phosphide Poisoning. Veterinary and Human Toxicology, Volume 36, No. 6, December 1994, pages 517-519

Fessessework Guale, Assessment of Rectal Temperature, Pulse, and Respiratory rates in Healthy Pack Donkeys. Student Scientific Journal, April 1989, College of Veterinary Medicine, Addis Ababa, Ethiopia

Presentations        

Applications of Fast GC-MS in the analysis of Opiates. Poster presented on October 19, 2007 at Society of Forensic Toxicology Continuing Education Workshop, Raleigh-Durham, NC. Clinical or Forensic Case- A Crossroad for Interpretation: Presented to Harris County Medical Examiners Office, Toxicology Section Staff, October 2007.

Pharmacokinetics and Interpretation of Cocaine: Presented to Fellows and pathology residents of the Harris County Medical Examiners Office, September 2007, Houston, TX Interpretive DUID: Presented to toxicology staff at Harris County Medical Examiners Office as part of continuing education training, June 2008, Houston, TX Pharmacokinetics and Interpretation of Cocaine: Presented to Fellows and pathology residents of the Harris County Medical Examiners Office, October 2008, Houston, TX Interpretive DUID Workshop: Workshop Coordinator, SOFT/AAFS Drugs and driving Committee Seminar, May 12-13, 2009 Houston, Texas.

Pharmacokinetics and Interpretation of Cocaine: Presented to Fellows and pathology residents of the Harris County Medical Examiners Office, December 2009, Houston, TX Phencyclidine (PCP) in fatally injured drivers and DUID arrests in Harris County, Texas. Presented at the American Academy of Forensic Sciences, 62nd annual scientific meeting, February 24, 2010, Seattle, WA.

    

Pharmacokinetics and Interpretation of Cocaine: Presented to Fellows and pathology residents of the Harris County Medical Examiners Office, November 2010, Houston, TX Drug Testing and Interpretation in Postmortem Toxicology: Presented at Harris County Institute of Forensic Sciences: Topics in Forensic Sciences Conference, April 15, 2011, Houston, TX. Proof of concept for a comprehensive method for rapid drug screening of whole blood with UHPLC accurate-mass TOF LC/MS. Presented at the 2011 SOFT-TIAFT joint meeting on September 25-30, San Francisco, California Pharmacokinetics and Interpretation of Cocaine: Presented to Fellows and pathology residents of the Harris County Institute of Forensic Sciences, November 2011, Houston, TX Toxicology result of drivers of fatal motor vehicle accidents in Harris County, TX, 2011. Presented at the American Academy of Forensic Sciences annual meeting, February 22, 2013, Washington DC.

Reference Ashraf Mozayani, Ph.D. Harris County Medical Examiners office Forensic Toxicology center 1885 Old Spanish Trail Houston, TX 77054 Phone: 713-796-6835

Kimberly Peterson - August 19, 2016 Recross-Examination by Mr. Flood

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blood vials that anybody took the time to write the Number 02572 on those vials?

A. No. Q. No. So, I mean, you've got another picture where a sticker is next to a bag. You have another picture where a sticker is next to a bag. Heck, you even have a picture with a sticker on the bag; but there's still no vial and no number on the blood. I mean, no label or no number written on the blood vials, right? You are not testing the bag, right? You are testing the blood?

A. Yes. size of these vials and that they are small, right?

A. Yes.

Q. And he made a point to show how much bigger

this label is than the vial, right?

A. Yes.

Q. And explaining why it might not have been put on there, because it's too big to fit on the vial, right?

A. Yes. MR. FLOOD: I will pass the witness.

THE COURT: Mr. Baty.

MR. BATY: No questions, Your Honor.

FASSESSEWORK GUALE, DVM

having been first duly sworn, testified as follows: DIRECT EXAMINATION

BY MR. BATY:

Q. Good afternoon now, Dr. Guale. Could you state

your name for the record?

A. Fessessework Guale, F-e-s-s-e-s-s-e-w-o-r-k G-u-a-l-e.

Q. Dr. Guale, how are you presently employed?

A. I'm employed by the Harris County Institute of Forensic Sciences as a toxicologist analyst, communications manager.

Q. How long have you been with the Harris County

Institute of Forensic Sciences?

A. Ten years.

Q. How long have you been in your present role?

A. As a manager, probably since 2008, which is eight years.

Q. I want to talk specifically about some of the training and education that you've received. Let's

start with your education. Do you have an undergraduate

degree?

A. Yes. Q. What is it in?

A. It's the Doctor of Veterinary Medical Degree

Kimberly Peterson - August 19, 2016 Recross-Examination by Mr. Flood

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Q. Okay. So, the prosecutor asked you about the

Fassessework Guale, DVM - August 19, 2016 Direct Examination by Mr. Baty

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THE COURT: May this witness be excused?

Any objections from the State?

MR. BATY: No objection from the State, Your Honor.

THE COURT: How about from the defense?

MR. FLOOD: No, ma'am.

THE COURT: Okay, ma'am. You are excused.

Thank you for coming down.

State, call your next witness.

MR. BATY: State calls Dr. Fessessework

Guale to the stand.

THE BAILIFF: Your Honor, the doctor has

not been sworn in yet.

THE COURT: Come up, ma'am. Good afternoon.

THE WITNESS: Good afternoon.

(Oath administered)

THE COURT: Thank you, ma'am. Come on up

and have a seat. Keep your voice up.

You may proceed, sir.

MR. BATY: Thank you, Your Honor.

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that is -- I was a veterinarian, simply, and the other one is a post-graduate which is a Master's Degree in toxicology. I obtained that from Oklahoma State University.

Q. And do you have any specific training in -outside of your degrees in forensic toxicology?

A. Yes. Well, the training starts when you are doing your Master's Degree where you go and study in

depth about drugs and alcohols and other chemicals and toxic chemicals and poisons and the toxic effects on the body and how the body responds and what happens to the drug and all of the processes that goes on under -- at a similar level. So, that's where you start your training.

And then during workforce, you know, when

you are working in the laboratory, then you will be

trained in the lab. And also we do have conferences and trainings that we go and get specialized training in regards to the subject we are dealing with.

Q. So, in addition to your training, have you had any occasion to conduct analysis on blood specimens?

A. Yes. Q. If you could ball park it for us -- and I

realize this number might be pretty high -- but how many times, would you say?

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A. Oh, I have been working in the lab since 1992, which is 24 years; and out of that eight years would be as -- on a bench, at a bench level and performing all, you know, extractions and maintaining instruments and reporting the data; and then after that, I go into more depth which is a technical review of the data and expert review of the data. So, at a given time, I may be involved -- at that time when I was doing, you know, bench -- at the bench level, I probably was doing about a hundred samples a month for different things. You know, it could be alcohol; it could be other things, other drugs, stuff like that.

Q. A hundred samples a month?

A. Yeah.

Q. Twelve months a year, 1200 samples a year, 8 years, call it 10,000 times. Would that be a fair assessment?

A. Yeah.

Q. Okay. And you stated that during your training you've studied the effects of alcohol on the human body, right?

A. Yes.

Q. Where did you learn how to examine the effects A. I can't tell you specifically when because even

Q. And I heard the State ask you about what are your qualifications -- or what education you have about the effects of alcohol on the human body, right?

A. Yes. Q. And you said, I can't really say when? Wasn't that your answer?

A. No. Because I started learning it even in undergraduate school. That's why I say specifically I cannot tell you when. But I can go back and just calculate when I was in undergraduate. I can do that .

Q. Did you learn about the effects of alcohol in a human body in your veterinary education?

A. Not specifically on a human body. At the similar level, what does alcohol do to the cells? We

can, you know, differentiate between animals and humans in behavioral ways but at the cellular level. What happened to the drug is the same in animals and in humans. So --

Q. Okay. What specific training have you had on the effects of alcohol on the human body?

A. On the human body, it's when I get involved in forensic toxicology.

Q. Have you had any formal training, education -I'm sorry -- classroom, degree like your DVM degree? Do you have any of that formal training other than what

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of alcohol on the human body?

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when I was in a veterinarian medical -- as a veterinarian, as a candidate to become a veterinarian in the veterinarian medical school, you study toxicology and pharmacology of drugs. Even at an undergraduate level, you start studying those. When you study

pharmacology, which comes from pharmacopeia which means drugs, you study about the chemical nature and the effects there in a classroom, even when I was an undergraduate student. So --

Q. Okay. Now that we understand and kind of your

experience and your training, I want to focus specifically on the effects of alcohol on the body.

A. Okay.

Q. I want us to talk specifically about the concept of extrapolation, absorption, elimination.

MR. FLOOD: Your Honor, I'm going to object. May I have the opportunity to take this witness on voir dire on her qualifications to give this opinion?

THE COURT: Sure.

MR. FLOOD: Thank you.

VOIR DIRE EXAMINATION

BY MR. FLOOD:

Q. You stated that you are a Doctor of Veterinary Medicine?

A. Correct.

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you've just kind of picked up after that in the lab on the effects of alcohol on the human body, formal training on that?

A. Formal training is when we go and do D.W.I. cases. That's my training. That's on a conference.

Q. Okay.

A. That's what it was.

MR. FLOOD: Your Honor, I would object, then, to this witness rendering an opinion on the effects of alcohol in the human body.

THE COURT: All right. We're going to take a short break because I have a couple of court matters that I need to address. So, if you will go back with the bailiffs for just a moment. And then your lunch is supposed to arrive at 1:00. So, hopefully we will have you come back in here for a few minutes more before your lunch arrives. So, if you will go with the bailiffs for a moment, please.

THE BAILIFF: All rise.

(Jury leaves courtroom)

THE COURT: Okay. Y'all may be seated.

State, did you have anything on this objection that you wanted to address?

MR. BATY: Yes, Judge. Dr. Guale specifically testified that she has experience in

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CROSS-EXAMINATION

BY THE COURT:

Q. First of all, I didn't hear -- I know you've got a Doctorate of Veterinary Medicine.

A. Yes.

Q. You don't have an additional Doctorate Degree,

right?

A. Q. A. Q. A.

No. Do you have a Ph.D.?

No. You have a Master's in toxicology?

Yes.

Q. Okay. I think you just misspoke on something, because I didn't hear you say that you took pharmacology

degree and then that's where you study about specific

pharmacology and toxicology of drugs. Even though it is on animals, because I'm a veterinarian, to be applied on animals, the scientific basis at the same level is the same. What happens to the alcohol in there, what happens when it comes or the other drugs basically at the same level, it's the same thing.

THE COURT: Anything else?

MR. BATY: Nothing further.

THE COURT: You were going to say something?

VOIR DIRE EXAMINATION (CONT'D.)

BY MR. FLOOD:

Q. So, you got an undergraduate degree? It wouldn't be the equivalent of a medical DVM here.

A. It is equivalent.

Q. Where did you get it?

A. Huh? Q. Where did you get it?

A. Ethiopia.

Q. So, it was an undergraduate degree?

A. Yes.

Q. So, when I asked you about your -- okay. The State said that you learned through all of these conferences and things. I didn't hear you say that. I

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analysis of tissue and medicine, in pharmacology for an undergraduate, more after her doctorate and that the effects of drugs, alcohol, other things are the same on the human body as they are anywhere else, because they are all the same in the cellular level.

In addition to that, she has stated that she's experienced and has received training at various conferences and D.W.I. specific learning experiences to enable her to testify to the effects of alcohol in the human body. I don't know what more she could have besides -- I don't know what more she could have.

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all the way up through your doctorate. You started an undergraduate -A. And also a Master's.

Q. -- and your Master's?

A. Yes. Q. Okay.

A. I have advanced pharmacology and toxicology training.

MR. BATY: All the way up through her doctorate?

THE WITNESS: All the way up to my Master's.

MR. BATY: I'm sorry, Your Honor. I misspoke. What did I say?

THE COURT: All the way up to her doctorate.

THE WITNESS: Yeah, Board --

Q. (BY THE COURT) Did you do undergrad, Master's

and then Doctorate of Veterinary Medicine?

A. No. I consider the Doctorate of Veterinary Medicine as an undergrad.

Q. Okay.

A. That's why I say that's my undergrad. Also, before that, there was also animal science of study while I was in there. Then I did the veterinary medical

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asked you about your formal training on the effects of alcohol in the human body.

And you said, Oh, I get that when we go out and do D.W.I. investigations, right?

A. Okay.

Q. Is that what you said?

A. We have to delineate what it means to learn

about the effect of alcohol and drugs on a human body -Q. Right.

A. -- or the effect of alcohol and drugs on animals, okay? If you had asked me that differentiation, I could have differentiated it for you; but I was going to tell you it's the same thing. You say it's human, you say it's -- but specifically on

humans, though, applying that science on humans is when

you are dealing with a D.W.I. case. That's where you are going to get it.

Q. But my question was: What was your formal training on the effects of alcohol on the human body ?

A. There is no formal training on effects of alcohol on a human body.

Q. Okay.

A. It's either you get a degree in some subject or not. That's what's going to be translating into a formal training is courses or seminars like that. There

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is no such degree. It doesn't exist.

Q. Well, but you can -MR. FLOOD: Judge, my objection still remains that there are obviously qualifications that other people offer to state how they are qualified to testify and give an expert opinion of the effects of and trying to convince everybody that it's exactly the same as every animal out there, I -THE WITNESS: But you are not going to find anyone else to do that.

MR. FLOOD: I disagree. I'm sorry.

THE WITNESS: Nobody can provide all these

toxicologists that are coming and testifying -- they don't even have a medical knowledge anywhere.

THE COURT: Let's just stop right there, ma'am. and toxicology.

THE WITNESS: They just study pharmacology THE COURT: Excuse me, ma'am.

THE WITNESS: Yes.

THE COURT: Anything else from the State?

MR. BATY: Yes, briefly, Your Honor.

A. Correct, yes.

Q. And is your testimony here today that during the course of your Master's Degree in toxicology, that you learned the effects of alcohol in animal tissue?

A. General toxicology in animal tissue and human tissue, there is no difference. It is the general toxicology. It's the application of it. You learn the application of it when you are dealing with D.W.I. cases.

Q. Thank you, Dr. Guale.

MR. BATY: No further questions, Your Honor. Pass the witness.

THE COURT: Okay. So, here will be my ruling, that your objection is overruled with regard to the effects of alcohol on the human body. But I

anticipate, because of the question that you were asking when Mr. Flood asked if he could take the witness on voir dire, that you are going to go into the theory of absorption and elimination and extrapolation, which there hasn't been any testimony about whether she's qualified specifically with regard to those. Just saying.

Okay. We are going to take a short break

so I can handle some court matters.

MR. FLOOD: I would have an objection on

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alcohol on the human body. And not just coming up here

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DIRECT EXAMINATION (CONT'D.)

BY MR. BATY:

Q. Dr. Guale, have you ever been to any conferences regarding driving-while-intoxicated cases?

A. Yes. Correct, I have been.

Q. Have you received training at those conferences

regarding toxication and toxicology?

A. Yes. Q. What sorts of things did you study in your Master's of toxicology?

A. All of the drug effects on a similar level. It doesn't matter which body it is. It is going to be at a similar level, what happens and how it attacks -- what happens to the drug, once it gets in, how it metabolizes, how it's broken up by the cells, by the liver cells; and once it gets in your brain, where it attacks. There is no difference between animal or human. It's going to be the same chemical that it's going to affect; and it's going to be the same process, toxicology process, that would come out. Of course,

animals are not going to show the behavior that humans show.

Q. So, at the conferences that you went to, did you receive specific training on the effects of alcohol in the human body?

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that as well.

THE COURT: What is your objection?

MR. FLOOD: That she hasn't laid or articulated proper qualifications. Everything has been related to animals, so I -THE COURT: All right. Let's take a short break so I can handle these couple of pleas.

MR. BATY: Your Honor, may we be heard on

that before we -THE COURT: I will give you a chance. I need to take care of Chris and Jane.

MR. BATY: Absolutely. Yes, ma'am.

(Recess taken)

(Jury not present)

THE COURT: All right. Luke, do you have

your witness? Are you waiting on something?

MR. BATY: I didn't hear, Judge. What?

THE COURT: Is your witness available?

MR. BATY: She is, yes, Judge.

THE COURT: All right. The defense has made an objection that Dr. Guale is not qualified to testify on matters of extrapolation.

So, State, what's your response to that?

MR. BATY: Your Honor, I would just ask for a few more questions, lay some more predicate.

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THE COURT: Go ahead.

MR. BATY: Thank you, Your Honor.

DIRECT EXAMINATION (CONT'D.)

Q. Dr. Guale, do you have any special certifications in forensic toxicology?

A. Yes. Q. What certification do you have?

A. I have forensic toxicology specialist certification, obtained from the American Board of Forensic Toxicology.

Q. And in order to become Board certified in forensic toxicology, did you have to study the effects of alcohol particularly with regards to retrograde extrapolation, absorption, and elimination?

A. Correct. That absorption, elimination stuff is

strictly common. You know, you have to know that -- you

know, to have a degree.

Q. Do you have to know that to become Board certified?

A. Yes.

Q. What's the process to become Board certified by

the -- in forensic toxicology?

A. You have the requirement of the degree and you

have the requirement of several years of practical

certification.

Q. And are you currently at this moment certified by the Board of forensic toxicologists to -- are you a Board certified forensic toxicologist at this moment?

A. Yes.

MR. BATY: Pass the witness, Your Honor.

THE COURT: Mr. Flood.

MR. FLOOD: I just have one question.

VOIR DIRE EXAMINATION (CONT'D.)

BY MR. FLOOD:

Q. A. Honor.

All of that training relates to humans?

Yes.

MR. FLOOD: I will pass the witness, Your

THE COURT: Mr. Baty.

MR. BATY: Your Honor, at this time I believe the witness has demonstrated that she is an expert, sufficient under the Rules in order to testify to retrograde extrapolation and the effects of alcohol on the human body and would request the Court to overrule the defense counsel's previous objection.

THE COURT: Mr. Flood, anything other than

what you've already said?

MR. FLOOD: No, I have nothing else.

THE COURT: I'm going to allow her to

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BY MR. BATY:

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experience and trainings for three years and you also have to go through a rigorous study of the books and articles, everything that's out there in relation to that.

Q. Do you have to take any exams?

A. Yes. Q. Do you have to pass those exams?

A. Yes. Q. Do those exams test your ability to conduct retrograde extrapolation analysis?

A. Yes. Q. Did you pass those exams to become Board certified?

A. Yes. Q. And have you had any specialized training in retrograde extrapolation?

A. Yes. Q. Where?

A. Locally at our facility.

Q. Who conducted that training for you?

A. A senior toxicologist.

Q. Was that training part of your process of maintaining your Board certification?

A. Yes. You have to have continuing education points that you have to obtain every year to keep your

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testify, so I'm going to overrule your objection.

Renee, go get the jury, please, unless the

pizza is out there. doing lunch?

MR. FLOOD: I'm sorry. What time are you THE COURT: It's supposed to be at 1:00.

MR. FLOOD: I'm just curious.

THE COURT: Because you're hungry?

MR. FLOOD: A little bit.

THE COURT: Their food is supposed to be

delivered at 1:00.

(Discussion off the record)

THE BAILIFF: All rise.

(Jury enters courtroom)

THE COURT: All right. Please be seated.

Mr. Baty, you may proceed.

MR. BATY: Thank you, Your Honor.

DIRECT EXAMINATION (CONT'D.)

BY MR. BATY:

Q. Now, doctor, where we left off before the jury went out, with your qualifications and experience, I want to shift our focus and talk specifically about the effects of alcohol in the human body. So, I want to start with the concept of extrapolation. What is retrograde extrapolation?

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A. Retrograde extrapolation is a mathematical deduction of the level of the alcohol from a known time .

Like, for instance, if the alcohol level at a known time, like 12:00 o'clock, is .1; and you would want to know how much would it be two hours before, then there are scientific facts in numbers, you know, figures that you need to add and include to calculate what would it be two hours ago. That's called extrapolation.

Q. So, explain to me what we would need in order to -- in order to take a known blood sample and a known quantity of alcohol of someone's blood and extrapolate it back a couple hours.

A. In those -- in that process, as we all are different, we process drugs and alcohols differently.

So a person's weight and height and sex may make a difference in some of the vitals that we are going to increase in the calculation. Like for instance how much you've eaten and drinking, that's going to affect the absorption or how fast the alcohol in your stomach will go through absorption. All of those informations -Q. Let's pause right there. You say "absorption".

What does absorption mean?

A. Absorption means as soon as you put the drug or

affects the central nervous system, and then the central nervous system affects your physical body. That's how your physical body is going to get affected.

Then once it goes there, it goes to the liver, and then it becomes metabolized or broken down and then gets emanated as water and carbon dioxide.

Q. So, are you able to say to a certainty how fast someone absorbs alcohol?

A. It's variable. It's all variable. Depends whether you have food with it or not or it depends whether -- you know, the type of alcohol, whether it's a liquor or alcohol or a medium-strength alcohol. That also has a factor. And so -- and some medical conditions also have factors. So, excluding the

extremes which could be 50 minutes to hours, the average person would absorb alcohol within one hour. That's why we call "average".

Q. And once somebody has absorbed that alcohol

within the average of one hour, are you able to then determine how fast somebody's eliminating alcohol?

A. Yes.

Q. And what would you need in order to determine how fast someone is eliminating alcohol? What kind of facts would you need?

A. Whether -- in the elimination, what matters

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the water or anything that you put through your mouth, it goes through your abdomen to retract -- or it goes

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through your stomach, and then the stomach will churn it. Some absorption will take place there, but it will just move it to your intestine.

So, the alcohol, the majority of the alcohol, will be absorbed through your intestine because your intestine has got blood vessels surrounding to it .

So, that's how by diffusion it will go through the blood and it goes through a circulation system and then it gets distributed. That's why it's called absorption.

Q. So what happens after the body absorbs alcohol?

A. Once it is absorbed, it circulates in your body and is distributed to all body parts. Alcohol has got a characteristic to go to where the water is, all the cells. Stuff that we have in our body have water. It goes to the water -- it prefers to go to the water in part more, you know, than the fatty part. So, you know, when it distributes, that also has a distribution factor.

For instance, if a person has -- the weight of that person, it comes from the fat or from the muscle. It makes a difference. So that's why weight is very important. Sex is very important. And it distributes through your body. It goes to your brain.

That's where, you know, the effect -- the main effect of alcohol comes from because it goes to your brain. It

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is -- there are certain conditions where the person is going to eliminate faster and certain conditions it would be normal. But there is always a constant rate.

Your body processes a constant rate because there is a rate-limiting factor in a person where the enzyme involved in the elimination is constant. So, it doesn't vary from time to time. So, it's a constant elimination. We call it zero autokinetics. So, because alcohol has got that property, the elimination rate is established already because it's been studied over and over and over on individuals for putting themselves for experiments. So, based on that data collected, scientifically collected data, a person in average would eliminate a .015 gram of alcohol per hour. So, that's what we apply. But sometimes you could have a faster

elimination rate, and sometimes you could have a slower elimination rate. So, that's why we take the average.

Q. So, Dr. Guale --

THE COURT: I'm sorry. I'm going to pause

you because your food just got delivered. So, ladies and gentlemen, we are going to take a break for lunch.

Remember the rules that I gave you yesterday. You are not to discuss the case yet.

Lawyers, let's try 45 minutes. Is that enough time for you?

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MR. FLOOD: Sure.

THE COURT: We are going to take a 45-minute break, so we will resume at 1:45. Please go with the bailiff.

THE BAILIFF: All rise.

(Jury leaves courtroom)

THE COURT: Okay. I totally put you on the spot because you weren't going to disagree with me in front of the jury. Do you need an hour? Because you asked me about lunch, do you need an hour for some reason?

MR. FLOOD: No, no, that's okay. That's fine.

THE COURT: All right.

(Luncheon recess)

THE BAILIFF: All rise.

(Jury enters courtroom)

THE COURT: All right. Please be seated.

Mr. Baty, you may proceed.

MR. BATY: Thank you, Your Honor.

Q. (BY MR. BATY) Dr. Guale, I want to return.

Before we broke we had some discussion about your education, your background. I just want to clarify a few things with you. You stated earlier that it's not

in the institute.

Q. Have you been to any conferences with regards

to the investigation of driving-while-intoxicated cases?

A. Yes.

Q. In the course of those conferences, did you get

any training on retrograde extrapolation?

A. Yes.

Q. And did you receive any training on the effects of alcohol in the human body?

A. Yes. Q. Okay. I want to move back to what we were

talking about before we broke. We had been mentioning retrograde extrapolation. You talked to us specifically

about the way the body processes alcohol, both absorbing it and eliminating it.

A. Yes. Q. Now, Dr. Guale, is it possible to determine

what -- to take a known blood sample at a known time and retrograde extrapolate back to a previous time to

determine how intoxicated or what the blood level, blood alcohol level, of somebody would have been prior to the test?

A.

Yes.

Q. And what kind of factors would you need to know

in order to do that?

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MR. BATY: Yes, Your Honor. That's fine.

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possible to obtain a degree in the effects of alcohol in the body, right?

A. Correct.

Q. Did you study that course of subject in the duration and in the larger scope of obtaining a degree in veterinary medicine, for example? Is that something you studied, the effects of alcohol?

A. Yes.

Q. Okay. And did you study the effects of alcohol in a larger course of study on pharmacology?

A. Yes. Q. And in a large course of study on toxicology?

A. Yes. Q. And you studied the effects of alcohol in a larger course of study on those -- the pharmacological, Intoxilogical (sic) events and effects in the human body, correct?

A. Correct.

Q. Okay. Now, have you had any specific training with regards to retrograde extrapolation?

A. Yes. Q. What training?

A. I'm sorry?

Q. What training?

A. Training by senior toxicologists where we are

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A. All the factors that affect the alcohol metabolism is, you know, the weight, the height, the age, the sex, whether the person ate or not ate or what kind of, you know, drink that the person had, whether it is a beer or liquor. The type of the drink also matters. Those are the factors that you need to have to -Q. What about how many drinks somebody had?

A. How many drinks somebody had, if you want to do

anterograde, that would be necessary. But if you want to do a retrograde, you don't really need that information.

Q. What about the time of first stop or first drink?

A. You need to have the first time of the drink, the last time of the drink, and the time of the incident in addition to those demographic information.

Q. Okay. Let me pose a hypothetical situation to

you. Suppose someone started drinking at 1800 hours, so

6:00 o'clock in the evening.

Do you need something to write with?

A. Yes, I have it.

Q. Okay. So, suppose somebody started drinking at

1800 hours, 6:00 o'clock in the evening.

A. Okay.

Compressed Transcript - 25

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Q. A.

They drank eight beers.

Okay.

Q. They stopped drinking at 2215 hours, so 10:15

Q. And that blood sample, the result of that blood test was .149. And assume this person is of average height, average weight, is a male, and that they

absorbed at a normal, average weight which you said was

an hour, correct?

A. Yes. Q. Now, given all of those facts, would you be able to extrapolate a person's -- in that hypothetical situation, a person's blood alcohol level at the time that they were stopped for a traffic violation at 11:45?

A. Okay. In order to do the extrapolation, based on the facts or the hypothetical facts that I have here, one, I have to assume elimination. So, I also have to assume an average elimination rate for an average

hypothetical situation is not the average person and absorbs a little slower for whatever reason.

Are you -- is it possible -- is it likely that giving the benefit of the doubt, that that person would be still above a .08 blood-alcohol level at the time of driving?

A. Yes. Q. How likely is that?

MR. FLOOD: Objection. That calls for speculation.

THE COURT: Sustained.

Q. (BY MR. BATY) How unlikely would it be that they are below a .08?

MR. FLOOD: Objection. That calls for speculation.

THE COURT: Sustained.

MR. BATY: I pass the witness, Your Honor.

THE COURT: Mr. Flood.

MR. FLOOD: Thank you, Your Honor.

CROSS-EXAMINATION

BY MR. FLOOD:

Q. Dr. Guale, you're not a blood analyst, are you?

A. Q. A.

Huh? You are not a blood analyst, are you?

No, I don't do the analysis.

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in the evening.

A. Okay.

Q. And then they drove and were pulled over at 2345 hours, so 11:45 in the evening.

A. Okay.

Q. A blood sample was taken from them at 0230 hours, so 2:30 in the morning.

A. Okay.

Fassessework Guale, DVM - August 19, 2016 Cross-Examination by Mr. Flood

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101

103

person, which is -- we usually use 0.015 grams of alcohol per hour. And with that there is two hours and

45 minutes between the blood draw where we exactly get

the concentration of the blood alcohol which is .149 back to 2345 which is a stop time. So, the interesting

point that we are using is how much would it be at 2345, when the person was stopped?

So, what I have to do is multiply the 2 and -- 2.45 hours by .015 and add that, because we are eliminating -- he is reducing it so I have to add it

back to the number and come up with a figure which comes

to be -- which comes to be 0.190 grams of alcohol per hundred milliliters.

Q. Zero -A. .19.

Q. .19?

A. Yes. Q. And if you know, what's the legal limit for driving in the State of Texas, your blood-alcohol level?

A. 0.08.

Q. So, this 0.19 is over twice the legal limit, correct?

A. Correct.

Q. Now let me pose to you -- let me change the facts a little bit. Let's assume that the person in the

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102

Q. Your degree was in Doctor of Veterinarian Medicine, correct?

A. Correct.

Q. But it was like in an undergraduate degree ?

A. Yes. Q. And you said that -- you said that you think that the effects of alcohol on animals is exactly the same as the effects of alcohol on humans?

A. The science of the serum level is the same.

They don't respond in the same way. When they get drunk, we call them bonkers.

Q. It certainly wouldn't -- like a drunk dog would not be the same as a drunk human, right?

A. Yeah. The response is different. But at the serum level, how the alcohol goes to the brain and how the brain dictates what the effect of the body is --

Q. Okay. So, Doctrine of Veterinarian Medicine in the United States is like the equivalent of a medical doctor, same number of years of schooling and after college, right?

A. Correct.

Q. But your degree you received in undergraduate

school, correct?

A. I consider it undergraduate because I did my Master's. That's why I consider it undergraduate.

Compressed Transcript - 26

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is Ethiopia is six years. It's superior than what the curriculum here is.

Q. You got a Master's in Veterinarian Medicine?

A. No. I got a Master's in toxicology.

Q. So, the DVM, the Doctrine of Veterinary

Medicine, was something that was not done in the United

States?

A. That was in Ethiopia, where I came from.

Q. Okay. I would like to ask you a couple of questions about this absorption and elimination, okay?

A. Okay.

Q. You were talking a lot about averages and assuming things, right?

A. Uh-huh.

Q. But you don't know what this person's absorption and elimination rates would be like, right?

A. Not in particular to that person.

Q. Okay.

A. But there is an average that was established through experiments using different things.

Q. Right. And so everybody is different, though, right?

A. Correct.

Q. So, you don't know what his physical --

A. It depends on if they are drinking more and more and more and they would be going up.

Q. I guess I'm not making myself clear.

A person -- everybody who drinks, they are

always going to be in the absorption phase, rising for a certain period of time?

A. Yes.

Q. Yes, everybody. Because that's how you get up

to a certain B.A.C. level, right?

A. Yes. Q. Okay. So just because a person might be a .149 later, that doesn't always mean that they were higher at some point earlier. They could also be lower, correct?

A. Correct.

Q. Okay. And you said that a person could still be rising for up to two hours?

A. There are -Q. Is that what you said?

A. There is a record -- it's exceptionally long.

There are two instincts. There are people that can absorb in 50 minutes which are extremely slow. There are people that are extremely fast. There are people

who absorbs for two hours. They are extremely too long.

Those populations are very minor.

Fassessework Guale, DVM - August 19, 2016 Cross-Examination by Mr. Flood

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Other than that, actually the curriculum back home which

Fassessework Guale, DVM - August 19, 2016 Cross-Examination by Mr. Flood

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105

physiology of his body is like, right?

A. I just use what's given as a physiology of a human person, yeah.

Q. So the answer is, no, you don't know anything about this person in particular?

A. No.

Q. Okay. So, when you said that -- I mean, when people start drinking, they obviously start out at a zero, right, with no alcohol if they haven't had anything to drink?

A. Uh-huh.

Q. It's common misconception that people are always going to be at a higher B.A.C. at some point earlier in time, right? That's not always the case, is it? Right?

A. Depending on the facts.

Q. Right?

A. Depending on the facts.

Q. Right. They could be higher or lower or the same?

A. Could be.

Q. Right?

A. Uh-huh.

Q. I mean, at some point they are going to be rising, right?

107

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106

Q. A.

Extremes?

Yeah.

Q. What causes the slower absorption, the slower rising? They ate, right?

A. One of -- yeah, one of the culprit is they ate.

Q. So if you got a person that admits to eating or if a person has eaten, that will slow how long they are rising for?

A. Correct.

Q. Okay. So let's say that you use -- so two hours is extreme. So, 90 minutes is not in the extreme.

That's in the reasonable range, correct?

A. That's reasonable, yes.

Q. Okay. So, if you had 10:15 at the time of last drink to 11:45, stop time, is that 90 minutes?

A. Yes. Q. Okay. So, if a person had eaten, you are saying that it's reasonable to assume that they could still be going up, correct?

A. Yeah.

Q. Okay. That's very reasonable. You wouldn't argue with that at all, right?

A. Was the -- was the fact that he could be in an exceptional group, yeah.

Q. Well, not only that, you just said that based

Compressed Transcript - 27

108

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on even a reasonable assumption of 90 minutes, if a person ate, if their last drink was at 10:15 and they were stopped at 11:45, that under that scenario they would still be going up?

A. Going up. At 11:45, it's going to be one hour and -Q. Yes, at 11:45 they would be going up?

A. Yes.

Q. Okay. So what matters is what the B.A.C. was

Q. (BY MR. FLOOD) A person could still be absorbing under that scenario, right?

A. Uh-huh.

Q. And the State's scenario they gave you, they

want you to assume that he's already going down, right?

A.

Yeah.

Q. Right? But we don't know which one of those it

is, right? You don't know, do you?

A. I don't but --

Q. Do you know if he was absorbing or eliminating

that night, at the time that he was stopped?

A. No, I don't.

Q. Okay.

A. We are just only using what's been published.

Q. Okay.

MR. FLOOD: I will pass, ma'am.

THE COURT: I'm sorry, ma'am. Go ahead

and finish what you were saying.

THE WITNESS: I'm just using only what's been published on a study. I really don't know about that person.

Q. (BY MR. FLOOD) About that person. Thank you.

I'm sorry.

MR. FLOOD: I will pass the witness.

THE COURT: All right. Mr. Baty.

Fassessework Guale, DVM - August 19, 2016 Cross-Examination by Mr. Flood

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at the time a person was driving, correct?

A. Correct.

Q. Okay. So, if they were still going up absorbing and then potentially even past that, correct, they could still be going up even longer, according to what you said?

A. That's possible, uh-huh.

Q. Okay. So, with that in mind, then, can you tell me what the B.A.C. in this case would have been at the time of driving at 11:45? Can you say what the number is?

A. The one that I use -Q. If they are still absorbing -A. If they are still absorbing -Q. -- what's the B.A.C.?

A. I could not specifically say. I can give you a

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109

range; but I cannot specifically say because when you are absorbing, it's very hard to -- you can, what, estimate it; but you cannot specifically say this would be it, yeah.

Q. Right. Because if a person is still going up

and absorbing, you can't say what their B.A.C. would be, right?

A. It's very difficult.

Q. Yeah, very difficult. And all of the scientific literature out there tells you it's something that you should not -- very, very strong cautions -- you should not even attempt to do that extrapolation if a person is still rising, right?

A. If you are assuming that the person may be rising -Q. Right. That's what I'm asking.

A. -- and you can only get it with a range.

Q. Right.

A. You can't go to pinpoint on that at one point, yeah.

Q. So, there's two different scenarios. And my scenario is reasonable, like you said. A person could still -MR. BATY: Objection, argumentative.

THE COURT: Overruled.

111

Fassessework Guale, DVM - August 19, 2016 Redirect Examination by Mr. Baty

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110

REDIRECT EXAMINATION

BY MR. BATY:

Q.

Dr. Guale, you said you would give a range.

What range would that be if -- based on what the defense just asked you, what would that range most likely be?

MR. FLOOD: Your Honor, I'm sorry, but I just -- I object to speculation because of the inherent unreliability of extrapolating into the absorption phase as she testified and said, I don't know what it would be. It's unreliable if the person is in the elimination phase.

THE COURT: It's overruled. Go ahead.

MR. BATY: Thank you.

A. Okay. Supposed he was absorbing at that time which is 11:45, okay? And we add an absorbed amount for 30 minutes and subtract that, and then what I can do is subtract the .015 or subtract the .02 which you can possibly absorb within that 30 minutes and subtract it from .19 which is going to be 0.0 -- I mean .170.

That's an estimation. So, the range would be from .170 to .190.

Q. (BY MR. BATY) So, .170 is how much above .08,

the legal limit in the State of Texas?

A. It's twice.

Compressed Transcript - 28

MR. BATY: Pass the witness, Your Honor.

112

CASE #2 THE DATA DUMP

CAUSE NO. THE STATE OF TEXAS

§

IN THE COUNTY CRIMINAL

vs.

§

COURT AT LAW NO. _____

§

HARRIS COUNTY, TEXAS

STANDING DISCOVERY ORDER ON COPYING AND PRODUCTION OF BLOOD TESTING RECORDS THE COURT ORDERS the District Attorney’s Office and its agent, the forensic laboratory that analyzed the defendant’s blood in this case, specifically, _________________________________, to digitally copy and digitally produce the documentation referenced below to the defense attorney as directed below: The Following Items Concern General Matters: 1. Any accreditation certificates for the laboratory in effect at the time of the blood analysis and a copy of the lab’s last complete inspection and final accreditation audit.

2. Any internal, external, annual or reaccreditation reviews or reports since the lab’s last complete accreditation audit and any internal, external, annual, or reaccreditation audits since the time of the test in this case.

3. All documents reflecting the failure of the laboratory to comply, at any point, with any essential, important, or desirable criteria for accreditation, or reaccreditation and all documents evidencing subsequent satisfaction of any essential, important, or desirable criteria for accreditation or reaccreditation.

4. The laboratory’s standard or general policies, protocol, and procedures concerning testing, quality control, quality assurance, calibration, achievement of the calibration curve, and administrative or technical review, if applicable to all disciplines within the laboratory.

5. The laboratory’s policies, protocols and procedures as to testing, quality control, quality assurance, calibration, achievement of the calibration curve, and administrative or technical review of all samples, solutions and equipment used in or related to the testing of the sample, solutions, and equipment used in this case.

6. The laboratory’s policies, protocols, and procedures concerning the sample selection criteria used in this particular case.

7. The testimonial evaluation forms of each laboratory employee involved in the testing process.

1 CCL Form 29

10-30-2014

The Following Items Concern Pre-analytical Matters: 8. Validation studies, both internal and external, that prove the validation in this case of the method, equipment, and instructions used.

9. The identification and source of all internal standards, standard mixtures (separation matrix), verifiers, blanks, and controls that were run in the same batch as the sample in this case as well as all certificates relating to the foregoing obtained from outside vendors.

10. All records reflecting internal testing and verification and ongoing quality control testing of all solutions, reagents, or standard mixtures used as part of, or in relation to calibrators, internal standards, controls, standard mixtures, or standards in the batch in which the sample in this case was run.

11. All refrigeration logs for all refrigerated items related to the testing in this case, including the blood tested by the lab, that were stored by the lab, for one year before and after the date of the test in this case.

12. All proficiency testing results for any person involved in sample preparation, analysis, or administrative or technical review in this case. This specifically includes the summary report of expected results for the proficiency testing and the manufacturer’s information sheet against which the proficiency test results are judged.

13. Balance quality control records on any balance instrument used in relation to the calibrators, samples, controls, internal standards, mixtures or other solutions used in the preparation of knowns or unknowns used in the blood alcohol testing of the samples in this case. This includes the records reflecting the calibration of weights on any balance related to the solutions, mixtures, or equipment used in relation to this case as well as any control charts, for six (6) months before and at any time after the testing of the sample in this case.

14. Pipette quality control records on any pipette used in relation to the calibrators, samples, controls, internal standards, mixtures or other solutions, or used in the preparation of knowns or unknowns used in the blood alcohol testing of the samples in this case for six (6) months before and at any time after the testing of the sample in this case.

15. The employee training records, curriculum vitae, and resume for any person involved in sample preparation, analysis, or administrative or technical review in this case.

16. All maintenance and repair records for all equipment used in relation to the testing in this case for six (6) months before and after the test in this case.

The Following Items Concern Analytical Matters: 17. The identity, make, model, and brand or manufacturer of all equipment (GS, MS, and Auto Sampler) and other supporting equipment (i.e. balance, pipette) used during the

2 CCL Form 29

10-30-2014

analysis and/or preparation of the samples in this case and the variables used in its installation and operation.

18. If a Gas or Liquid Chromatograph is used, the reporting of t0 time (time zero) according to the method.

19. The calibration curve and chromatograms for this test and all chromatograms generated in the batch in which the sample in this case was tested.

20. All logs, spreadsheets, or other documents reflecting the sequence, order and/or analytical results of all calibrators, samples, standards, controls, and blanks in the batch containing the sample in this case.

21. Documentation of all machine parameters, settings, variables, and integration criteria in relation to the batch in which the sample in this case was tested.

The Following Items Concern Reporting Matters: 22. The particular records maintained for this testing and calibration event.

23. All documents and bench notes contained within the folder or file for the sample in this case including any note or notation on the sample folder or file. These documents shall be segregated from all other documents produced.

24. If the lab received more than one vial or container of blood or other substance, records reflecting which vial was tested in this case.

25. The full reporting and the underlying validation of the valuation of the uncertainty measurement (UM) in the ultimate reported result.

26. All chain of custody logs or reports related to the sample.

27. Any quality action plan or corrective action plan, and any deviation documentation related to the type of testing, equipment, or personnel involved in this case for six (6) months before and after the test in this case.

28. An opportunity for the defense and defense experts to view, visually inspect, diagram, and photograph the areas under the control of the laboratory containing the GC, MS, and all ancillary equipment used to test the sample in this case. The same access shall be given to the area where the equipment used in this case is kept, including all immediately adjacent and adjoining areas, and to the area where the sample and kit or packaging was received and where it is kept. If the defense wants such an inspection, it shall be at a time mutually agreed upon by the parties and the laboratory, but no later than 30 days from the date of the notice to the laboratory. THE OPPORTUNITY TO VIEW DESCRIBED ABOVE ACCRUES ONLY WHEN THE CASE IS SET FOR TRIAL. 29. If a Mass Spectrometer was used, then the following additional materials should be provided: 3 CCL Form 29

10-30-2014

29.1

If a spectral library was used to examine and elucidate spectra, the identity of the group or organization publishing or creating the library and the identification of the source of the spectra used in the sample in this case.

29.2

The hit list and the hit histogram, or quality match, for the testing.

29.3

All ‘‘tune’’ reports that were run within 90 days, including quality assurance and quality control records, for the machine used in this case.

30. A laboratory covered by this order may comply with any required production by making the responsive material available to the requesting attorney on a website.

THE COURT FURTHER ORDERS that any material responsive to this order as detailed above shall be provided to the defense on or before 5:00 p.m. on the 30th day after the date of this order or otherwise by mutual agreement.

THE COURT FURTHER ORDERS that this order is continuing and the State will make available to the Defendant's attorney any subsequently discovered material within the scope of the above granted items within five business days of the time it learns of or obtains such discoverable material if the case is not yet set for trial or if the scheduled trial date is more than 10 days away. If additional material is discovered within 10 days of a trial date, the material shall be produced not later than 5:00 p.m. on the day following its discovery. If jury selection has begun, any additional material shall be produced immediately, without any delay.

THE COURT FURTHER ORDERS that under the authority of Brady v. Maryland, 373 US 83; 83 S.Ct. 1194 (1963), all evidence favorable to the Defendant is to be produced. Additionally, evidence that tends to negate guilt, is impeaching, or mitigates the offense shall be disclosed. See Texas Disciplinary Rules of Professional Conduct Rule 3.09(d) (requiring that the prosecutor in a criminal case shall “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense…”). Said evidence is to be produced on or before 5:00 p.m. on the day of its discovery or by agreement.

THE COURT FURTHER ORDERS that any responsive items not produced may be excluded from evidence.

THE COURT FURTHER ORDERS that testimony concerning items not produced in violation of this order, the information contained in those items, and the results obtained from those items may be excluded from evidence in this case if offered by the State.

4 CCL Form 29

10-30-2014

THE COURT FURTHER ORDERS THAT THE ATTORNEY REQUESTING THIS DISCOVERY ORDER MUST NOTIFY THE AFFECTED CRIME LAB WITHIN TWO BUSINESS DAYS OF: (1) THE ENTRY OF A GUILTY PLEA; (2) PLACEMENT OF THE CASE ON THE COURT’S PLEA DOCKET; OR (3) DISMISSAL OF THE CRIMINAL PROCEEDING. THE DEFENSE LAWYER SHALL OBTAIN A COPY OF THIS ORDER NOT LATER THAN 24 HOURS AFTER IT IS SIGNED AND SHALL IMMEDIATELY TRANSMIT IT TO THE LAB. ON REQUEST BY THE COURT OR ANY OTHER PARTY, DEFENSE COUNSEL SHALL PROVIDE PROOF OF SERVICE.

Signed_____________________________

___________________________________ JUDGE PRESIDING

Attorney Requesting Discovery

Chief Prosecutor CCCL #____________

___________________________________

__________________________________

Print Name

Print Name

___________________________________

1201 Franklin Street, Ste. 600

Address

___________________________________ City

State

Houston, Texas 77002

Zip Code

___________________________________

713.755.____________

Telephone

___________________________________

__________________________________

Fax

Fax

___________________________________

__________________________________

Email

Email

Attorney for Defendant

Attorney for Harris County District Attorney’s Office

Harris County Institute of Forensic Sciences Fax: (713) 796-6794 Phone: (713) 796-9292

DPS Crime Lab - Houston Fax: (281) 517-1395 Phone: (281) 517-1380

Houston Forensic Science Center Fax: (832) 598-7178 Phone: (713) 308-2600 legal@houstonforensicscience.org

DPS Crime Lab – Austin Fax: (512) 424-5638 Phone: (512) 424-2105

Pasadena Crime Lab Fax: (713) 475-2022 Phone: (713) 475-7866

5 CCL Form 29

10-30-2014

Filed 10/30/2018 12:49 PM Dwight D. Sullivan County Clerk Galveston County, Texas

23.

All documents and bench notes contained within the folder or file for the sample in this case including any note or notation on the sample folder or file. These documents shall be segregated from all other documents produced.

24.

If the lab received more than one vial or container of blood or other substance, records reflecting which vial was tested in this case.

25.

The full reporting and the underlying validation of the valuation of the uncertainty measurement (UM) in the ultimate reported result.

26.

All chain of custody logs or reports related to the sample.

27.

Any quality action plan or corrective action plan, and any deviation documentation related to the type of testing, equipment, or personnel involved in this case for six (6) months before and after the test in this case.

28.

An opportunity for the defense and defense experts to view, visually inspect, diagram, and photograph the areas under the control of the laboratory containing the GC, MS, and all ancillary equipment used to test the sample in this case. The same access shall be given to the area where the equipment used in this case is kept, including all immediately adjacent and adjoining areas, and to the area where the sample and kit or packaging was received and where it is kept. If the defense wants such an inspection, it shall be at a time mutually agreed upon by the parties and the laboratory, but no later than 30 days from the date of the notice to the laboratory. THE OPPORTUNITY TO VIEW DESCRIBED ABOVE ACCRUES ONLY WHEN THE CASE IS SEI' FOR TRIAL.

29.

If a Mass Spectrometer was used, then the following additional materials should be provided:

29.1

If a spectral library was used to examine and elucidate spectra, the identity of the group or organization publishing or creating the library and the identification of the source of the spectra used in the sample in this case.

29.2

The hit list and the hit histogram, or quality match, for the testing.

29.3

All "tune" reports that were run within 90 days, including quality assurance and quality control records, for the machine used in this case.

30.

A laboratory covered by this order may comply with any required production by making the responsive material available to the requesting attorney on a website.

Attorney Requesting Discovery TYLER FLOOD & ASSOCIATES 2019 Washington Avenue Houston, Texas 77007 713-224-5529 phone 713-224-5533 fax Office@TylerFlood.com Attorney for Defendant 3

Wednesday, March 9, 2022 at 08:59:46 Central Standard Time

Subject: FW: Blood Discovery Date: Friday, February 25, 2022 at 12:04:36 PM Central Standard Time From: Andrea Podlesney To: DPS Houston Crime Lab AHachments: image001.png, - Blood Discovery Order.pdf Good Afternoon, this subpoena was served on Ms. James on January 5, 2021, a follow up email was sent on March 9, 2021. We still haven’t received discovery for this case. This case is set for trial on Monday, February 28th. We need the blood discovery before 10 am on Monday, February 28th. Thank you.

Andrea Podlesney, TBLS-BCP Texas Board of Legal SpecializaVon Board CerVfied Paralegal-Criminal Law Tyler Flood & Associates, Inc. 2019 Washington Avenue Houston, Texas 77007 Phone: (713) 224-5529 Fax: (713) 224-5533 Email: andrea@tylerflood.com www.TylerFlood.com CONFIDENTIAL

From: Andrea Podlesney <Andrea@tylerflood.com> Date: Tuesday, March 9, 2021 at 10:05 AM To: DPS Houston Crime Lab <HoustonCrimeLab@dps.texas.gov> Cc: Office <Office@tylerflood.com> Subject: Blood Discovery Good Morning, the attached subpoena was served on Ms. James on January 5, 2021. Will you please provide an update on when we can expect to receive blood discovery for this case? Thank you.

Andrea Podlesney, TBLS-BCP Texas Board of Legal SpecializaVon Board CerVfied Paralegal-Criminal Law

2019 Washington Avenue Houston, Texas 77007 Phone: (713) 224-5529 Fax: (713) 224-5533 Email: andrea@tylerflood.com www.TylerFlood.com CONFIDENTIAL Page 1 of 2

System Crime Laboratory Division Manual Part IV: Laboratory Operations Page: 346 of 415 Records Requests and Release of Laboratory Records and Information (55.1)

55

Records Requests and Release of Laboratory Records and Information

55.1

General Requirements

A.

Laboratory records and information distributed over any external network are encrypted utilizing an encryption standard established by the IT Division as per General Manual Chapter 26.

1.

Security for Department-issued iPhones and iPads is handled through a mobile device management (MDM) system; however, emails are not specifically encrypted as per General Manual Chapter 26. Distribution of confidential Laboratory records and information over Department-issued iPhones and iPads is not recommended since encryption is not guaranteed.

2.

Laboratory reports and letters electronically distributed from LIMS are unable to be encrypted prior to distribution and as such, only governmental or customer business email address domains (including, but not limited to, .us, .gov, .mil, .org, and .edu) are used for distribution of Laboratory reports and letters from LIMS and when electronically complying with a subpoena duces tecum, court order, or discovery request. a)

3.

B.

55.2

If an acceptable customer email address is not available, records and information are distributed via mail, fax, or in person.

Laboratory calibration certificates are distributed electronically via the DPS website at https://www.dps.texas.gov/BalLab.

All Laboratory records and information distributed via email, regardless of the email address domain, are classified as confidential in order to minimize the risk of unintentional distribution of confidential information.

1.

Laboratory records and information distributed via email to internal DPS customers is not required to be classified as confidential due to transmission over the Department network.

2.

Emails are not required to be classified as confidential if the Laboratory records and information is delivered using an encrypted attachment. a)

Attached documents are encrypted with at least a 128 bit key and the password is conveyed in a secure manner (e.g., confidential email, phone call, or in person).

b)

Passwords used to encrypt documents comply with requirements established by the IT Division as per General Manual Chapter 26.

Public Information Requests

A.

Upon receipt of a written request for records under the Public Information Act delivered to the Laboratory via mail or in person, the request is dated and forwarded to the designated records release personnel, section supervisor, Laboratory Manager, or Laboratory Director for evaluation.

B.

Emailed requests are not accepted and the requestor is informed that requests by email need to be made through the Office of General Counsel via the “Public Information Request” page of the Department’s website (http://www.dps.texas.gov/GeneralCounsel/contact/) or the designated email address for public information requests (OGC.Webmaster@dps.texas.gov).

C.

Upon receipt of a request for non-case related records and information, the Laboratory provides a response within 10 business days, when possible, in order to avoid forfeiture of the exceptions to disclosure. If the exceptions to disclosure are waived or forfeited, all information may be deemed public information and is subject to release.

D.

Upon receipt of a request for case-related records and information for Laboratory cases involving crimes against persons (e.g., homicide, assault, sexual assault, kidnapping), the Laboratory

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contacts the customer to provide notification that a public information request has been received.

Customer contact is optional for other case types. Specific information for Laboratory cases involving intoxication offenses is located in Release of Information Pertaining to Intoxication Offenses. The customer may request that the Laboratory withhold the requested records due to the case’s active status, ongoing investigations, or pending criminal charges or litigation.

E.

It is determined which records are responsive to the request and where the records are located.

If no relevant records are identified, this is indicated in the response to the requestor.

F.

Under the exceptions to disclosure, the following information is considered confidential and is redacted or removed prior to the release of records unless it relates to a person who is deceased or it relates to the requestor: 1.

Date of birth;

2.

Driver license number or identification card number;

3.

Photocopy of a license or ID card;

4.

License plate number and vehicle identification number;

5.

FBI number and criminal history records (TLETS/TCIC/NCIC);

6.

Social security number;

7.

Credit card, debit card, insurance policy, bank account, or bank routing number, or any portion of the number;

8.

DNA, CODIS, or fingerprint records;

9.

Autopsy photographs; and

10.

Department employee’s personal information (if employee elected to restrict the information) including: a)

Home address;

b)

Home/cellular telephone number;

c)

Social security number;

d)

Date of birth;

e)

Emergency contact information; and

f)

Family information.

G. Requests from an incarcerated individual or an agent of that individual, other than their attorney, are not accepted or fulfilled under the Public Information Act based on Government Code §552.028.

1.

The Laboratory informs the incarcerated individual, or their agent, that they may alternatively direct their request through an applicable attorney or by providing a valid subpoena duces tecum or court order.

H.

Upon customer request, public information requests relating to ongoing/active investigations, pending criminal cases or litigation, sensitive crime scene photographs, investigations involving criminal activity by a juvenile, or investigations involving sexual assault, sexual abuse, stalking, or trafficking are forwarded to the Office of General Counsel, along with all of the responsive records, for an Attorney General’s opinion.

I.

Questions regarding compliance with a request or records exempt from the Public Information Act are forwarded to the Laboratory Records Program Manager.

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J.

K.

The Laboratory may seek reimbursement for copies of the requested records and/or completion of the request. The fees for compiling and releasing public information requests are set by the Attorney General’s Office and are subject to change.

1.

For requests where the cost is estimated to be greater than $40, the Laboratory provides the requestor with a written itemized cost estimate prior to completing the request.

Requests totaling less than $40 do not require a written itemized cost estimate.

2.

For requests where the cost is estimated to be greater than $100, the Laboratory requires the requestor to pay a deposit or bond equal to 50% of the estimated costs prior to completing the request.

3.

The Laboratory requires payment to be rendered prior to the release of the requested records.

4.

Payment is made via cash (exact amount due), check, or money order made out to the Texas Department of Public Safety. Credit card payments are not accepted.

5.

The Laboratory provides the requestor with a receipt for all responsive records for which payment was received.

6.

Payments received by a regional laboratory are sent to the Laboratory Director’s Executive Assistant, along with a copy of the receipt provided to the requestor.

A requestor may be directed to a specific internet location (URL) for access to requested information or records in lieu of the Laboratory providing a copy of the information or records.

1.

The requested information or records are readily identifiable and available.

2.

If the specific internet location (URL) is provided via email, include the following statement: a)

3.

L.

55.3

“Per Texas Government Code §552.221, you are entitled to the access of the requested information at no cost regardless of whether it is retrieved at the provided internet location (URL). Please note, your request for information is considered withdrawn if you do not respond within 10 business days informing us of your decision to reject access of the information via the provided internet location (URL).”

If the requestor rejects access to the requested information or records via the provided internet location (URL), the Laboratory complies with the request using routine procedure.

The Laboratory is not authorized to seek reimbursement for copies of the requested information or records and/or completion of the request, or portion therein, for any information or records which are publicly available at the time of the request.

Subpoena Duces Tecum and Court Order Requests

A.

A subpoena duces tecum or a court order may be issued to the Laboratory or directly to an individual for records.

B.

The designated records release personnel, section supervisor, Laboratory Manager, or Laboratory Director ascertains if the subpoena duces tecum or court order is valid and addresses any fulfillment issues with the respective prosecuting attorney and/or requestor. If additional assistance is necessary, inquiry to the Laboratory Records Program Manager and/or Office of General Counsel is made.

1.

A valid subpoena duces tecum requires the signature of a court official (judge, clerk, attorney, etc.).

2.

A valid court order requires the signature of a judge.

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C.

It is determined which records are responsive to the request and where the records are located.

Copies of the records are prepared for release and delivery is arranged. If no relevant records are identified, this is indicated in the response to the requestor.

1.

D.

The request is released by the due date provided in the subpoena duces tecum or court order, if provided.

1.

E.

A.

If the Laboratory determines they will be unable to release the request by the applicable due date, the Laboratory informs the requestor and makes arrangements for the delivery of the requested information.

The Laboratory is not authorized to seek reimbursement for copies of the requested records and/or completion of a request unless the court document(s) specifically state the Laboratory may do so.

1.

55.4

Copies of all records released to a defense attorney are also provided to the prosecuting attorney or designee.

If the Laboratory is seeking reimbursement, refer to 55.2.J above for instruction.

Motions and Requests for Discovery (Michael Morton Act) The prosecuting attorney, defense attorney, or their designee may contact the Laboratory via verbal or written request for records or via a Motion for Discovery.

1.

Records are released upon request from the prosecuting attorney regardless of how the request is made.

2.

Requests for records from the defense attorney are released to the prosecutor without the need for a subpoena duces tecum or court order. a)

A request should be made that the defense attorney direct their request through the prosecuting attorney as Texas Code of Criminal Procedure Article 39.14 contemplates.

b)

Requests are not released directly to the defense attorney due to the potential for the presence of attorney work-product or other information not subject to discovery under Texas Code of Criminal Procedure Article 39.14. The prosecuting attorney holds all responsibility for determining which records are subject to disclosure.

B.

The designated records release personnel, section supervisor, Laboratory Manager, or Laboratory Director addresses any fulfillment issues with the respective prosecuting attorney and/or requestor. If additional assistance is necessary, inquiry to the Laboratory Records Program Manager and/or Office of General Counsel is made.

C.

It is determined which records are responsive to the request and where the records are located.

Copies of the records are prepared for release and delivery is arranged. If no relevant records are identified, this is indicated in the response to the requestor.

D.

The Laboratory is not authorized to seek reimbursement for copies of the requested records and/or completion of discovery (Michael Morton Act) requests.

55.5 A.

Release of Information Pertaining to Intoxication Offenses Information specifically concerning the analysis of an individual’s blood or breath specimen given at the request of a peace officer may be released to the individual or individual’s attorney upon request without the need for a subpoena duces tecum or court order due to Texas Transportation Code §724.018.

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B.

It is determined which records are responsive to the request and where the records are located.

Copies of the records are prepared for release and delivery is arranged. If no relevant records are identified, this is indicated in the response to the requestor.

C.

If the Laboratory receives a request for the analysis results, a copy of the Breath Alcohol Analytical Report, Toxicology (Alcohol/Volatiles Content), and/or Toxicology (Drugs) Laboratory Report, as applicable, is released to the requestor without the need for release of any additional records.

D.

Information requested which is not specifically concerning the analysis of an individual’s blood or breath specimen may be provided under the provisions of 55.2 (Public Information Requests) and 55.4 (Motions and Requests for Discovery [Michael Morton Act]).

55.6 A.

Release of CODIS Records and Information A CODIS database sample or record is only released under the following circumstances and through the proper procedure as outlined below: 1.

To a criminal justice agency for criminal justice or law enforcement identification purposes;

2.

To a court for a judicial proceeding, if otherwise admissible under law; a)

The records for a judicial proceeding pertain only to proceedings filed with the court or discovery proceedings and are not released through public information requests even if requested for a judicial proceeding.

3.

To a criminal defendant for defense purposes, if related to the case in which the defendant is charged; or

4.

If personally identifiable information is removed for: a)

A population statistics database;

b)

Forensic identification research and forensic protocol development; or

c)

Quality control purposes.

B.

Release of a CODIS database sample or a portion therein, is only permitted to the requesting agency’s laboratory, a laboratory used by the agency, or a laboratory directed by a valid court order.

C.

Release of CODIS records, other than a database sample, is only permitted with the receipt of a valid subpoena duces tecum, court order, or discovery request (Michael Morton Act).

D.

Release of information regarding an individual’s presence in CODIS is only permitted to a criminal justice or law enforcement agency for investigation purposes.

E.

CODIS database records are specifically prohibited from release under the following request circumstances: 1.

Arrestee/convicted offender request, including legal counsel or third party, to access all records contained in the database;

2.

Arrestee/convicted offender request, including legal counsel or third party, to access records in relation to a case other than that of the requesting arrestee/convicted offender; and

3.

A request for the release of CODIS candidate match information which has not been confirmed. a)

If a request is received for this information, the State CODIS Program Manager is immediately informed.

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F. 55.7 A.

Any documentation of CODIS No Match results in the case record is not released pursuant to NDIS policy and the Federal DNA Identification Act. Release of Affidavits The completion and release of executed affidavits is only permitted for affidavits whose templates exist in LIMS. 1.

B.

55.8

The completion and release of customer-provided business records affidavits is permitted if the affidavit contains the language listed in the Texas Rules of Evidence (Rule 902) pertaining to business records accompanied by affidavit.

Except for business records affidavits, all affidavits presented to an employee for signature by an outside entity are forwarded through the chain of command to the Director’s Office for review.

The Director’s Office may engage the Office of General Counsel prior to employee signature.

Release of Laboratory Case Record(s) to Former Employees

A.

A former employee who will be testifying to the work that they conducted during their previous tenure must provide the regional laboratory where the work was conducted with a copy of the subpoena or court order which commands them to testify in order for a copy of the relevant case record to be prepared.

B.

The Laboratory provides a copy of the employee’s most recent Disclosure Form.

C.

The original Laboratory case record is not released to a former Laboratory and/or Department employee.

1.

55.9 A.

All exceptions to this policy are approved by the Laboratory Director and documented in the Laboratory case record.

Requests for Contact Information of Former Employees A request for the contact information of former employees is made by the requestor through the “Public Information Request” page of the Department’s website (http://www.dps.texas.gov/GeneralCounsel/contact/).

1.

The requestor should select “DPS Employee Records” from the drop-down list and provide the employee’s name in the “Description of Requested Information”.

2.

Human Resources and/or the Office of General Counsel will determine if the request can be fulfilled and will respond as appropriate.

55.10 Request for Testimony Reimbursement of Former Employees A.

The Laboratory will not reimburse former employees for any expenses incurred during testimony.

B.

A request for reimbursement for travel expenses (such as per diem and mileage) is reasonable and should be directed to the issuer of the subpoena.

C.

Expert witness fees sought for testimony regarding work conducted while an employee are not supported by the Laboratory.

55.11 Subpoenas for Testimony of Former Employees A.

Subpoenas for the testimony of former personnel are not routinely forwarded by the Laboratory as the Laboratory is unable to make a guarantee of appearance or testimony on behalf of former personnel.

B.

Upon receipt of a subpoena for the appearance or testimony of a former employee, the Laboratory Manager, or their designee, contacts the issuer of the subpoena and/or prosecuting

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attorney to request a subpoena duces tecum in order to obtain the former employee’s contact information.

1.

The issuer of the subpoena and/or prosecuting attorney is informed that the subpoena duces tecum should be issued to the Texas Department of Public Safety Human Resource Operations Division and request the individual’s mailing address, physical address, and phone number(s). Contact information for the Division is provided as follows: Attn: Assistant Chief, Human Resources Texas Department of Public Safety Human Resource Operations Division PO Box 4087, Austin, TX 78773-0251 Email: Human.Resources@dps.texas.gov Phone: (512) 424-5900 Fax: (512) 424-2338

C.

Communication is provided to notify the issuer of the subpoena and/or prosecuting attorney that reanalysis of evidence may occur with Laboratory approval if the initial examiner is not available for testimony.

55.12 Documentation of Records Requests and Releases A.

B.

All Laboratory records and information released by mail or fax require a cover letter issued on a Department letterhead which communicates: 1.

The date the request was received;

2.

A summary of the request;

3.

A list or summary of the records and information being released; and

4.

The date the response was released by the Laboratory.

Release of records and information that pertain to a specific case is documented in accordance with Chapter 52 and the LIMS Manual (LIMS-02-19).

1.

C.

For public information requests, all applicable correspondence including the original request, communications to and from the requestor, the Laboratory’s response, and copies of the records released are documented and retained at the regional laboratory or on the CLD SharePoint “Public Information Request Log.” 1.

D.

A LIMS case activity or other notation is made in the Laboratory case record to communicate that a discovery request has been completed and that the case is now subject to continuing discovery requirements.

Case-related public information requests and applicable correspondence are additionally documented and retained in the Laboratory case record.

For subpoena duces tecum, court order, motion or request for discovery (Michael Morton Act), subject-related intoxication offense records, and former employee testimony requests, all applicable correspondence including the original request, communications to and from the requestor, the Laboratory’s response, and copies of the records released are documented and retained in the Laboratory case record.

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E.

A detailed list of the records released may be substituted for retaining copies of the released records. It is recommended that a detailed list be used if case-related records are released or if the Laboratory response is voluminous.

55.13 Unauthorized Distribution of Records Laboratory personnel may not sell or donate, loan, transfer, or release records without the consent of a supervisor, Laboratory Manager, or Laboratory Director, unless required as defined by this chapter.

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Tex. Transp. Code § 724.018 This document is current through the 2021 Regular Session of the 87th legislature, 2021 1st, 2nd and 3rd Called Sessions, and is current with the 2021 ballot proposition contingencies.

Texas Statutes & Codes Annotated by LexisNexis® > Transportation Code > Title 7 Vehicles and Traffic (Subts. A — M) > Subtitle J Miscellaneous Provisions (Chs. 721 — 1000) > Chapter 724 Implied Consent (Subchs. A — E) > Subchapter B Taking and Analysis of Specimen (§§ 724.011 — 724.019)

Sec. 724.018. Furnishing Information Concerning Test Results.

On the request of a person who has given a specimen at the request of a peace officer, full information concerning the analysis of the specimen shall be made available to the person or the person’s attorney.

History Enacted by Acts 1995, 74th Leg., ch. 165 (S.B. 971), § 1, effective September 1, 1995.

Texas Statutes & Codes Annotated by LexisNexis® Copyright © 2022 Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved.

End of Document

CAUSE NO. STATE OF TEXAS

§ § § § §

V.

IN THE COUNTY COURT AT LAW NO. 3 GALVESTON COUNTY, TEXAS

MOTION TO EXCLUDE EVIDENCE TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES, the Defendant in the above styled case and cause numbers, by and through the undersigned counsel, and files this Motion to Exclude Evidence, and respectfully moves this Honorable Court to sign an order granting the motion.

I. Under Texas Code of Criminal Procedure art. 39.14(a), “as soon as practicable after receiving a timely request from the defendant the state shall produce and permit the inspection and the electronic duplication, copying, and photographing, by or on behalf of the defendant, of . . . any designated documents . . . that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state.” Additionally, under Article 39.14(i), “[t]he State shall electronically record or otherwise document any document, item, or other information provided to the defendant under [Article 39.14].” As recently noted by the Texas Court of Criminal Appeals, the current version of Article 39.14, imposes “new, broader obligations [on the State] prior to trial … [that] must be complied with quickly.” Watkins v. State, 619 S.W.3d 265, 278 (Tex. Crim. App. 2021). “[O]nce discovery of an item is requested, the State now has an affirmative duty to search for the item and produce it to the defendant in a timely manner.” State v. Heath, __ S.W.3d ___ (Tex.App.—Waco 2022, no pet. h.) (No. 10-18-00187-CR; 2-16-22). If the State fails to comply with its obligations under Article 39.14, the court can fashion an appropriate remedy, including the exclusion of the State’s evidence. Id. Before seeking such a remedy, the defendant is under no obligation to first seek a continuance. See id. (“we find that the State’s contention that [defendant] was required to seek a continuance to avoid a waiver of his complaint is without merit”).

Additionally, under Texas Transportation Code §724.018, “on the request of a person who has given a specimen

at the request of a peace officer, full information concerning the analysis of the specimen shall be made available to the person or the person’s attorney.”

II. On January 5, 2021, the Defendant personally served a subpoena for blood discovery on a representative of the Houston Region DPS Crime Lab, an entity under contract with the State. The request was made timely; almost three months before the second trial setting on March 29, 2021. Once that timely requested was made, the State was obligated under Article 39.14(a) to do the following: (1) produce the designated document—even if the document was in the possession of another person who was under contract with the State, (2) produce the designated document “as soon as practicable”, and (3) record or document that the designated document has been delivered to the Defendant. See also Tex. Transp. Code §724.018. Despite these legislatively-mandated requirements, the State has failed to comply with any of its obligations. And, similar to the facts in Heath— which resulted in the exclusion of the State’s evidence—the State ignored its obligations through three additional trial settings: September 27, 2021 (3rd trial setting), January 3, 2022 (4th trial setting), and February 28, 2022 (5th trial setting). See Heath, __ S.W.3d at ___ (“[i]n a situation where the prosecutor was set for trial and presumably ready to proceed to trial without the evidence on three prior settings, the ruling by the trial court excluding the evidence that was not previously produced . . . is not an abuse of discretion.). Additionally, unlike Heath, the State in this case actually received the blood discovery on March 17, 2021, well in advance of all four previous trial settings. It is unclear whether the State ignored its obligations or was unaware of them, but regardless of the reason, the State had an “affirmative duty to search for the item and produce it to the defendant in a timely manner.” Heath, __ S.W.3d at ___. This was clearly not done in this case. Instead, the State had requested discovery in its possession for nearly a year and through four prior trial settings.

WHEREFORE, PREMISES CONSIDERED, Defendant respectfully moves this Honorable Court to grant the motion.

Respectfully submitted,

_________________________________ Tyler Flood

State Bar No. 24032057 2019 Washington Avenue Houston, Texas 77007 Phone: (713) 224-5529 Fax: (713) 224-5533 office@tylerflood.com Attorney for

CERTIFICATE OF SERVICE This is to certify that on February 4, 2021, a true and correct copy of the above and foregoing document was served on the Galveston County District Attorney’s Office by hand delivery.

______________________________ Tyler Flood

CAUSE STATE OF TEXAS V.

§ § § § §

IN THE COUNTY COURT AT LAW NO. 3 GALVESTON COUNTY, TEXAS

ORDER ON MOTION TO EXCLUDE EVIDENCE BE IT REMEMBERED, came to be heard Defendant's Motion to Exclude Evidence, and the Court having considered same is of the opinion that said Motion should be and is hereby GRANTED.

____________________________________ JUDGE PRESIDING

No. 10-18-00187-CR Court of Appeals of Texas, Tenth District

State v. Heath Decided Feb 16, 2022

10-18-00187-CR 02-16-2022 THE STATE OF TEXAS, Appellant v. DWAYNE ROBERT HEATH, Appellee TOM GRAY, CHIEF JUSTICE

constitutional basis upon which to exclude the evidence. Because we find no abuse of discretion, we affirm the trial court's order granting the motion to suppress evidence.

1 The pretrial exclusion of evidence has been

held to be appealable by the State pursuant to Article 44.01(a)(5) even if it was not

From the 54th District Court McLennan County, Texas Trial Court No. 2017-241-C2

excluded pursuant to a traditional motion

Before Chief Justice Gray, Justice Smith, and Justice Wright 4

(State may appeal an adverse pretrial ruling

to suppress evidence. See State v. Medrano, 67 S.W.3d 892 (Tex. Crim. App. 2002) on a "motion to suppress" that seeks to exclude evidence as inadmissible rather

4 The Honorable Jim R. Wright, Senior

than to suppress evidence as illegally

Chief Justice (Retired) of the Eleventh

obtained). The State certified in its notice

Court of Appeals, sitting by assignment of

of appeal that the excluded evidence is "of

the Chief Justice of the Texas Supreme

substantial importance" to the State's case,"

Court. See Tex. Gov't Code §§ 74.003,

an assertion we are not permitted to review.

75.002, 75.003.

See State v. Chupik, 343 S.W.3d 144, 145-

OPINION TOM GRAY, CHIEF JUSTICE The State of Texas appeals an order of the trial court that granted Heath's motion to suppress "illegally withheld" evidence. See Tex. Code Crim. Proc. art. 44.01(a)(5).1 The trial court found

1

that the prosecution had failed to produce a 9-1-1 recording "as soon as practicable" after a request by the defendant and ruled that the evidence was excluded. *1 See Tex. Code Crim. Proc. Ann. art.

39.14(a). In one issue, the State complains that the trial court abused its discretion by granting the motion to exclude the evidence because a motion for continuance was necessary for Heath to preserve his complaint and that there was no willful violation of the discovery statute or other

46 (Tex. Crim. App. 2011).

In our original opinion in this proceeding, this Court found that the motion was erroneously granted because Heath's request for discovery was inadequate and therefore the State did not have a duty to produce the recording. See State v. Heath, 582 S.W.3d 495 (Tex. App.-Waco 2018).

However, the Court of Criminal Appeals reversed, finding that this Court improperly addressed the adequacy of the request because the State did not preserve that issue before the trial court. See State v. Heath, No. PD-0012-19, 2019 Tex.Crim.App. Unpub. LEXIS 774 (Tex. Crim. App. Dec. 18, 2019) (not designated for publication). We must therefore assume for purposes of this opinion that there was a proper request for the recording.

1

State v. Heath

2

No. 10-18-00187-CR (Tex. App. Feb. 16, 2022)

Approximately one week prior to the fourth jury trial setting in this proceeding, the prosecutor discovered that there might be a 9-1-1 recording related to the alleged offense while interviewing the victim's grandmother in preparation for trial.

The prosecutor thereafter investigated, learned a recording did exist, and procured the recording from the sheriff's department. The prosecutor produced the recording to Heath on the same day that it came into the prosecutor's possession, which was six days before *2 trial. Heath filed a pretrial writ of habeas corpus and motion to suppress illegally withheld evidence seeking the exclusion of the recording. After a hearing on the morning of the jury trial setting, the trial court granted Heath's motion to suppress and excluded the 9-1-1 recording. The State filed an interlocutory appeal of the trial court's ruling. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5). The trial court entered findings of fact and conclusions of law at the State's request.

3

We sustain the trial court's decision on the motion if it is correct under any applicable theory of law.

State v. Cortez, 543 S.W.3d 198, 203 (Tex. Crim.

App. 2018). We may reverse only when the decision is arbitrary, unreasonable, or outside the zone of reasonable disagreement. Id. Background Facts Shortly after being appointed to represent Heath, counsel for Heath sent the state an email requesting discovery in March of 2017. Discovery was produced in response to this request in July of 2017. This proceeding had been set for trial and continued three times prior to the discovery of the recording and was continued due to other cases taking priority. The record is less than clear as to the procedure and whether or not the prosecutor actually announced "ready" for trial at those prior settings. The trial court's findings of fact do not include whether the parties announced "ready" at those prior settings.

Standard of Review We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. Lerma v. State, 543 S.W.3d 184, 189-90 (Tex. Crim. App. 2018). At the hearing on the motion, the trial court is the sole factfinder and judge of the credibility of the witnesses and of the weight to be given their testimony. Id. at 190. We therefore afford almost complete deference to the trial court's determinations of historical facts. Id. But we review de novo the legal significance of the facts found by the trial court. Ramirez-Tamayo v. State, 537 S.W.3d 29, 35 (Tex. Crim. App. 2017).

We must view the evidence in the light most favorable to the trial court's decision on the motion. State v. Garcia, 569 S.W.3d 142, 152-53 (Tex. Crim. App. 2018). When, as here, the trial court makes explicit fact findings, we determine whether the evidence, still viewed in the light most favorable to the trial court's decision, supports the findings. Id. at 153. We must defer to

the trial court's findings if they, when read in their totality, reasonably support the trial court's legal conclusion. Id. This is so even if the findings might be ambiguous when viewed piecemeal and in isolation. Id. We give non-technical, *3 common-sense deference to each finding individually and to the totality of the findings. See id.

4

On May 29, 2018, prior to voir dire on the fourth trial setting, the trial court conducted a hearing on Heath's motion. At the hearing, Heath argued that the 9-1-1 recording should be excluded solely because it was not produced "as soon as practicable" pursuant to article 39.14(a) of the Code of Criminal Procedure. Article 39.14(a) states that, upon proper written request by the defense, the State is required to produce certain items of discovery in its possession "as soon as practicable." See Tex. Code Crim. Proc. Ann. art.

39.14(a). *4 There is no dispute that the 9-1-1 recording was in the possession of the State, which is not limited to the prosecutor, but includes law enforcement and related agencies. See id. The

2

State v. Heath

No. 10-18-00187-CR (Tex. App. Feb. 16, 2022)

parties further do not dispute that the recording was required to be produced because it was "material" as required in article 39.14(a). See Watkins v. State, 619 S.W.3d 265 (Tex. Crim. App. 2021).

In the hearing, counsel for Heath argued that the prosecutor's failure to ascertain the existence of the recording until the fourth trial setting was not due to bad faith on the part of the prosecutor but the prosecutor was under a duty to ascertain the existence of the recording and her failure to do so resulted in the recording's production not being made "as soon as practicable." Heath argued that because the recording was in the possession of "the State" since its creation, regardless of the bad faith or willful intent of the prosecutor, the recording should be excluded. In response to the State's offer of a continuance, Heath expressed that he did not want a continuance and that a continuance would not resolve the timeliness of the production of the recording. Heath did not argue that he was unable to proceed to trial if the recording was admitted into evidence, simply that it should be excluded because the prosecutor did not learn of its existence "as soon as practicable."

5

The prosecutor responded that she did not learn of the existence of the 9-1-1 recording until she conducted the interview with the witness and that the offense report or other information she had did not reflect that a 9-1-1 call was made. The prosecutor stated that 9-1-1 calls are not as common in offenses such as injury to a child and that she *5 did not know to look for a recording until the interview when the witness informed her that she called 9-1-1 to make an initial report of the offense. The prosecutor immediately sought the production of the recording and made it available to the defense the same day she received it. The prosecutor stated that she had learned of the existence of photographs during the pendency of the case, and had procured them from law enforcement immediately, but had nothing in her possession to indicate that a 9-1-1 recording existed prior to the interview.

Heath contended that he was not disputing the prosecutor's statements or that she had ever acted in bad faith in not learning of the existence of the recording. The trial court granted Heath's motion to exclude the recording and attempted to move to voir dire; however, the prosecutor expressed the State's intent to appeal his decision and the trial court granted a stay of the proceedings so that the exclusion could be appealed. The case remains stayed in the trial court.

6

The trial court's findings of fact include findings that the case had been set for pretrial on various dates but that the prosecutor "failed to ascertain the existence of the 9-1-1 recording" on each of those dates, that the prosecutor first learned of the existence of the recording when interviewing a witness on or about May 18, 2018, that the prosecutor "promptly" requested the recording from the sheriff's department, and that the prosecutor received and turned over the recording to Heath on May 23, 2018. The conclusions of law include a conclusion that the prosecutor "has 'a specific duty ... to ascertain what evidence within the terms of [article 39.14 is] held by the police and to *6 make such evidence available to the defense.' See Hollowell v. State, 571 S.W.2d 179, 180 (Tex. Crim. App. 1978)," and is under a "statutory duty" to disclose the evidence "as soon as practicable," that the prosecutor violated the duty that "as soon as practicable ... the state shall produce" the evidence, and therefore the evidence was excluded because the prosecutor failed to comply with article 39.14(a). There were no findings as to the intent of the prosecutor or the credibility of the witnesses.

In its sole issue on appeal, the State argues that the trial court abused its discretion by granting the motion to suppress the 9-1-1 recording because the failure of the prosecutor to produce the recording was not a "willful" violation of article 39.14(a) and therefore, exclusion was not the proper remedy.

Failure to Produce Evidence

3

State v. Heath

7

No. 10-18-00187-CR (Tex. App. Feb. 16, 2022)

It has long been the law that "evidence willfully withheld from disclosure under a discovery order should be excluded from evidence." See Hollowell v. State, 571 S.W.2d 179, 180 (Tex. Crim. App. 1978). Since that time, however, the rules regarding criminal discovery have been changed with the enactment of the Michael Morton Act in article 39.14(a), which requires that "as soon as practicable after receiving a timely request from the defendant the state shall produce" certain categories of items in discovery. See Tex. Code Crim. Proc. Ann. art. 39.14(a). The statute now requires only a request, rather than a court order, to trigger the State's duty to produce discovery.

However, the statute does not include a definition for what is "as soon as practicable," nor does it include any remedies for failure to comply with the request. *7 Historically, the exclusion of evidence is at its essence a court-fashioned sanction for prosecutorial misconduct. See Francis v. State, 428 S.W.3d 850, 855 (Tex. Crim. App. 2014). As such, "whether the trial court should exclude evidence on this basis has been made to hinge on 'whether the prosecutor acted with the specific intent to willfully disobey the discovery order[.]'"

Id. at 855 (quoting Oprean v. State, 201 S.W.3d 724, 727 (Tex. Crim. App. 2006)). "Extreme negligence or even recklessness on the prosecutor's part in failing to comply with a discovery order will not, standing alone, justify the sanction of excluding relevant evidence." Id.; see also State v. LaRue, 152 S.W.3d 95, 97, 99100 (Tex. Crim. App. 2004) (holding that although the prosecutor "may have been extremely negligent or even reckless with respect to the result of his actions," the evidence in the record did not show willful conduct on the part of the State). In other words, even though lesser remedies might suffice to cure harm, the most extreme remedy of exclusion is required only if the record shows the prosecutor intentionally violated the order in a calculated effort to frustrate the defense. See Oprean, 201 S.W.3d at 728.

8

On appeal, Heath argues that "willful" conduct by the State is satisfied because the prosecutor failed to satisfy her duty to ascertain what evidence is in the possession of the State as soon as practicable pursuant to article 39.14(a) of the Code of Criminal Procedure, as first required in Hollowell.

See Hollowell, 571 S.W.2d at 180. In this, he contends that the prosecutor was under an affirmative duty to seek out what evidence was in the possession of the State earlier than it did, and the failure to do so in and of itself constitutes willful conduct that allows for exclusion of the evidence because it did not *8 occur "as soon as practicable." In this, Heath argues that a continuance would not have resolved the issue, because the fact that the evidence was not produced "as soon as practicable" could not be resolved by requiring him to seek more time to prepare for trial.

The question thus to be answered in this proceeding is whether the old concept of "willful violations" and "bad faith" still apply in the same way with the Legislature's use of the phrase "as soon as practicable" which arguably infused an element of timeliness into the timing of the discovery response regardless of willful misconduct. We find that they do not. In this context, in its amendments to article 39.14(a), the Legislature made a substantive change to the process for the disclosure of requested items.

Previously, if the trial court ordered the State to provide discovery, the terms of the order would control as to what was to be produced, as well as how and when. As amended, responsive discovery is now to be provided "as soon as practicable," which has a connotation of a duty of the prosecutor to timely search out discovery that may be in the State's custody, constructive possession, or control and then to provide it to the defendant in a timely manner in response to a discovery request. It is no longer sufficient for the State to wait until it gets ready, or when the prosecutor decides to prepare the case for trial, to then search out and produce properly requested discovery.

4

State v. Heath

9

No. 10-18-00187-CR (Tex. App. Feb. 16, 2022)

Rather, once discovery of an item is requested, the State now has an affirmative duty to search for the item and produce it to the defendant in a timely manner. While there is no hard and fast time period like the 30-day due date in civil cases set forth in the rules of civil procedure, and there should not be because the legislature did not set one, a failure to at least inquire about the existence *9 of discoverable items in response to a proper request in a timely manner is all the evidence necessary to show that the failure to timely produce the item in discovery was due to what was previously characterized as a "willful violation" or "bad faith". The prosecutor need not know what it is that is not being produced, but the failure to even look to see if there is something responsive to the request in light of the duty to search out responsive discovery is adequate for the trial court to fashion a remedy appropriate to the situation. The trial court has great discretion in determining the appropriate remedy depending on the circumstances of each case.

In a situation where the prosecutor was set for trial and presumably ready to proceed to trial without the evidence on three prior settings, the ruling by the trial court excluding the evidence that was not previously produced, in this instance the recording of the 9-1-1 call, is not an abuse of discretion. The trial court fashioned an appropriate sanction for the State's failure to timely produce the recording in response to the discovery request. We thus find that the trial court's decision, based on the information it had before it at the time of its ruling, did not constitute an abuse of discretion because the evidence was not produced "as soon as practicable."2

the State's possession prior to May of 2018.

Additionally, the Legislature has recently enacted Code of Criminal Procedure article 2.1397, which places an affirmative duty on the law enforcement agency that files a case with a prosecuting office to produce all information that would be required to be produced pursuant to article 39.14(a), seemingly in recognition that the duty to produce discoverable information extends beyond the prosecutor to all areas of law enforcement. See Acts 2021, 87th Leg., ch.

509 (S.B. 111), § 1, eff. Sept. 1, 2021, codified as Tex. Code Crim. Proc. Ann. art.

2.1397.

10

Further, we find that the State's contention that Heath was required to seek a *10 continuance to avoid a waiver of his complaint is without merit.

A continuance could have been an appropriate remedy within the trial court's discretion; however, since the trial court granted Heath's motion and excluded the evidence, we find that a motion for continuance was not necessary in this circumstance.3 We overrule the State's sole issue.

3 Moreover, the State had suffered an

adverse ruling by the trial court and therefore the issue was preserved by the State, notwithstanding that it did not move for a continuance.

Conclusion Having found no abuse of discretion, we affirm the trial court's order granting the motion to suppress evidence.

11

Affirmed. *11

2 The record of the hearing where the

prosecutor set forth what efforts were taken to ascertain what evidence was in the State's possession was not thorough.

Because this is a fact-dependent inquiry, the result might be different if the prosecutor had established what she had done to try to find what evidence was in

5

State v. Heath

No. 10-18-00187-CR (Tex. App. Feb. 16, 2022)

6

NO. PD-1015-18 COURT OF CRIMINAL APPEALS OF TEXAS

Watkins v. State 619 S.W.3d 265 (Tex. Crim. App. 2021) Decided Mar 3, 2021

NO. PD-1015-18

So did the trial court err to admit these exhibits over Appellant's objection? The answer to that question turns upon whether these exhibits "constitute or contain evidence material to any matter involved in the action." That requires this Court to construe the phrase "material to any matter involved in the action" as it appears in Article 39.14 of the Code of Criminal Procedure.

03-03-2021 Ralph Dewayne WATKINS, Appellant v. The STATE of Texas Jason Niehaus, Denton, for Appellant. Robert Koehl, for State.

Jason Niehaus, Denton, for Appellant.

Robert Koehl, for State.

Newell, J., delivered the opinion of the Court in which Hervey, Richardson, Keel, Walker, Slaughter and Mcclure, JJ., joined.

This case concerns the admission of 33 of 34 exhibits during the punishment phase of Appellant's trial for possession with intent to deliver a controlled substance. The exhibits are a collection of booking records, pen packets, and judgments of prior convictions that were used to prove two prior convictions for enhancement and other extraneous offenses that Appellant had committed. Prior to trial, Appellant's attorney timely requested disclosure of "any other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the case" pursuant to Article 39.14 of the Code of Criminal Procedure. The prosecutor provided notice of the State's intent to introduce evidence of these prior convictions and extraneous offenses at punishment. The prosecutor didn't disclose copies of the exhibits themselves until it was time to introduce them.

269

The court of appeals relied upon precedent in which this Court engaged in a due-process materiality analysis for violations of the previous version of Article 39.14. *269 Though the same phrase "material to any matter involved in the action" appears in the amended version of Article 39.14, this Court's interpretation of the previous version of Article 39.14 has focused upon whether a trial court is required to order disclosure, not the meaning of the statutory phrase at issue. Given this confusion, we cannot presume that the Legislature relied upon our precedent interpreting Article 39.14 when maintaining the phrase "material to any matter involved in the action" in the current version of the statute.

Under these circumstances, we construe the amended statute as adopting the ordinary definition of "material." Evidence is "material" if it has "some logical connection to a consequential fact." Whether evidence is "material" is therefore determined by evaluating its relation to a particular subject matter rather than its impact upon the overall determination of guilt or punishment in light of the evidence introduced at trial. In this case, the exhibits at issue were "material" because they had a logical connection

1

Watkins v. State

619 S.W.3d 265 (Tex. Crim. App. 2021)

to subsidiary punishment facts. We reverse the court of appeals and remand the case so that the court of appeals may analyze whether Appellant was harmed by the lack of disclosure.

Facts

270

The State charged Appellant with first-degree felony possession of a controlled substance with intent to deliver. The State also alleged in the indictment that Appellant had previously been convicted of two prior and sequential felony offenses, namely aggravated assault and retaliation. Appellant requested a court-appointed lawyer.

Appellant's trial counsel sent a discovery request pursuant to Article 39.14. He asked for, among other things, "any other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the case."1 He also requested notice of the State's intent to offer any extraneous offenses, which the prosecution provided. A jury convicted Appellant of the lesser-included offense of second-degree possession of a controlled substance.2 1 Appellant also requested "any designated

documents, papers, written or recorded."

He did not, however, designate any specific documents in that request, and that is not the basis upon which he argues on appeal that discovery was required.

2 Tex. Health & Safety Code Ann. §

481.115(d) (2010).

During the punishment phase of the trial, the State sought to introduce 34 exhibits consisting of booking records, pen packets, and judgments and sentences. The State intended to use these exhibits to prove up the two felony convictions alleged in the enhancement paragraphs, as well as a number of different extraneous offenses. Trial counsel objected on the ground that these exhibits had not been disclosed to the defense despite a discovery request.3 The prosecutor responded that he had provided notice of the State's intent to introduce

evidence of prior convictions. However, the prosecutor acknowledged that he had not provided access to the exhibits because he did not believe Article 39.14 applied to punishment, particularly when the previous offenses occurred prior to the passage of the Michael Morton Act.4 The *270 trial court initially sustained Appellant's objection, but later reversed its decision allowing the evidence to be admitted.

3 Trial counsel later acknowledged that he

received one book-in sheet out of the exhibits offered, so he withdrew his objection to the admission of that sheet. He maintained his objection to the remaining 33 exhibits.

4 With regard to the pen packets, the

prosecutor also argued that two of the prior convictions

were

being

used

for

enhancement purposes as set out in the indictment and that Appellant had pleaded true to both.

Appeal Appellant argued to the court of appeals that Article 39.14 was not limited to case-in-chief evidence. Appellant also argued that the statute required disclosure because the word "material" in the statute does not modify "offense reports" or "any designated documents, papers, written or recorded statements of the defendant or a witness, including witness statements of law enforcement officers but not including the work product of counsel for the state in the case and their investigators and their notes or report." The State conceded on appeal that Article 39.14 applies to punishment evidence but nevertheless argued that the exhibits involved proof of extraneous offenses so they were not "material to any matter involved in the case." Appellant replied that the evidence at issue was material because it affected Appellant's punishment.

The State Prosecuting Attorney's Office (SPA) filed an amicus brief setting out, as Appellant did in his brief, the lack of clarity in this Court's

2

Watkins v. State

619 S.W.3d 265 (Tex. Crim. App. 2021)

precedent construing the definition of "material" in previous versions of Article 39.14(a). The SPA noted, as Appellant did, that this Court's precedent often conflated the inquiry into whether evidence was "material" with statutory requirements of a court order and a showing of "good cause" for disclosure (statutory requirements that no longer exist). The Texas Criminal Defense Lawyer's Association (TCDLA) also filed an amicus brief, arguing that the legislative history behind the Michael Morton Act suggested no limitations on the type of evidence that must be disclosed.

the case and their investigators and their notes or report, or any designated books, accounts, letters, photographs, or objects or other

tangible

privileged

that

things

not

constitute

otherwise or

contain

evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state. ’ ") (emphasis in original).

6 Id. at 821. The State also argued that

extraneous

offense

evidence

is

not

"material to any matter involved in the

The court of appeals assumed that any item requested for disclosure under Article 39.14(a) must also be "material" and addressed the exhibits at issue.5 According to the court of appeals, it would have construed "material to any matter involved in the action" as including any evidence that the State intends to use as an exhibit to prove its case to the fact-finder in both the guilt and punishment phases at trial, but it was required to apply this Court's precedent.6 The court of appeals noted that "what is ‘material’ has been subject to substantial judicial interpretation prior to the debate and passage of the Michael Morton Act."7 Consequently, the court of appeals concluded, "Material for purposes of Article 39.14(a) means that ‘there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different.’ "8 Based upon this 271

understanding, the court of appeals *271 held that the exhibits at issue were not material, and therefore the trial court did not abuse its discretion when it ruled they were admissible despite the lack of disclosure.9 5 Watkins v. State , 554 S.W.3d 819, 820–21

(Tex.

App.—Waco

2018)

("Article

39.14(a) states that upon a timely request the State must provide ‘any offense reports, any designated documents, papers, written or recorded statements of the defendant or a witness, including witness statements of law enforcement officers but not including the work product of counsel for the state in

action," but the court of appeals rejected that argument. Id. 7 Id. 8 Id. at 822.

9 Id.

Discretionary Review In his petition for review to this Court, Appellant raised one ground: "While reviewing a violation of the Michael Morton Act, the Court of Appeals erred in its materiality analysis." According to Appellant, the changes to the statute render the Legislature's use of the word "material" in Article 39.14(a) ambiguous. And, given that ambiguity, resort to extra-textual factors reveals that we should interpret the word "material" as synonymous with "relevant."

The State argues in response that the plain meaning of the statute is unambiguous. According to the State, we should apply the "Prior Construction Canon" to presume that our Legislature intended to apply this Court's previous interpretation of the phrase "material to any matter involved in the action." Under this approach, we should hold that our Legislature intended the definition of "material" to be outcome determinative.

However, the State posits that prior to the enactment of the Michael Morton Act, this Court had provided two definitions of "material." For

3

Watkins v. State

619 S.W.3d 265 (Tex. Crim. App. 2021)

exculpatory, impeaching, or mitigating evidence, this Court defined "material" to mean "a reasonable probability that disclosure would lead to a different outcome." For inculpatory evidence, this Court defined "material" as "indispensable to the State's case." According to the State, we should adopt this latter definition of the word "material" rather than the definition relied upon by the court of appeals. Significantly, the State argues in a post-submission brief that the court of appeals’ reliance upon the definition of "material" associated with exculpatory evidence erroneously converts the two-step process of determining error and harm into a one-step process by conflating the two concepts.

The TCDLA filed an amicus brief in support of Appellant's position. According to the TCDLA, the amended Article 39.14 is a wholly new statutory scheme. As such, prior interpretations of the term "material" should not apply. Instead, this Court should recognize that the term "material" is ambiguous and should interpret the Michael Morton Act as creating a statutory "open file policy." This interpretation would require disclosure of evidence regardless of the prosecution's view of the value or impact of the evidence on the rest of the available evidence.

272

the statute in question and attempt to discern the fair, objective meaning of the *272 text at the time of its enactment.11 We follow this principle because (1) the text of the statute is the law; (2) the text is the only definitive evidence of what the legislators had in mind when the statute was enacted into law; and (3) the Legislature is constitutionally entitled to expect that the Judiciary will faithfully follow the specific text that was adopted.12 Our duty is to try to interpret the work of our Legislature as best we can to fully effectuate the goals they set out.13 Legislative intent isn't the law, but discerning legislative intent isn't the end goal, either. The end goal is interpreting the text of the statute.14 10 Boykin v. State , 818 S.W.2d 782, 785 (Tex.

Crim. App. 1991).

11 Id. 12 Mahaffey v. State , 316 S.W.3d 633, 637–

38 (Tex. Crim. App. 2010) (quoting Boykin , 818 S.W.2d at 785 ).

13 Tex. Code Crim. Proc. art. 1.26 ("The

provisions of this Code shall be liberally construed so as to attain the objects intended prevention,

by

the and

Legislature:

The

suppression,

and

The SPA filed an amicus brief as well, acknowledging that the court of appeals inaccurately described this Court's precedent regarding the term "material" as it relates to Article 39.14(a). Nevertheless, the SPA argues that this Court should adhere to this prior case law as a matter of stare decisis.

punishment of crime."); see also, e.g., Tex.

With all these arguments in mind, we turn to the question of how to construe the statutory phrase "material to any matter in involved in the case."

14 See State v. Mancuso , 919 S.W.2d 86, 87

Standard of Review When we interpret statutes, we seek to effectuate the collective intent or purpose of the legislators who enacted the legislation.10 In so doing, we

Penal Code § 1.05(a) ("The rule that a penal statute is to be strictly construed does not apply to this code. The provisions of this code shall be construed according to the fair import of their terms, to promote justice and effect the objectives of the code.").

(Tex. Crim. App. 1996) (citing Boykin 818 S.W.2d at 785 and Tex. Const. art. II, § 1 for the proposition that "[i]t is the duty of the Legislature to make laws, and it is the function of the Judiciary to interpret those laws.").

necessarily focus our attention on the literal text of

4

Watkins v. State

619 S.W.3d 265 (Tex. Crim. App. 2021)

In interpreting the text of the statute, we must presume that every word in a statute has been used for a purpose and that each word, phrase, clause, and sentence should be given effect if reasonably possible.15 We do not focus solely upon a discrete provision; we look at other statutory provisions as well to harmonize provisions and avoid conflicts.16 When we are dealing with the passage of a particular act, such as the one at issue here, we look to the entire act in determining our Legislature's intent with respect to a specific provision.17 And we construe a statute that has been amended as if it had originally been enacted in its amended form, mindful that the Legislature, by amending the statute, may have altered or clarified the meaning of earlier provisions.18 "Time-honored canons of interpretation, both semantic and contextual, can aid interpretation, provided the canons esteem textual 19 interpretation."

15 State v. Rosenbaum , 818 S.W.2d 398, 400–

19 BankDirect Capital Fin., LLC v. Plasma

Fab, LLC , 519 S.W.3d 76, 84 (Tex. 2017).

But, most importantly, we read words and phrases in context and construe them according to rules of grammar and common usage.20 When a particular

273

term is not legislatively defined but has acquired a technical meaning, we construe that term in its technical sense.21 We may consult *273 standard or legal dictionaries in determining the fair, objective meaning of undefined statutory terms, and legal dictionaries to determine the meaning of undefined legal terms.22 20 Yazdchi v. State , 428 S.W.3d 831, 837

(Tex. Crim. App. 2014).

21 See Medford v. State , 13 S.W.3d 769, 772

(Tex. Crim. App. 2000) (explaining that "the canons of construction" dictate that words and phrases possessing a technical meaning are generally to be considered as having been used in their technical sense).

01 (Tex. Crim. App. 1991) (citing Tex.

22 Clinton v. State , 354 S.W.3d 795, 800

Gov't Code §§ 311.025(b), 311.026(a) );

(Tex. Crim. App. 2011) ; Ex parte Rieck ,

State v. Hardy , 963 S.W.2d 516, 520 (Tex.

144 S.W.3d 510, 512–13 (Tex. Crim. App.

Crim. App. 1997).

2004).

16 See, e.g., Murray v. State, 302 S.W.3d 874,

877–79

(Tex.

Crim.

App.

2009)

(interpreting the phrase "included in the indictment" in Article 4.06 of the Code of Criminal

Procedure

after

considering

Articles 37.08 and 37.09 of the Code of Criminal Procedure ).

17 See,

e.g.,

Taylor

v.

Firemen's

&

Policemen's Civil Service , 616 S.W.2d 187, 190 (Tex. 1981) ; see also Ex parte Woods , 52 Tex.Crim. 575, 108 S.W. 1171, 1176 (1908).

18 Powell v. Hocker , 516 S.W.3d 488, 493

(Tex. Crim. App. 2017) ; see also Mahaffey , 316 S.W.3d at 642 (citing Getts v. State , 155 S.W.3d 153, 158 (Tex. Crim. App. 2005) ).

When the language of the statute is ambiguous or leads to absurd results, we may consider extratextual factors in construing the statute.23 A statute is ambiguous when it may be understood by reasonably well-informed persons to have two or more different interpretations.24 For example, the statutory use of the word "table" can be ambiguous if it is impossible to tell from context whether the statute refers to a breakfast table or a numerical chart.25 Extra-textual factors that we may consider to resolve ambiguity include: (1) the object sought to be attained by the Legislature; (2) the circumstances under which the statute was enacted; (3) the legislative history; (4) the common law or former statutory provisions, including laws on the same or similar subjects; (5) the consequences of a particular construction; (6) the administrative construction of the statute; and

5

Watkins v. State

619 S.W.3d 265 (Tex. Crim. App. 2021)

The Text of Article 39.14 and the Michael Morton Act

(7) the title or caption, preamble, and any emergency provision.26 Statutory construction is a question of law that we review de novo. 27 23 Id. 24 Lang v. State , 561 S.W.3d 174, 180 (Tex.

Crim. App. 2018) ; see also Baird v. State , 398 S.W.3d 220, 229 (Tex. Crim. App. 2013) (noting that a statute is ambiguous when the language it employs is reasonably susceptible

to

more

than

one

274

Looking at the text of Article 39.14 prior to the passage of Senate Bill 1611 (otherwise known as the Michael Morton Act) and afterwards provides some insight into how the amendments to the statute should be construed. Prior to 2013, the Texas *274 discovery statute, Article 39.14 of the Code of Criminal Procedure, consisted of only two subsections:

understanding).

25 Antonin Scalia & Bryan Garner, Reading

Law : The Interpretation of Legal Texts 46 (1st ed. 2012).

26 Arteaga v. State , 521 S.W.3d 329, 334

(Tex. Crim. App. 2017) (citing Tex. Gov't.

Code § 311.023 ).

27 Ramos v. State , 303 S.W.3d 302, 306 (Tex.

Crim. App. 2009).

Analysis To answer this question of law, we first set out the text of Article 39.14 and how the Michael Morton Act has changed the statute from its original form.

Second, we consider the phrase "material to any matter involved in the action" as it appears in Article 39.14(a). Third, we consider whether we can apply the "Prior Construction Canon" to the statute when interpreting that phrase. Fourth, we consider whether the legislative history of the Michael Morton Act requires a different interpretation of "material to any matter involved in the action." And finally, we determine whether the court of appeals erred in determining that the exhibits at issue were not "material."

Ultimately, we hold that the exhibits at issue were "material." Adhering to the text of the statute and considering how the word "material" appears in the context of the statute, we hold that the phrase "material to any matter involved in the action" should be given its ordinary meaning. The exhibits at issue in this case were "material" because they had a "logical connection to a consequential fact."

6

Watkins v. State

619 S.W.3d 265 (Tex. Crim. App. 2021)

(a) Upon motion of the defendant showing good cause therefore and upon notice to the other parties, except as provided by Article 39.15, the court in which an action is pending shall order the State before or during trial of a criminal action therein pending or on trial to produce and permit the inspection and copying or photographing by or on behalf of the defendant of any designated documents, papers, written statement of the defendant (except written statements of witnesses and except the work product of counsel in the case and their investigators and their notes or report), books, accounts, letters, photographs, objects or tangible things not privileged, which constitute or contain evidence material to any matter involved in the action and which are in the possession, custody or control of the State or any of its agencies. The order shall specify the time, place and manner of making the inspection and taking the copies and photographs of any of the aforementioned documents or tangible evidence; provided, however, that the rights herein granted shall not extend to written communications between the State or any of its agents or representatives or employees. Nothing in this Act shall authorize the removal of such evidence from the possession of the State, and any inspection shall be in the presence of a representative of the State. (b) On motion of a party and on notice to the other parties, the court in which action is pending may order one or more of the other parties to disclose to the party making the motion the name and address of each person the other party may use at trial to present evidence under Rules 702, 703, and 705, Texas Rules of Evidence.

The court shall specify in the order the time and manner in which the other party

must make the disclosure to the moving party, but in specifying the time in which the other party shall make disclosure the court shall require the other party to make the disclosure not later than the 20th day before the date trial begins.28 28 Tex. Code Crim. Proc. art. 39.14 (2009).

This Court often held that under earlier versions of the statute that there was no general right of discovery in Texas.29 The decision on what was discoverable was left to the discretion of the trial court.30 29 Quinones v. State , 592 S.W.2d 933, 940

(Tex. Crim. App. 1980), abrogated on other grounds by Ehrke v. State , 459 S.W.3d 606 (Tex. Crim. App. 2015).

30 Id.

Attempts were made over different legislative sessions to amend the statute to expand the scope of discovery, but, aside from small changes, those attempts were unsuccessful.31 The wrongful 275

conviction of *275 Michael Morton provided a significant spark the Legislature needed to completely change criminal discovery in Texas.32 As discussions of the proposed amendments revealed, Michael Morton had spent twenty-five years in prison for a crime he did not commit because the prosecutor trying his case had withheld material, exculpatory evidence.33 31 Hearing on S.B. 1611 Before the S. Comm.

on Criminal Justice, 83rd Leg., R.S. (2013); see also Brandi Grissom, House Panel Hears Testimony on "Michael Morton Act ", Texas Tribune (April 29, 2013), https://www.texastribune.org/2013/04/29/af ter-judges-arrest-committee-hearsmisconduct-bil/

("Legislators

have

proposed opening the discovery process in previous legislative sessions, but the highprofile Morton case and his promotion of reform to prevent wrongful convictions

7

Watkins v. State

619 S.W.3d 265 (Tex. Crim. App. 2021)

gave the effort momentum this year."); State's Br. 14 (arguing that the purpose of the Michael Morton Act was to expand the State's discovery requirements in an effort to prevent wrongful convictions like the one involving Michael Morton from reoccurring); George E. Dix & John M. Schmolesky, 42 Texas Practice Series : Criminal Practice and Procedure § 27:53 (3d ed. 2010) ("Article 39.14 remained substantively

unchanged

since

its

promulgation in 1965 until 2005."); H.B. 969, 79th Leg., R.S. (2005) (amending Article 39.14(a) to replace "may" with "shall").

32 Hearing on S.B. 1611 Before the S. Comm.

on Criminal Justice, 83rd Leg., R.S. (2013).

33 Id.

After the passage of Senate Bill 1611, Article 39.14 consists of fourteen different subsections:

(a) Subject to the restrictions provided by Section 264.408, Family Code, and Article 39.15 of this Code, as soon as practicable after receiving a timely request from the defendant the state shall produce and permit the inspection and the electronic duplication, copying, and photographing, by or on behalf of the defendant, of any offense reports, any designated documents, papers, written, or recorded statements of the defendant or a witness, including witness statements of law enforcement officers but not including the work product of counsel for the state in the case and their investigators and their notes or report, or any designated books, accounts, letters, photographs, or objects or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state. The state may provide to the defendant electronic duplicates of any documents or other information described by this article. The rights granted to the defendant under this article do not extend to written communication between the state and an agent, representative, or employee of the state. This article does not authorize the removal of the documents, items, or information from the possession of the state, and any inspection shall be in the presence of a representative of the state. (b) On motion of a party and on notice to the other parties, the court in which action is pending may order one or more of the other parties to disclose to the party making the motion the name and address of each person the other party may use at trial to present evidence under Rules 702, 703, and 705, Texas Rules of Evidence.

The court shall specify in the order the

8

Watkins v. State

619 S.W.3d 265 (Tex. Crim. App. 2021)

time and manner in which the other party must make the disclosure to the moving party, but in specifying the time in which the other party shall make disclosure the court shall require the other party to make the disclosure not later than the 20th day before the date trial begins. (c) If only a portion of the applicable document, item, or information is subject to discovery under this article, the state is not required to produce or permit the inspection of the remaining portion that is not subject to discovery and may withhold or redact that portion. The state shall inform the defendant that a portion of the document, item, or information has been withheld or redacted. On request of the defendant, the court shall conduct a hearing to determine whether withholding or redaction is justified under this article or other law. (d) In the case of a pro se defendant, if the court orders the state to produce and permit the inspection of a document item, or information under this subsection, the state shall permit the pro se defendant to inspect and review the document, item, or information but is not 276 *276

required to allow electronic duplication as described by Subsection (a). (e) Except as provided by Subsection (f), the defendant, the attorney representing the defendant, or an investigator, expert, consulting legal counsel, or other agent of the attorney representing the defendant may not disclose to a third party any documents, evidence, materials, or witness statements received from the state under this article unless: (1) a court orders the disclosure upon a showing of good cause after notice and hearing after considering the security and privacy interests of any victim or witness; or (2) the documents, evidence, materials, or witness statements have already been publicly disclosed. (f) The attorney representing the defendant, or an investigator, expert, consulting legal counsel, or agent for the attorney representing the defendant, may allow a defendant, witness, or prospective witness to view the information provided under this article, but may not allow that person to have copies of the information provided, other than a copy of the witness's own statement. Before allowing the person to view a document or the witness statement of another under this subsection, the person possessing the information shall redact the address, telephone number, driver's license number, social security number, date of birth, and any back account or other identifying numbers contained in the document or witness statement. For purposes of this section, the defendant may not be the agent for the attorney representing the defendant.

9

Watkins v. State

619 S.W.3d 265 (Tex. Crim. App. 2021)

(g) Nothing in this section shall be interpreted to limit an attorney's ability to communicate regarding his or her case within the Texas Disciplinary Rules of Professional Conduct, except for the communication of information identifying any victim or witness, including name, except as provided in Subsections (e) and (f), address, telephone number, driver's license number, social security number, date of birth, and bank account information or any information that by reference would make it possible to identify a victim or a witness. Nothing in this subsection shall prohibit the disclosure of identifying information to an administrative, law enforcement, regulatory, or licensing agency for the purpose of making a good faith complaint. (h) Notwithstanding any other provision of this article, the state shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged. (i) The state shall electronically record or otherwise document any document, item, or other information provided to the defendant under this article. (j) Before accepting a plea of guilty or nolo contendere, or before trial, each party shall acknowledge in writing or on the record in open court, the disclosure, receipt, and list of all documents, items, and information provided to the defendant under this article. (k) If at any time before, during, or after the trial the state discovers any additional

document, item, or information required to be disclosed under Subsection (h), the state shall promptly disclose the existence of the document, item, or information to the defendant or the court. (l) A court may order the defendant to pay costs related to discovery under this article, provided that costs may not exceed the charges prescribed by Subchapter 277 *277

F, Chapter 552, Government Code. (m) To the extent of any conflict, this article prevails over Chapter 552, Government Code. (n) This article does not prohibit the parties from agreeing to discovery and documentation requirements equal to or greater than those required under this article.34 34 Tex. Code Crim. Proc. art. 39.14.

A simple side-by-side comparison shows that the Michael Morton Act did not merely amend a portion of Article 39.14(a) ; it revamped Article 39.14 completely. It was, as the State agrees, an overhaul of discovery in Texas.35 35 State's Br. 9.

On the whole, the statutory changes broaden criminal discovery for defendants, making disclosure the rule and non-disclosure the exception. Significantly, Article 39.14(h) places upon the State a free-standing duty to disclose all "exculpatory, impeaching, and mitigating" evidence to the defense that tends to negate guilt or reduce punishment.36 Our Legislature did not limit the applicability of Article 39.14(h) to "material" evidence, so this duty to disclose is much broader than the prosecutor's duty to disclose as a matter of due process under Brady vs.

10

Watkins v. State

619 S.W.3d 265 (Tex. Crim. App. 2021)

Maryland .37 This subsection blankets the exact

41 Id. (citing McCormick Handbook of the

type of exculpatory evidence at issue in the Michael Morton case while creating an independent and continuing duty for prosecutors to disclose evidence that may be favorable to the defense even if that evidence is not "material."38

Law of Evidence § 185, at 436 (2d ed.

36 Tex. Code Crim. Proc. art. 39.14(h).

37 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215

(1963).

Any evidence that does not fall under Article 39.14(h) —that is, any evidence that does not tend to negate guilt or mitigate punishment—must be disclosed upon request without any showing of "good cause" or the need to secure a discretionary trial court order.42 Disclosure is mandatory and 278 *278

38 See Hearing on S.B. 1611 Before the H.

Comm.

1972) ).

On

Judiciary

&

Civil

Jurisprudence, 83rd Leg., R.S. (2013) (Testimony of Rob Kepple of the Texas District

and

County

Attorney's

Association) (noting one of the main goals of the bill was to get (1) all offense reports and (2) all witness statements turned over because that was problem with Michael Morton's case).

Also, the statute requires disclosure of evidence that merely "tends" to negate guilt or mitigate punishment.39 This echoes the definition of evidentiary relevancy. Relevant evidence is any evidence that has any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence.40 Evidence need not by itself prove or disprove a particular fact to be relevant; it is sufficient if the evidence provides a small nudge toward proving or disproving some fact of consequence.41 Under Article 39.14(h), the State has an affirmative duty to disclose any relevant evidence that tends to negate guilt or mitigate punishment regardless of whether the evidence is "material" under Brady v.

Maryland .

39 Tex. Code Crim. Proc. art. 39.14(h).

40 See Stewart v. State , 129 S.W.3d 93, 96

(Tex. Crim. App. 2004) (citing Tex. R. Evid. 401 ).

must occur "as soon as practicable."43 The

Legislature also added to the list of discoverable evidence in Article 39.14(a), as well as increased the number of people and entities whose records are subject to discovery.44 With the exception of privileged evidence and evidence specifically covered by other statutory provisions, the only obstacle to disclosure of evidence not already covered by Article 39.14(h) is the lack of a specific request.

42 Enrolled Bill Summary of S. 1611, 83d

Leg., R.S. (2013) ("Previous law required the state to disclose certain evidence in a pending criminal action only on a good cause showing by the defendant and on notice to the other parties. The bill instead requires the state, as soon as practicable after receiving a timely request from the defendant

and

subject

to

certain

restrictions, to produce and permit the inspection and the electronic duplication, copying, and photographing, by or on behalf

of

the

defendant,

of

certain

evidence.").

43 Tex. Code Crim. Proc. art. 39.14(a).

44 Tex. Code Crim. Proc. art. 39.14(a), (f).

Generally speaking, the current version of Article 39.14 removes procedural hurdles to obtaining discovery, broadens the categories of discoverable evidence, and expands the State's obligation to disclose. Further, the State's new, broader obligations apply prior to trial, continue after conviction, and must be complied with quickly.45 Article 39.14 also holds the State accountable to

11

Watkins v. State

619 S.W.3d 265 (Tex. Crim. App. 2021)

these new obligations by requiring prosecutors to document and put on the record what has been turned over before a criminal defendant can plead guilty.46 And finally, the statute allows for parties

At the outset, the use of the word "material" in the statutory phrase at issue—"any objects or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action"—is plain on its face, albeit broad in its applicability. As the SPA acknowledged to the court of appeals, "any matter involved in the action" is not limited to the two ultimate issues of guilt or punishment; it covers any number of subsidiary issues impacting the outcome of the proceedings.48 Our Legislature did

to agree to even broader discovery than the statute requires.47 All of these changes significantly expand the scope of criminal discovery in Texas to require disclosure of a great deal of evidence even though our Legislature retained the word "material" to modify discoverable evidence in Article 39.14(a). It is against this backdrop that we consider the use of the word "material" as it appears in Article 39.14(a).

shall promptly disclose the existence of the

not, for example, use the phrase "material to guilt or punishment." This contrasts with how Brady and its progeny define the concept of "materiality." Materiality, as a matter of constitutional due process, is specifically tied to the jury's determination *279 of guilt or punishment and judged in hindsight in relation to all the evidence admitted at trial.49 By its plain

document, item, or information to the

text, Article 39.14(a) is not.

45 Tex. Code Crim. Proc. art. 39.14(k) ("If at

any time before, during, or after trial the state discovers any additional document, item, or information required to be disclosed under Subsection (h), the state

defendant or the court.").

279

48 SPA Amicus Br. on Direct Appeal 12 ("In

46 Tex. Code Crim. Proc. art. 39.14(i) ("The

context, subsection (a) applies to evidence

or

that could influence the jury on any

otherwise document any document, item,

number of subsidiary matters relevant to

or other information provided to the

the

defendant under this article."); Tex. Code

punishment.").

state

shall

electronically

record

Crim. Proc. art. 39.14(j) ("Before accepting a plea of guilty or nolo contendere, or before trial, each party shall acknowledge in writing or on the record in open court the disclosure, receipt, and list of all documents,

items,

and

information

provided to the defendant under this article.").

ultimate

issues

of

guilt

and

49 Strickler v. Greene , 527 U.S. 263, 281–82,

119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) ("There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or

47 Tex. Code Crim. Pro. art. 39.14(n) ("This

inadvertently; and prejudice must have

article does not prohibit the parties from

ensued."); see, e.g., Scott v. United States ,

agreeing to discovery and documentation

890 F.3d 1239, 1250 n.6 (11th Cir. 2018) ("

requirements equal to or greater than those

[T]he Supreme Court has classified as

required under this article.").

‘real’ (and therefore actionable) Brady

The Meaning of "Material" is Plain, Unambiguous, and Synonymous with "Relevant" When Considered in Context

violations only one subset of cases where the

prosecution

fails

to

disclose

exculpatory evidence within its possession: those in which it is reasonably probable in

12

Watkins v. State hindsight

that

a

jury

privy

to

619 S.W.3d 265 (Tex. Crim. App. 2021)

the

51 Black's Law Dictionary 1170 (11th ed.

undisclosed material would have returned a

2019); see also Black's Law Dictionary

different verdict.").

1124 (10th ed. 2014) (same); Black's Law

Alone, the word "material" is susceptible to an easily understood and accepted definition that can include "relevant," albeit with more persuasive force. The Cambridge English Dictionary defines "material" as "important or having important effect."50 Black's Law Dictionary defines "material" as a modifier for evidence as "having some logical connection with the consequential facts" but also as a modifier for an alteration in a document as something "of such a nature that knowledge of the item would affect a person's decision-making; significant; essential."51 Merriam-Webster's Legal Dictionary also defines "material" as both "being of real consequence or importance" and "being relevant to a subject under consideration."52 50 Cambridge

English

Dictionary

,

https://dictionary-cambridgeorg.ezproxy.brunel.ac.uk/us/dictionary/engl ish/material (last visited Dec. 12, 2020); see

also

Merriam-Webster

Collegiate

Dictionary 765 (11th ed. 2003) (defining material as "of or relating to the subject matter of reasoning" and "having real importance Webster's Dictionary

or

great

Third 1342

consequences");

New

International

(2002)

(defining

"material" as "being of real importance or great consequence; substantial; essential"); Oxford English Dictionary (3d ed. 2001) (defining

"material"

as

"having

Dictionary 998 (8th ed. 2004) (same); Black's Law Dictionary 793 (abridged 7th ed. 2000) (same); Black's Law Dictionary 880 (5th ed. 1979) (defining "material" as: "[i]mportant; more or less necessary; having influence or effect; going to the merits; having to do with matter, as distinguished from form. Representation relating to matter which is so substantial and important as to influence party to whom made is material."). "Material Evidence" is defined under "Evidence" in Black's as "Evidence having some logical connection with the facts of the case or the legal issues presented." Black's Law Dictionary (11th ed. 2019). See also Black's Law Dictionary 881 (5th ed. 1979) (defining "material evidence" as "That quality of evidence which tends to influence the trier of fact because of its logical connection with the issue. Evidence which has an effective influence or bearing on

question

in

issue

is

material....

Materiality of evidence refers to pertinency of the offered evidence to the issue in dispute.... Material evidence is evidence which

is

material

to

question

in

controversy, and which must necessarily enter

into

the

consideration

of

the

controversy, and which by itself or in connection

with

other

evidence

is

determinative of the case.").

52 Merriam-Webster

Dictionary

,

significance or relevance; ... of serious or

https://www.merriam-

substantial

significant,

webster.com/dictionary/material#legalDicti

important, of consequence"); Webster's

onary (last visited Dec. 14, 2020); see also

Ninth New Collegiate Dictionary 733 (9th

Wolters Kluwer Bouvier Law Dictionary

ed. 1988) (defining "material" as "having

686 (Stephen Michael Sheppard ed.,

real importance or great consequences");

compact ed. 2011) ("Materiality is a

American Heritage Dictionary 772 (2d

measure of importance."); Ballentine's Law

college ed. 1982) (defining "material" as

Dictionary 781 (3rd ed. 1969) (defining

"substantial," as opposed to trivial).

"material" as "important").

import;

...

13

Watkins v. State

280

619 S.W.3d 265 (Tex. Crim. App. 2021)

But again, the word "material" in the statute is modified by the phrase "to any *280 matter involved in the action." The evidence at issue need only have a persuasive effect on any subsidiary issue for which it is being considered. Nothing in the text suggests that the character of the evidence should be judged solely in relation to its consequential effect on the ultimate issues of guilt or punishment.

is complete" and explaining that Brady materiality standard requires evaluating undisclosed evidence "in the context of the entire record ") (emphasis added).

Given the statutory context in which the word "material" appears, the distinction between the meanings of the terms "material" and "relevant" is untenable. As discussed above, the definitions of "material" allude to a persuasive or consequential effect of a particular piece of evidence. But, the use of the modifying phrase "to any matter involved in the action" broadens the scope of what type of evidence is "material" beyond the ultimate issues of either guilt or punishment. Had "material" been tied to the ultimate issues of guilt or punishment, the text of the statute could be said to require a greater showing of importance or consequence before evidence could be characterized as "material" because the persuasive effect would have to be weighed against those ultimate issues. Without that modification, evidence need only have a logical connection to a fact of consequence to any number of subsidiary issues rather than to the outcome itself. In the context of the statutory phrase, and as a matter of modern legal usage, "the definition of material is one that most educated people would match with relevant. "56

Moreover, the Legislature's removal of the "good cause" requirement and the transfer of the duty to disclose to the prosecution and away from the trial court's discretion, further undermines the contention that materiality under this statute should be judged in relation to the entire record after trial. Under the text of the statute, prosecutors assess whether a particular piece of requested evidence has some logical connection with consequential facts looking forward at the time of the request, most often prior to trial. At that point, and without knowing the defensive theories or what evidence will or will not be admitted into evidence, the possible impact of a single piece of evidence is difficult, if not impossible, to guess.53 The impact that a piece of evidence may have upon the ultimate issue of guilt or punishment is more appropriate for assessing the harm after a failed disclosure.54 The due process concept of "materiality" provides little guidance prior to trial when a request for disclosure is made.55

56 Bryan A. Garner, A Dictionary of Modern

Legal Usage 550 (Oxford Univ. Press, 2d ed. 1995).

53 SPA Amicus Br. on Direct Appeal 7–8.

54 The State appears to agree by noting that

courts conducting a statutory harm analysis will still effectively conduct a Brady materiality analysis as part of that harm analysis.

See

State's

Post-Submission

Letter Br. 2.

55 See United States v. Agurs , 427 U.S. 97,

108, 113, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) (noting that the significance of a particular piece of evidence "can seldom be predicated accurately until the entire record

281

Nevertheless, the court of appeals noted its obligation to apply this Court's precedent interpreting the previous version of the statute rather than rely on the plain text of the statute.

Given that obligation, the State argues that we must presume the Legislature's continued use of the phrase "material to any matter involved in the action" indicated an attempt to incorporate this Court's precedent interpreting the previous version of the statute. As discussed below, this presumption only applies when there has been a previous, authoritative *281 judicial construction of the phrase. There hasn't been.

14

Watkins v. State

619 S.W.3d 265 (Tex. Crim. App. 2021)

The "Prior Construction Canon" Requires an Authoritative Judicial Construction of the Phrase "Material to Any Matter Involved in the Action"

sued clause containing the phrase ‘court of competent jurisdiction’ confers jurisdiction on the federal courts.").

The court of appeals properly noted that Article 39.14 had been the subject of substantial judicial interpretation prior to passage of the Michael Morton Act. But that "judicial interpretation" does not clearly focus upon the meaning of the phrase "material to any matter involved in the action."

Rather, when we have interpreted the previous version of Article 39.14, we have focused upon whether a trial court's refusal to order disclosure amounted to reversible error because the original version of the statute left the issue of disclosure to the trial court's discretion. Further, our precedent has muddied the issue by combining the question of harm or prejudice with the scope of a trial court's discretion. Consequently, we lack a previous, authoritative interpretation of what constitutes evidence that is "material to any matter involved in the action" when interpreting the amended version of Article 39.14.60

When the Legislature revises a particular statute that has been judicially construed, without changing the construed language, it is presumed that the Legislature intended that the same construction should continue to be applied to that statute.57 The clearest rationale for this presumption is that when a term has been authoritatively interpreted by a high court, the members of the bar practicing in that field reasonably enough assume that, in statutes pertaining to that field, the term bears the same meaning.58 But when there has been no settled interpretation of the statutory phrase about which the legislature could have been made aware, the presumption does not apply.59 57 Armstrong v. Exceptional Child Ctr., Inc. ,

575 U.S. 320, 330, 135 S.Ct. 1378, 191 L.Ed.2d 471 (2015) (describing the prior

60 Return Mail, Inc. v. United States Postal

construction canon as the rule that, where

Serv. , ––– U.S. ––––, 139 S. Ct. 1853,

judicial interpretations have settled the

1866, 204 L.Ed.2d 179 (2019) (prior

meaning of an existing statutory provision,

construction canon does not apply because

repetition of the same language in a new

"there is no ‘settled’ meaning of the term

statute is presumed to incorporate that interpretation);

Lewis

v.

State

,

‘person’

58

with

respect

to

the

newly

established AIA review proceeding.");

Tex.Crim. 351, 127 S.W. 808, 812 (1910) ;

Armstrong , 575 U.S. at 330, 135 S.Ct.

see also State v. Medrano , 67 S.W.3d 892,

1378 ("[The prior construction] canon has

902 (Tex. Crim. App. 2002).

no application here. The language of the 58 Scalia & Garner, supra note 25, at 248.

two provisions is nowhere near identical; and even if it had been, the question

59 See, e.g., Fogerty v. Fantasy, Inc. , 510

whether the Boren Amendment permitted

U.S. 517, 531, 114 S.Ct. 1023, 127 L.Ed.2d

private actions was far from ‘settled.’ ").

455 (1994) ; Lightfoot v. Cendant Mortg.

The 1965 Code of Criminal Procedure and Article 39.14

Corp. , ––– U.S. ––––, 137 S. Ct. 553, 564, 196 L.Ed.2d 493 (2017) (rejecting Fannie Mae's prior construction canon argument because "none of the cases on which Fannie Mae relies suggest that Congress in 1954

would

have

surveyed

the

jurisprudential landscape and necessarily concluded that the courts had already settled the question whether a sue-and-be-

282

As the SPA recognized in its amicus brief to the court of appeals, Article 39.14 ’s use of the phrase "material to any matter involved in the action" was never meant to be a codification of the materiality *282 standard later adopted by the United States Supreme Court.61 Our Legislature originally

15

Watkins v. State

619 S.W.3d 265 (Tex. Crim. App. 2021)

enacted Article 39.14 as part of a revision of the Texas Code of Criminal Procedure in 1965.62 The

1000–01 (noting that bar committee's

State Bar had recommended revision as early as 1923,63 but, after inaction from the legislature, the

accepted

proposed limited rule of discovery was by

the

legislature

without

change).

State Bar Board of Directors formed a special committee in 1958 to prepare a draft of revisions.64 The Bar submitted a proposal in 1962

Article 39.14 was patterned after its civil counterpart, Rule 167 of the Rules of Civil Procedure.67 One possible justification seems to be

targeting a number of different areas for revision.

The revision of the Code was initially passed in 1963, but the Governor vetoed it due to nonsubstantive defects in the bill that had been submitted for his approval.65 The bill passed again

that civil lawyers who were familiar with the civil discovery scheme would not have wanted to learn an entirely different system when representing indigent defendants.68 At the time, the text of Rule

in 1965 with no substantive changes being made to the discovery provision.66 61 See SPA Amicus Br. on Direct Appeal 10

("Non-disclosed

evidence

the

defense

claims it was entitled to is often referred to as ‘Brady evidence’ even when the claim is statutory. The two are distinct, and always have been."), 19 ("The 2014 addition of subsection (h) is proof that the Act was not intended to (re)codify Brady .").

167 read as follows: 67 Compare Tex. Code Crim. Proc. art. 39.14

(1965), with Tex. R. Civ. Proc. 167.

68 Fred

Erisman, Revision of Code of

Criminal Procedure , 27 Tex. B.J. 935 (1964) ("Within the framework of familiar practice and procedure, we [the Committee on Revision of the Code of Criminal Procedure] have tried to strip the ‘mystery’ from the practice of Criminal Law and put in the hands of the Civil Practitioner,

62 Tex. Code Crim. Proc. art. 39.14 (1965);

procedural tools by which he and the courts

William G Reid, The Texas Code of

can efficiently and properly dispose of

Criminal Procedure, 44 Tex. L. Rev. 983,

criminal

1000 (1966) (noting "the revised Code

defendant[.]"); Grace Dana Runge, Texas

allows defendant limited discovery within

Criminal Discovery , 47 Tex. L. Rev. 1182,

the discretion of the court" but "the former

1185 (1969) ("Until this rule was adopted

Code authorized neither pretrial nor trial

by the legislature in 1965, there was no

motions

criminal discovery statute in Texas. The

for

production

of

tangible

evidence in a criminal case.").

63 Reid, supra note 62, at 985.

64 Fred Erisman, Law in the Making , 23 Tex.

B.J. 527 (1960).

article

charges

was

lodged

patterned

against

on

its

a

civil

counterpart, largely for practical reasons.

The majority of criminal defendants are indigent and are usually defended by court appointed civil lawyers. It was thought that since these attorneys were already familiar

65 See Reid, supra note 62, at 986 ("The

with the civil discovery statute, there

revision of the Code passed by the fifty-

would be no point in making them learn an

eighth legislature was vetoed by Governor

entirely different system when defending

John Connally on June 5, 1963, primarily

an indigent in a criminal case.").

because of technical defects in the bill submitted for his approval.").

66 Compare Acts 1965, 59th Leg., 317, ch.

722, § 1, with Senate Bill 270, 58th Leg., Reg. Sess. (1963); Reid, supra note 62, at

16

Watkins v. State

619 S.W.3d 265 (Tex. Crim. App. 2021)

Upon motion of any party showing good cause therefore and upon notice to all other parties, and subject to such limitations of the kind provided in Rule 186b as the court may impose, the court in which an action is pending may order any party to produce and permit the inspection and copying or photographing by or on behalf of the moving party, of any designated documents, papers (except written statements of witnesses), books, account, letters, photographs, objects or tangible things, not privileged,

Criminal Procedure was finally passed and signed into law in 1965, Article 39.14 contained the same language.71 Brady v. Maryland was decided in 1963—after the bill was introduced.72 And it was not until 1976 that the United States Supreme Court first defined "material" and even then it did so only as a matter of constitutional due process.

70 Senate Bill 270, 58th Leg., Reg. Sess.

(1963); see also Tex. R. Civ. Proc. 167 (amended 1957).

71 Acts 1965, 59th Leg., 317, ch. 722, § 1.

72 Brady v. Maryland , 373 U.S. 83, 87, 83

S.Ct. 1194, 10 L.Ed.2d 215 (1963) ("We

283 *283

which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody, or control, or order any party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying or photographing the property or any designated object or operation herein granted shall not extend to the written communications passing between agents or representatives or the employees of either party to the suit, or communications between any party and his agents, representatives, or their employees, where made subsequent to the occurrence or transaction upon which the suit is based, and made in connection with the prosecution investigation or defense of such claim or the circumstances out of which same has arisen.69 69 See, e.g., Ex parte Ladon , 160 Tex. 7, 325

S.W.2d 121, 123 (1959) ; Tex. Code Crim.

Proc. art. 39.14 (1965).

Notably, the 1963 bill that proposed reformation of the Code of Criminal Procedure borrowed the phrase "material to any matter involved in the action" directly from Rule 167 of the Rules of Civil Procedure.70 And, when the Code of

now hold that the suppression by the prosecutor of evidence favorable to the accused upon request violates due process where the evidence is material to either guilt or to punishment, irrespective of the good

faith

or

bad

faith

of

the

prosecution.").

The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial.73 73 Agurs , 427 U.S. at 112–13, 96 S.Ct. 2392

(internal citations omitted).

When our Legislature included the phrase "material to any matter involved in the action" in Article 39.14 in 1963, it could not have incorporated the future concept of "materiality" referenced in Brady v. Maryland .74 It was equally

17

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619 S.W.3d 265 (Tex. Crim. App. 2021)

impossible for our Legislature, in 1965, to have incorporated the due process concept of "materiality" set out in 1976 by the United States Supreme Court in.75 Neither Brady nor Agurs had

284

been decided at the time our Legislature started drafting what became Article 39.14. Further, none of the revisions of Article 39.14 leading up to the Michael Morton Act incorporated the language of the Brady concept of materiality into the statute. *284 This Court's Interpretation of Article 39.14 74 Brady , 373 U.S. at 87, 83 S.Ct. 1194.

75 Agurs , 427 U.S. at 112–113, 96 S.Ct.

2392.

When this Court interpreted Article 39.14, the Court necessarily focused upon when the trial court was required to order disclosure of particular evidence rather than whether particular evidence was "material to any matter involved in the action." We consistently held that a trial court was not required to order disclosure unless the motion for discovery was specific and established that there was good cause for disclosure, the evidence was material, the evidence was not privileged, and the evidence was in the possession of the State.76 When the motion for disclosure was sufficient, we recognized that trial courts have discretion to order disclosure of evidence, even evidence that would not make a difference in the outcome of the case.77 But we required reversal of a conviction for the failure to order disclosure when particular evidence was so compelling that it would have made a difference to the ultimate issues of guilt or punishment.78 76 See, e.g., Sonderup v. State , 418 S.W.2d

807, 808 (Tex. Crim. App. 1967).

77 Quinones , 592 S.W.2d at 940 (providing

that the trial court has discretion to order discovery pursuant to Article 39.14, even that not constitutionally commanded); Bates v. State, 587 S.W.2d 121, 131 (Tex.

vests the trial court with discretion in considering such motions such as that for an examination of tape recordings).

78 Quinones , 592 S.W.2d at 940 ; see also

Bates , 587 S.W.2d at 131.

This approach made sense because Article 39.14 required a discretionary court order before the State had to disclose anything pursuant to the statute.79 Deciding whether to reverse the conviction was more likely to be dispositive than deciding whether particular evidence could be characterized as "material to any matter involved in the case." We only reversed when the evidence at issue would have made a difference at guilt or punishment, but we did so after holding that a trial court could have—and should have—ordered disclosure pursuant to its discretionary authority.80 79 See Campos v. State , 468 S.W.2d 81, 82

(Tex. Crim. App. 1971) (holding that Article 39.14 was not triggered without a showing that discovery motion had been presented to and acted upon by a judge).

80 See, e.g. , Quinones , 592 S.W.2d at 940.

Detmering and Bates When the Court first considered the issue of inspecting tangible evidence, the Court overruled a trial court's refusal to order inspection only when the failure to disclose in that situation amounted to reversible error. In Detmering v. State , we recognized that under Article 39.14 a defendant charged with possession of LSD had a right to an independent, chemical inspection of the controlled substance rather than a mere visual inspection.81 In reaching that decision, we relied upon the Special Commentary to the statute provided by Presiding Judge Onion (who had also served on the committee responsible for drafting the original version of Article 39.14 ).82 According to the Court, "if it is known that the State is planning to base its case on a fingerprint, bullet, pistol or rifle,

Crim. App. 1979) (noting Article 39.14

18

Watkins v. State

619 S.W.3d 265 (Tex. Crim. App. 2021)

book or record, the defendant can have his own expert examine the same under the safeguards provided."83 81 Detmering v. State , 481 S.W.2d 863, 864

(Tex. Crim. App. 1972).

82 Id. 83 Id.

285

Later, in Bates v. State , we considered a request for inspection of original tape recordings *285 of the defendant speaking with two other witnesses, one of whom was assisting police in a bribery investigation of the defendant.84 The defendant had been allowed to inspect copies of the recordings, and there was no indication that the original recordings had been altered.85 Though the Court held that the trial court should have granted the motion to inspect the recordings, we also held that the error in refusing to order the inspection was not reversible absent a showing of injury or harm.86 84 Bates , 587 S.W.2d at 124–25.

85 Id. at 131.

86 Id.

In reaching this conclusion, the Court distinguished Detmering because the evidence in Detmering was "indispensable to the State's case."87 According to the Court, the defendant in Detmering sought to inspect the contraband he was charged with possessing, and this was why the Court regarded the evidence in Detmering as "indispensable to the State's case."88 We did not provide any authority for this conclusion. Nor did we explain why we believed the trial court should have ordered the inspection of the original tape recordings even though we concluded they were merely "one strand in a web of incriminating evidence adduced at trial."89 It appears that this distinction was necessary to explain why the trial

court's failure to order inspection was harmless error in Bates even though it was harmful error in Detmering . 90 87 Id. 88 Id. 89 Id. 90 Bates , 587 S.W.2d at 131 (citing Hollowell

v. State , 571 S.W.2d 179 (Tex. Crim. App. 1978), which held that a prosecutor's refusal to comply with trial court's discovery order authorizing disclosure and inspection of a fingerprint was harmless error).

Quinones , McBride , and the Aftermath Later, this Court seemed to engraft the due process "materiality" standard onto the harm analysis attendant to a trial court's refusal to grant discovery. In Quinones v. State , the defendant sought discovery of tape recordings of the defendant's own statements.91 The Court first set out the relevant text of Article 39.14, and then concluded, "Tape recordings of a statement by the accused are ‘objects or tangible things not privileged, which constitute or contain evidence material to any matter involved in the action.’ "92 Later, we cited Bates for our conclusion that the trial court "did have the discretionary power to order discovery of this tape recording."93 But we did not stop there.

91 Quinones , 592 S.W.2d at 937.

92 Id. at 939.

93 Id. at 941.

As in Bates , we went on to consider in Quinones whether the trial court's refusal to order discovery of this evidence constituted reversible error. We then explained that we had "expressly chosen to define ‘materiality’ under Texas law in the due process terms employed by the Supreme Court in United States v. Agurs. "94 But the cases we relied upon for that proposition, Stone v. State and Frank

19

Watkins v. State

286

619 S.W.3d 265 (Tex. Crim. App. 2021)

v. State , were decided on due process grounds; they did not purport to define what constituted evidence "material to any matter involved in the action" under Article 39.14.95 Further, *286 we relied upon this standard to hold that the trial court did not abuse its discretion in failing to order disclosure of tapes even though we acknowledged that they were "objects or tangible things not privileged, which constitute or contain evidence material to any matter involved in the action."96 And in concluding that the trial court was not required to order disclosure despite the authority to do so, we noted that the tapes themselves were not exculpatory and therefore would not have affected the outcome.97 94 Id. (citing Agurs , 427 U.S. 97, 96 S.Ct.

2392 ).

defendant's argument he was prejudiced because the lack of disclosure affected his plea decision by stating, "This claim of prejudice does not make the tape ‘material’ as that term is defined in Stone and Agurs ."100 In other words, we appeared to hold that evidence was only "material to the Defense" if it could be characterized as exculpatory. As Professors Dix and Schmolesky have noted: 98 Id. 99 Id. at 941 (drawing a distinction between

95 See Stone v. State , 583 S.W.2d 410, 414

(Tex. Crim. App. 1979) ("In his fifth ground of error, appellant alleges he was denied due process because of a material misrepresentation

39.14. Article 39.14, does not, for example, use the phrase "material to the Defense of the accused." We also appear to have placed emphasis on the word "Defense," consistent with our holding that the trial court was not required to order discovery because the recordings at issue were not exculpatory.99 And we rejected the

and

suppression

of

evidence by the prosecutor in connection

evidence that will harm a defendant and evidence that is "material to the Defense").

100 Id. As mentioned above, neither of those

cases involved an interpretation of Article 39.14.

with prior inconsistent statements made by the complainant."); Frank v. State , 558 S.W.2d 12, 13 (Tex. Crim. App. 1977) ("Appellant contends that the court erred in refusing to grant a new trial because the prosecutor did not disclose to the appellant or his counsel evidence obtained during trial which it is alleged was exculpatory.").

96 Quinones , 592 S.W.2d at 939.

97 Id. at 941 ("This was not a case where the

prosecutor sought to withhold evidence that the defense could have advantageously presented to the jury; it is just the opposite.").

Ultimately, we held in Quinones that a trial judge was not required to permit discovery unless the evidence sought is "material to the Defense of the accused."98 Though we used the word "material," it is not clear that the opinion actually construed the word "material" as it appeared in Article

20

Watkins v. State

619 S.W.3d 265 (Tex. Crim. App. 2021)

"Materiality," as used in this context, must be distinguished from the case law developing somewhat similar terminology as used in the judicially developed standard for appellate review of a trial judge's denial of [a] motion under Article 39.14 prior to the 2005 revision..... [U]nder this case law reversible error existed on appeal only if the trial judge abused discretion that in most cases turns upon whether the judge's ruling deprived the defendant of access to evidence material to the defendant's defense. "Material to [the] defense," in turn, required that the evidence be exculpatory. This case law, however, developed the judicially promulgated phrase, "material to the defense of the accused," which is different —and narrower—than the statutory criterion requiring only that the evidence be "material to any matter involved in the action...."101

rationale that evidence that is indispensable to the State's case is necessarily material to the defense of the accused.105

101 George E. Dix & John M. Schmolesky, 42

was antithetical to the United States Supreme Court's decision in Agurs , which rejected the argument that evidence could be material based upon the mere possibility that it might have been helpful to the defense.108 More importantly, our

Texas Practice Series : Criminal Practice and Procedure § 27:67 (3d ed. 2010) (footnote omitted).

287

We tried to clarify the right to inspect physical evidence in McBride v. State , but *287 in doing so we focused on the "good cause" requirement found in the statute.102 There, the defendant sought independent examination of the cocaine he was charged with possessing. We set out the text of Article 39.14 and then noted the defendant's obligation to show "good cause" before being entitled to inspection.103 We explained that

102 McBride v. State , 838 S.W.2d 248, 250

(Tex. Crim. App. 1992).

103 Id. 104 Id. (quoting Quinones , 592 S.W.2d at 941

).

105 Id. at 251.

Significantly, in McBride we rejected the court of appeals’ holding that the controlled substance at issue was not "material" simply because the defendant could only show that there was a mere possibility that independent analysis might yield exculpatory results.106 We held instead that the purity of the substance was material because it could reinforce the defensive theory of lack of intent or knowledge, as well as advance the defensive theory that the drugs had been planted.107 Yet this understanding of "material"

conclusion that the defendant in McBride was entitled to inspection of the evidence at issue contradicted our holding in Quinones that the trial court could refuse discovery because the evidence was not shown to be exculpatory.109 106 Id. at 251 n.7.

107 Id.

decision on what is discoverable is left up to the trial judge's discretion, but a judge is required "to permit discovery if the evidence sought is material to the defense of the accused."104 Then, relying

108 Agurs , 427 U.S. at 109–10, 96 S.Ct. 2392

upon Detmering , Bates, and Quinones , we recognized an absolute right to an independent examination of evidence "indispensable to the State's case," and we grounded this holding on the

affected the outcome of the trial, does not

(holding that "the mere possibility that an item of undisclosed information might have helped the defense, or might have establish ‘materiality’ in the constitutional sense").

21

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619 S.W.3d 265 (Tex. Crim. App. 2021)

109 Quinones , 592 S.W.2d at 940 ("More

importantly, there are no statements on the tape that are exculpatory in any way. This

the time the Michael Morton Act was passed. The many different arguments presented in this case bear that out.

is not a case where the prosecutor sought to withhold evidence that the defense could have advantageously presented to the jury.").

After McBride , we alternated between standards for determining when a trial court's refusal to order disclosure was reversible error. On the one hand, in Massey v. State , we applied the "indispensable to the State's case" standard that we articulated in McBride to a situation in which the defendant failed to carry his burden to demonstrate "good cause" for discovery.110 On the other hand, in Ex parte Miles , we applied the traditional Brady standard set out in Quinones , but we did so to note that Article 39.14 ’s exclusion of privileged material does not trump the due process requirement of disclosure under Brady .111 Then, in Ehrke v. State , we said again 288

that if a defendant in a controlled-substance case asks to inspect the alleged controlled *288 substance, then the court must permit inspection, even without a showing of good cause, because the substance is material to the defense of the accused.112 110 Massey v. State , 933 S.W.2d 141, 153

(Tex. Crim. App. 1996).

111 Ex parte Miles , 359 S.W.3d 647, 670 (Tex.

Our precedent can be read to support the position that our use of the materiality standard for Brady violations was this Court's attempt to define the word "material" in the statute. But even then, which definition are we talking about: "indispensable to the State's case" or "creates a reasonable doubt that did not otherwise exist"?

Conversely, our precedent can also be read as applying "materiality" to the standard for determining harm from a trial court's discretionary refusal to order disclosure rather than construing the statutory phrase "material to any matter involved in the action." This latter reading of our precedent focuses upon a different inquiry than courts are required to undertake after the passage of the Michael Morton Act. Not only is there no statutory limitation in Article 39.14(a) to the ultimate issue of guilt or punishment, Article 39.14(h) creates a statutory duty to disclose that is broader than the constitutional due process obligation recognized in Brady v. Maryland .

Indeed, the creation of Article 39.14(h) is inconsistent with this Court's precedent relying upon the due process concept of "materiality" to determine whether the refusal to order disclosure amounted to harmful error. This statutory change suggests a departure from our precedent interpreting the previous version of Article 39.14.

Crim. App. 2012).

112 Ehrke , 459 S.W.3d at 611. Ehrke was

decided after the enactment of the Michael Morton Act but was tried under the previous version of the statute.

On the whole, this Court's jurisprudence in this area focused on whether a conviction could be reversed because of a trial court's discretionary call to refuse to order disclosure, rather than on whether particular evidence could be categorized as "material to any matter involved in the action."

There had not been an authoritative decision by the Court regarding the meaning of the phrase at

As mentioned above, required disclosure is no longer left to the discretion of the trial court.

Given that, we could just as easily presume a legislative abandonment of our "materiality" precedent as we could presume that our Legislature intended a particular meaning for the statutory phrase at issue. Consequently, we hold that the "Prior Construction Canon" is inapplicable in this case because there has not been an authoritative decision from this Court on what constitutes evidence "material to any matter

22

Watkins v. State

619 S.W.3d 265 (Tex. Crim. App. 2021)

involved in the action." Without that presumption, we must rely upon the ordinary definition of the terms in the statute.

In an amicus brief to this Court, the SPA argues that we should apply our precedent interpreting the previous version of Article 39.14 as a matter of stare decisis. 113 But we are not asked to apply the previous version of the statute; we are asked to interpret a new version of the statute as if it had been enacted in its amended form.114 Having determined that the "Prior Construction Canon" does not apply in this case, there is no reason to apply our precedent interpreting the previous version of Article 39.14.

113 SPA Amicus Br. 3 114 See Powell , 516 S.W.3d at 493.

There was some opposition to the broad scope of the bill as a whole. Two prosecutors testified against the bill in their individual capacities, but neither took issue with the phrase "material as to any matter involved in the action."117 Ultimately, the bill and the opposition to it focused upon large-scale change to the existing statute. There is no specific discussion of why the Legislature chose to keep the phrase "material to any matter involved in the action." Even if we assume that those opposed to the bill would have preferred an outcome-determinative interpretation of the word "material", we could also assume that those in favor of the bill favored the ordinary definition of the word.

117 See Hearing on S.B. 1611 Before the H.

Comm.

On

Judiciary

&

Civil

Jurisprudence, 83rd Leg., R.S. (2013).

The Legislative History of the Michael Morton Act Doesn't Require a Different Interpretation 289

Even if we were to assume that the use of the word "material" in Article 39.14 is *289 ambiguous and consult extra-textual sources, the legislative history behind the passage of the Michael Morton Act does not provide definitive support for any particular construction beyond adopting the ordinary meaning of the text. The goal behind the passage of the Michael Morton Act was first to preserve a criminal defendant's rights under Brady v. Maryland .115 The working theory for the bill sponsors was that uniform discovery would make discovery more efficient; reduce discovery disputes; and save taxpayer money by reducing appeals, incarceration, and possible compensation for wrongful convictions.116

Notably, the first version of the bill specifically used the word "relevant" to describe the evidence subject to disclosure rather than "material."118 The sponsors reached a compromise that deleted some text from the previous version of Article 39.14(a) but kept the reference to evidence "material to any matter involved in the action."119 Yet, throughout the life of the bill, the bill analyses continued to refer to the disclosure of "relevant" evidence.120 118 Tex. S.B. 1611, 83rd Leg., R.S. (2013)

(introduced).

119 Tex. S.B. 1611, 83rd Leg., R.S. (2013)

(engrossed & enrolled).

120 Compare Senate Research Center, Bill

Analysis, Tex. S.B. 1611, 83rd Leg., R.S. (March 25, 2013) (introduced), with Senate Research Center, Bill Analysis, Tex. S.B. 1611, 83rd Leg., R.S. (July, 26 2013)

115 Sen. Comm. on Criminal Justice, Bill

(enrolled). During the third reading of 2013

Analysis, Tex. S.B. 1611, 83rd Leg., R.S.

SB 1611, Senator Ellis, the primary author

(2013).

of the Michael Morton Act, stated: "... It removes barriers to discovery processes in

116 Id.

Texas to ensure a more relevant evidence procedure comes forward and evidence that is relevant will be disclosed; it has to be

23

Watkins v. State

290

619 S.W.3d 265 (Tex. Crim. App. 2021)

disclosed." S.J. of Tex., 83rd Leg., R.S.

(2014) ("This new law has changed

818, 819 (2013) (Rodney Ellis’ statement

criminal

of intent).

codifying open-file policies.").

The Legislature's choice to use the same phrase from the previous statute could suggest that "material" should be seen as something different than "relevant." But, it is equally possible that the legislative compromise flowed from the appreciation that the existing language in the statute could be seen as synonymous with "relevant," particularly in light of the many definitions of "material" that include "relevant."

And many practitioners and commentators who have reviewed the new statute seem to regard it as a complete break from the previous framework for criminal discovery.121 *290 Ultimately, we are simply left with the text of the phrase and must consider the meaning of "material" in the context that it appears in the statute.122 A reasonable reader would have understood the word "material" to have its ordinary definition at the time it was enacted, in light of the way it appears in the statute.123 We cannot say that our case law on the issue was so clear that our Legislature waded through it and passed the Michael Morton Act with any specific meaning in mind beyond the ordinary one.124 Consequently, we hold that the word "material" as it appears in the statute means "having a logical connection to a consequential fact" and is synonymous with "relevant" in light of the context in which it is used in the statute.125 121 See Cynthia E. Hujar Orr & Robert G.

Rodery,

The

Michael

Morton

Act:

discovery

dramatically

by

122 See Boykin , 818 S.W.2d at 785.

123 See Scalia & Garner, supra note 25, at 46.

124 See Lightfoot , 137 S. Ct. at 564.

125 Black's Law Dictionary 1170 (11th ed.

2019); Black's Law Dictionary 1124 (10th ed. 2014); Black's Law Dictionary 998 (8th ed. 2004); Black's Law Dictionary 793 (abridged 7th ed. 2000).

Were the Exhibits in this Case "Material to Any Matter Involved in the Action"?

Yes. Appellant is correct that the court of appeals erred in its analysis regarding whether the exhibits were "material." We have observed there are no distinct facts of consequence at punishment that proffered evidence can be said to make more or less likely to exist.126 But that is because deciding punishment is a normative process that is not intrinsically fact bound.127 To allow for this, we have recognized that punishment-phase facts fall within two categories: normative facts and subsidiary facts. We recently explained these categories in Beham v. State .

126 Ellison v. State , 201 S.W.3d 714, 718–19

(Tex. Crim. App. 2006).

127 Beham v. State , 559 S.W.3d 474, 478 (Tex.

Crim. App. 2018).

Minimizing Prosecutorial Misconduct , 46 St. Mary's L.J. 407, 414 (2015) ("[The Act] creates an open file policy, obviating the need for the defense team to continue requesting discovery."); Randall Sims & R. Marc Ranc, Two Views of Morton: When the Michael Morton Act Took Effect in January 2014, It Changed the Way Criminal Cases Are Handled in Texas— and

How

Prosecutors

and

Defense

Attorneys Work , 77 Tex. B.J. 964, 964, 966

24

Watkins v. State

619 S.W.3d 265 (Tex. Crim. App. 2021)

Normative facts are those that directly impact "the factfinder's normative response to the defendant." An example of this is evidence that, beyond a reasonable doubt, the defendant previously committed an extraneous criminal offense. This is a basis upon which a jury could legitimately form a clearer opinion as to the proper punishment for the defendant's conduct.

Normative facts can therefore be thought of as "fact[s] of consequence" in the punishment context. Subsidiary facts are those "that do not by themselves impact a factfinder's normative response to the defendant," but are relevant insofar as they assist in "proving or disproving a normative fact." If the normative fact at issue is the commission or noncommission of an extraneous offense, some examples of subsidiary facts might be eyewitness testimony pertaining to the offense, an alibi, or evidence affecting a witness's credibility.128 128 Id. at 480 (internal citations omitted).

291

In this case, the exhibits were a collection of booking records, pen packets, and judgments of prior convictions that were used to prove two prior convictions for enhancement and other extraneous offenses that Appellant had committed. It is enough to say that these exhibits were at least "subsidiary facts" that could assist the fact-finder in finding normative facts *291 such as the commission of prior offenses, both extraneous and enhancement. Simply put, they have a logical connection to a consequential fact and should have been disclosed upon a proper request.

Conclusion According to the plain text of Article 39.14, criminal defendants now have a general statutory right to discovery in Texas beyond the guarantees of due process. Under this new version of this statute, we interpret the word "material" as it appears in context to mean "having some logical

connection to a fact of consequence." The exhibits at issue in this case fit that definition. The State erred by failing to produce those exhibits prior to trial in violation of Article 39.14(a). We reverse the court of appeals’ decision and remand this case for the court of appeals to conduct the proper harm analysis.

Keller, P.J., filed a dissenting opinion.

Yeary, J., filed a dissenting opinion.

Keller, P.J., filed a dissenting opinion.

The prior version of our discovery statute required disclosure of certain "evidence material to any matter involved in the action."1 In 2013, the discovery statute was amended in many significant respects, but it retained the language "evidence material to any matter involved in the action."2 Addressing the 2013 amendments in this case, the Court construes the word "material" to mean "relevant," saying that they mean the same thing and that "relevant" is the ordinary definition of "material." But the Legislature did not change the word "material" to "relevant" when it amended 39.14(a). That fact should itself be a fair indication that the Legislature intended that, in order to be discoverable, the evidence listed in Article 39.14(a) be subject to a materiality standard rather than a standard of mere relevance.

1 Tex. Code Crim. Proc. art. 39.14(a) (2011).

2 Tex.

Code Crim. Proc. art. 39.14(a)

(current). Evidence that is exculpatory, impeaching, or mitigating is discoverable regardless of whether it is shown to be "material." Id. art. 39.14(h). At issue in this case are other kinds of evidence listed in the statute.

But in case doubt remains about whether the Legislature meant what it said when it used the word "material," there is more evidence. As the Court points out, "material" was changed to "relevant" in the first draft of the amending bill, but that version was not adopted.3 Instead, in spite

25

Watkins v. State

619 S.W.3d 265 (Tex. Crim. App. 2021)

of the many amendments to the old discovery statute, the bill was amended to go back to the word "material," and that is the word in statute.4 The most obvious explanation for the Legislature's rejection of the word "relevant" is the Legislature's rejection of the concept of relevance in 39.14(a). It follows that the Legislature intended to require that the evidence to which 39.14(a) refers be material in order to be discoverable.

3 Tex. S.B. 1611, 83rd Leg., R.S. (2013)

(introduced)

(providing,

among

other

things, for the discovery of "any evidence relevant

to

the

defendant's

guilt

or

punishment.").

4 See supra at n.2.

292

The Court acknowledges that the Legislature's choice to use the same phrase as that in the previous statute could suggest that "material" should be seen as different from "relevant." The Court says, though, that it is equally possible that "relevant" was changed back to "material" because two words are synonymous. This is a strange and counter-intuitive canon of construction.5 *292 And it is, I think, inaccurate in this case anyway. For one thing, when Rob Kepple of the Texas District and County Attorneys Association said the people he represented were fine with the bill "as it is," he also said that the version of the bill before the Legislature was the result of negotiations and compromises.6 That being the case, it seems much more likely that changing the word from "relevant" to "material" would have been part of those negotiations rather than simply substituting one supposed synonym for another.

5 I do not know how this reasoning will

apply when the Legislature amends a statute to use a word's synonym for a word used in a prior statute.

6 See

Public

Hearing,

H.

Comm.

on

Judiciary & Civil Jurisprudence, Tex. S.B. 1611, 83rd Leg., R.S., video at 44:24 45:55 (April 29, 2013).

--------

Also, the Court cites to the statements of many commentators about the new statute. But these commentators fairly uniformly seem to say only that the new statute is dramatically changed in that it creates an open-file policy. In that sense, it is true that the statute is a "complete break" from the old. But I do not think that the statements of the commentators cited by the Court support the idea that the statute as a whole is a complete break from the old. The new statute builds on the framework of the old statute and expands it. The new statute does away with the need to show good cause for discovery of evidence described in section (a), but the language that defines what that part of section (a) encompasses, "evidence material to any matter involved in the action," has not changed. That fact, plus the fact that the Legislature affirmatively rejected the change from "material" to "relevant" seem to me to be clear indications that we should not substitute any of the many synonyms for "material" found in dictionaries or thesauruses for the word the Legislature chose to use.

I respectfully dissent.

DISSENTING OPINION Yeary, J., filed a dissenting opinion.

Article 39.14(a) governs the discovery of "evidence material to any matter involved in the action[.]" TEX. CODE CRIM. PROC. art.

39.14(a) (emphasis added). I entirely agree with Presiding Judge Keller when she concludes that "we should not substitute any of the many synonyms for ‘material’ found in dictionaries or thesauruses for the word the Legislature chose to use." Dissent of Presiding Judge Keller (hereinafter, "Dissent") at 292. The statute does not say "evidence relevant to any matter involved in the action[.]" It explicitly says "material."

The Court frames the process as one of discerning the apparent legislative intent. See Majority Opinion at 271 ("When we interpret statutes, we seek to effectuate the collective intent or purpose of the legislators who enacted the legislation.").

26

Watkins v. State

293

619 S.W.3d 265 (Tex. Crim. App. 2021)

Presiding Judge Keller responds in kind, and the two sides of this debate come to conflicting conclusions on the question of what the Legislature evidently intended to convey when it used the word "material." If I believed that to be the appropriate framework, I would agree with Presiding Judge Keller's observation that the legislature plainly considered amending the word "material" from the prior version of the statute to read "relevant," and it just as plainly rejected that option, choosing instead to retain the word "material" from the prior version of the statute; and that this choice reflected an evident legislative "intent or purpose" to adopt "a materiality standard rather than a standard of mere relevance."

Dissent at 291. But I continue to resist the idea that statutory construction should routinely be a matter of judges discerning amorphous legislative intent. *293 We should construe a statute by focusing on the words actually used, themselves— here, "material"—rather than keying on some subliminal meaning shrouded in those words that we think, from our not-wholly-infallible judicial perspective, best implements the legislative purpose. By continuing to work within a constitutionally flawed framework, in which we purport to wrest out an evident legislative intent behind words actually used by the legislature, we risk violating our constitutional duty to avoid

making the law. TEX. CONST. art. II, § 1. The risk is simply too great that we will draw conclusions that really reflect our own attitudes about best policy choices, in derogation of the Legislature's constitutional prerogative to set policy by making the law. Id. ; see also Lang v.

State , 561 S.W.3d 174, 187–88 (Tex. Crim. App. 2018) (Yeary, J., dissenting) ("I continue to believe that, if the literal language and structure of a statute render it of sufficient clarity that its proper construction cannot be reasonably doubted, it would improperly encroach upon the Legislative Department for this Court to engage in further construction of it."); Ex parte Westerman , 570 S.W.3d 731, 739 (Tex. Crim. App. 2019) (Yeary, J., dissenting) ("When Texas courts recognize that we have overstepped the constitutional mandate in Article II of our Texas Constitution and have become legislators ourselves, we should acknowledge our fault, and step rightly back to our place.").

Statutory law is what it says, not what the Legislature might have intended it to say. In the context of Article 39.14(a), the word "material" simply means "material"—no more and, certainly, no less. I respectfully dissent.

27

MAIN CASE REPORT HOU-1809-16590 GENERAL CASE INFORMATION Synopsis:

AGENCY INFORMATION Agency Name

Agency Case Number

FRIENDSWOOD PD

181771

OFFENSES Code

Offense Date

21

09/09/2018

County of Offense

Description

Galveston

Intoxication Offense

INDIVIDUALS Type

Name

Suspect

F (DOB 01/17/66) TX DL 1

EVIDENCE Item #

Description

Submitted By

01

DPS Blood Kit

Tram, Johnny, Friendswood Police Department

Submitted On 09/17/2018

REQUESTS FOR ANALYSIS Request # 0001

Alcohol Content and Toxicology

Status: Admin. Reviewed

Request Date: 09/17/2018

Request By: S McCaffrey

Assigned to: Yen Jun Eric Ho Draft Completed by: Yen Jun Eric Ho on 10/9/2018 Technically Reviewed by: Cheryl Szkudlarek on 10/12/2018 Administratively Reviewed by: Cheryl Szkudlarek on 10/12/2018

ACTIVITY INFORMATION 03/16/2021 Activity: Phone Call

Started: 03/16/2021

Staff Member: Yen Jun Eric Ho (Houston)

Completed: 03/16/2021

Notes Went over testimony with ADA Ashley Seitz. First BA trial in career. Tyler Flood defense attorney.

Went over everything I can think of.

Extrapolate Info no time of last drink, 128 lb female, last food at 12:30 PM, stop at 7:31 PM, draw at 9?09 PM with 0.229, assuming 90 min elimination, retrograde would be 0.25 at stop, based on weight each standard drink would be around 0.04 g/100ml blood increase, 6-7 standard drinks min

04/23/2021 Activity: QAP

Started: 04/23/2021

Staff Member: Christina Herman (Austin)

Completed: 04/23/2021

Notes QI-SYS-2020-0427-BA

02/28/2022 Activity: E-Mail Staff Member: Yen Jun Eric Ho (Houston)

Started: 02/28/2022 Completed: 02/28/2022

TxDPS 12.01.2021 [Main Case Report.rpt]

03/02/2022

Page 1 of 3

HOU-1809-16590 02/28/2022 Notes From: Ho, Yen-Jun Sent: Monday, February 28, 2022 12:37 PM To: Davis, Wesley <Wesley.Davis@galvestoncountytx.gov> Subject: RE: Wesley, Tyler Flood always believes there is something wrong with the lab report. I didn't see anything different in this case relative to the other cases. We will probably talk about method validation, instrument maintenance, use of standards, and proper chain of custody among other things. I ask that if there are certain topics you wish me to clear up in rebuttal please give me an opened ended question and then I can explain. Also it'd be great to get a recess in between cross and rebuttal so we can go over things.

That has seemed to work the best in the past.

Some attorneys choose to give me the time of last drink to me as a hypothetical so that retrograde can be performed. Not sure if that's what you wish to do or how vital this is to your case.

I have told your predecessor that I would expect a 0.25 at the time of the stop if the hypothetical time of last drink is an hour from the stop on an empty stomach.

Eric From: Davis, Wesley <Wesley.Davis@galvestoncountytx.gov> Sent: Sunday, February 27, 2022 7:15 PM To: Ho, Yen-Jun <Yen-Jun.Ho@dps.texas.gov> Subject: 1 CAUTION: This email was received from an EXTERNAL source, use caution when clicking links or opening attachments.

If you believe this to be a malicious and/or phishing email, please send this email as an attachment to SPAM@dps.texas.gov.

Eric, Tyler Flood seems to think there is something wrong with the lab report HOU-1809-16590. He was provided with blood discovery in this case. Were there any anomalies that you noticed? It is totally possible that Tyler Flood is sending me on a goose chase for nothing.

Lastly, you had asked me if I could provide you with more information in order to perform any extrapolation in this case. It is my understanding that you need the time of last drink in order to accurately perform the test, but here is everything that I have: Time of stop: 7:30 PM Time of draw: 9:09 PM White Female 5'4'' 128 lbs DOB 1/17/1966 Result: .229 Regards, Wesley Davis 3B Assistant District Attorney

Activity: E-Mail Staff Member: Lynsey Arbogast (Houston)

Started: 02/28/2022 Completed: 02/28/2022

Notes

From: Houston Crime Lab TxDPS 12.01.2021 [Main Case Report.rpt]

03/02/2022

Page 2 of 3

HOU-1809-16590 02/28/2022 Sent: Monday, February 28, 2022 9:40 AM To: James, Monique <Monique.James@dps.texas.gov> Subject: FW: Blood Discovery ; Cause No. M Hi Monique, Sending for your review and response.

Thank you, Lynsey From: Andrea Podlesney <Andrea@tylerflood.com> Sent: Friday, February 25, 2022 12:05 PM To: Houston Crime Lab <HoustonCrimeLab@dps.texas.gov> Subject: FW: Blood Discovery er; Cause No. M

6

Good Afternoon, this subpoena was served on Ms. James on January 5, 2021, a follow up email was sent on March 9, 2021. We still haven't received discovery for this case. This case is set for trial on Monday, February 28th. We need the blood discovery before 10 am on Monday, February 28th. Thank you.

Andrea Podlesney, TBLS-BCP Texas Board of Legal Specialization Board Certified Paralegal-Criminal Law Tyler Flood & Associates, Inc. 2019 Washington Avenue Houston, Texas 77007 Phone: (713) 224-5529 Fax: (713) 224-5533 Email: andrea@tylerflood.com www.TylerFlood.com CONFIDENTIAL

From: Andrea Podlesney <Andrea@tylerflood.com> Date: Tuesday, March 9, 2021 at 10:05 AM To: DPS Houston Crime Lab <HoustonCrimeLab@dps.texas.gov> Cc: Office <Office@tylerflood.com> Subject: Blood Discovery ; Cause No. M Good Morning, the attached subpoena was served on Ms. James on January 5, 2021. Will you please provide an update on when we can expect to receive blood discovery for this case? Thank you.

Andrea Podlesney, TBLS-BCP Texas Board of Legal Specialization Board Certified Paralegal-Criminal Law

2019 Washington Avenue Houston, Texas 77007 Phone: (713) 224-5529 Fax: (713) 224-5533 Email: andrea@tylerflood.com www.TylerFlood.com CONFIDENTIAL

TxDPS 12.01.2021 [Main Case Report.rpt]

03/02/2022

Page 3 of 3

Texas Criminal Defense Lawyers Association

28th Annual NCDD/TCDLA Mastering Scientific Evidence March 24-25 Royal Sonesta New Orleans, LA

Topic: A.R.I.D.E.: Brief Overview Speaker:

Tony Palacios 12600 Deerfield Pkwy Ste 100 Alpharetta, GA 30004 (678) 566-3787 phone apalacios@impaireddrivingspecialists.com email www.impaireddrivingspecialists.com website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

2/27/2022

NHTSA’s “Advanced Roadside Impaired Driving Enforcement” ARIDE: BRIEF OVERVIEW

1

History of NHTSA’s ARIDE Training • 2008 – first curriculum released (R:11/07) • Replaced “Drugs That Impair Driving” (D.T.I.D.) • 2013, 2015, 2018

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What is ARIDE Training?

• Next step after NHTSA DWI/SFST Student Course • Prerequisite ‐ NHTSA DWI/SFST Student Course • 16 hours • 9 sessions/chapters • SFST Proficiency • 22 question written exam • No live workshop

3

1

2/27/2022

ARIDE Training Course Sessions 1. Introduction/Overview of Drugs & Highway Safety 2. SFST Review 3. SFST Proficiency Examination 4. Drugs in the Human Body 5. Observation of the Eyes & Additional Tests for Drug Impairment

6. Seven Drug Categories 7. The Effects of Drug Combinations 8. Pre & Post Arrest Procedures 9. Written Exam & Conclusion

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Session I ‐ Drugs & Highway Safety • 55‐minute session • Goals and objectives of the ARIDE course • Elements of the drug problem • Other impaired driving enforcement programs Roles and responsibilities of the DRE • Term drug in the context of traffic safety and impaired driving enforcement

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Session II ‐ SFST Review • 1 hour & 30‐minute session • Review of the 3 original SFST Validation Studies • Review of the 3 mid‐90’s Field Validation Studies • Review of the standardized procedures of the SFSTs • Review of the standardized clues of the SFSTs • Review of the standardized scoring of the SFSTs

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2

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Session III ‐ SFST Proficiency Exam • 2‐hour session • Demonstrate the ability to properly administer the SFSTs • 2 opportunities “DO NOT offer this aid, how ever keep in mind many law enforcement officers carry pocket instructions on duty. They will be allowed to use them during the proficiency examination” (ARIDE Instructor Manual, Session III, page 5)

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Session IV ‐ Drugs in the Human Body • 55‐minute session • The basic purpose of select major systems in the human body • Methods of ingestion • Medical conditions that mimic alcohol and drug impairment

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Session V – Observation of the Eyes & Additional Tests for Drug Impairment • 1 hour and 30‐minute session • Eye Exams – HGN, VGN, Lack of Convergence as it relates to the 7 drug categories • Proper Administration of LOC • Pupil sizes as it relates to the 7 drug categories • Modified Romberg Balance test • Finger to Nose test

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Drug Categories that Induce Nystagmus • CNS Depressants • Inhalants • Dissociative Anesthetics “D.I.D.” Drugs

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Pupil Size Observations • Dilated Pupils ‐ when the pupils are larger than expected for the given lighting condition • Constricted Pupils ‐ when the pupils are smaller than expected for the given lighting condition

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Pupil Size & Drug Categories Dilated • CNS Stimulants • Hallucinogens • Cannabis

Constricted • Narcotic Analgesics

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Lack of Convergence Test The inability of the person’s eyes to converge or cross as the person attempts to focus on a stimulus as it is pushed towards the bridge of the nose.

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Drug Categories that Induce LOC • CNS Depressants • Inhalants • Dissociative Anesthetics • Cannabis “D.I.D.C” Drugs

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Modified Romberg Balance Test • Time estimation • Balance • Presence of tremors (eye and body)

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Modified Romberg Balance Test “The use of the MRB time estimation to predict or relate to certain drug categories is not supported by research at this time. Performance outside the range of plus or minus 5 seconds must be used cautiously and considered with the totality of the decision process.” NHTSA ARIDE Instructor Manual, Session V, Page 19

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Proficiency Test & ARIDE Field Tests • No proficiency test on LOC, MRB, & FTN. • SFST Proficiency test only.

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Session VI – Seven Drug Categories • 3 hours and 30‐minute session • Name of each of the 7 drug categories • Common methods of ingestion for each category • General Indicators of each drug category • Conditions that may mimic the indicators for each drug category

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2/27/2022

NHTSA’s Seven Drug Categories • CNS Depressants • Narcotic Analgesics • CNS Stimulants • Inhalants • Hallucinogens • Cannabis • Dissociative Anesthetics

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Session VII – Drug Combinations • 30‐minute session • Statistics on drug combination use • Polydrug use • The Four Effects

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Session VIII – Pre and Post Arrest • 2‐hour session • Preparing for the prosecution of a drug impaired driver • The 3 phases to DWI Detection • Documenting evidence during the 3 phases

21

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2/27/2022

Session IX – Written Examination • No time requirement in Instructor Manual • 22 question written exam • 80% minimum score • 1 make up opportunity

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NHTSA Validation Studies ‐ ARIDE • No Validation Studies conducted for ARIDE

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Post‐Training Requirements – ARIDE Officer • Not required to stay proficient in DUI Drug arrests • Not required to attend additional DUI drug training • Not require to maintain DUI Drug arrest log

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Final Thought ARIDE trained officers cannot give an opinion on a specific drug category.

• Three locations in ARIDE curriculum: • Session V, Page 28 • Session V, Page 29 • Session VIII, Page 29

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Anthony D. Palacios Consultant to Attorneys Impaired Driving Specialists, LLC ap@impaireddrivingspecialists.com fieldsobrietytraining.com 678.410.1120

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None None None Dilated Hallucinations Paranoia Nausea Perspiring Dazed appearance Flashbacks Body tremors Uncoordinated Poor perception of time and distance Disoriented Memory loss Synesthesia Difficulty with speech

None None Dilated Restlessness Body tremors Excited Euphoria Talkative Exaggerated reflexes Anxiety Grinding teeth (bruxism) Redness to nasal area Runny nose Increased alertness Dry mouth Irritability Eyelid and leg tremors Insomnia

Revised: 02/2018

Hallucinogens

None

Stimulants

*Soma, Quaaludes and certain antidepressants may dilate **Normal but may be dilated ***Dilated by may be normal

Present Present VGN (High Dose) LOC Present Pupil Size Normal* Wide variety of emotional behavior Disoriented Sluggish Thick, slurred speech Drunk-like behavior Droopy eyelids General Relaxed Indicators inhibitions Uncoordinated Drowsiness Unsteady/ staggering walk

HGN

Depressants

Present Normal Perspiring Blank stare Cyclic behavior Chemical odor Incomplete verbal responses Warm to the touch Slurred and repetitive speech Hallucinations Confusion Possibly violent Difficulty with speech Disoriented Early angle of nystagmus Noncommunicative Sensory distortions

Present

Dissociative Anesthetics Present

ARIDE Drug Category Matrix Inhalants

Present Present None (High Dose) None Present Constricted Normal** Confusion Droopy eyelids Flushed face “On the Nod” Intense headaches Drowsiness Depressed reflexes Bloodshot/watery eyes Dry mouth Lack of muscle Slow, low, raspy control speech Odor of inhaled Euphoria substance Puncture marks NonItching communicative Nausea Disoriented Slowed breathing Slow, thick, slurred speech Possible nausea Residue of substance around mouth/nose

Narcotic Analgesics None

Present Dilated*** Euphoria Bloodshot eyes Odor of marijuana Marijuana debris in mouth Body tremors Increased appetite Relaxed inhibitions Disoriented Possible paranoia Altered time/ distance perception Eyelid tremors Sedation

None

None

Cannabis

Texas Criminal Defense Lawyers Association

28th Annual NCDD/TCDLA Mastering Scientific Evidence March 24-25 Royal Sonesta New Orleans, LA

Topic: Persuasive Breath Testing Tactics that Win Speaker:

Doug Murphy 902 Heights Blvd Houston, TX 77008 (713) 229-8333 Phone (713) 583-0205 Fax doug@dougmurphylaw.com Email www.dougmurphylaw.com Website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

BREATH TEST TRIAL TACTICS William Kirk

Doug Murphy

Cowan Kirk Kattenhorn

Doug Murphy Law Firm, PC

4040 Lake Washington Blvd., Ste 300

902 Heights Blvd.

Kirkland, WA 98034

Houston, TX 77008

425-822-1220

713-229-8333

www.cowanlawfirm.com

doug@dougmurphylaw.com

A. INTRODUCTION Speaking, lecturing or teaching on cross examination is a tricky task. The reason for this is what works for one attorney may not necessarily work for another. What works in one jurisdiction may fail miserably in another. Cross examination is based upon style and no lawyer should change their style to conform to what another attorney has suggested. During the course of this material and the oral presentation, please keep in mind that the author(s) do not claim to be the “know all” authority on how cross examination should be conducted. Instead of focusing on style, you should focus on what is asked and what words are used to ask those questions. If you find something you like, take it, use it, but make it your own. Do it according to your style.

Cross examine a witness in a manner that makes you comfortable. Cross examine a witness based upon what you know will be effective. But don’t hesitate to try new things. Don’t hesitate to take your old approach and tinker with it. Try a new line of questions, try a new style of cross.

You might be amazed at what a few minor adjustments might do for you.

Motions hearings provide the greatest opportunity for experiment. It also provides the young or new lawyer the practice necessary to improve their skills. For that reason, pre-trial motions should be filed in every case that is headed towards trial. Not only may you succeed in suppressing evidence and thus destroying the prosecution’s case, but will develop a greater comfort level with your cross examination. You will see what works and what doesn’t. You will teach yourself some painful, but valuable lessons. You will make mistakes, you will get buried at times. Don’t worry, everyone that has been defending those accused of DUI has made the same mistakes and been trounced numerous times. The trick is to learn from your mistakes and not repeat them.

Don’t be afraid to talk to judges, other attorneys, or even prosecutors after a hearing. See what they thought worked for you. See what they though didn’t work. The author quit talking to juries years ago about why they had reached certain verdicts. It left me with lack of hope in the jury system when it comes to proof beyond a reasonable doubt and the presumption of innocence. However, I do still talk to juries about how they felt a cross examination went. As important to “how many points we had scored,” I really find it helpful to find what impressions I left with the jury as to how the witness was treated. This will be discussed further in this paper.

By far, the finest training that anyone can receive that is DUI specific is offered at seminars such as these, but also through the National College for DUI.1 Specifically, NCDD’s Summer Session, held every July at Harvard Law School in Cambridge, Massachusetts, specifically focuses on DUI trial skills. Attendees will not only receive demonstrations by some of the

1

www.ncdd.com.

country’s finest DUI lawyers, they too will participate in actual cross examination with the opportunity for critique and experiment.

B. TO CROSS OR NOT TO CROSS, THAT IS THE QUESTION The first decision to make is whether you should even cross-examine a witness. This may sound odd because we expect to cross examine every witness that testifies against us. But sometimes, that is actually not necessary. Sometimes the witness has done so little for the other side that you may decide not to cross at all. You can imagine what impression this leaves with a jury when the other side doesn’t even both to get up and ask a single question. In order to make that decision, you must know what you want to accomplish by cross examining a witness. Authorities on trial practice suggest that the following factors should be considered in making that decision: 1. Did the witness hurt your case by their testimony on direct? If so, can you minimize or repair the damage on cross examination?

2. Can you obtain testimony on cross examination to help your case?

3. Can you obtain testimony on cross examination that will hurt your adversary’s case?

4. Do you need the witness to establish an evidentiary foundation to admit a document or other exhibit in evidence?

5. Can you discredit the testimony given on direct examination? In other words, can you demonstrate inconsistencies in the testimony given on direct examination? Can you demonstrate that the testimony given on direct conflicts with the testimony of other witnesses?

6. Can you discredit the witness? For example, can you show that the witness is biased?

Prejudiced in favor of your adversary and/or against your client? Has a motive to lie? Is personally, financially or otherwise interested in the outcome of the litigation? Was not in a position to see or hear the even that they just testified about on direct?

7. Can the cross examination be used to enhance or destroy the credibility of other witnesses?

8. Is the witness so important that you should undertake some sort of cross examination to fulfill the expectations of the jury?

Unless the answer to one or more of these questions is “yes,” you would be well-advised not to cross-examine the witness. Indeed, the jury may well be impressed when you state “No questions.” The jury may even understand that you have no questions for the witness because the testimony given on direct examination was not important.

As defense attorneys, we far too often want to hear ourselves talk. We think that we need to get up and cross examine for hours to fulfill our client’s expectations. Proper management of those expectations coupled with educating the client as to the goals of cross examination will preclude the need to unnecessary cross examination. Dealing with experts is especially susceptible to this sort of problem. We want to get up there and take a “kitchen sink” approach and explore all angles. Sometimes this is a good method, but often times it merely muddies the waters. The previously articulated checklist is essential to properly preparing for cross examining an expert witness.

C. PREPARATION FOR CROSS EXAMINATION The title of this topic is “the lawyers’ opportunity to testify.” To that end, the purpose of this presentation is to explore new ways of thinking about how we prepare for cross and how we execute effective cross examination. Preparation is critical for proper and effective cross examination. Like what will be discussed below, there are competing schools of thoughts about how this should be done.

The Closing Argument Method of Trial Preparation There is one school of thought that suggests that all trial preparation should begin at the end by preparing a closing argument. This helps identify and perfect the theme of the case. Once the theme is established, across examination can be prepared to further the theory of the case. This will assist the attorney in streamlining their approach and when formulating questions. I have used this theory, and it can be helpful in certain types of cases.

This method is likely used by many that may read this material. The author is not suggesting that this method is wrong. However, if a case is going to be constructed through cross examination, this approach may be too rigid to allow the attorney to adjust.

What’s wrong with planning your trial by starting with the closing argument? The closing has driven our trial preparation for generations and has served as the starting point for countless trials. Consider the following: Time is short. Lack of time is the trial attorney’s universal constant.

Planning the close and then developing the trial backwards poses the risk that the opponent’s case may introduce facts inconsistent with your theory of case. There is no rigorous method to test your imagined closing against the facts. An experienced attorney may apply his or her instincts to uncover flaws, but the existence of a few “good” facts tends to cloud an honest evaluation of the “bad” facts.

If you later discover indisputable facts that are antagonistic or inconsistent with your chosen theory, then your closing must be modified, restructured, or abandoned. Often this discovery is made well into your trial preparation. What little time you had was spent hoeing the wrong row.

Trial preparation which has ignored an indisputable negative fact is valueless. (Ignoring indisputable positive facts is another unnecessary loss). The lawyer scrambles from one imagined closing to the next, adopting theory after theory until the indisputable facts contradict an essential premise. Trial preparation becomes a process of theory elimination.

Using the closing argument to drive the trial preparation could be a waste of time. Worse yet, you could be lulled into hoping that a fact inconsistent with your close will be ignored, forgotten, or somehow neutralized before the jury retires. Finally, we could be so short of time there is no

possibility of reformulating our theory: we are forced to merely hope the indisputable fact won’t matter. Prayer is not preparation.

The Cross-Examination Method of Trial Preparation What does cross-examination-centered preparation do for you? It reverses the tendency to guess and pray. A key to this phenomenon is in learning to recognize and deal with Facts Beyond Change (FBC).

Learning to Identify the Facts Beyond Change The preparation of a major cross exposes those facts that are indisputable and furthermore will suggest the theory of the case, themes, and theme lines. Such indisputable facts are referred to as “Facts Beyond Change” (FBC). An FBC is a fact that will be accepted by the jury as truthful and accurate regardless of any party’s attempt to attack it. An FBC may be favorable, neutral or antagonistic toward your theory. The favorable and neutral FBCs we will want to weave into our case. The antagonistic FBC, the truly inconsistent fact that betrays our theory of the case, circumscribes for us the forbidden territory into which our theory must not stray.

Only a theory that can survive a thoroughly prepared cross, that is, a theory for which every FBC is either favorable or neutral, will have any value by the time the case is called for trial. FBCs are the walls that confine and channel the theory. If the theory is contradicted by an FBC one or the other must give way, for they cannot co-exist. Competing for the jury’s belief, the FBC will prevail, the theory will fail. To hope otherwise is false preparation.

Preparing for cross is the only means of determining which facts are still subject to argument and which facts are beyond change. This is also the means to learn whether there are inferences flowing from the facts that, like their predicates, are beyond change.

A theory that withstands thorough preparation for cross will be a ready instrument when you begin your preparation of the closing argument. Remember this: unless you have prepared your cross thoroughly, you cannot evaluate your theory or plan your close. Cross, however, will provide you the facts, and from your grasp of general legal principles, you may draw upon the law in sufficient measure.

Also, understand the precise definitions to “theory of the case”, “theme”, “theme lines” and various techniques of cross itself. A thorough description of these terms would take pages. In its most general state, a theory of the case is a concise and cogent statement of the advocate’s position that justifies the verdict he or she seeks.

Examples will appear in the second part of this article, reviewing certain techniques for preparation and delivery of the cross.to design the closing argument. Once the cross and close are outlined, the attorney may plan the opening statement and voir dire. This is also the time to polish the trial themes and theme lines.

Cross-driven planning allows you to consider an often-neglected species of fact: the “emotional feel” of the case. You must remember the importance of this neglected “fact”. The jury must

have some concept of your case’s dominant emotional theme. It will adopt one, whether invited to or not. The attorney who presents this emotional theme as a fact will have a far stronger basis for the jury to synthesize that party’s theory of the case by verdict time. A few emotional stances and their natural settings: fear (self-defense), anger or betrayal (malpractice plaintiff), fairness by authorities (entrapment or wrongful termination), justice, sorrow (wrongful death), righteousness (civil rights housing), skepticism (tort defendant), vindication (defamation), forbearance, outrage, etc.

The reason that cross-driven preparation is better than close-driven preparation is simple: throughout the entire process of planning cross-examination, the attorney is guided by facts — in particular those FBCs that must either support the theory of the case or be neutral towards the theory. The attorney is not wasting time with fantasy closings. The attorney is exploiting the natural structure of trial to hone those theories that have the best chance of succeeding. Because the closing argument, by definition, may use logic, illogic, speculation and any other oratorical device, its preparation allows too wide a latitude. It is a poor vehicle in which to haul an untested theory of the case. The cross-examination, by definition, deals with facts, unadorned and subjected to withering scrutiny. Its preparation is the preeminent vehicle to test the theory of the case.

There are a few rules to consider in considering your case’s FBCs. The best source for FBCs are documents, photographs, tests, and the laws of nature. Remember, too, that even an attractive theory will fail before a material FBC: a good fact cannot overcome an unfavorable FBC. Or, as Thomas Huxley once wrote: “The greatest tragedy of science -- the slaying of a beautiful hypothesis by an ugly fact.”

Thorough fact investigation is required in order to determine whether a fact is beyond change.

Never forget that FBCs that favor your theory are the advocate’s dream. Anytime that an element of your theory is matched by an FBC, develop the point by exploiting the indisputable fact. The theory can only benefit from its association with a fact beyond change. In practice, using a theme line in conjunction with a favorable FBC increases the acceptability of the line, and promotes a greater feeling of credibility for your overall theory. For instance, in an assault case, the lack of fingerprinting on the alleged weapon is a potentially favorable FBC. Your theory of the case is that the police did not thoroughly investigate but precipitously arrested your client because he was the only person nearby whose description matched the alleged assailant’s.

One theme line you have chosen is that your client was the “convenient” suspect. A method of exploiting the indisputable lack of fingerprints on the recovered weapon would be to marry the theme line to the FBC. If in the same example, another FBC is your client’s arrest mere minutes after the 911 call, the theme lines about “hasty” decisions in the street, snap decisions, gut instincts, etc. will merge factual picture most readily acceptable to the fact finder. The acceptance of the FBC lends itself to the acceptance of your theme lines, and hence, to your theory and overall defense.

D. GREAT CROSS EXAMINATION RESOURCES

There are several wonderful cross examination instructors that speak on national levels. The author has had the pleasure to be trained by three “Gurus” of cross examination. Larry Pozner and Roger Dodd are perhaps the most recognized lecturers, authors and teachers of cross examination. They speak nationally throughout the entire year. The following is per their website:2 Larry Pozner and Roger Dodd are the bestselling authors of Cross-Examination: Science and Techniques, the bestselling LexisNexis book of all time. With a combined 58 years of trial experience between them, both attorneys have successfully given seminars on trial techniques in all 50 states and several foreign countries. Between them, they have given over 300 seminars since they started working together in 1986.

In conjunction with LexisNexis, the authors publish their seminar material on DVD, on CD-ROM and Audio cassette. They also continue to give live seminars across the country and outside the United States with an average of 30 live seminars per year.

Another fine instructor on cross examination is Terrance MacCarthy who many of you have already heard during this seminar. Mr. MacCarthy has created a very unique yet amazingly easy and successful formula for cross examination based primarily on the form of the question. His approach to cross examination is a radical departure from what we were taught in law school and for that reason, seems odd and foreign when first practiced. However, having utilized this system on a few occasions, it not only works, but as promised, makes you look good.

The differences from Pozner and Dodd’s method and that of Mr. MacCarthy are significant. For that reason, many trial attorneys entrench themselves squarely in one camp. You will find very successful trial attorneys nationwide that swear by Pozner and Dodd’s method. Likewise, you will find many, extremely successful trial attorneys, that believe that the MacCarthy method is the gospel. We will examine both methods, as the author truly believes that both methods are effective, and easy to employ. Furthermore, each of these styles can be utilized in any situation with any kind of witness. Again, this is a style issue and therefore, one that you and you alone must dictate based upon what you are comfortable with.

E. THE POZNER AND DODD CHAPTER AND LOOPING METHOD: The Pozner and Dodd method is based upon two principles: (1) established “chapters” of cross examination, and; (2) looping answers back into questions to build credibility and assist in controlling the witness.

Pozner and Dodd’s “Science” of Cross-Examination: A Learnable Method The goal of trial planning is to create factual support for the theory of case. But a theory which has not taken into account incontrovertible facts antagonistic to our defense will fail. The best planning will come to nothing when the “well-tried” case ends in a disastrous verdict. There are 2

www.pozneranddodd.com

some who suggest that the lawyer’s “art” will overcome these factual pitfalls. If the lawyer is sufficiently gifted or experienced enough, the factual holes can be smoothed over.

Perhaps. But Pozner and Dodd chose the title of their book with a specific purpose: it is the “science” of cross-examination, a system of rules and ideas that can be taught and demonstrated, which ought to guide our preparation and trial of a criminal case. The artful wizards of trial may rely on their innate gifts: for the rest of us, a learnable methodology would do nicely.

Pozner And Dodd’s Three Essential Rules & Some Elementary Rhetoric (Plus The Occasional Acrobatics) The trial lawyer needs to have a method of cross where preparation reveals the fatal un-favorable FBCs (keeping the attorney from using a dead-end theory). The method must also effectively exploit any favorable FBCs while neutralizing the questionable ones. The task requires control, clarity, and momentum. The techniques for this method of cross follow: Rule 1: Ask No Questions, Make Declarative Statements Tell the witness the answer, do not just suggest it.

How do you feel about drinking? (Open ended, great for voir dire) How often do you drink? (Direct; no leading) You do like to drink, isn’t that correct? (Traditional cross; somewhat leading) Compare these commonplace methods with the new science of cross: You drink. followed by, You drink after work. followed by, You drink at lunch. followed by, You drink to forget. (Declarative; pure lead) Note that the declarative begins with a non-verb and never with the deadly leads: “how, why, when did, where did, explain to the jury, did [you, he, she or it], could [you, he, she, or it], have/has [you, he, she], etc.” Also note that the declarative method is a process of small questions building toward a goal. More on the direction of cross below. The best declaratives get a single “yes”. When “no” is the answer you want, “no” is okay, but the best form requires a “yes” response.

As a matter of form, do not use the tired old tag–lines: “isn’t that true,” etc. On occasion, the tag may be needed to nudge a witness early in a cross examination when the witness does not yet understand that your declarative sentences require a response. Your voice inflection should generally do the trick, however. And beware when a tag may even add to the ambiguity that arises from negative questions.

For example:

Q: You did not take the time to look for fingerprints, correct?

Framed in the negative, you likely get...

A: No. No what? No, I didn’t take fingerprints, or, No, you’re wrong, I did...

Rule 2: Add One New Fact Per Statement Learn from the primers: See Spot? See Spot run? See Spot run home? This sing–song method becomes: Q: You hit him.

Q: You hit him with your fists.

Q: You hit him in the face.

Q: You kicked him.

Q: You kicked him in the stomach.

Q: You kicked him in the stomach when he was on his knees.

Q: You kicked him in the stomach even after he was lying on the ground.

Notice that the good facts are LOOPED into the next questions. Looping essential points, when not overdone, can make an indelible mark on the jury. In the above example, seven questions were developed from what another examiner might have condensed to: Q: You beat him up, didn’t you?

Is the declarative method true cross? Will it provoke an objection? More importantly, will the objection be sustained? The method can be so devastating to opposing counsel that an objection is likely. Nevertheless, cross properly employs the declarative method. For support, see, Ohio v.

Roberts, 448 U.S. 56, 70-71, 100 S.Ct. 2531 (1980), which specifically noted that the declarative excerpts in that case “clearly partook of cross-examination as a matter of form...” Besides, done with preparation, the court will love this method. It’s lean and fast and eliminates the bickering.

Rule 3: Build From General To Specific This rule governs the overall organization of the cross. For example, before questioning an officer on the items missing from her report, you begin by establishing the general principles of report writing. Establish that the officer was trained to make reports so that significant details would be recorded, so that superiors could review the case, so that further investigation would benefit from previous work, and overall as a means to assist in helping courts and juries find the truth. As general principles, these points are easily obtained. Now, focus the exam: bring up each point missing from the report. The witness is far less able to escape if the door was closed during the questioning on general points. Examples of general-to-specific are found in the section, below.

Pozner And Dodd’ Special Techniques

Use TRANSITIONS to get the witness focused, to get a quick “yes” and to cut down on exits.

For example, to begin a cross on the expert’s qualifications, in w1hich you do not want the witness running for cover into another topic begin with a transition question: Q: Doctor, I’d like to ask you some questions regarding your training at Podunk U, you understand?

A: All right. [now you can do your declaratives] Q: You attended night classes.

Q: For three years. [learned from interviewing his teacher at Podunk U...]

Q: The program was a two-year program.

Q: The program required two labs.

Q: You transferred one lab credit from Fipple State Voc-School.

Q: You had to retake your Podunk U lab a second time.

The transition statement helps to narrow the discussion, secures the witnesses agreement, and gets a free “yes”. Without the transition, the witness has an easier time wiggling away. The tighter the topic used in the transition, the cleaner the declarative statements will flow. Note, however, that the declaratives must properly fit under the scope of the transition. So long as they do, you have a powerful means to control the witness’s attempts to run away.

Use TRILOGIES. Pozner & Dodd make use of a time-honored rhetorical device: the trilogy. In one example, Pozner & Dodd show how an examiner wove his cross into two trilogies and pounds home a new theme: the facts have changed.

Q: Immediately after the collision, you told the investigating officer that the light was red for the plaintiff.

A: Yes. Q: But now that fact has changed.

A: Yes. Q: You told my investigator three months after your collision that the light was red for the plaintiff.

A: Yes. Q: But now that fact has changed.

A: That’s right.

Q: You told me three days before trial that the light was red for the plaintiff.

A: Yes. Q: But now that fact has changed.

A: Yes. Dealing with the anticipated unfavorable answer. Create a CONTEXT and a favorable CONTRAST. This next example, from Pozner & Dodd, this cross of the snitch, structured with parallel questions to undermine the anticipated unfavorable answer: Q: You have been smuggling loads of marijuana for four years.

Q: You have gotten away with it dozens of times.

Q: In January, 1991, you smuggled a load of marijuana from El Paso to Denver.

Q: It was your load.

Q: You were the driver.

Q: In September of 1991, you smuggled a load from Los Angeles to Denver.

Q: It was your load.

Q: You were the driver.

Q: In January of 1992, you smuggled a load of marijuana from Salt Lake City to Denver.

Q: It was your load.

Q: You were the driver. [these declaratives all get “yes” answers] [now, focusing on the key area where you know you’re going to get an unfavorable “no”] Q: In March, 1992, you were caught smuggling a load of marijuana from Tucson to Denver.

A: Yes. Q: You were the driver.

A: No. Q: It was your load. [time for a little emphasis, as in, you’re not trying to deny this fact too?]

A: Yes. The “no” answer is there (you couldn’t get rid of it) but in the context you set up it is less credible. The contrast between the previous questions (deliberately put into trilogy form) creates a tension with the anticipated unfavorable answer.

In an example from an inventory search, the witness was given general declaratives about the purpose of inventory reports and the overriding need for accuracy. Then, the examiner focused on the specific report in her case: Q: The form you complete has three sections.

Q: Section one asks for the time of the inventory.

Q: So that the report can be verified.

Q: But you left that section empty.

Q: Section two asks for your supervisor’s signature.

Q: So that the report’s accuracy can be verified.

Q: But you didn’t get his signature...

Etc. (Note the developing trilogy... If you don’t have three items to “trilogize” rethink the categories until you do. Trilogies are powerful: they focus attention, they are dramatic, they persuade. Especially when building a CONTEXT and CONTRAST scheme, as above, the TRILOGY works magic.)

Pozner and Dodd on Controlling the Witness. The best feature of this method of cross is its power to put the witness under counsel’s control. Used carefully, racking up “yes” after “yes” with simple short declaratives that build toward a goal, the witness is hard=pressed to venture out on his or her own.

Pozner and Dodd offer a dozen techniques for handling witnesses who attempt to run from the corral: the favorite technique, the simplest and most direct, merely re-asks the question slowly and verbatim. If the question was proper when asked the first time, it is irresistible on the verbatim re-asking. You may add the witness’s name to the question, if that seems appropriate.

Otherwise, do not rephrase when you are trying to keep control. Rephrasing give the witness more permission, it invites more disobedience. Most disobedience is the fault of the examiner.

The fundamental technique of control is not to ask a question that invites disobedience. Frame the general topic with a transition question, build a series of declaratives, do not ask the witness to think but merely to respond, and most witnesses will be forced to comply. There are more control techniques, but reference should be made to Pozner and Dodd’s book for the complete series.

Example of Pozner and Dodd’s Method Considering the “Facts Beyond Change” (FBC).

The following transcript is taken from a prosecution for possession of a soft-ball sized baggie of crack. The baggie was discovered during booking 20 minutes after the defendant had been patted down and stripped searched, without results, by a SWAT commander. The FBCs included 59 grams of crack, a baggie, the defendant’s jacket with a sizeable hole in the pocket, and a booking officer who would testify to finding the crack in the lining. The favorable FBCs included the defendant’s strip search and his jacket’s proximity to an uncharged suspect following the clothing pat-down and strip search. The theory of the defense had to harmonize with or neutralize the unfavorable FBCs, exploit the favorable ones, and avoid direct conflict with any incontrovertible FBCs. In this excerpt, the SWAT officer is asked preliminary questions about his concerns during strip searches.

The FBCs include: pre-raid surveillance never noted client’s presence at arrest scene; pat search of client at the arrest scene found no drugs; reports stated that 56gms of crack were found in client’s jacket pocket at booking; baggie of crack had no fingerprint matches with client; transported alongside chief suspect; fingerprints comparisons were not ordered for major suspect or transporting officer.

Goal of this cross was to establish that the SWAT search did not inadvertently miss the baggie of crack.

Theory: The major suspect attempted to hide the crack during his transport alongside client; cops found in backseat and “gave” it back to client by putting it into his pocket.

Themes: “Staying one step ahead of the bad guys” “thorough, accurate, honest reports” Transition sentence.

Q: Officer I want to ask you questions about how you conduct safety searches for the SWAT team, you understand?

A: Yes. Value judgment question but the search had been described on direct with this term.

Q: Searches like the one done on April 30th are “high risk.”

A: Yes.

Safety is the overriding point of this portion of the cross. A search for contraband does not convey the image the defendant needs to prove that the officer did not find the tennis-ball sized crack baggie because there was no tennis ball sized crack baggie...

Q: Not just because of the chance of finding crack but because you had past experiences with the homeowner, a guy once charged with murder plus the factors we just covered having to do with the safety of your team.

A: Yes, they are factors.

So, we go general to specific. The general is projectile weaponry, starting with the big stuff...

Q: Now, when you’ve done strip searches you have also come up with little sawed-off numbers, maybe 18 to 20 inches long?

A: Yes. to the smaller Q: And something smaller, a long–barreled pistol.

A: Yes. smaller still Q: Something smaller, like a revolver.

A: Yes. down to the tinnie-tiny Q: You’re familiar with little four-round derringers.

A: Yes. Q: Looking for those, too.

A: Yes. Changing to edged weaponry, because the fact finder has to hear the horrors of safety control to understand that the officer would NEVER have performed these duties in a shoddy manner Q: Now, you’re also worried about edged weapons, correct?

A: Yes. big to little, just like before Q: Knives — bowey knives — 18 inches long?

The witness tries a short cut, but it just helps the defense, the witness’s urge to assert control is forcing him toward the theory of the defense A: Yes, down to smaller ones. [ignoring the short cut, but condensing somewhat...] Q: Down to a razor blade.

A: Yes. Value-laden question... “well known” is not precise terminology. So, the questioner adds “is that fair.” When a witness is already cooperative, a value question may be ok, but use the “is that fair” tag for safety.

Q: Stories of officers being cut by small objects, even a razor blade, are well-known to your team; is that fair?

A: Yes.

general Q: Each one of you on that team relies on the other to make a thorough search for officers’ safety.

A: Yes. still general Q: Because you can’t all search everybody.

A: Correct.

Q: You divide up the work.

A: Yes. Bingo! from the general to the specific... Q: Your guy was Mr. Smith.

A: Yes. Transition sentence merged with the question. Too wordy and too truncated. Better to get the commitment to the transition and build the questions paralleling the safety message from above.

Q: Let’s discuss Mr. Smith, shall we? When you searched him, you weren’t thinking exactly “shotguns, razor blades”; you were thinking of any kind of weapon.

A: Yes, sir.

Q: Because you wanted to go home that night?

A: Correct.

Q: You don’t want to be in a hospital, correct?

A: Correct.

Q: And you don’t want anyone on your team in a hospital?

A: Correct.

Q: And you didn’t find any weapons on Mr. Smith.

A: That’s true.

Q: And you didn’t find any drugs on Mr. Smith.

A: Correct.

Risky to use the word “clean” because it hadn’t come up before, it’s something of a value judgment question and we know Smith was later searched and found to be dirty. Probably better to have phrased it: “When YOU searched Mr. Smith, he was clean.”

Q: Mr. Smith was -- [pause] -- “clean.”

A: I thought so.

The witness gave a weak answer, “I thought so” because the question was poorly phrased. But his fudging gave an opening to change the question and drive the point in again. The witness might have done better to have just said, “Yes” the first time...

Q: You thought so because when you were done searching him you found no weapons, no drugs, nothing whatsoever.

A: Correct.

Summary.

Pozner and Dodd’s new science of cross examination changes not only our delivery technique but changes how we prepare the trial. Cross-driven preparation asks us to construct a theory of

the case that can co-exist with every FBC—especially the negative FBCs. Next, using three fundamental rules, and waging low-risk rhetorical skirmishes on the state’s witnesses, the defense attorney can cross with control, clarity, and momentum.

Using short, declarative sentences, and staying within the boundaries of tight transitional sections, the attorney maintains topic control. The addition of only one new fact per declarative sentence lends further control, and helps maintain clarity. Finally, structuring the cross from the general to the specific, and using the tightly crafted declarative sentence technique, the attorney can build momentum. This methodology will not fit every witness or circumstance. There are times that the attorney benefits more by having the witness reveal too much of him or herself.

There are cross examinations of neutral or favorable witnesses that do not require steely control.

But the general situation facing most defense attorneys requires bedrock technique.

Know the Sequence of Impeachment: Take the Witness Fishing Pozner and Dodd also recommend a particular way to impeach a witness. Once again, this is stylistic approach, however this approach does conform with Rules of Evidence which certainly streamlines the approach. Here is their theory on impeachment.

Fishing Rule #1: No small fish This means do not impeach small points. There is an exception.

1. If there are no large fish 2. If there are lots of small fish, and 3. If you are very very hungry In other words, impeachment should focus on the points that matter. If you do not have any big points, however, and if the witness cannot be allowed to leave the stand un-impeached, you may go after the small stuff. There had better be lots of small stuff.

Fishing Rule #2: Hook the fish Before you impeach you must solidify and target the witness’s testimony that is subject to attack.

Why? Because the jury will not appreciate the impeachment without its being counter-posed against the suspect testimony.

In the case of a prior inconsistent statement, you will confirm that the witness gave certain testimony on direct. In the case of a bias impeachment, you can select any of the witness’s direct testimony that you wish to place alongside the bias evidence; the stronger the bias, the more damage its revelation will do to the targeted testimony. In any event, get the witness to confirm the target testimony. Don’t waste time, just make sure the witness’s escape route is cut off.

Exception? If the fish has outright swallowed the hook, you can skip this part. Some witnesses are called for one purpose only or the focus of their testimony is so singularly evident that you can dispense with the need to confirm it before impeachment.

Fishing Rule #3: Play the fish out

Now switch to the prior inconsistent statement. Enshrine the circumstances under which it was uttered. Extol, in general terms, the witness’s effort to be accurate, thorough, or truthful when the first statement was given. This type of extolling is easy. If you’re preparing a bias impeachment, however, then extol in general terms the abstract relationship. Ex: if the witness is employed by the party that called her, ask the witness whether she has ever heard of employees letting their employer’s interests get ahead of their own. Depending on the answer, you can next enquire into whether, in general terms, employees may feel it necessary, wise, or fair to help their employer out of a jam. The purpose of this phase is to reduce the witness’s options to discount the impeachment. Don’t rush this.

Fishing Rule #4: Land the fish Confront the witness with the impeaching fact, whether it’s a prior statement or bias. Ex: from the same employee situation above, ask the witness who has just candidly admitted that employees might bend a rule to help an employer (or who incredibly denied that any employee would ever do such a thing) whether it’s a fact that she is the opposing party’s employee.

“You’re on Mr. Owner’s payroll, too, aren’t you?” has a ring to it.

Fishing Rule #5: Kill the fish If you have an admissible exhibit, move it into evidence and publish it to the jury. If not, don’t.

You’re done. Don’t play with the fish. Move on to the next impeachment or sit down.

F. THE MacCARTHY “LOOK GOOD” CROSS EXAMINATION METHOD Cross-examination is often thought to be one of the most difficult tasks for the trial lawyer. The federal defender in the U.S. District Court for the Northern District of Illinois, Terrence F. MacCarthy has developed a system that will calm your fears and steady your nerves. It is called the “look good” cross, and it is being taught by the National Criminal Defense College and the U.S. Department of Justice as a preferred method of cross-examination. It is high time civil lawyers adopted this system as well.

MacCarthy’s look good system is the first system of which I am aware that goes beyond commandments about what to do and what not to do. The system provides a framework around which to design a cross-examination. It is a system based on a theory of how to most effectively conduct cross-examination. Any confident lawyer can use it with tremendous effect.

To further understand it, and to use it most effectively, we must remember the context in which we are using it: cross-examining a witness. Cross-examination is used to persuade the jury of particular points important to the client in any particular trial. Almost all trials are disputes over particular sets of facts. And we all know from our experiences as trial lawyers that the best way to convince a jury to adopt our particular set of facts over another particular set of facts is to frame the dispute around a story. MacCarthy’s look good cross embraces the concept of storytelling and incorporates it within the system of cross-examination.

What is the goal of cross-examination? It usually depends on the witness to be cross-examined.

A few goals, however, are present in almost every case. The cross-examiner wants to develop points or facts favorable to his or her case. The cross-examiner also wants to undercut facts unfavorable to him or her. Credibility is always an issue. The witness’s credibility is usually at stake, but so too is the questioner’s credibility. The lawyer’s credibility is always at stake because the lawyer is the storyteller and, in MacCarthy’s look good system, he or she is telling a story through cross-examination.

MacCarthy’s Basics of Cross Examination The basics can be summed up in three simple points: (1) use plain English; (2) direct the witness to the subject matter, and draw information from the witness using short declaratory statements; and (3) tell the story of your case, or a portion of it, through the cross-examination.

1. Use Plain English Keep in mind that we are trying to communicate with and persuade jurors. That means that we have to return to the real world. You know, the one where people speak plain English.

MacCarthy suggests we talk to the witness like we would talk to someone at a bar. (Not the place where you look up at the judge but rather the place where you stop by to drink and talk with everyday people, otherwise known as potential jurors.) I was confused until MacCarthy explained to me that this did not mean the type of bar that I frequent, the kind with peanuts and sawdust on the floor, but rather a nice bar, with carpeting. Plain English means putting away “calling your attention to the date on which the occurrence in question took place” and references to “exiting vehicles.” Real people get out of cars, they do not exit vehicles. So instead of calling the witness’s attention to the date in question in which the occurrence took place, instead simply state “I am going to ask you some questions about what you did on May 12, 2003, before you were hit by the car driven by the defendant, Mr. Jones.” It really is that simple.

2. Use Short, Declarative Statements It is important to use transitions like the example above, to tell the witness where you are going.

This helps the witness establish the proper frame of mind in which to answer the question. It also advances your control over him or her.

The same is also true of the short, declarative statements you use to present information. While much of cross-examination requires control of the witness, it is not necessary to use the classic prefixes and suffixes of leading question format-the prefixes “Is it a fact that . . . ?” “Isn’t it true that . . . ?” or the suffixes “ . . . , correct?” or “ . . . , isn’t that true?” or “... , am I correct?”—that terminally lengthen most cross-examinations.

The cross-examiner certainly has the right and power to use such leading question techniques, but the more skilled cross-examiner can obtain the information without using them. For example, “You are Alison Timmons.” You do not need to say “Isn’t it a fact that you are Alison Timmons?” or “You’re Alison Timmons, correct?” Just state the fact and have the witness affirm it or deny it. Of course, the only answer that you want to hear is “Yes.” That is because you are using the cross-examination to tell your story and the effect of the cross-examination is to enhance your credibility.

This is the fastest, most efficient way to provide the jury with information. It also allows the cross-examiner to tell a story and to state the facts. The only role the witness plays is to affirm the trial lawyer’s statements. Since the witness affirms everything you have said as being true, the jury is impressed with your credibility as well as your knowledge.

Short, declarative statements will provide you with the control you need. This is true for several reasons. Short statements, by their very nature, provide control over the witness because they break the testimony down into very small parts. The smaller the part, the less ability the witness has to avoid the question. And by breaking the story line down into small parts, you can control the witness without appearing to be controlling.

The use of short questions takes advantage of our social customs. Short statements lead to short answers. A witness who tries to give long-winded answers to very short questions provides a strong signal to the jury that he or she is not being cooperative. Sooner or later, social pressure and embarrassment will catch up to even the most pompous witness. The witness has a choice: cooperate or look silly. Almost always, the witness eventually chooses to cooperate with the questioner and get it over with. This is what you want.

3. Tell Your Story Use these short declarative statements to set your transitions and develop your points. Now remember that your primary purpose is to tell a story. Tell a memorable AND persuasive story.

So loop the favorable information from previous questions into the next question to build bit by bit as you go along.

MacCarthy’s system will seem foreign at first. For one reason, it’s not as confrontational as what we expect cross examination to be. Moreover, there really is no questions asked of the witness. Instead, the attorney tells a story through short statements that the witness agrees with.

As Mr. MacCarthy once said to me, “good cross examination doesn’t even require a witness to be on the stand for anything other than a nod of the head.”

This method, along with that developed by Pozner and Dodd assist the attorney in “making a mountain out of a molehill.” This is a very important theory that will be discussed later. The summary of Mr. MacCarthy’s “look good” cross has been intentionally abbreviated for this

material as Mr. MacCarthy will be presenting at this seminar. The authors highly recommend this approach as its effectiveness is unquestioned.

F. BUILDING A MOUNTAIN OUT OF A MOLEHILL Regardless of what approach you decide to take, both of these methods are incredibly effective in producing excellent cross with just a few good facts. So often, especially in DUI cases, we are given so few good facts to deal with. Let’s face it, if we have a ton of good facts, those cases get resolved. We are then left to try many of the more difficult cases that we handle.

When you have so few good facts to work with, cross examination could be short and unproductive. However, if you can “Build a Mountain Out of a Molehill,” you not only create more effective questions, you build credibility with the jury. Whether you use Pozner and Dodd’s looping method, or MacCarthy’s look good cross, you can take one or two good facts and inflate their importance and weight with the jury. This building method is perhaps better demonstrated.

Take for example a car that is driving down the freeway, and is followed by a Trooper. The Trooper then paces your client at 70 in a 60 mph zone. He then turns on his lights, and your client pulls over. It’s a legitimate traffic stop for sure, but here is how I have seen attorney’s deal with these set of facts: You stopped my client for speeding?

I did.

You did not notice anything else that caused you to pull him over?

Nope.

His driving was otherwise perfect?

I guess, except he was speeding.

You stopped him for speeding only?

Yep. Now the lawyer has established that the only driving aberration was excessive speed. But that is the only fact that has been elicited. Should the attorney want to explore the driving further, you probably are going to get an “asked and answered” objection. This is likely going to be sustained.

Instead, build a Mountain out of a Molehill here. Think about all the questions you can ask, each of them unique to preclude objections. You’re still using the same fact (speed only stop) but it’s what you do with it that matters. Consider what the jury thinks after the above line of questioning and what they think after this:

Trooper, I want to talk to you about why you pulled my client over, OK? Sure.

You were driving on I-90?

Yes. Eastbound?

Yes. Near the 405 Interchange?

Yes. You saw my client at about milepost 38?

Around there, yes.

He appeared to be going a little fast?

Yes. You followed him?

Yes. You followed him for a while?

For a bit, yes.

You followed him for a while because you wanted to pace him?

Yes. And when you pace someone, you keep your eye on him?

Yes. That and my speedometer.

You certainly keep looking to ensure he still is going the same speed?

Yes, I do.

You followed him until you got to milepost 36?

Around there, yes.

Nearly two miles?

Approximately, yes.

Before you turned your light on, you never saw him drift?

No. You never saw him drift out of his lane?

No. You never saw him drift to the right of his lane?

No. You never saw him drift to the left of the lane?

No. You never saw him weave?

No. You never saw him weave that entire two miles?

No. You never saw him weave within the lane?

No. To either side?

No. He never swerved?

No. The entire two miles, never saw it?

No. Not even in the lane?

No. And this all occurred while he was doing 70 miles per hour?

Correct.

With other cars around him?

Yes. Now, you’re trained to look carefully at how someone pulls over, right, that’s part of your training?

True.

You watched how my client pulled over once you turned on your light?

I did.

He reacted immediately.

Yes. He signaled his move to the right shoulder?

He did.

He made two lane changes to get to the shoulder?

Yes. He did the first one safely?

Yes. Did not endanger anyone else?

No. He made the second one safely?

Yes. No danger to any other motorist?

Correct.

He pulled the car off the roadway?

Yes. Completely off the roadway?

Yes. In a safe place?

Yes. He came to a complete stop?

He did.

There was no delay in the way he pulled the car over?

No. There was no problem about the way he pulled the car over?

No. There was nothing unusual about the way he pulled the car over?

In actuality, you could add more questions. Perhaps that stretch of road had several curves to it.

Perhaps the weather was terrible and visibility poor and was still able to navigate the road.

What has occurred here is taking one good fact – defendant was pulled over for speeding only – and building this into a long line of cross that might fit well into a theory that attacks either the breath test or field tests. This approach can be taken with many aspects of a DUI investigation.

Consider when there is no mention that the driver had no problems with getting his license, registration and insurance. Consider what you can do with the fact that there is no mention that your client had any problem getting out the car. Consider what you can do with field tests in which there are only a couple of clues noted.

This process is “Building a Mountain out of a Molehill.” This should be used whenever possible. Not only does this inflate the good facts for you, it helps establish credibility with the jury as the witness has just agreed with 35 consecutive questions. This process alone will elevate the effectiveness of any cross examination you undertake.

G. THE 10 COMMANDMENTS OF CROSS EXAMINATION In addition to the material previously presented, I have had the opportunity to discuss cross examination with many successful and effective trial lawyers from around the country. I have been blessed to learn from many of them. Over time, the author has learned many important tips and techniques. Like all this material, this is not exhaustive of all other important dos and don’ts, but they do provide a nice little guideline when preparing cross examination 1. Cross examination is the lawyer’s opportunity to testify.

2. It is far easier to stroke something out of a witness than it is to beat it out of them.

3. Never ask open-ended questions.

4. Never ask a question you don’t already know the answer to.

5. Always have a roadmap for your cross examination. Remember, sometimes less is best.

6. Always anchor the witness to something.

7. Never attack a witness as a liar (usually).

8. Never quibble over small points.

9. Always use short questions.

10. Obey the rule of “so.”

I: CROSS EXAMINATION IS THE LAWYER’S OPPORTUNITY TO TESTIFY. This is perhaps the single most important distinction in how you should look at cross examination and how you actually prepare cross examination. Often times, the attorney will prepare an entire cross to discredit a witness or make someone look bad. But even if successful

what have you accomplished? You may have made an officer look bad, and probably upset the jury, but you have not told your side of the story.

Anyone who tries criminal cases can probably count on one hand how many times they’ve had their client take the stand. In DUI cases, it rarely is effective and often times disastrous.

Passengers do not typically make good witnesses as often times they are more intoxicated than the driver. Often times they are friends, spouses or family and enter the courtroom with an inherent bias that cannot be overcome. Expert witnesses sometimes work and sometimes are deemed “hired guns” by jurors. Their effectiveness is debatable at times. Who then will testify on behalf of your client?

YOU WILL. You will tell your client’s story through cross examination. For that reason, before you even write your first question, write your story. Write your theme of the case and remember to be flexible enough to alter your theme if the evidence, as it comes in, requires you to do so.

But once a theme, or themes, has been developed, your questions will have more clarity and purpose. This is your opportunity to testify, don’t blow it.

In keeping with that, one should remember that we are not really “questioning” the witness.

Instead we are preparing a series of short statements that the witness will affirm for us. The story is one that is based upon the facts beyond change, and other common sense issues. The goal is to tell the story through short, declarative statements, with witness agreeing with what you have said.

II: IT IS FAR EASIER TO STROKE SOMETHING OUT OF A WITNESS THAN IT IS TO BEAT IT OUT OF THEM. Simply put, you want to look good when you cross examine. Not only do you want to look like a competent lawyer, you also want the judge, prosecutor and jury to like you. Trying to bash evidence out of a witness will not accomplish these goals. Instead, you must stroke evidence out of a juror. This approach is hard for us to grasp at times because we are so pre-disposed to what we believe the purpose of cross examination is. We believe that this is our chance to get up there, light the witness up with Shock and Awe, and then sit down and admire the smoldering pile of debris that used to be the witness chair.

We are control freaks by nature. This is one of the reasons that we have chosen this profession.

We stand up for cross, our adrenaline is running, and we go straight for the jugular. Again, this looks really cool on TV, but in reality, it rarely happens and even less frequently, happens with positive outcomes. There is an old saying that you get more flies with honey, and this is never truer than in cross examination.

I see this all the time. The prosecutor has just finished 30 minutes of asking “what happened next?” when the defense attorney gets up and starts off like this:

“Isn’t it true that you lied at the Department of Licensing Hearing?!?”

“No, I did not.”

“So is it your testimony today that you did not lie before the Department of Licensing?”

OBJECTION: Argumentative.

SUSTAINED. Even if you can prove there were some inconsistencies in the previous testimony, you have now alerted the witness to this, alerted the prosecutor to this, and looked like a jerk doing it. The witness will now clamp up and getting information from him/her will be like pulling teeth. The Prosecutor is going to object to any question that even remotely sounds confrontational and will break the rhythm of your cross.

There may be times when attacking a witness in this style is necessary, but if this is the way that you always cross a witness, what do you do when you actually have the chance or need to do this? You’ve been doing that same old song and dance for years now. Try killing them with kindness.

Often times prior to a motion hearing, you might be sitting in the courtroom for an hour or more before your case is called. What’s wrong with striking up a conversation with the Trooper about anything not related to your case? What’s wrong with building a report with the Trooper and thus gaining some trust with him/her? You might be surprised how friendly they can be when they realize that you are just shooting the bull with them. By the time they take the witness stand, they already like you. They already trust you. Now, don’t violate that trust. Treat them like an adult. Be polite and professional but direct. Let them know that if they answer the questions that you ask them, there is no need for you and him/her to get into it. Let the witness know that this is not about beating their head in, it’s about getting the information that you need to make your arguments.

You will find that this approach not only makes this cross examination more productive, it makes future cross examinations equally productive. You will also enjoy your job more when you don’t have to run from court to court trying to beat up witnesses all day.

III: NEVER ASK AN OPEN ENDED QUESTION. While this seems obvious, next time you’re in court, watch someone else do cross examination.

Count how many times an open-ended question is used. It will surprise you. No one ever scripts an open-ended question, instead they arise from one of two areas: (1) lack of preparation for your cross examination, or; (2) lack of flexibility in your cross examination.

The first arises from when you have not taken the time to prepare a theory of your case, and then prepare a story that supports your theory and then developed statements (leading questions) to tell that story. Instead you go up there, taking a stab at stuff and the natural way to ask questions when we don’t know what we want to get is to let the witness tell the story again. Remember, direct examination is the witnesses’’ chance to tell their story. Cross examination is your chance to tell your story.

The second reason that open ended questions unexpectedly show up in our cross is because we have not anticipated possible “bad answers.” We get so stuck in our line of cross that once a bad answer arrives; our instinct is to challenge the witness with how that can be possible. The problem lies in the first word of the question that you are about to ask – “how.”

So the simple rule to learn from this Commandment is this: avoid any question that starts with the following: How

What

Who

When

Was

Where

Why

IV: NEVER ASK A QUESTION YOU DON’T ALREADY KNOW THE ANSWER TO. This material is about cross examination and therefore the lengthy discussion on the use of an investigator will be left for another time. That being said, the only true way to ask a question that you always know the answer to is to ensure that you have already asked those questions of the witness in some other setting.

I know many attorneys that routinely subpoena an officer to a DOL hearing for just that purpose.

Frankly, the likelihood of winning a DOL hearing in today’s day in age makes this approach quite appropriate. Since the likelihood of obtaining a favorable outcome is less than 15%, any chance of getting some information that can be used later criminal litigation may be well worth it.

You can also interview the officer yourself, but again, the possible pitfalls of this approach have been discussed in previous lectures and require serious consideration. Another way in keeping with the previous commandment is to take a few minutes before your case is called is to ask the officer a few questions before you take their testimony.

But the best way to never ask a question that you don’t already know the answer to is to ask questions that don’t call for an answer at all. When your cross is properly prepared and you focus your cross on what you’re trying to do, what the witness wants to do or even what the witness wants to say – is irrelevant. Any question which starts with the 7 naughty words (above) is to ask a question that you don’t already know the answer to. If you knew the answer, why would you ask any of the above-mentioned questions?

V: ALWAYS HAVE A ROADMAP TO YOUR CROSS EXAMINE AND REMEMBER, OFTEN TIMES, LESS IS BEST This is style approach. Some attorneys like to write out every question that they’re going to ask.

Some only write an outline and wing it from there. F. Lee Bailey, one of the finest trial attorneys ever, insists that no attorney should ever use any notes. The author is not suggesting any particular approach, so long as you are comfortable with it. But the moral of the story is you have to know where you wanna go and you have to know how you wanna get there. You cannot start out on some odyssey and hope for the best.

In regards to the use of notes, the author still uses them. I don’t rely on them as much as I used to, but I definitely write out my cross examination. The key, if you use this approach, is to not have to refer to them over and over again. It not only makes you look unprepared, it also breaks up the rhythm of your cross. Moreover, in the heat of battle, it can be so easy to forget to ask something of great value. But you need to remain flexible. Relying heavily on notes does not provide you with flexibility necessary to “roll with the punches.”

Further, if you write out your entire cross, and aren’t willing to deviate from it, you may end up doing some the prosecution’s work. I have seen multiple occasions where a young prosecutor forgets to ask about a certain topic on direct. The defense attorney, so married to their notes, then gets up and begins to cross examine them on a topic that was not even brought out on direct.

The prosecutor won’t object. Either because you are now doing their job for them, or their so oblivious to what’s occurring that they don’t realize that this is “outside the scope of direct.”

At the very least, you must have your three key points. You must have your theory and a series of questions that will either explore or support it. You cannot just get up there and wing it. It is also important to keep in mind that sometimes less is best. If you can only get three good facts out of a witness, why would you want to ask them about all the other bad facts again? All this does is give the witness two direct examinations so that they can further bury your client. Get up there, get your three good points, and sit down.

This approach can especially be effective with breath test experts. We so often want to get up there and cross examine them on every aspect of breath testing, often times getting nowhere. If you have a theory that there was mouth alcohol, or that the machine has been under constant repair, get up there, and ask the questions that furthers that theory. Then sit down. In conversations I’ve had with jurors, this short approach has had another unexpected effect.

Several jurors have told me that they began to disregard much of the direct testimony that they were having a hard time understanding anyways, because we “didn’t even bother to challenge it.”

VI: ALWAYS ANCHOR THE WITNESS TO SOMETHING

Both Pozner and Dodd as well as Terry MacCarthy talk about cross examination using fishing analogies. One concept they talk about is “setting the hook.” This means tying the witness to something, such as a previous statement or the written report, and then leveraging that against the. This approach works well in the DUI field because we deal with officers that make hundreds of arrests per year, and often times are not testifying about a case until 6-12 months after the incident. Their report is the sole way that they can remember what occurred. Once you have established that the report is that important to them, you now can focus on the most important stuff in that report.

The most important stuff in a police report, from a defense perspective, is all the stuff that ISN’T in the report. Perhaps the best way to understand this Commandment is to look at an example.

Let’s assume that this is a garden-variety DUI arrest in which the client has been pulled over to going 45 in a 35. There is no other reason for the stop.

We first tie the witness to something. In this case, it is his report.

Trooper, you prepared a report of this incident?

I did.

You wrote it when the events were fresh in your mind?

Correct.

You wrote it around the time you arrested my client?

I did.

You were trained at the Academy in report writing?

I was.

You were trained to include everything that is important to this investigation?

I was.

You were trained to be complete?

I was.

And honest?

Definitely.

You have that report with you today, correct?

I do.

You had to review it during your direct testimony today?

I did a few times, yes.

You had an opportunity to review it before you testified today?

Yes, I did.

You did not notice any inaccuracies?

No, I did not.

You did not make any corrections to it today when you reviewed it, right?

Correct.

Your memory was certainly better of this incident when you wrote the report than it is today?

I agree with that.

OK, now the hook is set and it’s time to start reeling the fish in. Let’s say that your theory is that speeding, alone, is not indicative of impaired driving. You need to establish this with your questions.

You got a radar reading from my client at 45 mph?

I did.

Speed limit is 35?

It is.

You stopped him for speeding?

I did.

You saw him coming towards you?

Yes. That’s when you got the radar reading?

True.

You saw him drive by you?

Yes. You pulled out behind him?

I did.

You followed him and pulled him over?

Yes. You stopped him three blocks later?

About that, yes.

You kept your eyes on him the entire time?

Yes. Since you report is silent, you never saw him drift out of the lane?

No. You never saw him weave out of the lane?

Nope.

You never saw him swerve out of the lane?

No. And since your report is silent, you never saw him drift within the lane?

No, I did not.

Now, even if the witness wants to get cute with you here and not agree with these statements, he has already stated that he wrote an honest and complete report. If he disagrees with you now, he is impeaching himself. That is the beauty of anchoring the witness to something. It can be his report it can be previous testimony, it can be a summary from the interview that your investigator conducted. Whatever it is, this anchor confines the witness. It essentially cages the elephant for you.

There is one school of thought that suggests that you then begin each question with “since your report is silent, we can assume……..” I used to employ this approach. And while I am not totally discrediting it, it does conflict with both of the approaches that this paper deals with. That is namely we need to do away with some of the common catchphrases that we use in cross examination such as: “Isn’t it true that……..” “………correct?”

“You would agree with me that………”

In keeping with the last Commandment herein, it is the author’s belief that when you attach these little catchphrases in your line of questioning, you are saying to the witness “Aha, I got you here.” In the DUI context, we so often deal with professional witnesses that they are trained to sense this and will immediately begin the fight with you. Don’t invite them to clam up with these catchphrases. Rather, tell a story that is not designed to embarrass them, and have them agree with what you are saying. When a witness does decide to try to run from you that is when you can pull out the “you report is silent” statement. Don’t do it right from the start.

VII: NEVER ATTACK A WITNESS AS A LIAR – USUALLY We have all dreamt of catching a witness in a bold faced lie, and then clubbing the hell out of them. But how many times does that actually happen? The reality of things is that other than on TV, cross examination doesn’t really happen like that. Rather, you will be lucky to slowly and meticulously erode away the witnesses’ credibility. This is done by showing bias, or lack of judgment, or rush to judgment. This is done by showing simple human mistakes and commons assumptions that everyone makes. It is rarely done by showing that a witness is an outright liar The only exception to this rule is that you can detonate a witness this way so long as: (1) it is truly necessary to do so, and; (2) you can actually prove that they’re lying. You cannot do this by suggesting that they’re lying. You cannot do this by hinting that they might be lying. And you sure in hell cannot argue that they lied unless you have proven that they lied.

It is very important to remember not to stampede towards the kill shot when you catch a witness in a lie. Instead, you must be slow, thoughtful and not change your tone until it is too late for the witness to do anything about it. You must also anchor that witness to their previous statement before you can impeach them. This is the most important aspect of impeachment as you have nothing to impeach until you get the previous statement into evidence. You must also do this in a manner that does not alert the witness as to what’s about to occur.

Let’s look at one way to do this. Assume that the witness has just testified that your client’s speech was slurred when he pulled him over. Let’s also assume that there was contradictory testimony at the DOL hearing.

You and I have spoken about his case before?

Yes. At the DOL hearing?

Yes. You were under oath then?

I was.

As you are now?

I am.

We talked about the entire case?

We did.

It was recorded?

I believe it was.

I’m showing you what’s been marked as Defense Exhibit 1, do you recognize that?

It appears to be a transcript.

A transcript of the DOL hearing we had on this matter?

Yes. It is signed by the transcriptionist?

Yes. Under penalty of perjury?

It reflects what occurred that day?

I assume it does.

Would you like a minute to review it?

Sure.

Go ahead……Now, this is the transcript from what you testified to that day?

Yes. You have no reason to believe its false?

No, I don’t.

You have no reason to believe it’s been altered?

I don’t.

This is a true and correct copy of what was said that day?

Yes, it appears to be so.

Drawing your attention to page 23, do you see that?

Yes. I have tabbed that for you there?

Yes, it’s right here.

I have highlighted a few lines, you see that?

Yes. Please read the first highlighted question.

“You never heard my client slur a single word that night?”

Who asked that?

You did.

What was your answer?

I said “no.”

Now the witness has been anchored to the previous testimony. He has authenticated it and bolstered its credibility with the line of questions that emphasizes how this was done under oath.

We now have him impeach himself by reading the previous testimony.

VIII: NEVER QUIBBLE OVER THE SMALL POINTS Terry MacCarthy refers to cross examination by fishing for big fish and fishing for small fish.

Essentially, leave the small fish alone and hook yourself a couple of big ones. There is one exception to this rule and that is when you have no big fish to hook. Then you might need to accumulate several small fish. The moral of this story is that jurors do not like petulance.

Quibbling over small points that does not support your theory of the case is an absolute waste of time. And even though it might make the witness look bad, you will look bad with them.

If your case is about a disconnect between the FSTs and the BAC, does it really matter if it was rainy and windy or just windy that night? Let the witness look like a jerk, move one and don’t stoop to his/her level.

This is very hard for trial lawyers. We want to make the witness look bad when they play games with us. We want to dig in and show the world that they are full of it. The problem is that when we do this, all we do is detract from our story. Our story is not about what a jerk the officer is,

it’s about something much greater than that. Don’t fall into this trap. To quote Ken Fornabai, “you don’t jump down into the sewer to pick a fight with a turd.” The time for letting the world know about how this witness acted is not during your cross examination. The time for that is in closing arguments when you can point out how evasive the witness was. How difficult it was to even get simple answers from him/her. How these jurors sat here for three days trying to learn facts and all they got was opinion testimony based upon one’s agenda. Trust me, the witness wants to derail you with this approach. If you let him do it to you, he has already won. Don’t allow this. Be better than this. Be smarter than this and make them pay for it later.

IX: ALWAYS USE SHORT QUESTIONS. Both Pozner and Dodd and Terry MacCarthy agree on one thing: you must use short questions.

If it has more than 4 or 5 words, it’s too long. Actually, since we are not even asking questions, we are actually making short statements. Using this approach seems simple, but it requires you to focus on not getting head of yourself. It requires that you not try to impress yourself with your questions.

This approach not only streamlines your cross examination, it give the witness less chances to stray from you. There is less to disagree with when your questions (statements) are very short.

Here’s an example on how to use this approach. Take a look at this using the same driving example from above where the defendant is stopped only for speed: You followed him?

Yes. For three blocks?

About that.

Right behind him?

Yes. Could see him?

Yes. The entire time you were behind him?

Yes. He never drifted?

No, I don’t think he did?

He never drifted out of his lane?

No. The entire time you saw him?

No. He never swerved?

No. Not one time the entire three blocks?

No, don’t think he did.

He never once swerved out of the lane?

No. He never weaved?

No. He never weaved out of his lane?

No. He never weaved in his lane?

No, I said that.

Not only has the witness had to agree with everything, but this has also helped you build a “mountain out of a molehill.” This is extremely important to effective cross examination. There is rarely a time when we will have tons of good facts to deal with. Those cases get plea bargained. We get to try the cases where there may only be one or two things that are you your client’s favor. You must build these little molehills into mountains. This give you more effective cross examination and helps inflate the credibility in your theory of the case.

X: OBEY THE RULE OF “SO..”

In the same line of commandment #3, the rule of SO is critical to follow. NEVER ask a question that begins with the word “so…….” Often times it is followed with one of the seven dirty words from Commandment #3. But the real problem with the word “so” is that it means that you have already made your point. In order to actually begin a question with “so…” it means that you have now elicited enough facts to make an argument. By asking the next question, you are giving the witness a chance to explain away all your hard work.

Anyone that can remember the “one question too many” moments that we’ve all had in court, would be shocked if they could see an instant replay of what occurred. 90% of those “one question too many” moments started out like this: “So, what you are saying is……….”

Which is then answered like this: “No counsel, what I’ve been saying all along is this. Your client was driving all over the roadway, he smelled like booze. He slurred his speech and could not do the FSTs. I felt he was clearly impaired regardless of what the PBT read.”

DO NOT EVER start a question with the word “so.” You have made your point and only two things could now happen: (1) nothing, or; (2) you let the witness off the hook. Moreover, professional witnesses, such as what we commonly deal with in DUI cases (Police Officer, BAC Technician, State Toxicologist) are trained to testify. Even if they haven’t been trained, they’ve testified enough times to know what is happening. They become alarmed by questions that begin with “so……..” Their bias towards the State’s case creates performance anxiety for them as witnesses. They simply cannot come into court and be fact based witnesses no matter how much they claim they are. They are there to assist the prosecution. Each state witness will take it as personally as the prosecutor. They do not want to lose. The minute they hear you begin a question with “so………” they are programed to go into denial mode. They will fight you tooth and nail. And on occasions, they will win in the eyes of a jury. Don’t un-cage the elephant.

H. THE ESSENTIAL ISSUES TO BE DISCUSSED ON CROSS EXAMINATION OF BREATH TEST TECHNICIAN The following list includes all issues that the authors have found to be valuable when cross examining a breath test technician. Understand that all of these issues can be used in nearly every breath test case. These are essentially the dirty little secrets of breath testing. But also understand that a “shotgun” approach to cross examination of a breath tech is not necessarily the most effective method. Rather the lawyer should determine what issues are most likely to gain traction. For example, if the instrument has consistently had problems with its temperature, that should be the main theme to your cross. If this is a classic disconnect case, one where the machine says your client is a lot drunker than what they appear on video, then all fallacies, assumptions and generalizations that go into breath testing should become the theme. However, these are areas that the authors have found to be very productive in cross examination: I.

Varying Partition Ratios.

No matter what machine your jurisdiction uses, all results will be based upon certain assumption and presumptions about your client. And while everyone can agree that no two people are alike, breath testing has never acknowledged this to any degree.

Consequently, faulty results are often times not the function of a defective machine, but rather an incorrect assumption built into the machine.

The most basis assumption of breath testing is the reliance on “Henry’s Law.” That theory states that at below 20%, the amount of alcohol in water can be correlated to

the amount of alcohol in the air above the water in a fixed environment with fixed temperature. Consequently, all breath machines assume that there is a constant ratio between the amount of alcohol in your blood and what is found on your breath. The accepted ratio, amongst breath test manufacturers and law enforcement is 2100:1. In other words, the machine assumes that there will be the same amount of alcohol in 1 cubic centimeter of blood as there will be in 2.1 liters of deep lung air.

The problem with this “assumption” is that it is based upon an average and does not take any one individual into account. Most studies suggest that a person’s partition ratio may vary from 1500:1 to 3000:1. What does this mean to you and your client?

Well, if for example a person had a true blood alcohol content of .05 and had a partition ration of 1500:1, the machine would tell us their breath alcohol level is .08.

That is an over-estimation of .03 or in this hypothetical, the difference perhaps between guilt and innocence. Further complicating this problem is that an individual’s partition ratio may fluctuate on a daily basis.

Studies have suggested that a person partition ratio will be higher during the absorption phase when compared to blood alcohol. It also suggest that it will be lower during the elimination phase.3 To put simply, it may go up and then go down, and that makes the implementation of a constant and presumed ratio, flawed in several ways.

Important to remember, the larger the number in the ratio, the lower the breath test will be. So in other terms; Your client has a 1700:1 partition ratio, but blows into a machine that assumes he/she is 2100:1; the test results will be falsely high. Contrary, if your client has a true partition ratio of 2300:1, and blows into the same machine, the machine will underestimate the alcohol content.

Also important to note, even should your State have adopted a “per se breath standard” and thus attempted to legislate away any partition ratio attacks, they have not done away with it as it relates to the machine. No human being, no matter how large, can carry 210 liters of breath in them. Yet the machines report the results per 210 liters of breath. How can this be? Simple, the 210 liters of breath is supposed to correlate to the 100 ml of blood your statute also states is “per se” illegal. Even your legislature “assumed” that everyone in your State has a 2100:1 partition ratio.

II.

Mouth Alcohol This shouldn’t be a problem right? After all your State’s machine has a “mouth alcohol detector” built right in. The fallacy of this argument is that they are far from reliable and there is studies to back that claim up. Moreover, some of the foremost experts in this field have expressed concerns over “mouth alcohol detectors.”

3

S. Tsukamoto, et al., An Experimental Study of the Ethanol Ratio of Breath to Blood, 37 Japan J. Legal Med. 823 (1983).

One of the foremost experts in blood alcohol issues and breathing patterns, Dr. Michael Hlastala, from the University of Washington School of Medicine has made several disturbing findings as to the functionality of this supposed safeguard.4 Primarily with the assumption of the machine’s slope detector. Most instruments will measure a breath sample every ¼ second. If a person is truly exhaling lung alcohol, the “slope” of those measurement points will gradually rise as the lungs empty. This is done because as one exhales, they supposedly will empty deep lung or alveolar air. If a person has only mouth alcohol (that is they just used some mouthwash) then the measurement slope will initially rise, but after the mouth empties its contents, the slope will begin to decline. When the machine senses this “negative” slope, a mouth alcohol detector will abort the test. That is why it is often tested by having a technician use mouth wash and then blow into the machine immediately thereafter.

The problem arises however when a subject introduces both mouth alcohol and lung alcohol. Which, shockingly, is the most likely scenario for one of our clients, because of the existence of both a positive and negative slope. The machine is likely to view this is a level or slightly increasing slope, measure all alcohol, even that which is not impairing the ability to drive, and report the entire value.

Should the State’s expert dismiss this notion, ask them, “if this machine can detect mouth alcohol, why do you conduct a 15 minute observation period every time you conduct a breath test?”

III.

Radio Frequency Interference.

Outside radio waves and other electronic transmission can skew the results of a breath test. Should your State’s expert claim otherwise, then ask why every device has a RFI detector installed to it. While manufacturers ridiculed this notion for many years, by the mid 1980’s they begin to build machines that included detectors to “prevent” this problem. Today, most RFI detectors operate on roughly the same technology as when they were designed nearly 30 years ago. All of this prior to the existence of the following items found at your local police station: (1) modems; (2) wireless modems; (3) radios; (4) hand held radios; (5) cell phones; (6) pagers, and; (7) wireless security cameras to just name a few.

Most RFI detectors are “calibrated” by the technician just turning on his radio right in front of the machine and testing it with one frequency. Additionally, this testing is usually conducted while the machine sits in a lab, and not in the field collecting a person’s sample simultaneously.

IV.

Testing During the Absorptive Phase Absorption can continue anywhere from 45 to 2 hours following the last ingestion of alcohol. Consuming food simultaneously, can delay this for an additional 2 hours in

44

Michael P. Hlastala, Wayne J.E. Lamm and James Nesci, The Slope Detector Does Not always Detect the Presence of Mouth Alcohol, the Champion, March 2006.

some cases. During peak times of absorption, arterial blood can be up to 60% greater in alcohol concentration than venous blood. The alveolar air sacks are concentrated in arterial blood. The original partition ration of 2100:1 was developed using venous blood, not arterial blood. If a test is conducted during the absorption phase, the lack of equilibrium between arterial blood and venous blood will be significant. The machine, supposedly reading deep alveolar air, will be bathed in arterial blood and not venous blood. Consequently, the machine will greatly over estimate one’s true blood alcohol concentration. At least one study has suggested that a test administered during the absorption phase may overestimate the true blood alcohol level by as much as 100%.5 Of equal concern is that venous blood probably more accurately reflects a person’s true level of consumption than does arterial blood. Couple this with the fact that a person’s’ partition ratio is likely to be much lower during absorption (and thus the machine will read higher) and you can see the tremendous dangers in relying on a test taken during the absorption phase. Even Widmark acknowledged that since alcohol is likely to be forced out of the stomach when testing during this period, testing during this period is wrought with issues.

V.

Varying Hematocrit The differences between a person’s blood composition is yet another fallacy of breath testing. Blood is made up of a mixture of solid particles (red cells, white cells and platelets) and liquid, also known as plasma. The percentage of the blood that is solid particles is known as the hematocrit. For example, if a person has a hematocrit of .48, that means that 48% of the total volume of their blood consists of solid particles.

Conversely, under the same scenario, that person would have a plasma concentration of 52%.

Alcohol has an affinity for water and plasma contains plenty of it. Consequently, plasma will carry far greater portions of alcohol than will the solid matter. So a person with a high hematocrit, say 56%, will have a lower amount of water in their blood. In turn the alcohol will be greater concentrated in their blood when compared to someone with a lower hematocrit, say 42%. Consider this: Two subject, same gender, age, weight and have consumed the same amount of alcohol. Their true blood alcohol concentration is identical. However, one subject has a hematocrit of 55%, the other 45%. The subject with the higher hematocrit will also have a higher concentration in the plasma of their blood; roughly 10% higher.

So how does this correlate to breath testing? Remember that Henry’s Law applies to liquids, not solids. Therefore, the amount of alcohol in the liquid substance (plasma) will be in direct correlation to that contained in the gas above that liquid (breath).

Since breath contains significant water vapor (just blow on a window), a person with a higher hematocrit (lower water content) will have more alcohol concentrated in the

55

Simpson, Accuracy and Precision of Breath Alcohol Measurements for Subject in the Absorptive State, 33(6) Clinical Chem. 753 (1987).

vapor and naturally contain more alcohol their breath. In the previous scenario, it could mean the difference between a .084 and a .076 reading.

Here’s another fallacy of breath testing concerning hematocrit. Normal hematocrit has a range and it varies beyond that based upon gender as well. For example: Gender Male Female

Range of Hematocrit 42-52% 37-47%

Average Hematocrit 45% 42%

The entire principle of Henry’s Law and the 2100:1 partition ratio, and thus breath testing as a whole, is that it is based upon using an average hematocrit of 45%. More troubling is that a person’s hematocrit is easily tested with simple blood work.

Anemics are particularly susceptible to this problem due to the unhealthy low hematocrit and thus significantly increased plasma content.

VI.

Elevated Body Temperature.

The principle of Henry’s Law is also based upon constant temperature. Therefore breath testing assumes that everyone has the same body temperature. However, the effects of changes in body temperature from that of 98.6 is fairly well documented.6 Illness or other biological conditions may raise or even lower that. For every 1 degree centigrade a person’s body temperature changes breath readings may be effected by 7%.7 More troubling is that, as most of us can attest to, whether ill or not, our body temperature fluctuates throughout the day. For pre-menopausal women, the fluctuation can be significant. Compounding this issue is that if a person’s body temperature is elevated, say due to fever, it will increase the amount of water vapor in their breath, and thus elevate the readings in addition to that caused solely by the increased temperature.

VII.

Breathing Pattern For a more thorough discussion of the following, please see: Drunk Driving Defense, 7th Ed., Larry Taylor and Steve Oberman (2010) Aspen Publishing.

Physiological Errors Associated with Alcohol Breath Testing, 9(6) The Champion 18 (1985).

At least two experts in the field of breath testing, Dr. A.W. Jones and Dr. Michael Hlastala, have concluded that the manner in which a person inhales and exhales can influence breath readings. Dr. Hlastala claims that a person can influence readings anywhere from 50% to 150% of its true value.

6 7

Drunk Driving Defense, 7th Ed., Lawrence Taylor and Steve Oberman, Wolters Luwer (2010).

“Body Temperature and the Breathalyzer Boobytrap.” 721 Mich. B.J. (Sept. 1982).

This is so because a person will inhale prior to providing a sample. This cools their airways. As the subject exhales, some of the alcohol in the exhaled breath will condense on the cooled airway. However as more and more warm air is exhaled, the airways warm up and the condensed alcohol will evaporate and be exhaled in the breath. In turn, the last portion of that breath sample will contain elevated levels of alcohol resulting in a higher breath reading.

In simple terms, the longer you blow, the higher you go.

VIII. Stress As if being arrested and taken to a police station isn’t stressful enough, come to find out, it can significantly effect a breath reading as well. We all know the symptoms of stress, increased heart rate, increased blood pressure, shortness of breath. Adrenaline, one the most common byproducts of stress, will rapidly burn fat for fuel and dilate blood vessels, including those in the lungs. This will force more blood, more rapidly through the lungs and increase the alcohol concentration of the breath sample.

IX.

Contaminated Ambient Air Following analysis of a subject’s sample, the machine theoretically purges itself so as to expel all of the subject’s first sample. But as we are all aware, it does not purge itself with self-contained air canister, rather it purges itself using room air. That air, may be sitting in the “drunk tank” where several intoxicated individuals may sit.

There are several known occasions of the breath tube being stored by the exhaust port thus creating a circular airflow throughout the machine during the purging cycle.

Breath test technicians will say that this concern has been alleviated with the blank air test. That is that in between subject samples the machine will test “ambient” air and get results that read .000. However, at least two widely used machines, the Intoxilyzer 5000 and the Datamaster and Datamaster CDM have a function which permits the “re-setting” of the value of zero. That is correct. The machine has an acceptable tolerance to a number that is not zero that it will record as a .000.

In the case of the Datamaster, counsel has had technicians admit that it us up to a .003 for each blank that it will re-set or “ambient zero out.” In Washington, the Datamaster will take four separate blank air tests. Each of them could actually read .003 and the machine would just keep re-setting the value of zero for each reading. It would not subtract those results from the subject’s reading. Thus, as much as a .012 may be added to a subject’s reading.

X.

Used Mouthpieces.

It is essential that the mouthpiece be changed after each and every sample, regardless if it’s coming from the same subject. Used mouthpieces will contain water vapor,

which presumably will contain alcohol. It will be expelled with the air from the subject and read by the machine.

Moreover, there is likely a protocol or procedure in place in your jurisdiction that requires the changing of the mouthpiece. It may also dictate how that change is to occur including that it should not be touched by human hands. It is critical that this be explored on cross examination.

XI.

Inaccurate Simulator Solutions The accuracy of the machine is only as good as the accuracy of its calibration.

Simulator solutions are critical to that calibration. Solutions are prepared mixing ethanol alcohol and water so that when they’re heated to 34 degrees centigrade, the headspace gas will read a certain breath alcohol concentration (.08, .10, .15, etc.).

Problems with inaccurate calibration typically occur when the calibration solutions contain less alcohol than what is purported to be in them. This will cause the machine to overestimate all readings. There are several ways in which a simulator solution can incorrectly calibrate an instrument.

First, the solutions can be improperly mixed at the lab. They may contain too much or too little alcohol. Solutions may be mixed on formulas involving 200 proof ethanol, but the highest grade usually available is 190 proof. Secondly, the ethanol in a solution will dissipate over time. An older solution is likely to have less alcohol than when it was first mixed. This will lower the true value from that what is reported and improperly calibrate the machine. Third, some solutions will replace the vapor with ambient air. Essentially slowly reducing the amount of alcohol contained in the vapor of that solution. Fourth, temperature is critical to the solutions’ accuracy.

Solutions used at too low or too high temperatures will either inflate or deflate their value and thus improperly calibrate the machine. Finally, falsely sealed simulators will permit evaporation and consequently lower their value. This too will create a solution that cannot accurately calibrate a machine.

Linearity is crucial to calibration as well. Does your jurisdiction check each machine at certain levels once or multiple times? Is there any linearity in the calibration points? For example, if your client supposedly has a reading of .23, but the highest calibration point is only .10, accuracy has never been checked at the level.

Furthermore, while the machine may be accurate, is it precise as well? That is if we run four calibration test (.04, .08, .15 and .20) each one time, we know the accuracy of that machine, at that current time on one occasion. That deals with its accuracy.

But if we took 10 readings of each, for a total of 40, then we can start to determine its precision as well.

Taking the example above, when we run the 10 tests at .04 and get reading of: .041, .045, .041, .038, .040, .037, .044, .042, .038 and .040, we cannot necessarily say that this machine is precise. Most industry experts believe that simulator solutions should be changed every 60 days.

XII.

Gender Based Differences in Metabolism of Alcohol

For years, the belief was that women are more easily affected by alcohol because they tend to have a higher fat content and less water than men. However, while that may be true, another reason appears to be that men possess significantly higher quantities of the enzymes that will break alcohol down in the stomach before it enters the blood stream.

Combined with the effects of chronic use on zinc levels in the body, alcoholic women tend to have rapid increases in blood alcohol levels and achieve much higher blood alcohol levels when compared to non-alcoholic women. One study has suggested that the use of oral contraception for women assists in the elimination of blood alcohol.8 XIII. Effects of Zinc in the Body There is a growing school of thought that high blood alcohol levels may be caused by a zinc deficiency. Studies have shown that individuals with low zinc diets had blood alcohol levels which increased rapidly compared to those on normal zinc diets. Low zinc subjects had nearly twice the measured blood alcohol at the same time as those with normal diets.

So it appears that zinc plays a significant role in the Metabolization of alcohol. Other studies suggest that heavy drinkers deprive themselves of zinc, and therefore had more rapidly increasing blood alcohol levels than those with normal zinc diets.

Consequently, chemically dependent drinkers are more likely to have this problem.

XIV. Other Interferants.

Many industrial compounds, some quite commonly used, are part of the methyl group. That is the molecular structure that all breath machines are looking for. Any molecule in this group is likely to be interpreted by a breath machine as being ethanol alcohol that your client intentionally ingested. Compounds such oil based paint, lacquer, and other solvent that may contain toluene, xylene and heptane, all of which can be read by a breath machine as ethanol alcohol.

More troubling is that while alcohol enjoys a 2100:1 partition ratio, many of these substances possess a much lower partition ratio. Essentially, very small amounts of these substances will significantly influence a breath test.

Toluene is perhaps the biggest culprit in this area. It is commonly found in many substances. When inhaled, it can remain in the membrane of the throat and lungs for weeks. And its partition ratio is a mere 7:1. This is critical when the BAC tech states that the only way toluene could affect the breath test would be if it were at deadly levels in the body. Many breath test technicians will state this “lethal dose” opinion under the assumption that these compounds possess the same 2100:1 partition ratio.

8

Papple, The Effect of Oral contraceptive Steroids on the Rate of Post Absorptive Phase Decline of Blood Alcohol Concentration in Adult Women. 15:1 Canadian Society of Forensic Sci. J. 17 (1982).

All of these substances possess significantly lower partition ratios, meaning that again, another assumption of breath testing is completely wrong.

I. CONCLUSION The lawyer must remember that Cross Examination is your opportunity to testify. You cannot tell a story with a series of questions. You cannot paint a picture with a scalpel.

You must use short, declarative statements to tell your story. When dealing with a breath test expert, your cross must tell the story of how this machine makes assumptions and generalizations and never takes your individual client into account. You must tell a story that this is an indirect form of measurement where we attempt to estimate the content of something by measuring something entirely different. When you employ these methods of cross, you will find that you appear more authoritative and far more polite. The jury will like both and ultimately, you client is far more likely to enjoy the fruits of your labor.

Texas Criminal Defense Lawyers Association

28th Annual NCDD/TCDLA Mastering Scientific Evidence March 24-25 Royal Sonesta New Orleans, LA

Topic: Cannabis & Cars: Marijuana DUI/DWIs Speaker:

George Bianchi 1950 112th Ave NE Ste 201 Bellvue, WA 98004 (206) 728-9300 Phone georgebianchi@thebianchilawfirm.com Email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

BOOKS FOR YOU TO HAVE

http://www.lulu.com/shop/http://www.lulu.com/shop/scott-macdonald/cannabis-crashes-mythstruths/paperback/product-24000984.html#productDetails Second Edition (2021): $28.92 First Edition (2018): FREE https://ia600908.us.archive.org//11/items/cannabiscrashes00macdonald/cannabiscrashes00macdo naldFinal.pdf Scott Macdonald is a professor in the School of Health Information Science and a scientist with the Canadian Institute for Substance Use Research (formerly CARBC) at the University of Victoria, and was CISUR's Assistant Director of Research from 2005 to 2018. He previously worked as a scientist for 25 years at the Centre for Addiction and Mental Health, formerly the Addiction Research Foundation in Ontario. His educational background includes a PhD in epidemiology and biostatistics from the University of Western Ontario, a MA in criminology from the University of Toronto, and a BSc in psychology from the University of Victoria.

Dr. Macdonald has focused his career on research issues in the substance use and abuse field, with empirical studies in a variety of areas, such as the role of substance use in injuries, program evaluation, and marijuana and alcohol policy. He has been an expert witness in several cases related to drug testing in the workplace, and been a consultant with groups such as the International Labour Office, the World Health Organization and Transport Canada. https://www.uvic.ca/research/centres/cisur/about/scientists/profiles/macdonald-scott.php 1

https://www.wigmoreonalcohol.com/ $110.00 Canadian

Jim Wigmore has worked as a forensic toxicologist for over 29 years at one of the foremost forensic laboratories in North America- the Centre of Forensic Sciences in Toronto, Ontario. He testified in over 700 criminal cases throughout Canada and in numerous personal injury civil cases and coroner’s inquests. He has published over 70 scientific articles in forensic toxicology which have been cited by the Supreme Court of Canada, as well as numerous book chapters and 3 books including one on the medicolegal aspects of cannabis.

Jim has been interviewed numerous times on the CBC and other media on the issues arising out of the legalization of cannabis in Canada. He was on the expert panel of Health Canada on public information regarding this drug. He received the prestigious Derome Award from the Canadian Society of Forensic Sciences for his outstanding contributions to the field of forensic science.

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Cannabis & Cars

®

®

George L. Bianchi The Bianchi Law Firm 2000 112th Ave NE, Bellevue, WA 98004 (206) 728-9300 www.SeattleDUILawyer.com staff@thebianchilawfirm.com https://www.dropbox.com/sh/jefcj3nx1rc2aoi/AAAzTrAuMsPewluxsqQsGChua?dl=0 http;//tinyurl.com/zfze6zk

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“Cannabis & Cars” ®

2022 George L. Bianchi The Bianchi Law Firm 1950 112th Ave NE, Suite 201 Bellevue, WA 98004 (206) 728-9300 www.SeattleDUILawyer.com staff@thebianchilawfirm.com Marijuana has been around a long, long time. It’s been documented in China and Central Asia from 10,000 years ago. It’s been used as food; people wrote about getting high in 6500 B.C.; and it has been used in religions, social rituals, and for medicinal purposes for over six centuries.

In fact, there’s even information to suggest that it was very prevalent and in use in the United States during the era of George Washington and the original colonies of the United States.

American production of hemp was encouraged in the 17th century for the production of rope, sails, and clothing. In 1619, the Virginia Assembly passed legislation requiring every farmer to grow hemp. Hemp was allowed to be exchanged as legal tender in Virginia, Pennsylvania, and Maryland.

A 1905 bulletin from the U.S. Department of Agriculture lists twenty-nine states with laws mentioning “cannabis.” Eight are listed with “sale of poison” laws that specifically mention “cannabis”: North Carolina, Ohio, Wisconsin, Louisiana, Vermont, Maine, Montana, and the District of Columbia. Among those states that required a prescription for sale were Wisconsin and Louisiana. Several “sale of poison” laws did not specify restricted drugs, including Indiana, Rhode Island, Hawaii, Nebraska, Kentucky, Mississippi, and New York. Many other states did not

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consider cannabis a poison, but required it to be labelled. The 1906 Pure Food and Drug Act required labelling of any cannabis contained in over-the-counter remedies.

Further regulations of cannabis followed in 1911 in Massachusetts, and 1914 in New York and Maine. New York’s Towns-Boylan Act targeted all “habit-forming drugs,” prohibiting sales and refills to certain individuals who were considered to have a habit. Shortly thereafter, several amendments were made by the New York Board of Health, which included adding cannabis to the list of habit-forming drugs.

By 1931, twenty-nine states had outlawed

marijuana.

In 1937, Congress passed the Marijuana Tax Act, after a national propaganda campaign against the “evil weed.” This statute criminalized marijuana, effectively made possession or transfer of cannabis illegal throughout the United States, and restricted possession to individuals who paid an excise tax for certain authorized medical and industrial uses. Annual fees were collected from importers, manufacturers, and cultivators.

During World War II, the importing of hemp and other materials crucial for producing marine cordage, parachutes and other military necessities became scarce. During the 1940s, in response, the U.S. Department of Agriculture launched its “Hemp for Victory” program, encouraging farmers to plant hemp, by giving out seeds and granting draft deferments to those who would stay home and grow. Rumor has it that by 1943, some 375,000 acres were registered in the program.

During the 1960s, marijuana became more prevalent with the advent of Haight-Ashbury, hippies and events such as Woodstock. In 1969, the Supreme Court held the Marijuana Tax Act

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to be unconstitutional in Leary v. United States1 and, more than likely in response, Congress passed the Comprehensive Drug Abuse Prevention and Control Act of 1970.

In 1996, California voters passed Proposition 215, allowing for the sale and medical use of marijuana, with other states following suit. Currently, twenty-eight states2 have some sort of medical marijuana provision, the impact of which will be discussed later in this presentation.

While in the past we assumed the only way to experience the effects of marijuana was by smoking it, with the prevalence and legalization of marijuana, new methods of administration have come into place. While we used to only think of a “joint” or a “bong” as a means of ingestion, we now have things such as volcanoes, vaporizers, oils, and even food items like brownies, chocolate chip cookies, and gummy bears as a mode of experiencing the effects of marijuana. For those of you who are not experienced in the use of marijuana and possibly are not truly scientists, I’ll try to make a quick presentation about how marijuana works. Once ingested using one of the above methods, the first thing that happens is a rush of THC; this is the active ingredient, the messingup part of marijuana, when you can do stupid things and get in trouble. The next phase is when Hydroxy-THC appears. This is the phase where you, personally, definitely know you’ve recently consumed, but you may not be showing the true effects of having consumed, because you only have the active metabolite still with you. The third phase involves Carboxy-THC, which is the total inactive secondary metabolite left in your system for up to thirty days, depending on how much and how often you wish to indulge.

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THC

11-OH-THC

THC-COOH

(Δ tetrahydrocannabinol)

(Hydroxy-THC)

(Carboxy-THC)

a.k.a. 11-Hydroxy-Δ9tetrahydrocannabinol

a.k.a. 11-nor-9-Carboxy-THC, 11-nor-9-carboxy-Δ9tetrahydrocannabinol, 11-nor-9-carboxy-Δ9-THC, 11COOH-THC, and THC-11-oic acid

Main active metabolite of THC

Secondary metabolite

9

Main Isomer & principal psychoactive constituent

No one can really predict a true absorption and elimination curve for marijuana, as it relates to the THC (Δ9 tetrahydrocannabinol), but studies have shown that the THC–COOH (CarboxyTHC) can and does stay in someone’s system for thirty days or so, based upon frequency of use, potency of what is used, and, of course, individual tolerance. The unfairness and lack of any meaningful way of knowing one’s THC concentration is also evident in Morris Odell’s 2015 study entitled Residual cannabis levels in blood, urine and oral fluid following heavy cannabis use.3 Twenty one individuals spent seven to ten days at two different 12-bed adult residential drug treatment facilities. All twenty one had active THC at the time of their first sample and fourteen were above 5 ng/ml when the first sample was taken, one as soon as 1.2 hours after last reported use (subject #17) and another was above 5 ng/ml when the first sample was taken 21 hours after last reported use (subject #10). In all, fourteen individuals were at or above the “per se” 5 ng/ml 5

of active THC (Washington, Montana, and Colorado) at the time of their first sample. One remained at the “per se” 5 ng/ml of active THC after 129 hours (subject #7), another remained at the “per se” 5 ng/ml of active THC after 127 hours (subject #1) and another at 100 hours (subject #20). Subjects #1 and #7 spiked up in their THC level at 127 hours and 129 hours, respectively, and subjects #12 and #13 both spiked up in their THC level after seventy two hours. Subject #15 spiked up at 93 hours and then again, later on at 140 hours. Subject #13 also had a “double hump” spike up in THC level at 52 hours and then again at 72 hours. What is of further interest are the varying ways that all twenty one subjects had in their elimination rates.

With these materials we have also provided, to the seminar sponsors, articles to help you better understand that there is no true understanding and agreement about the absorption and elimination of THC. We have also posted these articles online with Dropbox4 for you to easily review. This lack of the ability to perform retrograde extrapolation, to meet either the standards of Daubert5 or Frye,6 might cause significant havoc for prosecutors to be able to relate a blood test, obtained hours later, to the actual time of driving, if that is what your state requires. In states, such as Washington, where the need to retrograde was legislatively removed for alcohol, and now marijuana, a blood test obtained within two hours of the actual driving is admissible and a Per Se violation for conviction of guilt, without the need to retrograde. Such trivial scientific concerns are not an issue.

Needless to say, the concerns of when, and at what level, marijuana impairs driving capabilities, as well as how marijuana is absorbed and eliminated, have been attempted to be evaluated and criticized over the years by numerous authors.

In 2014, I asked Ted Vosk, scientist/attorney, attorney/scientist to review twenty-three articles,7 that I was aware of, at that time, that could possibly try to relate marijuana impairment

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to a specific THC level, and what these scientists would recommend for a possible Per Se level of THC for conviction based upon impairment. With these materials we have provided, to the seminar sponsors, the articles that Ted reviewed. We have also posted these articles online with Dropbox.3 Certain things about Ted’s analysis must be understood: 1) Whole-blood concentrations of THC are approximately half of those in plasma or serum. So, a plasma or serum concentration of 10 ng/mL equates to 5 ng/mL in whole blood.8 2) Certain publications were noted strictly as a survey, because they did not conclude anything with respect to either when impairment set in or what the per se limit should be. They simply discussed what a bunch of other researchers concluded like a “book report,” as Ted called them.

3) Some were just extensive surveys of other studies without any independent research.

4) Some papers addressed drugs generally, and not marijuana specifically, which was the goal of this analysis.

5) The two early papers, from 19749 and 1993,10 didn’t give specific levels for impairment but thought their conclusions would be important as it only gave a context for all drugs, and indicated that THC may impair only slightly or even improve driving.

Through Ted’s analysis, that left four studies that seemed to advance some type of Per Se level, and two recommending Zero Tolerance (for a lack of anything else to do), with the remaining seventeen not giving any idea or suggestion as to whether a Per Se or Zero Tolerance would be helpful. Below, we have listed below the pertinent four studies that seem to advance some type of Per Se level, as well as the two recommending Zero Tolerance. Ted’s entire summary was provided to the seminar sponsors and has also been uploaded to Dropbox.3

Year

Title

Concentratio n at Which Significant Impairment Occurs

Per Se Level Advocated

Quotes Within the Article

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2005

2006

Franjo Grotenhermen et al., Developing Science-Based Per Se Limits for Driving Under the Influence of Cannabis (DUIC) (2005)

J.G. Ramaekers, Cognition and motor control as a function of 9-THC concentration in serum and oral fluid: Limits of impairment, 85 DRUG AND ALCOHOL DEPENDENCE 114 (2006).

7–10 ng/ml serum 3.5–5 ng/mL whole

2 ng/ml serum: onset 5 ng/ml serum: significant

7–10 ng/ml serum 3.5–5 ng/mL – whole

2-5 ng/ml serum

“The present data thus supports epidemiological data and shows that THC serum concentrations between 2 and 5 ng/ml establish the lower and upper range of a per se limit for defining general performance impairment above which drivers are at risk.”

“Using current scientific evidence on cannabisinduced impairment of psychomotor skills and the related accident risk, this paper suggests a range of 7-10 ng/ml THC in the serum [3.5-5 ng/ml THC in whole blood] for an initial non-zero per se limit.”

2007

F. Grotenhermen et al., Developing Limits for Driving Under Cannabis, 102(12) Addiction, 1910 (2007).

7–10 ng/ml serum Equivalent to .05 BAC

7–10 ng/ml serum

2008

Alan W. Jones et al., Driving Under the Influence of Cannabis: A 10-Year Study of Age and Gender Differences in the Concentrations of Tetrahydrocannabinol in Blood, 103 ADDICTION 452 (2008).

> 2 mg/ml whole

Zero tolerance / LoQ

2009

Johannes G. Ramaekers et al., Dose Related Risk of Motor Vehicle Crashes After Cannabis Use: An Update, 477-499 (J.C. Verster ed., Birkhauser Verlag/Switzerland 2009).

> 2 ng/ml serum: onset 4-10 ng/ml serum: sig. increase in crash risk

2–10 ng/ml serum 1–5 ng/mL whole

“Significant performance impairment emerges at serum THC concentrations >2 ng/mL [1 ng/mL in whole blood] and crash risk significantly increases at serum THC concentrations between 4-10 ng/mL [2-5 ng/mL in whole blood].”

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2012

Gary M. Reisfield et al., The Mirage of Impairing Drug Concentration Thresholds: A Rationale for Zero Tolerance Per Se Driving under the Influence of Drugs Laws, 36(5) J. OF ANALYTICAL TOXICOLOGY 353 (2012).

Variable*

Zero tolerance

In 2006, I had the pleasure and opportunity to attend “The Effects of Drugs on Human Performance and Behavior,” conducted by the Borkenstein Center for studies of law in action, at Indiana University. If ever there was a scientist to believe about the various drugs, including marijuana, and their effect on critical tracking, divided attention, and actual driving performance, it would be Jan Ramaekers, Ph.D., from Maastricht University in the Netherlands. He actually receives grants (even from the United States!) to dose people with marijuana, 3,4Methylenedioxymethamphetamine (MDMA a.k.a. Ecstasy), Lysergic Acid Diethylamide (LSD), as well as other assorted substances, then putting the participants in real cars on real streets in real driving conditions, and monitoring them with cameras inside and outside of the car, in addition to the safety precaution of a supervisor/monitor in the passenger seat. With these materials, I provided to the seminar sponsors the 2006 presentation materials of Dr. Ramaekers to the Borkenstein Center, strictly as it relates to marijuana. This may also be accessed via Dropbox.3 Remind me to never rent a car in the Netherlands when Dr. Ramaekers gets another grant from the United States to conduct any of his further studies.

Science moves inexorably forward and hypotheses or methodologies once considered sacrosanct are modified or discarded. The judicial system, with its search for the closest approximation to the truth, must accommodate this ever-changing scientific landscape.11

On July 31, 2014 Dr, Jeffrey Michael, Associate Administrator for Research and Program Development at NHTSA provided testimony before the United States House of Representatives, 9

Committee on Oversight and Government Reform, Subcommittee on Government Operations.12 Below is part of the discussions between former Ranking Member, Congressman Gerald Connelly, and Dr. Michael.

Connelly: We have an alcohol standard that blood alcohol above a certain standard, you’re in legal jeopardy. Would you remind us what that standard is?

Dr. Michael: .08 blood alcohol.

Connelly: And that’s a national standard?

Dr. Michael: Yes, it is.

Connelly: And accepted by virtually all States?

Dr. Michael: That’s right.

Connelly: Do we have a comparable standard for THC? Dr. Michael: No, we don’t, sir. The available evidence does not support the development of an impairment threshold for THC (in blood) which would be analogous to that for alcohol.

Connelly: And why is that, Dr. Michael?

Dr. Michael: The available evidence indicates that the response of individuals to increasing amounts of THC is much more variable than it is for alcohol, so with alcohol, we have a considerable body of evidence that can place risk odds at increasing levels of blood alcohol content. For example, .08 blood alcohol content is associated with about four times the crash risk of a sober person. The average arrest is at .15 THC. That’s associated with about 15 times the crash risk. Beyond a . . . some broad confirmation that higher levels of THC are generally associated with higher levels of impairment, a more precise association of various THC levels and degrees of impairment are not yet available.

Connelly: That’s really interesting. So, we don’t have a uniform standard.

The variability is much greater than that with other controlled substances, such as alcohol.

Dr. Michael: Yeah.

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Conolly: We actually can’t scientifically pinpoint levels of impairment with any accuracy. We would all concede there’s some impairment for some period of time, but it’s very variable, and we’re not quite sure yet, certainly not sure enough to adopt a uniform standard as to here’s the maximum level beyond which we know there’s serious impairment?

Dr. Michael: That’s fair to say, sir.

Connelly: Wow. And that’s a substance one controlled substance.

Well I think it underscores, . . . your testimony underscores, Dr. Michael, why we need a lot more science here, and I guess what really strikes me is that meanwhile, as I said in my opening statement, the laboratories of Democracy, 22 states plus the District of Columbia, have decided to legalize marijuana in some fashion, most of them for medical purposes, but some of them even for recreational purposes, and meanwhile, at least on a national level, we’re not comfortable with the science, and in terms of the impact of THC on operating a vehicle of any kind. Fair statement?

Dr. Michael: Yes. And of course, we are pursuing that science.

Connelly: I understand. So we’re pursuing it. Is there a goal or an end, you know, date where we want to achieve so by a certain date we hope to have some preliminary, . . well, we hope to have the basis upon which to examine or adopt a preliminary standards comparable to other substances?

Dr. Michael: We have sponsored some work with standards development with regard to measurement techniques and specific drugs to be measured in, . . . among drivers involved in traffic crashes and also minimum cutoff levels that represent the analytical capabilities of existing technology.

Those recommendations have been established. What we lack are thresholds of impairment that are analogous to .08 BAC. One step that is currently ongoing, that will take us well into that direction is the crash risk study that I mentioned in my opening statement. This is the same sort of study that was done for alcohol a number of years ago which established those risk levels that I told you about. So this involves a very careful look at two groups of subjects, one group who has been involved in a crash, another group has not, and looking for relative concentration levels of factors that might have caused a crash, factors such as THC use. Those kinds of studies can develop the risk odds that could potentially be used to develop a threshold in the future.

Connelly: I thank you, and I wish you luck in your research. I just think that it is amazing with some of the hyperventilated rhetoric about marijuana use and THC that 50 years after, I guess it’s fifty years we’ve declared it a class one substance, we still don’t have enough data to know just how dangerous it is in operating a vehicle. . . .

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In a December 2016 final report13 that was sponsored and partially funded by the National Highway Traffic Safety Administration, and described as “the largest and most comprehensive study to address alcohol and drug crash risk in the United States through a case-control study design,”14 the authors determined that with the adjusted odds ratio for delta-9tetrahydrocannabinol (THC) “there was no significant contribution to crash risk,”15 and “no increased or decreased crash risk.”16 In a 2019 article in Addiction17 by Canadian authors they concluded that “there was no evidence of increased crash risk in drivers with THC<5ng/mL and a statistically non-significant increased risk of crash responsibility (OR=1.74) in drivers with THC≥5ng/mL.” In September of 2015 the Governors Highway Safety Association (GHSA), a national association of state and territorial highway safety offices that address behavioral highway-safety issues, including drug impaired driving, published its report that was under contract with Dr. James Hedlund entitled “Drug-Impaired Driving: A Guide for What States Can Do.” In it they wrote18: Per se laws with a limit greater than zero are modeled after alcohol per se laws, set at a BAC of 0.08 in the United States. They are apparently straightforward but conceal some thorny issues. The most fundamental is that setting a positive per se limit, such as 5 ng for THC, implies that the limit is related to impairment and that all, or most, drivers have their abilities impaired at concentrations above the limit. The scientific evidence to establish such an impairment threshold for drugs simply does not exist, and may never exist.

“The development of impairment standards for drugs similar to the .08 per se standard for alcohol has failed, not for want of trying and not for want of serious research. This is because no standard relationship between blood levels of a drug or drug metabolites and impairment has been established.”

(DuPont et al., 2012) “For more than a quarter century, there has been a search for drug blood concentrations that are the equivalent of the 0.08 g/dL threshold for alcohol-impaired driving in the United States. We suggest that such 12

equivalents are a mirage, and cannot be determined due to variable drug tolerance, lack of consistent relationships between drug blood concentrations and impairment, innumerable drug combinations and multiple other factors.”

(Reisfield, 2012) “Some toxicologists, including representatives from SOFT [the Society of Forensic Toxicologists], stated that a link between the [current] established [per se] thresholds and impairment levels cannot be supported scientifically.”

(GAO, 2015)

Also in September of 2015, Dr. Marilyn Huestis, then Chief of Chemistry and Drug Metabolism at the Intramural Research Program at the National Institute on Drug Abuse, conducted experiments by getting nineteen volunteers stoned on marijuana and driving a simulator at the University of Iowa.19 Before getting behind the wheel of the simulator, each volunteer was required to consume specific combinations of marijuana and alcohol, or a placebo. Because the university has a smoke-free campus, the volunteers had to use a vaporizer to consume their marijuana, which was furnished under strict rules by a federal garden at the University of Mississippi. Each of the nineteen drivers who completed the six combinations of pot and alcohol gave blood and saliva tests during their drives to check intoxication levels. The entire experiment took three years to design and administer, with the final testing completed in the spring of 2014.

Scientists studied the 250 variables. Some of the items included in the variables included the standard deviations of lateral position (lane weave, SDLP) and steering angle, lane departures/min, and maximum lateral acceleration with the National Advanced Driving Simulator. They found that cannabis did not affect the standard deviation of steering angle and lane departures but ultimately determined that 13.1 ng/ml of active THC approximated a 0.08 g/210L of breath alcohol concentrations and that ≥8.2 ng/ml of active THC was equal to a 0.05 g/210L of breath alcohol concentration. (Note that μg/L, as used in this study, is the same as nanograms per milliliter of 13

whole blood, when referencing THC). The study was limited to occasional smokers and authors noted: There is currently substantial interest in comparing occasional to frequent smokers and assessing potential tolerance especially as medical and recreational cannabis becomes more commonplace.

In May of 2016 the AAA Foundation for Traffic Safety published An evaluation of Data from Drivers Arrested for Driving Under the Influence in Relation to Per Se Limits for Cannabis.20 In this publication, under the heading of “Can a science-based blood THC concentration per se threshold be established?” the authors wrote the following: A key issue in this study is the utility and validity of establishing a threshold concentration that could be used to establish evidence of driver impairment. In particular, because Washington, Montana and Colorado have established 5 ng/mL THC in blood as a per se or presumptive limit for cannabis in drivers, attention has focused on this value. A variety of measures from the DEC program evaluations were examined to determine if there were differences in the rates of occurrence of indicators of drug influence and/or impairment between drivers with blood THC concentrations above and below 5 ng/mL. The evidence was very clear that 5 ng/mL was not a good discriminator of impairment.21 The authors went on further to discuss how unfair a “per se” standard is for the general public: An additional consideration that undermines the effectiveness and fairness of a per se standard for THC is that the cannabis user has no meaningful way of knowing what their blood THC concentration is either at the time of a driving event, such as an offense or crash, or predicting what it might be at the time of sampling, so can’t make an informed and responsible decision about whether to drive based on their concentration.22 In the July 2017 NHTSA Marijuana-Impaired Driving: A Report to Congress,

23

Richard

Compton wrote:

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A number of States have set a THC limit in their laws indicating that if a suspect’s THC concentration is above that level (typically 5 ng/ml of blood), then the suspect is to be considered impaired. This per se limit appears to have been based on something other than scientific evidence.

Some recent studies demonstrate that such per se limits are not evidencebased.24 In February of 2018 Dr. Marilyn Huestis wrote25: [T]he prediction of cannabinoid cognitive, psychomotor, and subjective effects remains a future need. ...

Currently, science does not support the development of cannabinoid limits per se because of in [sic] motor vehicle drivers because of the many factors influencing concentration-effect-relationships. Thus, the development of sensitive and specific behavioral motor impairment markers collected onsite is needed, with cannabinoid markers defining the agent(s) responsible for observed impairments. It is clear that continued development of biological and behavioral cannabinoid markers is needed now and for the foreseeable future.”

In the May 14, 2019 Report to Congress entitled “Marijuana Use and Highway Safety” David Peterson wrote26: [L]inks between levels of THC in a person’s body and levels of impairment have not been established.

An interesting discussion of the pharmacokinetics of THC compared to ethanol along with a summary of past literature was published27 on September 24, 2021 by Godfrey D. Pearlson, Michael C. Stevens and Deepak Cyril D’Souza. Some of my takeaways are listed below: As a consequence of the more complex pharmacokinetics of THC compared to that of alcohol, there is no straightforward way at the present time to equate measurements of THC levels in blood or saliva and current driving impairment.28 ...

Devices currently under testing that claim to detect the presence of smoked cannabis in breath samples may hopefully provide reliable index of recent

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cannabis use, although this does not necessarily equate either to dose consumed or level of intoxication/impairment.29 ...

Until there is more evidence-based consensus of opinion on meaningful thresholds for per se laws, we would recommend against reliance on such legislation. . . . Any such laws cannot claim to be strongly based on current scientific evidence, which suggest collectively that standard based detectable blood THC levels are not useful.30 ...

There is widespread agreement on the dearth of available roadside tests that assess cannabis-related behavioral patterns specifically, and an obvious need to develop such screening paradigms that index actual cannabis-related driving impairment, rather than mere intoxication that may be unrelated to such impairment. It is important therefore to first validate experimentally any such putative field sobriety impairment measures in the context of concomitant on-road or simulated driving.31 On November 5, 2021 Danielle McCartney, Thomas Arkell, Christopher Irwin, Richard Kevin and Iain McGregor wrote: [B]lood THC, 11—OH-THC and 11—COOH-THC concentrations, oral fluid THC concentrations, and subjective ratings of intoxication are relatively poor indicators of cannabis-induced impairment. The use of per se limits as a means of identifying cannabis-impaired drivers should therefore be re-considered. Indeed, it seems there is a significant risk of unimpaired individuals being mistakenly identified as ‘cannabisimpaired’ (and vice-versa) under this approach.32 Even though they discussed the problems with an individual’s lack of insight regarding driving impairment, Thomas Marcotte, et al, concluded on January 26, 2022: The lack of relationship between blood THC concentration and driving performance raises questions about the validity of per se laws.33 Current legislation for “Cannabis & Cars” is not consistent or uniform throughout the United States.

The following information about the various laws could not have been

accomplished without the help of fellow attorneys from throughout the country.34 The entire

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compilation and results from their efforts have been provided to the seminar sponsors and are also available through Dropbox.3 After reviewing all the various states’ statutes, I’ve broken down the state laws on “Cannabis and Cars” into nine categories: nine currently with a Zero Tolerance that includes metabolites,35 two currently with a Zero Tolerance that excludes metabolites,36 three currently with a Zero Tolerance that excludes medical marijuana patients,37 two currently with a Per Se Level for conviction that includes metabolites,38 four currently with a Per Se Level for conviction that excludes metabolites,39 four currently with a Per Se Level used as an inference for guilt,40 twenty-eight states that currently do not require the influence of marijuana to be directly related to a person’s driving capabilities,41 eight states that currently require the influence of marijuana to be directly related to a person’s driving capabilities,42 and currently one state with a hybrid offense where there is a Per Se Level for metabolites that also needs to be in conjunction with the person being under the influence, by statute.43 In 1999, Georgia’s Zero Tolerance statute, that includes metabolites, was found to be unconstitutional as violating equal protection, in that the legislative distinction between legal and illegal users of marijuana did not relate to legislature’s purpose of protecting the public, in Love v.

State.44 So, the state of Georgia has now moved, by case law, to being a state where they require the influence of marijuana to be directly related to a person’s driving capabilities. This could be considered contrary to the later 2002 opinion out of Nevada, where their supreme court ruled that legislation can be based on rational speculation, unsupported by evidence or empirical data, because the government has so many problems that it can justify such rough accommodations, which may be illogical and unscientific, as well as not recognizing a distinction between lawful medical users of marijuana (Williams v. State),45 but consistent with the 2013 opinion from the

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state of Michigan, where they, again, acknowledged the need to make a distinction between legal and illegal users of marijuana (People v. Koon).46 Then, in 2014, Arizona determined that their Zero Tolerance, that includes metabolites, made no sense, because of a lack of capability for causing impairment, in State ex rel. Montgomery v. Harris,47 so the state of Arizona has now moved, by case law, to being a state where they do not require the influence of marijuana directly be related to a person’s driving capabilities. Arizona’s fallout against metabolites could be considered consistent with an opinion from Idaho in 2013,48 but contrary to opinions from South Carolina in 2006,49 Michigan in 2010,50 Delaware in 2013,51 Illinois in 2013,52 and California in 2014,53 where courts ruled that evidence of Carboxy-THC (THC-COOH, a.k.a. 11-nor-9-Carboxy-THC; 11-nor-9-carboxy-Δ9-THC; 11-COOH-THC; 11nor-9-carboxy-Δ9-tetrahydrocannabinol; or THC-11-oic acid) is proper evidence for a jury to consider as it relates to guilt and negligence. But in 2015, Arizona stepped back a little bit in Dobson v. McClennen54 where they ruled that medical marijuana use is an affirmative defense where the patient must prove that the concentration was insufficient to cause impairment.

In 2016, Washington State’s 5 ng/ml per se law was ruled upon in an unpublished opinion55

by Division I of their Court of Appeals in City of Kent v. Cobb.56 Justices Applewick, Spearman and Cox ruled that with the legalization of recreational marijuana in I-502 that there was also a legislative judgement made that a person’s driving is impaired at 5 ng/ml. This was a vagueness challenge where the court looks to see if the statute is not defining a criminal offense with sufficient clarity for the ordinary person to understand what is criminal and/or whether the statute provides ascertainable standards of guilt to protect against arbitrary enforcement. The court ruled that Cobb only made a vagueness challenge as to it not defining a criminal offense with sufficient clarity for

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the ordinary person to understand what is criminal and since this was an “as applied to the facts” standard of review, -Cobb consumed marijuana, -Cobb showed signs of impairment, -Cobb acknowledged he was under the influence, -Cobb chose to drive, -Cobb was a person who deliberately went perilously close to the area of proscribed conduct, and -Cobb took the risk that he may have crossed the line at being over 5 ng/ml.

The court in Cobb ultimately ruled that he cannot now argue that he was not on notice that he might be driving in violation of the law in an “as applied to the facts” argument. The court also ruled that Cobb did not properly preserve his police powers and single subject arguments to be considered by them in his appeal. Discretionary review was denied by the Washington State Supreme Court on May 3, 2017.57 On January 18, 2022 the constitutionality of Washington State’s 5 ng/ml per se law was finally argued in the Washington State Supreme Court with the case of State v. Douglas Fraser, No. 98896-0. As of the writing of this presentation, attorneys for Fraser and Amicus (me) are awaiting the ruling. The briefing for State v. Douglas Fraser is located in the dropbox location.4 These distinctions between the various modes and methods of conviction really come into play when looking at out-of-state convictions for comparable offenses and mandatory sentence enhancements.

Most licensing authorities throughout the United States look to the AAMVA Code Dictionary (ACD). This is a set of codes used nationwide to identify the type of driver conviction.

AAMVA stands for the American Association of Motor Vehicle Administrators. ACD codes are used in messages sent over AAMVAnet, which is AAMVA's proprietary, secure computer

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network that connects to each State Driver Licensing Agency (SDLA) in the 50 United States and the District of Columbia.

Website for American Association of Motor Vehicle Administrators58: http://www.aamva.org/ACD/

Most all driving statutes in each state are assigned an ACD Code. The ACD Code is really the key and is universal for all states. When we are dealing with offenses that have a specific alcohol number associated with the conviction, the ACD Code can be helpful for purposes of comparability.

Driving over a specific alcohol level ACD Code A04 A08 A10 A11 A60 A12

Description

Abbreviation

Driving CMV with BAC at least 0.04 but not greater than 0.079

Driving with BAC at or over 0.08 Driving with BAC at or over 0.10 Driving with BAC at or over _____(detail field required)

DUI04BACPLI DUI≥08BACPLI DUI≥10BACPLI DUI≥BAC PLI:

Underage Convicted of Drinking & Driving at 0.02 or higher BAC

UNAGE D*DCOV

Refusal to Submit to test for Alcohol-Implied Consent

REFUSED TEST

But, when we are dealing with a DWI/DUI conviction not associated with a specific alcohol level or a drug conviction for DWI/DUI, the ACD Code is not helpful for purposes of comparability. As the list below suggests, the ACD Code makes no distinction between Zero Tolerance, Per Se, statutes that do not require the influence of alcohol to be directly related to a person’s driving capabilities, statutes that require the influence of alcohol to be directly related to a person’s driving capabilities, statutes that do not require the influence of marijuana/drugs to be

20

directly related to a person’s driving capabilities, and statutes that require the influence of marijuana/drugs to be directly related to a person’s driving capabilities, General DWI/DUI Group: These can be challenged based upon different definitions by the various states and statutes ACD Code A20 A21 A22 A23 A24 A25 A26

Description Driving under influence of alcohol or drugs Driving under influence of alcohol Driving under influence of drugs Driving under influence of alcohol and drugs Driving under influence of medication not intended to intoxicate

Driving while impaired Drinking alcohol while operating a vehicle

Abbreviation DUI ALC/DRUG DUI ALCOHOL*

DUI OF DRUGS DUI ALC&DRUG DUI MEDICATN DRV IMPAIRED DRNK WH OPER

A61, A90, A91, A94, & A98 are administrative Per Se and refusal codes.

Administrative Per Se ACD Code A61 A90 A91 A94 A98 A95

Description

Abbreviation

Underage Administrative Per Se – Drinking and Driving at .02 or higher BAC

UNAGE D*DADM

Administrative per se for BAC at or over 0.10

DUI@10ADMIN* DUI@--ADMIN* DUI@04ADMIN* DUI@08ADMIN* APS DRUG

Administrative per se for BAC at _____ (detail field required) Administrative Per se for BAC of at least 0.04 but not greater than 0.079

Administrative per se for BAC at or over 0.08 Administrative Per Se for Drugs

Montana also has a UVC Code (Uniform Violation Code) that is used by them. If a UVC has an assigned ACD Code, then the corresponding information is shared with other states. If a UVC has no assigned ACD Code, then the corresponding conviction is only recorded with that state.

In the criminal arena, we can look to case law for comparability purposes and challenging the prior conviction in court. In 2013, the United States Supreme Court announced the “modified categorical approach” for determining when a prior is truly a prior for violating a so-called 21

“divisible statute” in Descamps v. United States.59 Recently, in 2014 with State v. Arndt,60 using the “modified categorical approach,” the Supreme Court in the state of Washington determined that an Oregon conviction for DWI/DUI could not be considered as a prior conviction in Washington for a sentence enhancement, due to the fact that the Oregon DWI/DUI does not have to be directly related to driving capabilities, while Washington DUI has to be directly related to driving capabilities. Prior to the “modified categorical approach,” case law had previously determined that a Colorado DWI/DUI is not a prior conviction for purposes of a subsequent conviction in California (State v. McNally, 2002),61 a California DWI/DUI is not a prior conviction for purposes of a subsequent conviction in Montana (State v. Polaski, 2005),62 a Michigan DWI/DUI is a prior conviction for purposes of a subsequent conviction in Indiana (State v. Akins, 2005),63 a California DWI/DUI is a prior conviction for purposes of a subsequent conviction in Washington (State v. Chambers, 2010),64 an Indiana DWI/DUI is a prior conviction for purposes of a subsequent felony conviction in Wyoming (Spreeman v. State, 2012),65 and a Texas DWI/DUI is a prior conviction for purposes of a subsequent conviction in Alaska (Phillips v. Alaska, 2014).66 At least one state, in the past, had expressed a problem with the probation requirement that a person not consume marijuana, when they may have a legal medical marijuana card. In 2003, the state of California found such a probation restriction to be unwarranted, in People v.

Tilehkooh,67 but then changed their probation statute, under § 11362.795, to allow for such restriction, even with a legal medical marijuana card under certain conditions. This revised California statute was upheld in 2009 with People v. Moret.68 Colorado has no problem restricting people’s use of marijuana while on probation,69 as has Arizona,70 and Washington has enacted a specific statute authorizing a marijuana restriction as a condition of probation, even with a medical marijuana card, under RCW 69.51A.055.

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Certain things about a DWI/DUI investigation for marijuana are going to be the same as they were for alcohol, and some will change. A DWI/DUI investigation will still be in three phases: •

PHASE ONE: Vehicle in Motion

•

PHASE TWO: Personal Contact

•

PHASE THREE: Prearrest Screening

Each phase includes a “task,” a “decision,” and another “task.”

In PHASE ONE, the first “task” is to observe the vehicle in motion. Next is the “decision” as to whether there is sufficient reason to stop the car. The final “task” is to observe the stopping sequence. This will remain the same for alcohol and marijuana.

Some of the things that they look for in driving for alcohol, and now marijuana, will be the same, such as judgment problems, following too close, lane travel, bad turns, and appearing to be impaired. I love that appearing to be impaired may only be a 35% probability of impairment. There can also be speeding and braking problems that police will look for, or problems with lane travel or positioning, such as weaving, straddling, drifting, and swerving. Vigilance problems are also looked at, such as no headlights, not using turn signals, driving the wrong way on a one-way street, and stopping in the middle of the road for no reason (something all of us have done on at least one occasion). Driving slow is a problem, as is driving fast; either way you lose.

20 Initial Visual DWI Detection Cues for Nighttime (NHTSA: DOT HS 808 677) o Turning with wide radius o Straddling center or lane marker o Appearing to be impaired o Almost striking object or vehicle o Weaving

DWI DETECTION GUIDE (DOTHS 808 654, 1997) STUSTER (Weaving plus any other cue: p ≥ 65%) (Any two cues: p ≥ 50%) (* p > 50% when combined with any other cue)

o Problems Maintaining Proper Lane Position (p = 50-75%) o Weaving o Weaving across lanes o Straddling a lane line 23

o Driving on other than designated roadway o Swerving o Speed slower than 10 M.P.H. below the limit o Stopping in lane for no apparent reason o Following too closely o Drifting o Tires on center or lane marker o Braking erratically o Driving into opposing or crossing traffic o Slow response to traffic signals o Signaling inconsistent with driving actions o Stopping inappropriately (other than in traffic lane) o Turning abruptly or illegally o Accelerating or decelerating rapidly o Headlights off

o Drifting o Swerving o Almost striking a vehicle or other object o Turning with wide radius or drifting during curve o Speed and Braking Problems (p = 4575%) o Stopping problems (too far, too short, too jerky) o Accelerating for no reason o Varying speed o Slow speed o Vigilance Problems (p = 55-65%) o Driving without headlights at night * o Failure to signal turn or lane change * o Signaling inconsistent with vehicle actions * o Driving in opposing lanes o Wrong way on a one-way street o Slow response to traffic signals o Slow or failure to respond to officer’s signals o Stopping in lane for no apparent reason o Judgment Problems (p = 35–90%) o Following too closely o Improper or unsafe lane change o Illegal / improper turn (to fast, too jerky, sharp, etc.) o Driving on other than designated roadway o Stopping inappropriately in response to officer o Inappropriate or unusual behavior o Appearing to be impaired

Please be reminded that all of the above identified driving issues were associated with testing for alcohol, and not marijuana.

PHASE TWO of the DWI/DUI investigation also consists of certain responsibilities for the law enforcement officer: a “task,” a “decision,” and then a second “task.” The first “task” is the 24

observation and interview of the driver, while seated in the vehicle, which occurs prior to directing the defendant to exit from the vehicle.71 Three techniques are particularly pertinent in applying the concept of divided attention in this first “task” of PHASE TWO: o asking for things simultaneously o asking interrupting or distracting questions; and o asking unusual questions.

An additional technique for law enforcement in PHASE TWO, identified in this same manual to help in this first “task,” is to ask the individual to recite the alphabet,72 perform a count down,73 and a finger count.74 The above techniques are consistent with the limitations and appropriate techniques in a Terry75 setting. The usual traffic stop is analogous to a “Terry stop.” Berkemer v. McCarty, 468 U.S. 420, 439, 104 S. Ct. 3138 (1984).

Typically, this means that the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions. But the detainee is not obliged to respond. And, unless the detainee’s answers provide the officer with probable cause to arrest him, he must then be released.

Id. at 439-440.

It is during this first “task” of PHASE ONE that the infamous “green tongue syndrome” comes into play. Some of you may have previously seen my motion to compel the prosecutor to tell me who their expert is as it relates to the “green tongue syndrome” and to give me the treatises and articles that their experts may rely upon to give an opinion that a “green tongue” is consistent with the use of marijuana…and how they never give me anything. Then I found what I thought was a great case out of Utah on “the green tongue syndrome”: State v. Hechtle.76 Without his sunglasses,

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Hechtle’s eyes were ‘very red, very glassy.’ They also ‘had a droop to them,’ and the pupils were dilated.

Just with this, [T]he trooper ‘knew that [Hechtle] was probably using marijuana’ and asked Hechtle to stick out his tongue. Hechtle complied. The trooper noted that Hechtle’s tongue was ‘very green’. . . This information ‘confirmed’ to the trooper that Hechtle had been smoking marijuana.

The court then said: We note, however, that the state has presented nothing, no scientific studies and no case law or other authority, to support the reliability of the trooper’s concern regarding the condition of Hechtle’s tongue.

The Hechtle court then cited to a case from Washington named State v. Wheeler,77 that supposedly stood for the proposition that: Although we assume the officer’s assertion to be true for the purposes of this opinion, we are nevertheless skeptical as to its accuracy. We find no case stating that recent marijuana usage leads to a green tongue.

I thought I had died and gone to heaven...a case from my own state dealing with the “green tongue syndrome.” I immediately went to the Westlaw cite given by Hechtle, only to find out that this was an unpublished Washington opinion from May 19, 2000, something that I am forbidden to cite, under GR 14.1(a).78 We cannot cite, as authority, an unpublished opinion decided prior to March 1, 2013, and Washington appellate courts have made it abundantly clear that unpublished opinions have no precedential value and do not become part of the common law, so it’s a no-no for us to cite to an unpublished opinion from Washington decided prior to March 1, 2013. The same may not be true for other states, as it relates to unpublished opinions. For example, in Ohio, under Rule 4 of the Rules for Reporting Opinions (Rep. R.), all court of appeals opinions, whether published or not, may be cited as legal authority and weighted as deemed appropriate by the courts.

In Illinois, under Rule 23(e)(1), citing to unpublished opinions is a no-no; in Iowa, under Iowa

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R.App. Rule 6.904(2)(c), an unpublished opinion may be cited in a brief if readily accessible electronically, but such decision shall not constitute controlling legal authority; in New York, unpublished opinions are entitled to respectful consideration but not binding precedent79; and in Texas, under Texas Rules of Appellate Procedure 47.7, opinions not designated for publication have no precedential value but may be cited with the notation “not designated for publication.”

So, the question for me in Washington, with trying to use the May 19, 2000 unpublished opinion of State v. Wheeler which was cited in the published opinion from Utah of State v. Hechtle, was: Does this mean that I can now cite to the unpublished Washington opinion, in a brief in the State of Washington, or will I get rebuked and sanctioned for violating the Washington rules dealing with unpublished opinions?

Answer: I decided to use as a block quote from Hechtle where the unpublished citation to Wheeler is located and let the prosecutor and the court sort it out.

I reviewed the various Student and Instructor DRE Manuals from 1993 to 201580 and did not see any reference to a green tongue or greenish coating on the tongue until the 2006 editions and there was always a caveat in the Instructor Manual to: “Point out that there are no known studies that confirm marijuana causing a green coating on the tongue.” In the February 2018 DRE Instructor Manual they have now written: A greenish coating on the tongue has been documented in two peer‐reviewed articles.

• “The Drug Evaluation Classification Program: using ocular and other signs to detect drug intoxication;” Journal of American Optometric Association, Edward Kosnoski, Robert Yolton, Karl Citek, Charles Hayes, and Richard Evans; Vol. 69/Number 4; April 1998 • “A Two‐Year Study of Delta 9 Tetrahydrocannabinol Concentrations in Drivers; Part 2; Physiological Signs on Drug Recognition Expert (DRE) and non‐DRE Examinations;” Journal of Forensic Sciences, Kari Declues, Shelli Perez, and Ariana Figueroa; 2017 doi:10.1111/1556‐ 4029.13550

In the Declues, Perez and Figuero 2017 article the authors determined from reviewing 363 case reports from the Orange County Crime Laboratory dealing with DREs and marijuana that the

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officers noted in 185 of the cases some type of “tongue coating” and in 96.2% of those cases THC was present. The authors did not draw any conclusions that marijuana causes any type of coating on the tongue and never gave any other description, other than “tongue coating”, not black, not brown, not yellow, not green or any color whatsoever. The other 1998 article was not actually “peer-reviewed”81 and when journalist Dylan Segelbaum from the York Daily Record81 interviewed Karl Citek about this article Citek agreed that the article does not confirm any causation of green tongue from marijuana whatsoever and that the authors were simply reporting what police were supposedly taught in the DRE program. “It was intended to be more educational than anything else, . . . it’s a review paper.” Dylan seemed to have also tracked the origins of the “green tongue” to a handbook called “Identifying the Marijuana User,” written, and published, in 1986 by Dr. Forest S. Tennant, Jr. and dedicated to the California Highway Patrol.

Ironically, it seems that the retirement Dr. Forest S. Tennant, Jr., in 2018, may have been due, in part, to an ongoing DEA investigation of his opioid prescription practices and being described as part of a “drug trafficking organization” where he personally profited from the sale of high dose opioid prescriptions.82

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We should still point out to the courts where the DRE instructors are told to tell their students that there are no known studies confirming that marijuana causes a green tongue: Point out that there are no known studies that confirm marijuana causing a green coating on the tongue.83 Other states84 may have mentioned the “green tongue syndrome,” but none have gone into any lengthy analysis like the state of Utah. Utah police must have a thing for tongue colors, because in 2005, with the case of State v. Chism,85 Deputy Utah County Sheriff James Randall tried to convince the court that a brown residue on the tongues of underage juveniles indicated that they had been using tobacco illegally.

A law enforcement officer is trained that the next aspect of PHASE TWO in the DWI/DUI investigation is for the law enforcement officer to make the “decision” whether there is sufficient reason to instruct the driver to step from the vehicle. The “decision” to instruct the driver to step from the vehicle usually is made after the officer has developed a suspicion that the driver is impaired.86 Law enforcement officers are also trained that they may also instruct a suspect to exit the vehicle as a means of ensuring officer safety. In some law enforcement agencies this “decision” is “automatic since their agency policy dictates that the driver always be told to exit the vehicle, regardless of the cause for the stop.”87 In PHASE TWO of the DWI/DUI investigation, the defendant must cooperate, by law, with the first “task” by producing a driver’s license, registration and proof of insurance. The defendant is not obligated, by law, to cooperate with the law enforcement officer’s “decision” to direct or instruct the person to exit the vehicle, unless there are legitimate and specific concerns for officer safety in this case. Thus, any evidence gathered during the second “task” of the law enforcement officer, in observing the defendant’s actions while exiting the vehicle, can only follow

29

from a voluntary or consensual request to exit, unless there are legitimate and specific concerns for officer safety in this case.

Under Pennsylvania v. Mimms88 and its progeny, a police officer may, as a matter of course, lawfully require the driver of a car lawfully stopped for a suspected traffic violation to step out of his/her vehicle. Id. at 111. That rule is grounded in legitimate and specific concerns for officer safety in the particularized factual scenario of the case. The Philadelphia officer’s testimony in Mimms was, that as a matter of policy, he has individuals exit their vehicles upon initial contact regardless of the nature of the stop, and the decision to have them exit the vehicle is actually made before the driver is even contacted. Should the person be pulled over for speeding, a broken tail light, or expired tabs (as in Mimms) this particular officer would direct the person out of the vehicle upon initial contact 100% of the time irrespective of how they look, act, their sobriety or lack of sobriety. In Mimms, it was that police officer’s regular and routine practice to order all drivers out of their vehicles, as a matter of course, whenever they had been stopped for a traffic violation, which was adopted, by that officer, as a precautionary measure to afford a degree of protection and safety to the officer. The court in Mimms also noted on page 111 at footnote 6, [W]e do not hold today that “whenever an officer has an occasion to speak with the driver of a vehicle, he may also order the driver out of the car.”

Likewise, in Washington, with State v. Kennedy,89 the Supreme Court upheld an officer immediately ordering an individual out of a car, after the officer signaled the defendant to stop, when the defendant was observed to lean forward as if to put something under the seat. Legitimate and particularized officer safety concerns of Officer Adam allowed for that request, of the defendant, to exit the vehicle.

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Of course, we all know what happens, in the real world, when a person questions an officer’s authority, when attempting to direct a person exit the vehicle—an arrest for obstructing, the taser comes out, or both.

The second “task” of the officer in PHASE TWO of the DWI/DUI investigation is to observe the driver’s exit and walk from the vehicle. The officer is trained that how the driver steps and walks from the vehicle and action or behavior during the exit sequence may provide important evidence of impairment. Usually the suspect is not yet under arrest when the officer gives the instruction to exit the vehicle.90 The officer is trained that he should be alert to the driver who: o o o o o o o

shows angry or unusual reactions; cannot follow instructions; cannot open the door; leaves the vehicle in gear; “climbs” out of vehicle; leans against vehicle; keeps hands on vehicle for balance.

Once out of the vehicle, PHASE THREE of the DWI/DUI investigation then begins, with the individual being asked to perform ‘voluntary” Standardized Field Sobriety Tests and a “voluntary” Portable Breath Test (PBT).91 As far as I know, there have been six “peer reviewed92” studies93 done on Standardized Field Sobriety Tests and how they might relate to marijuana use. We have provided these studies to the seminar sponsors, as well as making them available through Dropbox.3 A consistent author in three of the first four studies is Dr. Katherine Papafotiou, from Australia, who seemed to be on an agenda to try and make the three Standardized Field Sobriety Tests (HGN, Walk-and-Turn, and One-Leg Stand) viable for marijuana, even though her own statistics might not have truly supported the same. The bottom line is that all her studies showed that our typical three standardized tests do not deal well with marijuana. With the HGN, there is no nystagmus with

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marijuana. In fact, at best, they had about a 31% prediction rate, not on any of our standard cues, but on one they made up, called the “HMJ”: head movements or jerks. With the Walk-and-Turn, they determined that the only relevant clue was stepping off the line, and that was no help in predicting THC impairment. The best was the One-Leg Stand, which only had about a 40% accurate prediction rate. Dr. Papafotiou, and her co-authors wrote, “The amount of false positives could be quite higher if the SFSTs alone are used to determine whether an individual is driving under the influence of drugs.” Amazingly, Dr. Papafotiou, and her co-authors also put to print their attitude about marijuana, and wrote: “Furthermore it is the author’s view that in real-life scenarios, a high incidence of false negatives is more detrimental to the safety of motorists than a high incidence of false positives.” In a breath of fresh air, Dr. Jan Ramaekers helped co-author a 2012 article with W.M. Bosker, about marijuana and the Standardized Field Sobriety Tests,94 where they wrote: The latter study showed that neurocognitive performance of heavy, daily cannabis users was impaired during alcohol intoxication, but not after THC smoking. The absence of neurocognitive impairments in heavy cannabis users was interpreted to show behavioral tolerance to the impairing effects of THC. …

It was expected that single doses of THC would not affect SFST performance in heavy cannabis users …

The relative lack of sensitivity of SFST for cannabis effects in the present study thus cannot be explained by a total lack of cannabis intoxication at the time of testing. …

In general, the present data indicate that SFST were mildly sensitive to the effects of THC depending on dose and cannabis use history. …

This fits with the general conclusion that SFST are mildly sensitive to the impairing effects of THC, but that impairments may go undetected in some individuals, particularly at lower THC concentrations. …

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Taken together, the results indicated that the SFST were mildly sensitive to THC use in heavy users, probably because many of the participants have developed behavioral tolerance to THC-induced impairments.

In November of 2016, Kari Declues, Shelli Perez and Ariana Figueroa had their results of reviewing two years’ worth of marijuana field sobriety performance, in California, based mainly upon the administration and criteria for the three standardized tests set forth by the National Highway Traffic Safety Administration manuals published.95 The authors wanted this study to be specific to THC, so 639 of the subject reports reviewed were eliminated from the study results due to the presence of other drugs. While they may have focused on the horizontal gaze nystagmus (HGN), walk and turn (WAT) and one leg stand tests, they also threw the Romberg balance and finger-to-nose test into the mix. Interestingly enough, even though prior studies had all avowed that HGN is not present with marijuana use, 27 of the 309 subjects exhibited HGN above the threshold for impairment (four or more clues) with a THC concentration range of 2-18 ng/ml and 10 had the presence of VGN with the same THC concentration range of 2-18 ng/ml. Ultimately the authors did not support the use of HGN or VGN to support marijuana impairment. With the WAT test even though 288 (87.8%) of the subjects reached or surpassed the NHTSA threshold of two cues and a finding that the WAT test “seemed to be the most sensitive in evaluating impairment by THC,” the authors ultimately found that “[t]here was no correlation of number of clues present with the concentration of THC found in the blood.” (It should be noted that the subject THC concentration range was 2-60 ng/ml). With the one leg stand test 211 of the 325 (64.9%) exhibited two or more cues with a subject THC concentration range of 2-45 ng/ml and was totally discounted as being sensitive in evaluating impairment by THC. “The Romberg test did not show specific impairment for THC” with approximately half (159 or 46.9%) being within the “normal” acceptable range of estimating the passage of time of thirty-seconds +/- 5 seconds,

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124 (36.6%) below “normal” and 56 (16.5%) estimating above the “normal” acceptable range.

The authors also found that “[t]he finger-to-nose test did not show specific impairment from THC.” As a follow-up to their previous research, in 2018 Kari Declues, Shelli Perez and Ariana Figueroa used the same data to determine if there were objective signs, eye examinations and physiological indicators that might relate to the presence of THC.96 They determined that several objective signs were ‘excellent’ indicators of the presence of THC (red eyes 94%, droopy eyelids 85.6%, affected speech 87.6%, tongue coating 96.2%, and odor of marijuana 82.4%) . They also found that 88.5% of the subjects with the presence of THC had either rebound dilation or hippus (rebound dilation 50.8%, hippus 38%). The authors noted that droopy eyes should not, by themselves, be considered evidence of impairment,97 and possibly thought it appropriate to combine rebound dilation and hippus because the two are confused with each other and sometimes used interchangeably in the field.98 Finally, about 63.6% of the THC positive subjects had dilated pupils in room light and increased blood pressure was found to be a poor indicator of the presence of THC. But remember that in 1993, Jack Stuster, of Anacapa Sciences, Inc., began a two-phase report as commissioned by NHTSA99 to determine if there were behaviors of individuals which could be used by officers to accurately identify impaired motorists. Stuster eliminated some of police observations because they might be indicators more of social class than impairment. Stuster thus eliminated flushed face; bloodshot or droopy eyes; glassy, watery or glazed eyes; appearing sleepy or confused; being inattentive to the officer or being uncooperative with the officer; and being lighthearted, humorous, or jovial as observations for consideration. So, the results of this recent study by Declues, Perez and Figuero should also be analyzed in the same manner.

In 2016 the AAA Foundation for Traffic Safety published An evaluation of Data from Drivers Arrested for Driving Under the Influence in Relation to Per Se Limits for Cannabis.100 In

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this publication they wrote that with DUI arrests, strictly for marijuana, where only the standardized three test battery (horizontal gaze nystagmus, walk and turn and one leg stand) were performed that 79.4% (13,988) of the 17,612 cases reviewed confirmed positive for either THC (1 ng/mL), Carboxy-THC (5 ng/mL), or Hydroxy-THC (5 ng/m/L).101 This means that 20.6% of those people arrested had no type of THC, whatsoever (no ∆-9 THC, Carboxy-THC or HydroxyTHC), in their system even though arrested strictly for a marijuana DUI!! This same study showed that 64.3% (11,328) of the 17,612 cases reviewed confirmed positive for THC concentrations greater to or equal to 1 ng/mL and that 58.3% of the cases reviewed confirmed positive for THC concentrations less than 5 ng/mL (the per se threshold adopted in Washington, and Montana, and the threshold for a rebuttable presumption in Colorado and Illinois) and that 21.3% had concentrations less than 2 ng/mL.102 A 2022103 article by Jodi Gilman, et al found when using functional near infrared spectroscopy (fNIRS) that when Drug Recognition Examiners conducted the A.R.I.D.E. examination [HGN, pupillary response, lack of convergence, modified Romberg, walk-and-turn, one leg stand and finger-to-nose] that they were 67.8% accurate, with a 35.4% false positive rate and had a 35.4% Positive Predictive Value (PPV). PPV is the number of true positives divided by the sum of true positives and false positives and is therefore the proportion of subjects with positive test results who are actually positive.

Even though the above studies show how unreliable the HGN, WAT and one leg stand tests are in determining marijuana impairment, you should be aware of the 2007 Court of Appeals decision from Ohio, State v. Dixon,104 where the court agreed that the HGN test results (4 cues noted) should not be admissible and considered for impairment by THC but that the WAT test

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results (3 cues noted) and the one leg stand test results (2 cues noted) were admissible to show impairment by THC. Then on September 19, 2017 the Massachusetts Supreme Court 105 found that the standardized three test field sobriety battery (HGN, walk & turn, and one leg stand) are not “scientific tests” for THC impairment, ergo, no expert opinion by police on impairment. “We are not persuaded, however, that the FSTs can be treated as scientific tests establishing impairment as a result of marijuana consumption. The scientific community has not reached a consensus as to whether a defendant’s performance on any combination of FSTs, or on any individual FST, is correlated with marijuana use or impairment.”106 The court also found that the effects of THC cannot be considered as a subject where there is general knowledge of diminished ability, impairment, physical or mental effects for a lay opinion on impairment. “[N]o studies have concluded that any specific characteristics are routinely found in people who have used marijuana and were impaired.”107

“[S]ome scientific studies had identified ‘four prevalent physical

characteristics common among those who were determined to be cannabis-positive drivers ...

These physical characteristics are red and/or bloodshot eyes, a lack of convergence, eyelid tremors, and drowsiness’ He [trial judge] determined, however, that no testimony admitted at the DaubertLanigan hearing related these physical characteristics ‘to an inference of impaired driving by reason of marijuana use. Further, no scientific studies validating these specific physical characteristics as symptomatic of impaired driving by reason of marijuana use were entered into evidence.’”108 The court further determined that “an officer may not testify that a defendant ‘passed’ or ‘failed’ any FST, as this language improperly implies that the FST is a definitive test of marijuana use or impairment.”109

But, . . . the court ultimately ruled that the

results/observations of performance on the three test field sobriety battery are still admissible. The

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court went on to also suggest that a jury instruction be given which reads in part: “It is for you [the jury] to determine how much, if any, weight to give the roadside assessments,” and “evidence of how a defendant performed in roadside assessments, standing alone, is never enough to convict a defendant of operating under the influence of marijuana.”110 Despite there being no scientific validity about the HGN, WAT and one leg stand tests and determining marijuana impairment, in 2019 the State of Illinois amended their implied consent statute to include “standardized field sobriety tests approved by the National Highway Traffic Safety Administration” when the law enforcement officer has “an independent, cannabis-related factual basis giving reasonable suspicion that the person is driving or in actual physical control of a motor vehicle while impaired by the use of cannabis.”111 The General Assembly finds that . . . (ii) standardized field sobriety tests approved by the National Highway Traffic Safety Administration are divided attention tasks that are intended to determine if a person is under the influence of cannabis. The purpose of these tests is to determine the effect of the use of cannabis on a person’s capacity to think and act with ordinary care and therefore operate a motor vehicle safely. Therefore, the results of these . . . standardized field sobriety tests, appropriately administered, shall be admissible in the trial of any civil or criminal action or proceeding arising out of an arrest for a cannabis-related offense as defined in Section 11-501 or a similar local ordinance or proceedings under Section 2-118.1 or 2-118.2.112 The State of Illinois now imposes a twelve (12) month suspension for “refusal or failure to complete . . . field sobriety tests”113 and a six (6) month suspension “for submitting to . . . field sobriety tests that disclosed the driver was impaired by the use of cannabis.”114 So now that we know that the three Standardized Field Sobriety Tests might not be totally helpful in determining probable cause for marijuana, so, where do we look? You might look at the DRE Matrix for marijuana and the different things that a DRE looks for, such as HGN, VGN, reaction to light, body temperature, muscle tone, pupil size, pulse rate, and blood pressure. The problem is that there is no HGN or VGN with marijuana; reaction to light, body temperature, and 37

muscle tone are normal with marijuana; and even pupil size can be normal with marijuana. For some reason, pulse rate and blood pressure might be elevated, but could this possibly be because of the police contact and investigation techniques?

In July of 2016, Rebecca Hartman, Jack Richman, Charles Hayes and Marilyn Huestis had their results of reviewing the “12 Steps” in 302 DRE evaluations from over a five year time frame and nine states published.115 Contrary to the later study in November of 2016 by Declues et. al.,73 Hartman et. al. determined that the finger-to-nose test (≥3 misses) was the best indicator of marijuana impairment (sensitivity, specificity, positive/negative predictive value, and efficiency ≥87.1%), followed by eyelid tremors during the Romberg test at ≥86.1% for all diagnostic characteristics. Hartman et. al., also seemed to be of the opinion that whether the person was ≥ 5 ng/ml or ≤ 5 ng/ml made no significant difference in the results. On May 24, 2017 the court in Pennsylvania116 ruled that a police officer’s lay opinion that a defendant was under influence of marijuana due to “eyelid tremors” was inadmissible in a driving under the influence (DUI) prosecution.

In 2016 the AAA Foundation for Traffic Safety published An evaluation of Data from Drivers Arrested for Driving Under the Influence in Relation to Per Se Limits for Cannabis.117 In this publication they wrote that with DUI arrests, strictly for marijuana, where there was a DRE assessment that of the 602 cases included, almost half (48.0%) the subjects had THC concentrations below 5 ng/mL (the per se threshold adopted in Washington, and Montana, and the threshold for a rebuttable presumption in Colorado and Illinois); and that 9.0 percent were below 2 ng/mL, the per se threshold in Ohio, and Nevada.118 The authors also wrote that Systolic BP, Diastolic BP, Pupil Size, Walk-and-Turn Clues, One-Leg Stand Clues, Finger-to-Nose Miss and

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Romberg Sway, as well as age and sex failed to distinguish between those with THC concentrations above and below 5 ng/mL.119 The conclusion of the study was that “there is no evidence from the data collected, particularly from the subjects assessed through the DRE exam, that any objective threshold exists that establish impairment base on THC concentrations in suspects placed under arrest for impaired driving”120 In the July 2017 NHTSA Marijuana-Impaired Driving: A Report to Congress, 121 Richard Compton wrote: The DEC [DRE] program includes a set of signs and symptoms (physiological, effects of the eyes, and behavior) that are indicative of marijuana use. They are to determine if observed impairment is likely caused by marijuana. Almost all of these signs and symptoms are not based on driving impairment.122 Current knowledge about the effects of marijuana on driving is insufficient to allow specification of a simple measure of driving impairment outside of controlled conditions.123 [T]here are currently no evidence-based methods to detect marijuanaimpaired driving.124 It is not possible to predict whether there might be a unique combination of cues that could be used by law enforcement to detect marijuanaimpaired driving with a high degree of accuracy.125 [A]vailable research does not support the development of such a psychomotor, behavioral or cognitive test that would be practical and feasible for law enforcement to use at this time.126 NHTSA, and others, are currently conducting research toward that goal.

We are funding a controlled dosing study of different ways to measure marijuana impairment in driving related skills in the hope that some of these measures will be amenable to use by law enforcement. The first step is to show that everyone dosed on marijuana shows an observable amount of impairment in a controlled laboratory setting. The next step would be to develop simplified versions of these measures that do not require sophisticated and expensive equipment that are suitable for field use by law enforcement. The last step would be to establish the relationship between observed impairment on these tests and elevated risk of crash involvement. Success in the near term is not guaranteed, but possible.127

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Normally at this point in PHASE THREE of the investigation, an officer would ask a person to provide a sample of their breath to screen for alcohol content, using a Portable Breath Testing device (ie. AlcoSensor III, IV or FST, and Alcotest 7410), while still on the side of the road and prior to making the decision to arrest. New devices are now in place as portable screening devices to be used on the side of the road for marijuana. We now have the Draeger 5000128, and the DrugWipe129 oral fluid drug screening devices. As far as I know, there are sixteen states130 that might statutorily allow for oral fluid (saliva) testing at roadside.

Draeger 5000

DrugWipe

At least as of 2014, in head-to-head testing, it seems that the Draeger 5000 is currently the instrument of choice, as an oral fluid screening device, for marijuana.131 In 2019, the State of Michigan approved the Alere DDS2 to continue to be used in their roadside drug testing pilot study but the device name recently changed to SoToxa as part of Abbott’s acquisition of Alere in 2017. Currently Intoximeters has exclusive distribution rights to sell the SoToxa. The State of Kansas is currently testing the SoToxa device for use in their state.

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There are also three other devices that are in the development stage of portable breath testing for THC to be used by law enforcement at the side of the road: Cannabix Technologies, Washington State University (Regents Professors Nicholas Lovrich and Herbert Hill), and Hound Labs.132 Cannabix Technologies133 is working with the Yost Research Group at the University of Florida, and Dr. Marilyn Huesteis to develop a breath detection device based

upon

high-field

ion

mobility

and

mass

spectrometry. The Yost Research Group is a world leader and pioneer in the development of high-field asymmetric waveform

ion

mobility

spectrometry,

known

as

FAIMS. Cannabix and The Yost Research Group are working together to identify Tetrahydrocannabinol (THCthe psychoactive component of marijuana that causes intoxication) in ultra low ranges using highly sensitive

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FAIMS and FAIMS-mass spectrometer systems (FAIMSMS).

The WSU project134 uses Ion Mobility Spectrometry (IMS), the same technology used to detect explosives, drugs and chemical warfare agents. Regents Professor Emeritus Nick Lovrich and Regents Professor Herbert Hill, who led the development of IMS over the last 40 years, originally said the project would be ready in the spring 2017 but on April 26, 2018 it was announced that WSU had halted their research for fear of backlash from the federal government and the denial for continued research from the university’s Institutional Review Board and the Office of Research Support and Operations.135 Hound Labs136 is located in California and supposedly is using some type of new and different,137 undisclosed, science to give precise measurements in pictograms138 (the measurements of one trillionth of a gram), which then needs to somehow be converted to reflect a level of ng/ml as used by statutes, law enforcement and toxicology laboratories throughout the United States.

In 2016 the Colorado State Patrol started a program testing five roadside Marijuana DUI Detection Devices as part of a three-year pilot program.139 The Draeger 5000 and Alere DDS2 were initially included as devices being used with this project.

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Other startups in the roadside marijuana detection arena are the Potalyzer140 (Developed by researchers at Stanford University) and DrugRead.141

Potalyzer

DrugRead

On September 5, 2019 researchers from the University of Pittsburg announced their latest, unnamed, tool to detect THC.142 The device uses carbon nanotubes, which are 1/100,000 the size of human hair, to recognize the presence of THC, even when other substances are in the breath, such as alcohol. The THC molecule binds to the surface of the tubes, altering their electrical properties. The remaining steps for the device include testing the prototype and correlating the device's output to the driver's level of impairment.

The remainder of these materials are more geared towards blood testing for marijuana when dealing with consent, search warrants, and exigent circumstances, but I thought it also important for you to be aware of a new breath capturing device that then analyzes and measures the captured particles using LC-MS/MS, a mass spectrometry analysis system.

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An individual breathes or blows into a mouthpiece so no saliva can get to the filter, only the aerosols.

A small plastic bag indicates when it is full and the sample collection is finished. Next, the collection device is sealed for transportation to the laboratory for analysis.

Researchers at the Karolinska

Institute in Sweden developed this new kind of breathalyzer, called SensAbues,143 that, in addition to detecting cannabis, also detects amphetamine, methamphetamine, cocaine, MDMA, buprenorphine, methadone, heroin, benzodiazepines, and nicotine.

The device was tested on 47 people who had taken drugs in the previous 24 hours and were recovering at a drug addiction emergency clinic, the researchers report in the Journal of Breath Research.144 The test correctly detected drug use in 87% of cases, and was as accurate as blood and urine tests. Rumor has it that SensAbues has recently contracted with Canadian law enforcement for further testing, in real world situations. So be alerted that SensAbues may be coming soon, to a town near you!

Currently, there are three avenues for law enforcement to obtain an individual’s blood sample for future analysis of marijuana content: consent (by the individual or by statute), exigent circumstances, and search warrants.

If your client voluntarily consents to the blood sample, you’re in a world of hurt, you probably lose any suppression motion and the blood result will be admissible. On March 16, 2017 Division III of the Washington State Court of Appeals r145 ruled that an individual does not even

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have to be advised of their right to an additional test when a blood test is obtained outside of the implied consent provisions (ie. search warrant or voluntary consent).

In the “implied consent” arena, the United States Supreme Court in the consolidated cases of Bernard v. Minnesota, Birchfield v. North Dakota and Beyland v. North Dakota Department of Transportation146 ruled that breath testing was considered a reasonable search incident to arrest and that administrative and criminal sanctions can follow from a refusal but with blood testing a warrant was needed and refusal under implied consent was not admissible.

For exigent circumstances, you need specific facts in your case, justifying the intrusion, based upon Missouri v. McNeely.147 If your state is a Zero Tolerance, that includes metabolites, exigent circumstances will probably never be justified, because marijuana metabolites can stay in your system for up to thirty days. If your state is a Per Se, that includes metabolites, you might have a better chance at showing exigent circumstances to justify the intrusion of sticking a needle in someone’s arm. If your state is a Zero Tolerance, that excludes metabolites, or a Per Se state, that also excludes metabolites, exigent circumstances can be a reality.148 Studies have suggested that a THC level drops over 80% within the first hour after smoking, and that a majority of the blood tests considered came back with less than 5 ng/ml of THC in the blood.149 It is hornbook law that a search warrant should only be issued if the affidavit shows probable cause that the defendant is involved in criminal activity and that evidence of the criminal activity will be found in the place to be searched at the time the search warrant is requested. Wayne R. LaFave, Search and Seizure § 3.7(d) (5th ed. 2013). As we all are aware, significant time may pass from when a law enforcement officer made their observations of an individual that resulted in probable cause to arrest for the crime of DWI/DUI and when the application for a search warrant is made. So when reviewing an affidavit or declaration in support of a search warrant, has the law

45

enforcement officer relayed to the issuing magistrate information that there is still evidence of the crime in your client’s blood, when seeking the search warrant? If this nexus has not been made, then an argument can be made that the affidavit or declaration does not support probable cause that evidence of the criminal activity will currently be found in the person’s blood, for suppression of the blood result. So the question becomes whether or not information provided would be considered “stale” or was the warrant sought in a “reasonable time”? In dealing with alcohol levels and blood, the state of Texas determined that a six hour delay in requesting a search warrant did not present “stale” information in State v. Dugas,150 and the state of Michigan determined that there was no longer any sound reason that existed to engraft the “reasonable time” element for search warrants with blood alcohol in People v. Wager.151 With marijuana, “staleness” and “reasonable time” will definitely be an issue to address, these issues will be decided on a case-bycase basis, in that there is no bright-line rule for “staleness.”152 We should also be looking to boilerplate, unsubstantiated conclusory assertions made by law enforcement in their declarations or affidavits. The use of generalized boilerplate recitations designed to meet all law enforcement needs for illustrating certain types of criminal conduct engenders the risk that insufficient “particularized facts” about the case or the suspect will be presented for a magistrate to determine probable cause.153 Case law has suggested that such generalized boilerplate recitations should be removed when a court later reviews the same to make and independent determination of probable cause.154 Some law enforcement agencies, such as the Washington State Patrol (WSP) have templates155 to use in obtaining a search warrant.

On July 3, 2017 Division I of the Washington State Court of Appeals took issue with the Washington State Patrol DUI search warrants that are a “largely preprinted form to which there are typed insertions” in State v. Youngs.156 In Youngs the trooper checked the box that:

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I am charged with the responsibility for the investigation of criminal activity occurring within ___________________ and have probable cause to believe, and do, in fact, believe that evidence of the crime of: X

Driving While under the influence, RCW 46.61.502

Later on in the “largely preprinted form to which there are typed insertions” the trooper filled in the blanks and checked the box: This search warrant is being requested ___2_____ hours __15___ minutes after _Anthony Youngs___________ X

was found in physical control of a motor vehicle,

Elsewhere in the affidavit the trooper had inserted the following language regarding his initial contact: “[Youngs] was involved in a one car rollover collision. He was transported to Evergreen Hospital.”

The court in Youngs ruled that “found in physical control of a motor vehicle” was an inappropriate conclusory assertion, not a factual statement, and that “involved in a one car collision” was insufficient to factually prove that Youngs had actually driven the car to support a search warrant for Driving While under the influence.

Below are some excerpts from a WSP template with some appropriate cross outs: I,

declare under the penalty of perjury under the laws in

the State of Washington that the following is true and correct: I am duly appointed, qualified, and acting law enforcement officer for the: Washington State Patrol ________________ County Sheriff’s Office ________________ Police Department (Agency Name)

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I am charged with the responsibility for the investigation of criminal activity occurring within

and have probable cause to believe, and do, in

fact, believe, that evidence of the crime(s) of:

Vehicular Homicide, RCW 46.61.520 Reckless Manner

Under the Influence of Liquor or Drugs

Disregard for the Safety of Others

Vehicular Assault, RCW 46.61.522 Reckless Manner

Under the Influence of Liquor or Drugs

Disregard for the Safety of Others

Driving While under the influence, RCW 46.61.502 Physical Control of Vehicle While under the influence, RCW 46.61.504 Driving under Twenty-one Consuming Alcohol or Marijuana, RCW 46.61.503 _________________________________________________________

is concealed in, about or upon the person of located within the County of

, who is currently , my belief being based upon information

acquired through personal interviews with witnesses and other law enforcement officers, review of reports and personal observations, said information being as further described herein—

I have served as a law enforcement officer for

years. My training and

experience regarding investigations of the above crimes includes the following:

Basic Law Enforcement Academy at the Washington Criminal Justice Training Commission Washington State Patrol Basic Academy Standardized Field Sobriety Testing and/or SFST Refresher Training Drug Recognition Expert School Collision Reconstruction Training Advanced Roadside Impaired Driving Enforcement Training.

Additional training and experience:

The facts supporting the initial contact with ____________ are as follows:

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. . .

The facts supporting my belief that _____________is under the influence of intoxicating liquor, marijuana, or any drug as follows:

. . .

The suspect, ______________________________; is being treated at a medical facility. Treatment, to date, includes: the administration of one or more drugs the administration of intravenous fluids the transfusion of blood

submitted to a breath test on an instrument approved by the State Toxicologist but the breath alcohol concentration reading of _________ is not consistent with the suspect’s level of impairment suggesting that the suspect is also under the influence of a drug.

refused to submit to a breath test on an instrument approved by the State Toxicologist has an apparent language barrier search warrant for blood ’s blood, if extracted within a

A sample of

reasonable period of time after he/she last operated, or was in physical control of, a motor vehicle, may be tested to determine his/her current blood alcohol level and to detect the presence and/or level of marijuana, or any drug as defined by RCW 46.61.540. This search warrant is being requested _________ minutes ____ ___ hours after ______________________________ ceased driving a motor vehicle,

was found in physical control of a motor Vehicle

or ceased operating a _____________________________________.

Therefore, I request authority to cause a sample of blood, consisting of one or more vials, to be extracted from the person of

by a person qualified

to withdraw blood and I request authority to submit that blood sample to be analyzed to determine the blood alcohol level and to detect the presence and/or level of marijuana, or any drug as defined by RCW 46.61.540.

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[CHECK IF SUBMITTING BY ELECTRONIC DEVICE] This declaration was submitted to the issuing judge or magistrate using an electronic device that is owned, issued, or maintained by the below-identified criminal justice agency.

I certify (or declare) under the penalty of perjury under the laws of the State of Washington that the foregoing is true and correct to the best of my knowledge, information and belief.

Declarations and affidavits in support of a search warrant should also be reviewed to determine if reckless or intentional misstatements or omissions of material facts may be the basis to invalidate a search warrant with the material misrepresentations being stricken from the affidavit and a determination made whether, as modified, the affidavit supports a finding of probable cause.157 This is where we need to educate judges, behind the scenes, about the true prevalence of marijuana, as evidenced possibly by your toxicology laboratory statistics. For example, in Washington, in reviewing the figures it turns out that in 2016 only 12.9% of those tested were at or above the illegal limit of 5 ng/ml of THC and over 61% of those arrested had no THC in their system, not even Carboxy-THC. Judges need to know that marijuana is not the new scourge of obviously dangerous drivers presenting a grave danger to the public,158 warranting further DWI/DUI exceptions to the constitution. (Fourth Amendment and Article 1, §7 for the State of Washington) /// /// /// ///

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Analysis of Suspected Impaired Driving Cases (DUI & DRE) Received at the Washington State Toxicology Laboratory159 (Statewide Data From Blood Results) Total # of Impaired Driving Cases Received For Testing

Total #/% of Cases NOT Testing Positive for Marijuana (Not Even Carboxy)

Total #/% of Cases Testing Positive for Only Carboxy

Total #/% of Cases Where delta-9 THC Concentration is BELOW 5 ng/ml

Total #/% of Cases Where delta-9 THC Concentration is 5 ng/ml or HIGHER

Year 2011

5,132

3,675 (71.6%)

421 (8.2%)

530 (10.3%)

506 (9.9%)

2012

5,298

3,783 (71.4%)

527 (10.0%)

378 (7.1%)

610 (11.5%)

2013

5,468

3,281 (60.0%)

825 (15.1%)

642 (11.7%)

720 (13.2%)

2014

6,270

3,991 (63.7%)

520 (8.3%)

1,056 (16.8%)

703 (11.2%)

2015

7,044

4353 (61.8%)

380 (5.4%)

1,389 (19.7%)

922 (13.1%)

2016

8,478

5214 (61.5%)

416 (4.9%)

1752 (20.7%)

1096 (12.9%)

2013 was the first full year of marijuana reform legalizing personal possession of less than 40 grams and implementation of 5 ng/ml of Δ-9 THC as a DUI per se criminal offense. *Items in red were numbers or statistics derived from numbers or statistics provided in black from Dr. Fiona Couper.

As James G. Wigmore160 wrote in his blog on September 26, 2016161: I am not advocating smoking marijuana before driving as there is an increased risk of fatal collisions than for sober drivers. The drug and alcohol-free driver is the safest one. But it appears that the decriminalization of marijuana may not be as great a public safety concern for traffic safety as with alcohol. (Emphasis added)

Even if the blood (or other specimen) results for THC are admissible, remember what Richard Compton wrote in the July 2017 NHTSA Marijuana-Impaired Driving: A Report to Congress:162 A much smaller number of studies have looked at the impairing effects of marijuana use on driving-related skills. Less is known about these effects due in part to the typical differences in research methods, tasks, subjects and dosing that are used. A clearer understanding of the effects of marijuana use will take additional time as more research is conducted.163 51

The existing epidemiological research (both culpability and case-control studies) have produced contradictory estimates of risk for marijuana use.

Some of these studies have suggested that marijuana use has minimal or no effect on the likelihood of crash involvement, while others have estimated a small increase in the risk of crash involvement.164 The psychoactive ingredient in marijuana, delta-9-tetrahydrocannabinal (THC), does not correlate well with impairment.165 While fewer studies have examined the relationship between THC levels and degree of impairment, in those studies that have been conducted the consistent finding is that the level of THC in the blood and the degree of impairment do not appear to be closely related.166 THC level in blood (or oral fluid) does not appear to be an accurate and reliable predictor of impairment from THC. Also, when low levels of THC are found in the blood, presence of THC is not a reliable indicator of recent marijuana use.167 [T]oxicological tests confirm presence of of THC but they do not indicate driver impairment or necessarily indicate recent marijuana use (when the THC levels are low).168 Toxicologists are not able to provide expert testimony that a specific amount of THC present in a suspect’s blood (or other specimen) is definitely associated with being impaired by marijuana and render the driver unable to drive safely.169 The use of BAC or BrAC as an indicator of driving impairment has assisted law enforcement and prosecutors in being able to show that an alcohol-impaired driver has a BAC that has been demonstrated to increase crash risk. The use of THC level cannot serve this same role for marijuana-impaired driving.170 In the May 2019 Report to Congress171, David Peterson wrote: There is as yet no scientifically demonstrated correlation between levels of THC and degrees of impairment of driver performance, and epidemiological studies disagree as to whether marijuana use by a driver results in increased crash risk.

52

The bottom line is . . .

• All evidence will be admissible unless you’ve objected to it, • You will never get anything unless you ask, • Research is the key, • You don’t need to appeal everything, • And, bad facts make for bad law on appeal.

Be safe and have fun.

®

1

Leary v. United States, 395 U.S. 6 (1969).

Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Oregon, Rhode Island, Vermont, Washington, and Wisconsin.

3 Odell, M., Frei, M., Gerostamoulos, D., Chu, M., Lubman, D. (2015). Residual cannabis levels in blood, urine and oral fluid following heavy cannabis use. Forensic Science International, Apr; 249:173-180, Table 3 at pages 177178 4 https://www.dropbox.com/sh/jefcj3nx1rc2aoi/AAAzTrAuMsPewluxsqQsGChua?dl=0 5 Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct 2786 (1993).

6 Frye v. United States, 54 App.D,C, 46, 293 F. 1013 (1923).

7 Mateus M. Bergamaschi et al., Impact of Prolonged Cannabinoid Excretion in Chronic Daily Cannabis Smokers’ Blood on Per Se Drugged Driving Law, 59:3 CLINICAL CHEMISTRY 519 (2013); Rebecca L. Hartman & Marilyn A. Huestis, Cannabis Effects on Driving Skills, 59:3 CLINICAL CHEMISTRY 478 (2013); K.P.C. Kuypers et al., A Case-Control Study Estimating Accident Risk for Alcohol, Medicines and Illegal Drugs, 7:8 PLoS ONE e43496 (2012); Gary M. Reisfield et al., The Mirage of Impairing Drug Concentration Thresholds: A Rationale for Zero Tolerance Per Se Driving under the Influence of Drugs Laws, 36(5) J. OF ANALYTICAL TOXICOLOGY 353 2

53

(2012); D. Mark Anderson & Daniel I. Rees, Medical Marijuana Laws, Traffic Fatalities, and Alcohol Consumption, IZA Discussion Paper No. 6112 (Nov. 2011); Beth M. Anderson, Ph.D. et al., Sex Differences in the Effects of Marijuana on Simulated Driving Performance, 42(1) J. OF PSYCHOACTIVE DRUGS 19 (March 2010); Erin L. Karschner et al., Do Δ9-Tetrahydrocannabinol Concentrations Indicate Recent Use in Chronic Cannabis Users?, 104(12) ADDICTION 2041 (Dec. 2009); Johannes G. Ramaekers et al., Dose Related Risk of Motor Vehicle Crashes After Cannabis Use: An Update, 477-499 (J.C. Verster ed., Birkhauser Verlag/Switzerland 2009); R. Andrew Sewell et al., The Effect of Cannabis Compared with Alcohol on Driving, 18(3) AM J ADDICT. 185 (2009); Schwilke et al., Intra- and Intersubject Whole Blood/Plasma Cannabinoid Ratios Determined by 2-Dimensional, Electron Impact GC-MS with Cryofocusing, 55(6) CLINICAL CHEMISTRY 1188 (2009); Alan W. Jones et al., Driving Under the Influence of Cannabis: A 10-Year Study of Age and Gender Differences in the Concentrations of Tetrahydrocannabinol in Blood, 103 ADDICTION 452 (2008); A Cannabis Reader: Global Issues and Local Experiences, Chapter 9 at 173-198 (Sharon Rodner Sznitman, Borje Olsson & Robin Room eds., EMCDDA 2008); Paul Armentano, Cannabis and Driving: A Scientific and Rational Review (NORML 2008); F. Grotenhermen et al., Developing Limits for Driving Under Cannabis, 102(12) Addiction, 1910 (2007); J.G. Ramaekers, Cognition and motor Control as a Function of 9-THC Concentration in Serum and Oral Fluid: Limits of Impairment, 85 DRUG AND ALCOHOL DEPENDENCE 114 (2006); Franjo Grotenhermen et al., Developing Science-Based Per Se Limits for Driving Under the Influence of Cannabis (DUIC) (2005); O.H. Drummer et al., The Involvement of Drugs in Drivers of Motor Vehicles Killed in Australian Road Traffic Crashes, 36(2) ACCIDENT, ANALYSIS AND PREVENTION 239 (2004); Fiona J. Couper & Barry K. Logan, Cannabis/Marijuana, Drugs and Human Performance Fact Sheets 7-12 (U.S. Dep't of Transp. Nat'l Highway Traffic Safety Admin. 2004); Barry K. Logan, Marijuana and Canabinoids, Chapter 12: Marijuana and Driving Impairment 277-294 (Mahmoud A. ElSohly, ed., 2007); M.A. Huestis, Cannabis (Marijuana) - Effects on Human Behavior and Performance, 14:1/2 FORENSIC SCI REV 16 (Jan. 2002); Colin Gemmell, Rosalyn Moran, James Crowley, Richeal Courtney, Literature Review on the Relation Between Drug Use, Impaired Driving and Traffic Accidents (EMCDDA, Feb. 1999); Hindrik W.J. Robbe & James F. O'Hanlon, Marijuana and Actual Driving Performance (U.S. Dep't of Transp. Nat'l Highway Traffic Safety Admin. 1993); Harry Klonoff, Marijuana and Driving in Real-Life Situations, 186 SCI 317 (1974).

8 Schwilke et al., Intra- and Intersubject Whole Blood/Plasma Cannabinoid Ratios Determined by 2-Dimensional, Electron Impact GC-MS with Cryofocusing, 55(6) CLINICAL CHEMISTRY 1188 (2009).

9 Harry Klonoff, Marijuana and Driving in Real-Life Situations, 186 SCI 317 (1974).

10 Hindrik W.J. Robbe & James F. O'Hanlon, Marijuana and Actual Driving Performance (U.S. Dep't of Transp. Nat'l Highway Traffic Safety Admin. 1993).

11 State v. Behn, 375 N.J.Super 409, 429, 868 A.2d 329 (2005) 12 Committee on Oversight and Government Reform, Subcommittee on Government Operations (July 31,2014) https://oversight.house.gov/hearing/planes-trains-automobiles-operating-stoned/ (Last visited June 22, 2016) 13 Lacey, J., et al., Drug and Alcohol Crash Risk: A Case-Control, NHTSA, DOT HS 812 355 (Dec. 2016), https://one.nhtsa.gov/staticfiles/nti/impaired_driving/pdf/812355_DrugAlcoholCrashRisk.pdf (Last Visited April 7, 2017) 14 Supra, at page 2 15 Supra, at page 4 16 Supra, at page i 17 Brubacker JR, Chan H, Erdlyi S, Macdonald S, Asbridge M, Mann RE, Eppler J, Lund A, MacPherson A, Martz W, Schreiber WE, Brant R, & Pursell RA, Cannabis use as a risk factor for causing motor vehicle crashes: A Prospective Study, Addiction, May 20, 2019, doi:10.1111/add.14663 18 Governors Highway Safety Association (GHSA), Drug-Impaired Driving: A Guide for What States Can Do,Sept 30, 2015, http://www.ghsa.org/html/publications/2015drugged.html (Last visited June 22, 2016) 19 Rebecca L. Hartman, Timothy L. Brown, Gary Milavatz, Andrew Spurgin, Russell S. Pierce, David A. Gorelick, Gary Gaffney, Marilyn A. Huestis, Cannabis effects on driving lateral control with and without alcohol, DRUG AND ALCOHOL DEPENDENCE, (2015), http://dx.doi.org/10.1016/j.drugalcdep.2015.06.015 20 Logan, B., Kacinko, S., Beirness, D., (May 2016). An evaluation of Data from Drivers Arrested for Driving Under the Influence in Relation to Per Se Limits for Cannabis. AAA Foundation for Traffic Safety, https://www.aaafoundation.org/sites/default/files/EvaluationOfDriversInRelationToPerSeReport.pdf (Last visited June 22, 2016) 21 Supra, at page 25 22 Supra, at page 26 23 Compton, R. (July 2017) Marijuana-Impaired Driving: A Report to Congress, DOT HS 812 440.

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24

Supra, at 28 Huestis, M.A., Smith, M.L., Cannabinoid Markers in Biological Fluids and Tissue: Revealing Intake, Volume 24, Issue 2, pages 156-172, Trends in Molecular Medicine, https://doi.org/10.1016/j.molmed.2017.12.006 (2018) 26 Peterman D, (May 14, 2019) Marijuana Use and Highway Safety, CRS Report Prepared for Members and Committees of Congress, https://fas.org/sgp/crs/misc/R45719.pdf , at page 8.

27 Pearlson, G., Stevens, M., D’Souza, D.C., Cannabis and Driving, Frontiers in Psychiatry, https://doi.org/10.3389/fpsyt.2021.689444, Front. Psychiatry, 24 September 2021 28 Supra, at 12 29 Supra, at 12 30 Supra, at 12 31 Supra, at 13 32 McCartney, D., Arkell, T., Irwin, C., Kevin, R., & McGregor, I., Are blood and oral fluid ∆9tetrahydrocannabinol (THC) and metabolite concentrations related to impairment? A meta-regression analysis.

Neuroscience and Biobehavioral Reviews, https://doi.org/10.1016/j.neubiorev.2021.11.004 (2021) Page 8 33 Marcotte, T., Umlauf, A., et. al, Driving Performance and Cannabis User’s Perception of Safety-A Randomized Clinical Trial, JAMA Psychiatry, https://doi.org/10.1001/jamapsychiatry.2021.4037 (2022) Page E8 34 Alabama: John T. Kirk & Matthew B. Alfreds; Alaska: Frederick T. Slone; Arizona: Joseph P. St. Louis; Arkansas: J. Kirby Riffel; California: Manny Daskal; Colorado: Jay Tiftickjian; Connecticut: James O. Ruane; Delaware: Scott E. Chambers; Florida: Flem K. Whited, III; Georgia: Michael Hawkins; Hawaii: Richard L. Holcomb; Idaho: Brian E. Elkins; Illinois: Donald J. Ramsell; Indiana: Fred Vaiana; Iowa: Robert G. Rehkemper; Kansas: Leslie F. Hulnick & J. Matthew Leavitt; Kentucky: Frank Mungo; Louisiana: Allyson M. Prejan.; Maine: John S. Webb; Maryland: Leonard R. Stamm; Massachusetts: Steven M. Vaillancourt; Michigan: Michael J. Boyle; Minnesota: Douglas V. Hazelton; Mississippi: Lance O. Mixon; Missouri: Stephen P. Wilson; Montana: Bryan C. Tipp & Brett D. Schandelson; Nebraska: Bradley P. Roth; Nevada: Walter B. Fey; New Hampshire: Ryan L. Russman; New Jersey: Evan M. Levow; New Mexico: David C. Serna; New York: Peter Gerstenzang & Jonathan D. Cohn; North Carolina: W. David White; North Dakota: Chad R. McCabe; Ohio: D. Timothy Huey; Oklahoma: Bruce Edge; Oregon: John Henry Hingson, III; Pennsylvania: Michael S. Sherman; Rhode Island: Michael A. DelSignore; South Carolina: Scott Joye; South Dakota: Brad Schreiber; Tennessee: Steve Oberman; Texas: Jamie Balagia; Utah: Jason Schatz; Vermont: William Cristman, Jr.; Virginia: Michael C. Tillotson & Jeff Martin; Washington: Scott R. Robbins & Ted Vosk; West Virginia: Harley O. Wagner; Wisconsin: Andrew Mishlove; Wyoming: R. Michael Vang.

35 Arizona, Georgia, Indiana, Iowa, Michigan, Oklahoma, Pennsylvania, Rhode Island, and Utah.

36 Delaware and Wisconsin.

37 Georgia, Illinois, and Michigan.

38 Nevada and Ohio.

39 Montana, Nevada, Ohio, and Washington.

40 Colorado, Illinois, Ohio, and Washington.

41 Alabama, Arkansas, Connecticut, Florida, Hawaii, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Nebraska, New Jersey, New York, North Carolina, North Dakota, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Vermont, Virginia, West Virginia, and Wyoming.

42 Alaska, California, Idaho, Kansas, Maryland, Michigan, New Hampshire, and New Mexico.

43 Ohio.

44 Love v. State,271 Ga. 398, 517 S.E.2d 53 (1999).

45 Williams v. State, 118 Nev. 536, 50 P.3d 1116 (2002).

46 People v. Koon, 494 Mich. 1, 831 N.W.2d 724 (2013).

47 State ex rel. Montgomery v. Harris, 234 Ariz. 343, 322 P.3d 160 (2014).

48 State v. Stark, 2013 WL 1338841 (Idaho App.).

49 State v. Horton, 359 S.C. 555, 598 S.E.2d 279 (2006).

50 People v. Feezel, 486 Mich. 184, 783 N.W.2d 67 (2010).

51 State v. Levan, 2013 WL 493352 (Del.Super.).

52 Illinois v. Smith, 2013 WL 2146437 (Ill.App. 3 Dist.).

53 Hernandez v. Los Angeles, 2014 WL 2734955 (Cal.App. 2 Dist.) (June 17, 2014).

54 361 P.3d 374 (2015) 55 Washington-GR14.1(a) Unpublished opinions of the Court of Appeals have no precedential value and are not binding upon any court. However, unpublished opinions of the Court of Appeals filed on or after March 1, 2013, may be cited as non-binding authorities, if identified as such by the citing party, and may be accorded such persuasive 25

55

value as the court deems appropriate. (c) Washington appellate courts should not, unless necessary for a reasoned decision, cite or discuss unpublished opinions in their opinions.

56 City of Kent v. Cobb, 2016 WL 6534892 (Div. I, October 31, 2016) 57 City of Kent v. Cobb, 2017 WL 1736718 (May 3, 2017) 58 You can also purchase The MVR Access and Decoder Digest which supplies specific information for each state, https://www.mvrdecoder.com/ 59 Descamps v. United States, 133 S. Ct. 2276, 186 L.ED.2d 438 (2013).

60 State v. Arndt, 179 Wn. App. 373, 320 P.3d 104 (2014).

61 State v. McNally, 310 Mont. 396, 50 P.3d 1080 (2002).

62 State v. Polaski, 325 Mont. 351, 106 P.3d 538 (2005).

63 State v. Akins, 824 N.E.2d 676 (Ind. 2005).

64 State v. Chambers, 157 Wn. App. 465, 237 P.3d 352 (2010).

65 Spreeman v.State, 278 P.3d 1159 (Wyo., 2012).

66 Phillips v. Alaska, -- P.3d --, 2014 WL 2993552 (Alaska App.).

67 People v. Tilehooh, 113 Cal.App.4th 1433, 7 Cal.Rptr.3d 226 (2003).

68 People v. Moret, 180 Cal.App.4th 839, 104 Cal.Rptr.3d 1 (2009).

69 People v. Watkins, 282 P.3d 500 (Colo. 2012).

70 Polk v. Hancock, 2014 WL 623701 (Ariz.App. Div. 1).

71 § VI-1 thru VI-4, DWI Detection and Standardized Field Sobriety Testing, Student Manual, HS 178 R2/06, National Highway Traffic Safety Administration (2006).

72 § VI-5 Alphabet: Beginning with a letter other than “A” and stopping with a letter other than “Z,” DWI Detection and Standardized Field Sobriety Testing, Student Manual, HS 178 R2/06, National Highway Traffic Safety Administration (2006).

73 § VI-5 thru VI-6 Count Down: Starting with the number “68” and ending with the number “53,” DWI Detection and Standardized Field Sobriety Testing, Student Manual, HS 178 R2/06, National Highway Traffic Safety Administration (2006).

74 § VI-6 Finger Count: Touching the tip of the thumb in turn to the tip of each finger on the same hand while simultaneously counting up “one, two, three, four” and then reversing the direction while counting backwards from “four,” DWI Detection and Standardized Field Sobriety Testing, Student Manual, HS 178 R2/06, National Highway Traffic Safety Administration (2006).

75 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968).

76 State v. Hechtle, 89 P.3d 185 (Utah, 2004).

77 State v. Wheeler, 2000 WL 646511 (Wash.App. Div. 2, 2000).

78 Washington-GR14.1(a) Unpublished opinions of the Court of Appeals have no precedential value and are not binding upon any court. However, unpublished opinions of the Court of Appeals filed on or after March 1, 2013, may be cited as non-binding authorities, if identified as such by the citing party, and may be accorded such persuasive value as the court deems appropriate. (c) Washington appellate courts should not, unless necessary for a reasoned decision, cite or discuss unpublished opinions in their opinions.

79 Eaton v. Chahal, 146 Misc.2d 977, 983, 553 N.Y.S.2d 642 (1990).

80 April 1993, August 1999, May 2002, September 2002, January 2006, January 2007, January 2010, January 2011, May 2013, October 2015 81 https://www.ydr.com/story/news/watchdog/2019/11/06/green-tongue-marijuana-dui-cases-york-daily-recordinvestigation/3911787002/ 82 https://www.painnewsnetwork.org/stories/2018/3/26/dr-forest-tennant-retiring-due-to-dea-scrutiny 83 2007 DRE Instructor Manual in the “Instructor Notes” Cannabis, Session XXI, Page 6.

84 State v. Blesdell-Moore, 91 A.3d 619 (New Hampshire 2014); People v. Trippet, 2001 WL 1664886 (Cal.App. 1 Dist.); State v. Schawl, 822 N.W.2d 744 (Iowa App. 2012).

85 State v. Chism, 107 P.3d 706, 518 Utah Adv. Rep. 38 (2005).

86 § VI-6, DWI Detection and Standardized Field Sobriety Testing, Student Manual, HS 178 R2/06, National Highway Traffic Safety Administration (2006).

87 § VI-2 & VI-6, DWI Detection and Standardized Field Sobriety Testing, Student Manual, HS 178 R2/06, National Highway Traffic Safety Administration (2006).

88 Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330 (1977).

89 State v. Kennedy, 107 Wn.2d 1, 726 P.2d 445 (1986).

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90

§ VI-6, DWI Detection and Standardized Field Sobriety Testing, Student Manual, HS 178 R2/06, National Highway Traffic Safety Administration (2006).

91 Cf. City v. Personeous, 63 Wn. App. 461, 465, 819 P.2d 821 (1991); City v. Stalsbroten, 138 W.2d 227, 978 P.2d 1059 (1999).

92 According to the National Academy of Sciences, the practice of using non peer reviewed studies has been condemned by the scientific community. Strengthening Forensic Science in the United States: A Path Forward, National Academy of Sciences and The National Institute of Justice (2009) https://www.ncjrs.gov/pdffiles1/nij/grants/228091.pdf (Last visited June 22, 2016). The need for peer-reviewed research to substantiate opinions was mentioned on many occasions throughout this report. Id. at pages 19, 23, 71, 81, 91, 106, 114, 124, 125, 190, 281. The authors even expressed concerns that, in the past, the assumption in court has been that whenever an expert testifies as to his/her conclusions that it is assumed his/her work (or worked relied upon) was vigorously peer reviewed. Id at page 106. Ultimately the authors stated at page 23, in Recommendation 3(b): “The research by which measures of reliability and accuracy are determined should be peer reviewed and published in respected scientific journals.” These same authors wrote on page 12: “Scientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly.” But because accused parties in criminal cases are convicted on the basis of testimony from forensic science experts, much depends upon whether the evidence offered is reliable. Furthermore, in addition to protecting innocent persons from being convicted of crimes that they did not commit, we are also seeking to protect society from persons who have committed criminal acts. Law enforcement officials and the members of society they serve need to be assured that forensic techniques are reliable. Therefore, we must limit the risk of having the reliability of certain forensic science methodologies condoned by the courts before the techniques have been properly studied and their accuracy verified. “[T]here is no evident reason why [‘rigorous, systematic’] research would be infeasible.” However, some courts appear to be loath to insist on such research as a condition of admitting forensic science evidence in criminal cases, perhaps because to do so would likely “demand more by way of validation than the disciplines can presently offer.”

[Internal citations and footnotes omitted] 93 M. O’Keefe, Drugs Driving—Standardized Field Sobriety Tests: A Survey of Police Surgions in Strathclyde, 8 J. OF CLINICAL FORENSIC MED. 57 (2001); K. Papafotiou, J.D. Carter & C. Stough, The Relationship Between Performance on the Standardised Field Sobriety Tests, Driving Performance and the Level of Δ9Tetrahydrocannabinol (THC) in Blood, 155 FORENSIC SCIENCE INT’L 172 (2005); K. Papafotiou, J.D. Carter & C. Stough, An Evaluation of the Sensitivity of the Standardised Field Sobriety Tests (SFSTs) to Detect Impairment Due to Marijuana Intoxication, 180 PSYCHOPHARMACOLOGY 107 (2005); Luke A. Downey et. al., Detecting Impairment Associated with Cannabis with and without Alcohol on the Standardized Field Sobriety Tests, PSYCHOPHARMACOLOGY, DOI 10.1007/s00213-012-2787-9, Published Online July 5, 2012; W.M. Bosker, A Placebo-Controlled Study to Assess Standardized Field Sobriety Tests Performed During Alcohol and Cannabis Intoxication in Heavy Cannabis Users and Accuracy of Point of Collection Testing Devices for Detecting THC in Oral Fluid, 223 PSYCHOPHARMACOLOGY 439 (2012); K. Declues, S. Perez & A. Figueroa, A 2-Year Study of Δ 9-tetrehydrocannabinol Concentrations in Drivers: Examining Driving and Field Sobriety Test Performance, J Forensic Science, Vol. 61, No.6 (2016) 94 W.M. Bosker, A Placebo-Controlled Study to Assess Standardized Field Sobriety Tests Performed During Alcohol and Cannabis Intoxication in Heavy Cannabis Users and Accuracy of Point of Collection Testing Devices for Detecting THC in Oral Fluid, 223 PSYCHOPHARMACOLOGY 439 (2012).

95 K. Declues, S. Perez & A. Figueroa, A 2-Year Study of Δ 9-tetrehydrocannabinol Concentrations in Drivers: Examining Driving and Field Sobriety Test Performance, J Forensic Science, Vol. 61, No.6 ( Nov. 2016) 96 K. Declues, S. Perez & A. Figueroa, A 2-Year Study of Δ 9-tetrehydrocannabinol Concentrations in Drivers; Part 2: Physiological Signs on Drug Recognition Expert (DRE) and non-DRE Examinations. J Forensic Science, Vol. 63, No.2 ( March 2018) 97 Id at 586 98 Id at 586 99 Stuster, J., (Sept. 1997). The Detection of DWI at BACs Below 0.10, Dept. of Transp., Natl. Hwy Traffic Safety Admin. DOT HS-808 654 100 Logan, B., Kacinko, S., Beirness, D., (May 2016). An evaluation of Data from Drivers Arrested for Driving Under the Influence in Relation to Per Se Limits for Cannabis. AAA Foundation for Traffic Safety, https://www.aaafoundation.org/sites/default/files/EvaluationOfDriversInRelationToPerSeReport.pdf (Last visited June 22, 2016) 101 Supra at page 20 102 Supra at page 21

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Gilman, J.M., Schmitt, W.A., et al, Identification of ∆9-tetrahydrodannabinol (THC) impairment using functional brain imaging, Neuropsychopharmacology; https://doi.org/10.1038/s41386-021-01259-0, January 8, 2022 104 State v. Dixon, 2007 WL 2821708 (October 1, 2007) 105 Commonwealth v. Gerhardt, 477 Mass. 775, 81 N.E.3d 751 (2017) 106 Supra at 783 107 Supra at 786 108 Supra at 786 109 Supra at 784 110 Supra at 789 APPENDIX 111 625 ILCS § 11-501.9(a) 112 625 ILCS § 11-501.2(a-5) 113 625 ILCS § 11-501.9(f)(1) 114 625 ILCS § 11-501.9(f)(2) 115 R. Hartman, J. Richman, C. Hayes, & M. Huestis, Drug Recognition Expert (DRE) Examination Characteristics of Cannabis Impairment, Accident Analysis and Prevention, Jul; 92: 219-229 (2016).

116 Commonwealth v. Gause,164 A.3d 532 (2017) 117 Logan, B., Kacinko, S., Beirness, D., (May 2016). An evaluation of Data from Drivers Arrested for Driving Under the Influence in Relation to Per Se Limits for Cannabis. AAA Foundation for Traffic Safety, https://www.aaafoundation.org/sites/default/files/EvaluationOfDriversInRelationToPerSeReport.pdf (Last visited June 22, 2016) 118 Supra at page 11 119 Supra at page 17 120 Compton, R. (July 2017) Marijuana-Impaired Driving: A Report to Congress, DOT HS 812 440, at 29 121 Compton, R. (July 2017) Marijuana-Impaired Driving: A Report to Congress, DOT HS 812 440.

122 Supra at page 12 123 Supra at page 12 124 Supra at page 13 125 Supra at page 13 126 Supra at page 13 127 Supra at page 13 128 https://www.draeger.com/en-us_us/Alcohol-And-Drug-Detection/Products/Breath-Alcohol-and-DrugTesting/Drug-Testing-Devices/DrugTest-5000 129 https://www.securetec.net/en/saliva-drug-test-drugwipe 130 Alabama, Arizona, California, Colorado, Florida, Indiana, Kansas, Louisiana, Missouri, New York, North Carolina, North Dakota, Oregon, Ohio, South Dakota and Utah, 131 Barry K. Logan, Amanda L.A. Mohr & Stephen K. Talpins, Detection and Prevalence of Drug Use in Arresting Drivers Using the Draeger Drug Test 5000 and Affiniton DrugWipe Oral Fluid Drug Screening Devices, JOURNAL OF ANALYTICAL TOXICOLOGY 1 (2014).

132 S. Talpins et. al, Breath Testing for Cannabis-An Emerging Tool with Great Potential for Law Enforcement, Between the Lines, National Traffic Law Center, Vol. 25, Number 2 (2017) 133 http://www.cannabixtechnologies.com/ 134 https://magazine.wsu.edu/2015/08/16/the-ion-investigators/ 135 http://www.spokesman.com/stories/2018/apr/25/wsu-halts-research-into-marijuana-breath-test-in-f/ 136 http://houndlabs.com/ 137 https://www.inverse.com/article/25497-marijuana-breathalyzer-hound-labs-cannabix-pot-legalization 138 http://www.washingtontimes.com/news/2015/dec/2/new-breath-test-device-to-detect-levels-of-thc/ 139 http://kdvr.com/2016/01/26/colorado-state-troopers-testing-marijuana-dui-devices/ 140 http://news.stanford.edu/2016/09/08/potalyzer-roadside-marijuana-tests/ 141 http://acs-corp.com/products/drug-testers/drugread-electronic-test-reader/ 142 https://www.npr.org/2019/09/05/757882048/scientists-unveil-weed-breathalyzer-launching-debate-over-nextsteps?utm_source=npr_newsletter&utm_medium=email&utm_content=20190906&utm_campaign=npr_email_a_fr iend&utm_term=storyshare 143 http://sensabues.com/ 144 Olof Beck et. al., Detection of Drugs of Abuse in Exhaled Breath Using a Device for Rapid Collection: Comparison with Plasma, Urine, and Self-Reporting in 47 Drug Users, 7 J. BREATH RES. 1 (2013).

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58

145

State v. Sosa, 198 Wn.App. 176, 333 P.3d 796 (2017) Birchfield v. North Dakota, 136 S.Ct. 2160 (2016) 147 Missouri v. McNeely, 133 S. Ct. 1552 (2013).

148 Contra: Byars v. State, 130 Nev. Adv. Op. 85, 336 P.3d 939 (2014), City of Seattle v. Pearson, No. 72230-1-I (Div. I, filed February 29, 2016) 149 Stefan W. Toennes et al., Comparison of Cannabinoid Pharmacokinetic Properties in Occasional and Heavy Users Smoking a Marijuana or Placebo Joint, 32 J. OF ANALYTICAL TOXICOLOGY 470 (2008).

150 State v. Dugas, 296 S.W.3d 112 (Tex. App. 2010).

151 People v. Wager, 460 Mich. 118, 594 N.W.2d 487 (1999).

152 US v. Prideaux–Wentz, 543 F.3d 954, 958 (7th Cir. 2008).

153 US v. Weaver, 99 F.3d 1372, 1377-78 (1996), citing to In re Young, 716 F.2d 493, 500 (8th Cir.1983) (holding unacceptable an FBI affidavit of “broad, boilerplate statement describing in a general way” applications, reports, and records commonly kept in bail bond operation).

154 State v. Thein, 138 Wn.2d 133, 977 P.2d 582 (1999) 146

155

http://www.wsp.wa.gov/breathtest/docs/webdms/DRE_Forms/Forms/Search_Warrant_for_Blood_(print)_(7-14).pdf

156

State v. Youngs, 199 Wn.App. 472, 479, 200 P.3d 1265 (2017) State v. Chenoweth, 160 Wn.2d 254, 158 P.3d 595 (2007) 158 South Dakota v. Neville, 459 U.S. 553, 558, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) 159 In July of 2018 the Washington State Toxicology Laboratory informed this author that they “have not performed the same statistical analysis of the 2017 THC data like we have for previous years” and in January of 2019 they informed this author that they no longer are “updating the ‘THC data’ like they used to as interest in these stats have waned.”

160 James G. Wigmore, Forensic Toxicologist and author of Wigmore on Alcohol, http://www.wigmoreonalcohol.com/ 161 http://www.wigmoreonalcohol.com/single-post/2016/09/26/Are-Marijuana-Smokers-Safer-Drivers-than-Drinkers 162 Compton, R. (July 2017) Marijuana-Impaired Driving: A Report to Congress, DOT HS 812 440 163 Supra at page 6 164 Supra at page 23 165 Supra at page 13 166 Supra at page 7 167 Supra at page 8 168 Supra at page 14 169 Supra at page 28 170 Supra at page 27 171 Peterman D, (May 14, 2019) Marijuana Use and Highway Safety, CRS Report Prepared for Members and Committees of Congress, https://fas.org/sgp/crs/misc/R45719.pdf , at page 4.

157

Rev. 2/8/2022

59

Texas Criminal Defense Lawyers Association

28th Annual NCDD/TCDLA Mastering Scientific Evidence March 24-25 Royal Sonesta New Orleans, LA

Topic: Cross Examination of the Arresting Officer Speaker:

Tyler Flood 2019 Washington Ave Houston, TX 77007 (713) 224-5529 Phone (713) 224-5533 Fax Tyler@tylerflood.com Email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

CROSS EXAMINATION MASTERING SCIENTIFIC EVIDENCE – 2022 MARCH 24TH, 25TH ROYAL SONESTA – BOURBON STREET – NEW ORLEANS NCDD/TCDLA

TYLER FLOOD 2019 Washington Ave. #300 Houston, TX 77007 p. 713.224.5529 f. 713.224.5533 tyler@tylerflood.com

21 TIPS FROM 21 YEARS 1. DWI - “Don’t Let the Witness Interfere” 2. (Almost) never ask a question you don’t already know the answer to 3. Don’t ask questions…Testify to the jury 4. Lead 5. Control the witness - the jury is paying attention 6. Be Kent Schaffer 7. Follow the Patrick Swayze guide to barroom brawls 8. Less is more 9. More can be more 10. Let Elvis leave the building (and go far-far away) 11. Take advantage of opportunities 12. Get in, get out - hit your points 13. Sometimes the best cross has nothing to do with what you prepared 14. Eliminate all escape routes 15. Rise to the occasion - give the jurors a show…they want it 16. The rules are, there are no rules. Everything is fair game until somebody tells you it’s not 17. Listen and have another listener or two 18. Divide your legal pad into two sections 19. Tell the truth, the jury will punish you otherwise 20. Know your facts backwards and forwards 21. Don’t ask permission to do something and don’t do things you don’t need to do BONUS tip: Use gestures and your voice to punctuate testimony

WINNING THE CASE IN AN ALR

INCIDENT/INVESTIGATION REPORT Harris County Constable`s Office Pct. 5 Status Codes

1 = None

2 = Burned

IBR Status

3 = Counterfeit / Forged

Quantity

Case # 4 = Damaged / Vandalized

Type Measure

5 = Recovered

6 = Seized

Suspected Type

2109-00514

7 = Stolen 8 = Unknown Up to 3 types of activity

D R U G S

Assisting Officers

WILEY, S.R. (C50861), WILEY, S.R. (C50861), WILEY, S.R. (C50861), RICHARDS, M.F. (C50475)

Suspect Hate / Bias Motivated:

Narr. (cont.) OCA: 2109-00514

NONE (NO BIAS) INCIDENT/INVESTIGATION REPORT Harris County Constable`s Office Pct. 5

NARRATIVE

On September 16, 2021, at approximately 03:14 hours, in the 2000 Block of SH 6 S Harris County Constables Office Pct. 5 Deputies on-viewed a Chevy Silverado white in color pick-up truck pass traveling at a high rate of speed going southbound on highway 6. The vehicle was also observed weaving within its own lane. Deputies activated emergency equipment to include lights and sirens and a traffic stop was conducted.

R_CS2IBR

By: VANLANGEN_TAWNIA, 10/15/2021 08:28

Page 2

REPORTING OFFICER NARRATIVE Harris County Constable`s Office Pct. 5 Victim

2109-00514 Offense

Society

OCA Date / Time Reported

DRIVING WHILE INTOXICATED

Thu 09/16/2021 03:14

THE INFORMATION BELOW IS CONFIDENTIAL - FOR USE BY AUTHORIZED PERSONNEL ONLY

Report completed by Harris County Constable Pct5. (Event# 20212917155) This report was generated from the best recollection of my memory of the events observed by me or reported to me by witnesses. I did not review any video recordings of the incident prior to submitting this report. I respectfully reserve the right to amend this report if, after being allowed to review any video recordings, I see any discrepancies in the details of my report and the video.

Introduction: On September 16, 2021, at approximately 03:14 hours, I, Harris County Constables Office Pct. 5 Deputy S. Wiley Unit 5P42, along with Deputy Lackings unit 5P43; while traveling Southbound on State Highway 6 South, on-viewed a Chevy Silverado white in color, bearing TXLP (LBG 0398) pass me traveling at a high rate of speed. I accelerated my speed in order to catch up and get behind the vehicle. I then used my front mounted radar; an instrument in which I am trained to use, and observed the white Chevy Silverado to be traveling 72 miles per hour in a 55 miles per hour speed zone. The vehicle was also observed weaving within its lane while another vehicle was traveling to the left of the Mr. Teague. I then initiated my emergency equipment and conducted a traffic stop. Once the vehicle came to a complete stop, I then exited patrol shop 31747 and began my investigation.

Complainants: The State of Texas Reportee: NA Witness: NA Scene Description: The traffic stop took place at 2000 Block of SH 6 S. Highway 6 runs North and South Officers` Actions: After making contact with the driver of the vehicle, I identified him by his Texas Driver`s License, 08404431 as Christopher Teague. Mr. Teague was the sole occupant of the vehicle. After coming into contact with Mr. Teague I noticed slurred speech, disorientation, glossy red eyes and the odor of alcohol. After observing the stated signs of intoxication, Mr. Teague admitted to having a few drinks, prior to operating his motor vehicle. Mr. Teague admitted to having 3 mixed vodka drinks, approximately 6 ounces each, while at a friend`s house. Mr. Teague was unable to provide a clear location, as he stumbled over his wording. Mr. Teague was then instructed to turn off his vehicle and step out of the car. After exiting the truck, he was directed to stand at the back of his motor vehicle. As Mr. Teague excited his vehicle he staggered to the back of his truck and utilized his back bumper to help him stand up straight.

The Standardized Field Sobriety Test`s were then administered, with the following clues observed: Horizontal Gaze Nystagmus: Prior to administering this test, I asked Mr. Teague to stand with his feet together and hands by his side. I then held up a stimulus and asked him to track the stimulus with his eyes and eyes only; without moving his head. Mr. Teague stated he understood the instructions given. I then checked for equal pupil size and equal tracking.

During the admission of the Horizontal Gaze Nystagmus Test, Mr. Teague was unable to follow the instructions during the HGN, although stating he understood. I gave commands to Mr. Teague multiple times to follow the stimulus with his eyes only and not his head. Mr. Teague was asked three times if he understood the instructions that had been given to him. Mr. Teague stated verbally that he understood the instructions that had been given to him.

During the testing of HGN Mr. Teague at times would not follow the stimulus or just not look at all. Due to Mr. Teague`s inability to follow instructions, I was unable to complete the HGN portion of the SFST test.

Reporting Officer: WILEY, S. R. R_CS3NC

Printed By: VANLANGEN_TAWNIA,

10/15/2021 08:28

Page 3

CLIENT A.

Carlos Aguilar Deputy Dumbo Harris County Sheriff’s Office – since August 2015 3 years, 8 months – almost 4 years DWI Arrests – 300+ • DWI Task Force – for 2 yrs • Radio to other units asking if any officers need a DWI Unit • April 2017 – won ‘Outstanding Rookie Award’ at event hosted by MADD – Less than 2 years on the job November 25, 2017 – Saturday night, Thanksgiving weekend Shift Hours – 9pm – 7am • 9:06pm – where are you going?

• Ghost Patrol SUV o Assigned to you? o Disguise the vehicle so it doesn’t look like a police unit o Identification – on back? o Lights – not on top of vehicle

Speeding • Traffic violation – 50 in a 45 • “NHTSA says driving facts indicate intoxication”???

• Training – not a sign of intoxication • What is it a sign of? o In a hurry? Close to home? Familiar with the area?

2 traffic violations – speeding & failure to signal Did you write tickets?

When lights come on • Breaks immediately • Turn signal on to move into right lane • Quickly moves into right lane • Presence of mental faculties? Physical faculties?

When you get behind him • Puts turn signal on • Turns into first available public parking lot • Presence of mental faculties? Physical faculties?

Do you believe he’s intoxicated, based on driving?

Driving Facts Personal Contact Area – is this an area you’re familiar with?

Maps – approach witness Fairbanks North Houston Rd • North from 290 • More than 1.5 miles – 2 traffic lights o Little York, Emmott, Battleoak • Speed Limit – 45mph – o Bet you see a lot of people driving over 45mph

Coming From Pinemont – friend’s house • Familiar with Pinemont?

• Runs east to west, south of your location • D was driving away from Pinemont o Didn’t believe was lost, confused about where going Heading Home – flew blocks away from the stop Home Address – 7723 Western Oak Ln Stopped at the turn into his neighborhood

• Signs of Intoxication Alcohol begins to affect mental faculties before physical faculties Red, watery eyes • What causes that? o Allergies, smoke, irritation, lack of sleep/fatigue • Been up since 5am that morning • Reasonable to be fatigued at 9pm?

Odor of Alcohol • Acknowledged he’d had a couple beers • Smell alone doesn’t tell you: o How many drinks someone’s had o Whether someone is intoxicated • Tells you someone has consumed alcohol • And he was honest with you that he had consumed alcohol • Sign of consumption rather than intoxication Admission of consuming 2 beers prior to driving • Legal to drink beers and drive • Sign of consumption rather than intoxication Normal signs displayed • No Slurred Speech • Answered Questions - complaint o Responses made sense to you • DL/Insurance – did not fumble • Divided Attention Test o Any weapons or anything in the car? o Where does your friend live?

• Presence of mental/physical faculties?

• No difficulty exiting vehicle – didn’t lean on vehicle • Not Unsteady walking around • Did not appear disheveled

Last ate? – had some steak a few hours before o Testified you ask those questions bc you want that information to extrapolate a BAC level if you get a breath of blood test o He hasn’t exited the vehicle – you’re thinking about breath/blood test?

“Not Conclusive” – decide to further investigate Didn’t have Probable Cause to arrest at this point Probable Cause • Amount of evidence you need to arrest someone for DWI • PC to arrest at this point?

Field Sobriety Tests • 3 standardized tests • Officers use these tests to decide to arrest someone for DWI HGN – 6/6 • Body cam – to show what his eyes looked like?

• Everyone has nystagmus in their eyes • Becomes more pronounced when you drink alcohol • Nystagmus may be due to cause other than alcohol • VGN o Presence = high dose of alcohol or certain drugs

WAT – walk the line – 4/8 • Instruction phase o Cannot step off line o More than 1 minute – maintained position o Do not record this clue if the suspect sways or uses arms to balance but maintains heel-to-toe • 8 possible clues – 2 or more = likely intoxicated o Missed heel to toe o Stepped off line o Used arms for balance o Stopped walking, after turn o Cannot keep balance during instruction phase o Starts before instructed o Improper turn o Incorrect number of steps

PC to arrest at this point? – No?

Past injury affects one’s ability to perform? Inner ear issues?

Asked if he had any medical issues/diabetes while he was still in his truck, but never asked about past injuries, surgeries.

DIC-24 • Ask him to voluntarily provide – breath or blood • Already under arrest. Going to jail either way.

• BT done at a police station, not a portable device on the scene

OLS – one-foot balancing test – 3/4 • 4 possible clues – 2 or more = likely intoxicated o Sways while balancing o Uses arms for balance o Puts foot down o Hopping Past injury affects one’s ability to perform? Inner ear issues?

Certain people can have difficulty performing these tests • Over 65 years old • 50 lbs overweight • Back, leg, or inner ear problems “Sober person would exhibit minimal clues at most” Nerves can affect a person’s performance?

Are there other field tests for people who might have balance issues?

• Romberg, Alphabet, Finger Count

Scale 0-10 • 0 = stone cold sober, 10 = drunk • D says he’s a 2 • Cambridge Dictionary defines “stone cold sober”? o Not having drunk any alcohol Sleep/work questions • Up since 5am Handcuffed – under arrest Lost ability to operate a motor vehicle – based on how he reacted when he saw your lights?

• • • •

D wouldn’t give a breath test – his constitutional right Any reason that a non-intoxicated person might refuse a breath test?

Why do you ask for a breath or blood specimen?

Why is it important to obtain a breath or blood test in a DWI

GF arrives at scene – 21:34:40 Client A in backseat while you get a wrecker to tow the truck Did you inform Client A he was being recorded in the backseat?

• Twice he tells his gf he’s not drunk, only had a couple beers • 21:35:04 - I’m not even drunk. I’m just being extra; I’m not taking any blood tests.

• 21:35:55 – I had a couple beers, I’m not even drunk.

Blood Warrant • DIC24- If you refuse…officer may apply for a warrant • Legally require a blood specimen w/ warrant • Today – when you make DWI arrest, process if fairly routine • Any day of the week, not just no refusal weekends • You’ve obtained blood warrants before. o Explain the process o Where do you take someone to draw blood?

Magistrate judges available – night of Nov. 25, 2017 • Judge Ronald Nichols – HC PC hearing officer o Signed warrant at 6:20pm • Judge Most – Houston Municipal Court o Signed warrants at 10:38pm, 12:55am, 2:22am, 3:59am • You’d done a blood warrant the night before In this case, who’s decision was it not to get a blood warrant – yours or DA?

“At the time I was not required to get a blood warrant.”

Not required, but optional?

Only getting blood warrants on felony DWIs? Reasons for not getting warrant • Only Felony DWI required warrant – whose policy?

• At the time, going into main jail only • PC magistrates only ones available • 1 hour travel time • Gave him opportunity to prove he was not intoxicated Did you make any attempt to obtain a blood warrant in this case?

Anything you could have done better? No “Textbook DWI” “Disappointed he didn’t provide sample”

CLIENT B.

Client B Officer Pig – Baytown PD December 8, 2018 – 11:25pm Accident • Location o SH 146 & Lee Dr • Vehicles o 2014 White Dodge Ram o 2010 White Chevrolet Silverado • Cause of Accident o Driving south on 146 has right-of-way o Driving south on Lee Dr has stop sign • 4 vehicles on scene • Speed Limit – 60 mph o Texas Transp. Commission o Beckham said he slowed to 50 mph • Headlights – confirmed on auto DWI Investigation • Not following rules of the road = loss of mental faculties • Following rules of the road = presence of mental faculties

Personal Contact • Lethargic in movements and speech • Faint odor of alcoholic beverage coming from breath o Client B said he had consumed 1 Miller Lite o Cooler of beer in bed of truck o Tells you: § Consumed alcohol recently o Doesn’t tell you: § How many drinks § What type of drinks § Whether someone is intoxicated • Very unstable, sway when walking and standing o Video – shows Client B standing straight, no sway Field Sobriety Tests • 3 tests used to determine whether to arrest someone for DWI • Certain health issues can render results inaccurate Health Issues • Prostate Cancer/chemotherapy o Side effects – bone pain, swelling in legs, stiffness in lower back o Lupron – medicine used to treat advanced prostate cancer § Side Effects – bone pain, inability to walk § Brain Fog o Couldn’t return to work – 70% cognitive skills § Brain-based skills o Urine issues § Loss of bladder control • Eye Problems – blind in right eye o Disqualifies HGN o Affect physical faculties, ability to balance o Alternate field sobriety tests – alphabet, finger count

•

Accident o Client B need EMT/medical attention? o Head injury/concussion from crash o Asked Mr. Fontenot multiple times if he needed medical attention o After arrest, back seat – Client B says he’s in pain

Burdens of Proof • If Jury finds Client B NG o Will not negatively affect your employment o Don’t get in trouble for that o Jury is judging evidence on higher burden of proof • Probable Cause – to arrest someone o Lower than burden of proof needed to convict in court o Did you have PC before you came into contact? o Before you attempted field sobriety tests? o When did you develop PC to arrest Client B?

CLIENT N.

Client N Officer Joe Houston PD March 2017 – Probationary Police Officer, completed Academy August 2017 – Police Officer, finished probationary period March 7, 2018 Tuesday night à Wednesday morning DWI Task Force • Proactive policing • Shift hours Initial Observation 2:09am TC Jester – traveling north toward I-10 Map Changing Lanes • Any other vehicles around her • Reckless, dangerous way • Unfamiliar with the road • I-10 signs – blue, right side of road • Ticket for changing lanes without blinker?

• Does not indicate intoxication – ALR 10/15/18 Driving Facts • No other traffic violations – ALR 10/15/18 o Speeding, weaving, reckless driving, calls re: drunk driver • Nothing about driving that indicated intoxication – ALR 10/15/18 Lights on • Dark area, lots of construction at the time • Pulls off onto the first side street • Did she pull over appropriately?

Personal Contact When you approached her vehicle • Window rolled down • DL ready to give to you • Normal?

Glossy eyes • Fatigue, sleepy, dry eyes Slurred Speech • Did you understand her responses?

Strong odor of alcohol coming from her breath • Tells you: o Consumed alcohol recently • Doesn’t tell you: o How many drinks o What type of drinks o Whether someone is intoxicated • Does not mean she’s intoxicated Exit the vehicle • Does not have trouble, stumble getting out • Trouble with balance while she stands there talking to you?

Field Sobriety Tests HGN – 6/6 Everyone has some nystagmus in their eyes Becomes more pronounced when drink alcohol Nystagmus may be due to causes other than alcohol VGN – presence = high dose of alcohol or certain drugs WAT – 4/8 8 possible clues • Step off line • Use arms for balance • Starts before instructed • Stopped walking • X Can’t keep balance • X Missed heel-to-toe • X Wrong number of steps • X Improper turn OLS – 2/4 • Hops • Uses arms for balance • X Sways • X Drops foot DIC-24 Breath Test • 15-minute observation period •

Extrapolation First drink/last drink • Possible she’d just finished a drink How many drinks Last time she ate

BWC – 5 hrs 13min • One investigation takes 5 hours of your shift • Performance Standards – DWI Task Force

DWI vs. DUI-Minor Tex. Alc Bev. Code 106.041 – Driving Under the Influence of Alcohol by Minor • A minor commits an offense if the minor operates a motor vehicle in a public place while having any detectable amount of alcohol in the minor’s system • Officer who is charging a minor with DUI is not required to take the minor into custody, but may issue a citation.

After arrest, still at scene: • If they determine she isn’t intoxicated, they’ll have someone pick her up Were you sure when you arrested her that she was legally intoxicated, rather than just DUI-Minor?

5:12:30 “I actually thought she was gonna blow under” – Officer Joe

Technical Supervisor – Ms. Rogers When were you assigned to this case?

When did you know you were going to testify in this case?

Did you speak with the prosecutor about your testimony?

Lung Size • People with smaller lung size can blow a sample with a significantly higher alcohol reading than someone with a normal or large lung capacity. Dr. Hlastala, PhD, U of Washington, Any knowledge?

Not present the night Ms. Nguyen was arrested • Did not observe her • Did not watch the scene video

Peak Absorption Range

15-Minute Observation Period •

Alcohol inside the mouth can affect the breath test o Alcohol from the stomach • Operator is required to constantly watch subject for 15 continuous minutes immediately before the breath test is conducted • Breath Test and results are invalid if not followed BTO – Officer Joe HPD • Have you met him? o Did you certify him? Train him? Watched him administer breath tests?

Monthly Inspection • 01/08/18 – Shelby Rydell • 02/12/18 – Stephen Cooper • 03/12/18 – Tasha Israel • 04/05/18 – Naketia Rogers 2 BT Readings First Test higher reading than 2nd test • Does not mean someone is eliminating alcohol • Standard courtroom practice – go with lower .02 Agreement • •

Test 1 – 0.103 (0.083 – 0.123) Test 2 – 0.097 (0.077 – 0.117)

If 1st test .097, 2nd .077 – still valid tests

• • • •

At some point after drinking has ceased, BAC will begin to fall as alcohol is eliminated from the person’s body.

Shot of whiskey – my BAC does not immediately reach peak, it takes some time Absorption - 30 min to 2 hours o Dubowski – 14 min – 138 min Depends on several factors

Retrograde Extrapolation – TRE 702, Jackson v. State, CCA • Computation of a person’s BAC at the time of driving based on the alcohol level obtained some time later • Personal Characteristics o Typical drinking pattern o Tolerance o How much alcohol the person drank o What the person drank o Duration of drinking o Time of last drink o How much/what type of food consumed before • Cannot reliably extrapolate if person had consumed a drink shortly before driving and was still absorbing alcohol at the time of stop.

Legal standard for DWI is intoxicated “at the time of driving” • BAC level must be at least 0.08 at the time of driving, not at the time of the breath test.

• A driver could blow over 0.08 but been under 0.08 when driving Nguyen – BT less than 2 hours after the stop With the State’s evidence in this case: • Cannot determine with certainty what her BAC was “at the time of driving” – could’ve been higher or lower than .09 • Possible Ms. Nguyen’s BAC could have been under 0.08 when she was driving?

CLIENT W.

CLIENT W – CROSS DEPUTY FRED Experience • Precinct 4 – started November 2016 Saturday, April 1, 2017 – 2:30am Shift/Duties • Shift hours • Willowbrook Mall – north side of town • Duties that evening Whiskey River • Country/Western Dance Club • Thursday, Friday, Saturday nights – 8pm-2am • Parked across the street from the bar parking lot • Watching people leave • Did you see Client W’s vehicle pulling out of the lot?

• Reasonable she just left bar Vehicle In Motion Driving Facts • Wasn’t weaving, swerving • Speeding, driving too slow • Didn’t strike any objects Intersection – Cypress Creek Pkwy (1960) & Willowbrook Mall entrance • Traveling east on Cypress Creek Pkwy • Protected left turn signal o Can continue traveling east o Turn left into parking lot o Turn right into parking lot • To 249, Tomball Pkwy o How do you turn around?

Illegal U-turn • Turning left into parking lot is legal • U-turn is illegal o Write ticket for violation?

• Does not by itself prove intoxication Doesn’t immediately pull over • Innocent reasons a driver doesn’t pull over immediately o Doesn’t know you’re trying to stop them • 249 – Tomball Pkwy o Puts turn signal on o Instruct her to “turn into parking lot” o Follows your instructions, pulls into parking lot • You’d agree she was not trying to escape you, wasn’t “trying to get away” Before you even speak to her, do you believe she is intoxicated?

• But you know she’s just left a bar Personal Contact Strong Odor of Alcoholic Beverage • Client W. confirms she had been drinking • Strength of Odor o Doesn’t tell you how much someone has been drinking o Tells you someone had recently been drinking o Shot of whiskey – now vs. 2 hours ago • OK to drink alcoholic beverage, then drive home • Odor of alcohol alone doesn’t prove that someone is intoxicated Slurred Speech • Her speech slurred on the video?

• Never met her before • Some people have quiet voices, don’t speak as clearly as others • She answered your questions

Information she gives you: • Just left Whiskey River • Going home – Magnolia o Turning north only 249 Tomball Pkwy is the way you’d go to travel to Magnolia • Mother of 3 kids – “night off” • Later learn her ex-husband has kids that night but she’s supposed to pick them up in the morning • She tells you she is not intoxicated Extrapolation • 2 Vodka drinks o Did you ask her what size? Single? Double? o Important?

• Last meal – about 2 hours ago, midnight o Did you ask her what she ate? o Important?

Walk & Turn – walk the line • Leg Injury o People with leg problems can have difficulty performing this test (Manual VIII-11) o Ask her about injuries – she’s had leg injuries § You don’t follow up on what kind of injury o Ask her if she walks “normal” o This test doesn’t ask someone to walk “normal” § Must walk heel-to-toe, touching feet • 8 possible clues o 2 or more = failed test o Demonstration about how easy it is to fail o Indicates 6 clues o Names 7 – “unsteady balance” is not a clue Use a crack in the pavement for straight line – “expansion joint cracks” • There are painted white lines all over the parking lot

Upset/Nervous • Deputy has already told her he smells alcohol • Asks her to exit the vehicle

When she’s walking normally • Doesn’t have trouble with balance • Doesn’t sway

SFSTs – balancing tests

One Leg Stand – standing on one leg • Leg Injury o Individuals with leg problems can have difficulty performing this test (Manual VIII-14) • 4 possible clues o 2 or more = failed test st • 1 try – not terrible, some sway, drops foot o Gets jacket • 2nd try – drops foot once after 15 seconds o Indicate 4 clues o Puts foot down, used arms for balance, unsteady balance, swayed, hopped o How did you get 5 clues when manual only instructs you to look for 4 clues? o No “unsteady balance”

HGN – pen test • Not performing the way you want her to • She keeps moving her head o If you didn’t know or understand instructions - normal reaction to want to move head as you follow o She’s never performed this test before o Instructions you’ve given her, first time she’s heard them • Upset • Do you believe she was trying to be difficult with you?

• Nystagmus o Body cam – so jury can see what her eyes looked like? o Some people have natural nystagmus o Vertical Gaze Nystagmus § Indicates high dose of alcohol

People with back, leg, or inner ear problems can have difficulty performing these balancing tests Fatigue • Did you ask her how long she’d been awake?

• Affect performance?

Handcuffed • Client W asks you to do another test • Are there other tests you could have administered? o Alphabet Test o Finger Count Test o Rhomberg Test o Hand Clap Test o Nose Touch Test • Put Client W. in back of patrol car handcuffed PBT • •

03:09:40 – after other driver blows into PBT, he makes Client W. “I want to make sure”

03:10:30 – 03:11:00 – Deputy speaking with another male • Who is this? Who is Casablanca?

Female Officer • Deputy asking her if she wants it?

DIC-24 - 03:25:30 • Agrees to a breath test • Cooperative, not trying to hide 3:32:20 – looking for purse in her car 3:43 – Client W. tries to make phone call with Apple watch?

Transport – 3:51am • Client W. is talkative, doesn’t sound slurred • Mental faculties are present • Tells deputy she has to pick up son in morning

Arrives at Tomball PD – 4:01am • “you never counted my cash in front of me like you said you would” • 4:03am – Client W. exits vehicle Balancing Tests at Police Station?

• Controlled environment • Straight lines on the ground • Easier to see Breath Test Room • • • • • •

Describe the breath testing room Video Breath Test administered at 4:30am Where did you take her for 30 min before?

Deputy Khalid not a certified breath test operator at that time Sgt. Lashondrick Davis – Tomball PD

Ms. Wagoner was cooperative • Many people arrested refuse a breath test • When someone refuses, that tells you they may be trying to hide something Back in patrol car – 5:27am • Client W. calls ex-husband re: kids/jail • Transported to Harris County Jail 6:27:12 Deputy asks if she wants to use 7207 Desert Bluff Ln? No…what for? Sure you can use it.

Or do you want to use other one? No. 6:33:40 Deputy asks if she was born in Houston

SGT. LASHONDRICK DAVIS Tomball PD Certified Breath Test Operator • Once a year?

• Did you bring your certificate?

• Do you conduct many breath tests • Video capabilities in breath testing room Personal memory of Client W. • Video of your interaction • 15 min observation period o Why is it important? o Do you remember watching her for 15m before test? o Did she burp?

Tex. Transp. Code 724.019 – Additional Analysis by Request • Law gives a person the right to have blood drawn and tested if she disagrees with the breath test?

• Did you inform Client W.?

TECHNICAL SUPERVISOR - DPS BTO – Lashondrick Davis – Tomball PD • Have you met him? o Did you certify him? Train him? Watched him administer breath tests?

• You can suspend his BTO certificate if he’s not performing tests according to regulations 15-Minute Observation Period • Alcohol inside the mouth can affect the breath test o Alcohol from the stomach • Operator is required to constantly watch subject for 15 continuous minutes immediately before the breath test is conducted • Breath Test and results are invalid if not followed How the Machine Works Machine isn’t born knowing how to detect BAC/.08 • Someone or something has to tell it what a .08 is • If the machine is taught wrong, its results could be wrong • Even if its taught correctly, the machine still needs regular maintenance Temperature • Thermometer in the simulator – must keep it at 34C o Avg temperature inside a person’s lungs Subject test – tolerance of +/- .02 • No .02 agreement defies logic of accurate alcohol reporting Reference sample – tolerance of +/- .01 Lung Size • People with smaller lung size can blow a sample with a significantly higher alcohol reading than someone with a normal or large lung capacity. Dr. Hlastala, PhD, U of Washington • Disagree or no knowledge?

Legal standard is intoxicated “at the time of driving” • BAC level must be .08 or more at the time of driving, not at the time of the test?

Retrograde Extrapolation – TRE 702, Jackson v. State, CCA • Computation of a person’s BAC at the time of driving based on the alcohol level obtained some time later • Difficulties associated with any RE • Personal Characteristics o Typical drinking pattern o Tolerance o How much alcohol the person drank o What the person drank o Duration of drinking o Time of last drink o How much/what type of food consumed before • Cannot reliably extrapolate if person had consumed a drink shortly before driving and was still absorbing alcohol at the time of stop.

Peak Absorption Range • At some point after drinking has ceased, BAC will begin to fall as alcohol is eliminated from the person’s body.

• Shot of whiskey – my BAC does not immediately reach peak, it takes some time • Absorption - 30 min to 2 hours o Dubowski – 14 min – 138 min • Depends on several factors Client W. – breath test 2 hours after stop • Cannot determine with scientific certainty what her BAC was at the time she was driving? whether she eliminating, plateaued, or still absorbing • Cannot determine with certainty what her BAC was when driving • Could have been higher or lower than what was on the breath slip

Not present the night Client W. was arrested • Did not observe her • Did not watch the scene video • Don’t know what her BAC level was at the time of driving

Texas Criminal Defense Lawyers Association

28th Annual NCDD/TCDLA Mastering Scientific Evidence March 24-25 Royal Sonesta New Orleans, LA

Topic: Exposing Drug Recognition Expert Evidence as Junk Speaker:

Steven Hernandez 805 Main St Tom River, NJ 08753 (732) 286-2700 Phone (732) 286-2740 Fax steven@njdwiesq.com Email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

EXPOSING DRE EVIDENCE AS JUNK

By Steven Hernandez, Esq. The Hernandez Law Firm, P.C. 805 Main Street Toms River, NJ 08753 (732)-286-2700 Background of State v. Olenowski In 2019, the Supreme Court of New Jersey appointed a Special Master to hear evidence pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), to determine if, Drug Recognition Expert evidence was “generally accepted in the scientific community,” and thus scientifically reliable for use in court. The Supreme Court retained jurisdiction.

The court ordered discovery be provided to the defense which would allow a good analysis of the techniques used by law enforcement. To wit, the State was ordered to provide all DRE reports and toxicology results, along with DRE Rolling Logs for every Drug Influence Examination performed in the State between 2018 and 2019. This resulted in over 5,000 DRE reports, and about 3,200 toxicology reports. These reports would be evaluated by experts for statistical analysis. In addition, thousands of pages of discovery were exchanged in the form of manuals, treatises, textbooks, studies, etc.

Early on in the case, the Office of the Public Defender became lead counsel, even though they did not have a client in the case. This allowed the defense access to public funding for experts.

There was a total of 12 State Experts hired, and 7 Defense Experts hired. Of those, 11 experts would testify for the State and 5 for the Defense. The experts ranged from one of the police officers who founded the DRE program, to medical doctors specializing in emergency medicine, toxicology, and Ophthalmology. testimony. Every important study was mentioned and argued for or against. The case is now in the hands of the Special Master and the New Jersey Supreme Court.

History of the DRE The History of DRE starts in the 1970’s in Los Angeles, California. At that time, police officers would use a variety of roadside tests to determine whether someone was impaired. In 1977, in an effort to develop a more sensitive and reliable measures, the National Highway Traffic Safety Administration engaged the Southern California Research Institute (SCRI), to determine whether some tests were better than others in furthering this cause. As a result, we ended up with the Horizontal Gaze Nystagmus Test, Walk & Turn, and One leg Stand. Over the next 21 years, this same organization would conduct studies to determine whether these tests were good at identifying drivers who were impaired by alcohol…not drugs. The general consensus was that these tests could not determine impairment but only help an officer estimate BAC.

1

During the 1980’s, LAPD Officers were dealing with a lot of drivers whose BAC was under the limit but were nevertheless impaired by something. These officers would take arrestees to the hospital for an evaluation, but many doctors were only evaluating the subject to see if they were safe to keep in custody. Therefore, individual LAPD officers started experimenting with ways to identify drugged drivers, which included the use of the Standardized Field Sobriety Tests.

Eventually, Police Officers developed the Drug Recognition program, which developed into the program they use today. DRE’s must go through SFST school and must be breath test operators. The Officer must now attend ARIDE, then a DRE 3 Day Pre-School. Finally, they attend a 7-Day DRE Practitioner Course. Take a written test, and if they pass, they are qualified to partake in the final step…live DRE evaluations. DRE must have at least 12 evaluations, four of which must be unique. That is, they must identify at least four different drug categories in their 12 evaluations before they can become a DRE. Once they complete this stage they are certified by the National Association of Chiefs of Police as Drug Recognition Experts. Their certification is good for two years, after which they must apply and qualify for re-certification.

The Drug Influence Examination DRE’s will perform a 12-step Drug Influence Examination on a subject they suspect is impaired. The steps are as follows: (1) A Breath test: This will either rule of alcohol as a cause of impairment, or if the subject blows under the legal limit, could be a combination of drugs and alcohol (synergistic effect). If the subject blows over the legal limit, then no DRE is needed.

(2) Initial Interview with the Officer: Here, the DRE will speak to the arresting officer about his observations.

(3) Preliminary Examination and First Pulse: The DRE will interview the arrestee to determine whether he is suffering from a medical condition. The DRE will also take the subject’s pulse.

This is the first of three pulse checks.

(4) Initial Eye Examination: Here the DRE performs HGN, VGN, and Lack of Convergence on the subject.

(5) Divided Attentions Tests: The DRE will have the arrestee perform a Modified Romberg Balance Test, Finger-to-Nose-Test, Walk and Turn, and One Leg Stand. This is in addition to any tests that were done at the roadside.

(6) Vital Signs and Second Pulse. DRE takes the subjects pulse a second time, as well as his or her, blood pressure, and temperature.

(7) Dark Room Examinations: The DRE estimates the subject’s pupil sizes under three different lighting conditions with a measuring device called a pupilometer.

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(8) Examination for Muscle Tone The DRE examines the subject’s skeletal muscle tone to see if they are rigid, normal, or flaccid.

(9) Check for Injection Sites and Third Pulse.

(10) Subject’s Statements and Other Observations: The DRE asks the subject about his or her drug intake.

(11) Analysis and Opinions of the Evaluator: The DRE forms an opinion based on his or her evaluation.

(12)

Toxicological Examination

What We Learned: The Interview with the Police Officer.

This step is generally reliable. Officers will share their observations with the DRE. However, the step is subject to several biases as well. The process is also subject to spectrum bias (really drunk people are easy to spot) and selection bias (officers choose to arrest people who are obviously impaired). As a result, verification bias occurs because the arrestee has already been identified by the arresting officer as being impaired.

Initial Evaluation.

The DRE attempts to obtain a medical history from the subject. Doctors routinely obtain medical histories from their patients. When I go to the Doctor, I usually have to fill out, annually, a medical history of about 75 questions. The DRE asks six questions: (1) Are you sick or injured? (2 )Do you have any physical defects? (3) Are you diabetic or epileptic? (4)Do you take insulin? (5) Are you under a doctor or dentist’s care? (6) Are you taking any medications or drugs? The DRE does not ask about chronic issues such as high blood pressure, etc., nor does the DRE ask about orthopedic or neurological conditions. In addition, many people think of under care of a physician to mean immediacy and not routinely. The questions the DRE asks are too vague to be reliable.

Eye Evaluation During the third step, the DRE will check for Horizontal Gaze Nystagmus, Vertical Gaze Nystagmus, and Lack of Convergence (the ability to cross eyes). In New Jersey, we have State v.

Doriguzzi, which states that HGN may not be used to determine impairment but may be used for purposes or probable cause. This seems to be in line with the validation studies. This seems to be the general consensus around the Country. Only Kansas says you can’t use it at all.

During the hearing we learned that Doctors do not use HGN, VGN or lack of convergence to determine impairment by drugs. They are not generally accepted in the medical community for drug (or alcohol impairment).

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Further, when it comes to HGN, it would appear that officers often spot HGN in people who have BAC’s well under the legal limit and are NOT under the influence of Drugs. This chart from the Robustness of HGN study shows a majority of people given HGN were under the legal limit.

It should be noted that this study was asked to be withdrawn due to other concerns.

Table 10.

HGN Signs (Total Number) by Variations of Stimulus Speed, BACs, and Examination Period BACs (g/dL)

Exam

Participant’s BAC (g/dL)

Stimulus Speed 2 sec (Standard) 1 sec

.102 4 6 .143 6 4 .127 6 4 .097 4 0* .05-.099 .093 4 4 .087 6 4 .084 6 4 .075 2* 3* .064 4 4 .063 6 0* .088 4 2* 2 .084 6 4 .077 4 2* .073 6 4 .069 6 4 .063 4 4 .055 2 2 .054 4 4 .095 6 4 3 .073 4 4 .069 4 4 .063 4 0* .063 2* 0* .059 2 0* .076 4 0* 4 .058 4 4 .057 4 4 .049 4 4 <.05 3 .044 4 4 .039 4 0 .048 4 0 4 .044 2 2 .042 4 0 .030 4 2 .019 2 4** .016 4** 4** *False Negative (FN) and **False Positive (FP) relative to the ranges specified above for the various BACs > .100

1

2 1

The statistically significant findings of more signs at two seconds were not completely unexpected, but still raise a number of important questions. Are the officers’ observations correct; that is, are they congruent with measured BACs? How do the observations of LSP (maximum = 2), which is the component measure that is most likely to be affected by

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(1) Divided Attention Tests: During the Drug Influence Examination (DIE), the DRE has the subject perform the Modified Romberg Balance Test, Finger to Nose Test, Walk & Turn, and One Leg Stand.

Modified Romberg Balance Test Doctors will use the Romberg Balance test to check for neurological disorder. When done correctly, the Romberg Balance Test is generally accepted in the medical community for 4

determining neurological disfunction. It has never been deemed reliable for determining drug use or impairment. The patient stands with their feet together and stich their arms straight out in front of them, palms up. The patient keeps their eyes open, and the doctor observes them for sway. The doctor then looks for neurological disfunction by having the patient do the test with the eyes closed and then compares the two. Note, the doctor does not check for sway or have the patient guess the passage of time.

DRE’s perform the Modified Roberg Balance Test. The three test battery was modified by law enforcement without any input from the medical community. You will find no reference to the Modified Romberg Test in any book of medical diagnoses. In addition, the DRE does NOT check for BASELINE, so there is nothing for the DRE to compare to. In addition, they have the subject keep their arms at their sides, tilt their head back and closes their eyes. The DRE then looks for sway and has the subject guess the passage of 30 seconds of time. Doctor Guzzardi testified, unchallenged that tilting the head back with the eyes closed cases sway. The Modified Romberg Balance Test is not generally accepted in the scientific community for anything, let alone impairment by drugs.

Finger to Nose This is another test that is often used by doctors but misused by DREs. This is a test used by doctors to test for cerebellum disfunction. The finger-to-nose test is performed by asking the patient to touch his or her own nose and the examiner's finger alternately as quickly, accurately, and smoothly as possible. The examiner holds a finger at arm's length from the patient. The patient is instructed to touch the finger and then the nose. This is repeated several times, after which the patient is asked to perform the test with eyes closed. “Patients with cerebellar disease persistently overshoot the target, a condition known as past pointing. They may also have a tremor as the finger approaches the target.” Swartz, Textbook of Physical Diagnosis, Seventh Edition, Chapter 18.

When done correctly, this test is generally accepted in the medical community for diagnosing certain neurological conditions. It has not been deemed generally accepted for determining impairment. It is Not a validated field Sobriety Test.

When done by a DRE, the DRE has the subject stand with their feet together, hands at side. DRE has subject tilt the head back slightly. DRE has the subject touch the nose with the tip of either the right or left index finger, when instructed to do so. This test has not been validated as a standardized field sobriety test. This test, as performed by the DRE, is not generally accepted in the medical community for anything.

Walk and Turn and One Leg Stand These tests are misused by law enforcement and judges as tools for impairment, when they are only “validated” for estimating BAC. In the final validation study the authors of the study and creators of the SFST program, wanted to make sure judges, police officers, and judges understood these limitations, and placed a disclaimer in the San Diego study: Many individuals, including some judges, believe that the purpose of a field sobriety test is to measure driving impairment. For this

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reason, they tend to expecttests to possess “face validity,” that is, tests that appear to be related to actual driving tasks. Tests of physical and cognitive abilities, such as balance, reaction time, and information processing, have face validity, to varying degrees, based on the involvement of these abilities in driving tasks; that is, the tests seem to be relevant “on the face of it.” Horizontal gaze nystagmus lacks face validity because it does not appear to be linked to the requirements of driving a motor vehicle. The reasoning is correct, but it is based on the incorrect assumption that field sobriety tests are designed to measure driving impairment.

Driving a motor vehicle is a very complex activity that involves a wide variety of tasks and operator capabilities. It is unlikely that complex human performance, such as that required to safely drive an automobile, can be measured at roadside. The constraints imposed by roadside testing conditions were recognized by the developers of NHTSA’s SFST battery. As a consequence, they pursued the development of tests that would provide statistically valid and reliable indicationsof a driver’s BAC, rather than indications of driving impairment. The link betweenBAC and driving impairment is a separate issue, involving entirely different research methods.

Those methods have found driving to be impaired at BACs as low as 0.02 percent, with a sharp increase in impairment at about 0.07 percent (Moskowitz and Robinson, 1988; Stuster, 1997). Thus, SFST results help officers tomake accurate DWI arrest decisions even though SFSTs do not directly measure driving impairment.

Horizontal gaze nystagmus is the most accurate diagnostic of BAC available to officers in the field. HGN’s apparent lack of face validity to driving tasks is irrelevant because the objective of the test is to discriminate between drivers above and below the statutory BAC limit, not to measure driving impairment.

Throughout the United States, DWI laws permit arrest decisions to be made on thebasis of the statutory BAC limit, irrespective of a specific motorist’s degree of impairment. Motorists also can be arrested at BACs below the statutory limit if their driving performance is demonstrably impaired by alcohol or other drugs.

San Diego Study1 In addition, the tests, along with the HGN test are weak tests for determining impairment because 72% of arrests made are done based on the Vehicle in Motion Stage and Initial Contact Stage and not based on SFST at all.

1

San Diego Study, at page 27, 28.

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three decision matrices, one for each of the SFSTs. The matrices are similar to the one in Figure 4, but with the criterion numbers of clues at 0.08 percent BAC substituted for officers’ estimates. Figure 5 shows the HGN test to be the most accurate independent predictor of whether a motorist’s BAC is above or below 0.08 percent.

<0.08%

Measured BACs ≥0.08%

Number of HGN Clues <4

≥4

n=4

n=205

n=209

n=51

n=30

n=81

n=55

n=235

N=290

Accurate in 88% of cases overall 87% accurate in "yes" decisions 93% accurate in "no" decisions <2

≥2

n=16

n=179

n=195

n=36

n=40

n=76

n=52

n=219

N=271

Measured BACs ≥0.08%

Number of OLS Clues

<0.08%

<0.08%

Measured BACs ≥0.08%

Number of WAT Clues

Accurate in 79% of cases overall 82% accurate in "yes" decisions 69% accurate in "no" decisions

<2

≥2

n=16

n=182

n=198

n=44

n=31

n=75

n=60

n=213

N=273

Accurate in 83% of cases overall 86% accurate in "yes" decisions 73% accurate in "no" decisions

Figure 5. Decision matrices at 0.08 percent BAC for each component test of the SFST battery.

Looking at the walk and turn results shows that 271 people were tested with this field sobriety test.

Of those people tested, 195 people had BAC’s of 0.08 or greater. Of those 195, 16 showed less than two clues on the walk and turn and 179 showed two mor more clues on the walk and turn. Of the 271 tested, 36 people had a BAC below 0.08 and showed less than two clues on the walk and turn. There were 40 people who had BAC’s below 0.08 yet showed two or more clues.

-- 21 --

Looking at these numbers we can see that 195 of the 271 had high alcohol rates. This means that officers correctly identified 72% of those with high BAC for testing (271/195= 72%) This is without the WAT. Adding the walk and turn only added 10% for to arrest accurate arrest decisions.

We know this by looking at the second column on Figure 5. If the arrest decision is 2 or more clues on the WAT, then 219 people who were arrested showed 2 or more clues. Of those 219, 179 had a high BAC (over 0.08). 179/219 = 82% accuracy arrest accuracy rate based on phase one, two observations and phase three clues. There is only a 10% increase in arrest decision accuracy.

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In addition, the WAT has a high number of sober driver failure rates. We only care about those who are below the legal limit here. We know that 76 people tested below the legal limit, yet 40 people (bottom row, column 2), were arrested. 40/76 shows 53% of those who blew under the legal limit were nevertheless arrested.

The One Leg Stand (OLS) Had Similar results. 72% of those arrested were done so without the need for SFST. Here, 273 people arrested. 198 had high BAC’s (0.08%) while 75 had low BAC’s (below 0.08). 213 showed 2 or more clues (arrest decision point). 198/273 = 72% is Arrests without the need for OLS. SFSTs only added another 14% for OLS. In addition, the false arrest rate was 0.41.33%.

Vital Signs The divided attention tests are not on the matrix, so DRE’s depend heavily on the eyes and vital signs. The DRE’s take the pulse for a second time, as well as blood pressure and temperature.

All four medical doctors testified that drugs, legal or illegal, can cause the vital signs to change.

Some drugs cause them to raise, while others can cause them to decrease. However, DRE’s use a very narrow range for their evaluation. Anyone under or over their range is suspected of being under the influence. The problem is their range is too narrow.

It was testified that the average pulse rate (hear rate is 50 to 100 beats per minute). This comes from test books as well as literature from Johns Hopkins and/or the Mayo clinic. DRE’s use a range of 60 to 90 BPM. This is concerning because a DRE will consider someone with a BP of less than 60 as potentially under the influence of CNS Depressants or Narcotic Analgesics.

Someone over 90 BPM, could be suspected of being under the influence of CNS Stimulants, Hallucinogens, Dissociative Anesthetics, Inhalants, or Cannabis. The narrow range by DRE’s can lead to innocent people being convicted.

As for the body temperature. The average body temperature is 95.6 to 100.4 degrees Fahrenheit. This was testified by both State and Defense experts. The DRE average range is 98.6 degrees, plus/minus 1 degree. Again, such a narrow range can lead to false convictions.

Dark Room Analysis.

During Step six, the DRE will check an arrestee’s eyes, under three different lighting conditions, to see whether the eyes are normal, dilated, or constricted. Drugs like CNS Depressants, Hallucinogens, and possibly Cannabis, can cause the pupils to become dilated (large).

Only one drug category can cause the eyes to become constructed, and that is narcotic analgesics, like heroin. The examination of pupils is common in the medical community for potential indications of toxic drugs or some indication of drug effect, but the combination, the three lighting conditions is not used in the medical profession and not recommended in any textbook or authoritative text.

Some concerns that were raised involve were lack of proper knowledge of medicine, the DRE can falsely believe that somebody is impaired by drugs, and certainly impaired by drugs to a degree that would render them of incapable of safely driving a motor vehicle, and yet they either have normal pupil size or they just have drug effect. The DRE must understand the difference between

8

drug effect and the impairment of the ability to safely drive a motor vehicle. Further, it is very difficult to use the pupilometer in the dark room examination because the DRE needs to compare.

The pupilometer is also having a measure of uncertainty of about .5 millimeter, so that on a close examination the pupilometer may be falsely interpreted.

Many studies, including the studies presented by Dr. Citek, show the amount of light in the room affects average pupil size. So as would be expected, in a darkened room but under normal room lighting, the pupils will be larger than in a well-lit room with a lot of brightness. In the emergency department where there too many lights, the pupils will be smaller than in a darkened room.

Finally, Miosis (constricted pupils) is not present in all opioid users and cannot be used diagnostically. There are other causes of miosis besides opioids. Many of the drugs used for glaucoma, eye drops, and brain abnormalities can cause small or pinpoint pupils2.

Muscle Tone Check The eighth step is the check for muscle tone. The DRE has the subject sit down and then using both hands feels his/her way down the subjects arms staring with the biceps and ending with the wrist. The DRE is looking for muscle tone of normal, rigid (hard), or flaccid (soft). However, However, the way a DRE checks for muscle tone offers nothing to the equation by feeling the muscles. First, DRE’s don’t know what a flaccid or rigid muscle tone are. There are varying degrees of rigidity, there are no variations in flaccidity. A flaccid muscle tone would be such that when the arm is lifted, it would fall back down, similar to a wet noodle. The subject would have no control over their muscle and would not be able to walk let alone drive a car. Second, a DRE cannot determine muscle tone in the manner prescribed in the DRE training. When a doctor checks for muscle tone, they will lift the arm up to the shoulder, and at the elbow and wrist to see if the patient can hold it there. A patient with flaccid tone would not be able to do so. A patient with rigid tone may have difficulty lowering the arm.

Subject’s Statements and Other Observations and Opinion of the DRE One of the biggest concerns in the Drug Influence Examination is step eleven. It is riddled with bias. First, as stated before it is subject to spectrum bias (really drunk people are easy to spot) and selection bias (officers choose to arrest people who are obviously impaired). It is also subject to confirmation bias. In Step ten, “Subjects Statements and Observations,” the officer hears an admissions even of stale use of a drug (not recent) or sees sites, and the DRE is predisposed to believe a subject is under the influence of that drug. DRE’s tend to make their reports fit their observations and admissions, rather than the previous steps, which leads to inconsistent results.

2

Burkhart, et al. Critical Care Toxicology, 2nd Edition Chapter 22.

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It is a fact that 57% of Americans take a drug that potentially can impair their ability to safely drive a motor vehicle3. However, most are still fit to drive. These drugs, when taken as prescribed, could very likely convince a DRE that the person is impaired, when in fact they are not. Without a good knowledge of pharmacokinetics and the effects of the drug on the central nervous system would have would potentially have confirmation bias and led to false convictions.

Conclusions The DRE program should be laid to rest. Officer’s do not have training to properly use the DIE as a diagnostic tool for determining impairment. Rather, they should use their experiences and observations to make such determinations. Eliminating the DRE program will not prevent people from being arrested for DUI-Drug. It will however prevent innocent people from being convicted based on complex scientific principles that law enforcement officers cannot interpret.

3

Journal of American Medicine, “Trends in Prescription Drug Use among Adults in the United States from 19992012.” 2015.

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3/1/2022

EXPOSING DRE EVIDENCE AS JUNK STEVEN W. HERNANDEZ, ESQ. 805 MAIN STREET TOMS RIVER, NJ 08753

State v. Michael Olenowski 

Defendant charged with Two DWI’s in the same town by the same DRE within 30 days of each other.



The Defendant was alleged to be under the influence (and probably was).



DRE conducted a Drug Influence Evaluation (DIE).



Defendant refused to give urine.



Defendant challenged whether a DIE was reliable without the urine sample.

Outcome Trial Court

On Appeal?



He Lost!



His losing Steak Continued!



Twice!



The De Novo Court found that NJ has been using DRE for 30 years, and therefore it’s reliable.



The Appellate Court Agreed.

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The New Jersey Supreme Court 

Granted Certification in 2019.



Retained Jurisdiction.



Appointed a Special Master to Conduct a Hearing and then report findings back to Supreme Court.

Questions to be Answered: 1.

Whether DRE evidence has achieved general acceptance within the relevant scientific community?

2.

Whether each individual component of the twelve-step protocol is reliable?

3.

Whether all or part of the twelve-step protocol is scientifically reliable and can form the basis of expert testimony?

4.

Whether components of the process present limitations, practical or otherwise?

Method Used to Answer The Questions: Frye v. United States  Party

seeking to admit scientific evidence must show the evidence “is sufficiently established to have gained general acceptance in the particular field in which it belongs.”

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HOW TO PROVE NOVEL SCIENTIFIC EVIDENCE?

REPORTED APPELLATE CASES

EXPERT TESTIMONY

LEARNED TREATISES

Status of the Case 

20 case management conferences.



42 days of testimony.



18 Expert Witnesses.



More than 8,000 pages of transcript.



More than 600 exhibits.



Includes 5,853 DIEs, most with toxicology, from 2017 to 2018.



Briefs in by March 11, 2022.

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DRE’s use the following studies to “validate” the Drug Influence Evaluation ____________________________________________________________________



Bigelow, Bickel, Roche, et al., Identifying Types of Drug Intoxication: Laboratory Evaluation of a Subject-Examination Procedure, DOT HS Report 806 753 (NHTSA 1985).

_________________________________________________________________________



Compton, Field Evaluation of the Los Angeles Police Department Drug Detection Procedure, DOT HS Report No. 807 012 (NHTSA 1986).

_________________________________________________________________________



Adler & Burns, Arizona Department of Public Safety, Drug Recognition Expert Evaluation Study: Final Report to Governor’s Office of Highway Safety (1994).

_________________________________________________________________________

PLUS, THE FOLLOWING SFST VALIDATION STUDIES: ________________________________________________________________



Colorado Validation Study of SFSTs from 1995.

_____________________________________________________________________



Florida Validation Study from 1997.

_____________________________________________________________________



San Diego Validation Study from 1998. ________________________________________________________________

BIGELOW * ADLER * COMPTON CRITICISMS 

All Studies were Government Sponsored.



None were Peer Reviewed.



Could Not be Replicated.



Defective Structures.



Riddled With Bias:  Spectrum

Bias.

 Selection

Bias.

 Misclassification

 Confirmation

Bias.

Bias.

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SFST VALIDATION STUDIES: CRITICISMS 

All Studies were Government Sponsored.



Not validated to Impairment by Alcohol.



None were Peer Reviewed.



Not Validated for Impairment or Use of Drugs.



Not Generally Accepted.



Not Correlated to Driving Performance.

So Many Problems with the DIE, where to begin? Let’s

Start at the very beginning,

A Very

Good Place to Start….

Preliminary Examination! 

DRE interviews the subject to RULE OUT MEDICAL IMPAIRMENT.



DRE’s ask six questions….ONLY.



Are you sick or injured?



Do You Have any Physical Defects?



Are you diabetic or epileptic.



Are you taking insulin?



Are you under the care of a doctor?



Are you taking any medications or drugs?

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Preliminary Examination 

All Expert’s agree that taking a history is important.



No questions about prior surgeries, blood pressure, neurological conditions, or other medical issues.



I go to the Doctor and have to answer 75 questions about my and family history, DRE’s ask 6.



Then, like the SFST’s they take the answers into consideration.



DRE Receive ZERO medical training and are not able to rule out medical issues.

Divided Attention Tests  FACT:

Drugs and Alcohol can cause lack of coordination.

 But  In

they do not affect everyone the same way.

addition to quantity, tolerance plays a big part.

Romberg Balance Test



Invented by Johannes Romberg, a German Medical Doctor.



Is Used by DOCTORS to test for neurological purposes (legions in the thyroid brain stem function).

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Romberg Balance Test 

The test, often used by neurologists, requires the doctor to check for a patients Baseline. That is, how are they normally?



The patient stands with their feet together and stich their arms straight out in front of them, palms up. The patient keeps their eyes open, and the doctor observes them for sway.



The Doctor then looks for neurological disfunction by having the patient do the test with the eyes closed and then compares the two.



When done correctly, the Romberg Balance Test is generally accepted in the medical community for determining neurological disfunction. It has never been deemed reliable for determining drug use or impairment.

MODIFIED Romberg Balance Test

 Modified  By

by Whom?

Law Enforcement!

 Without

any input from medical experts!

MODIFIED Romberg Balance Test 

The DRE does NOT check for BASELINE!



Subject stand with their feet together and hands at their sides. The subject then TILTS their head back and closes their eyes. The DRE then looks for sway. The DRE also has the subject guess the passage of 30 second of time.



The Modified Romberg Balance Test is not used by doctors or other medical professionals. It was modified by law enforcement without any understand of its use.



Not standardized.



TILTING head causes sway.



No general consensus in law enforcement on what is an acceptable amount of sway.



It is not generally accepted in the scientific community.

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3/1/2022

Finger to Nose Test 

Used by Doctors but misused by DRE’s.



Used by Doctors to test for cerebellum disfunction.



The examiner holds a finger at arm's length from the patient. The patient is instructed to touch the finger and then the nose. This is repeated several times, after which the patient is asked to perform the test with eyes closed.



When done correctly this test is generally accepted in the medical community for diagnosing certain neurological conditions. It has not been deemed generally accepted for determining impairment. It is Not a validated field Sobriety Test.

Finger to Nose Test: As Done By A DRE 

DRE has the subject stand with their feet together, hands at side.



DRE has subject tilt the head back slightly.



DRE has the subject touch the nose with the tip of either the right or left index finger, when instructed to do so.



This test has not been validated as a standardized field sobriety test’



This test, as performed by the DRE, is not generally generally accepted in the medical community for anything.

STANDARDIZED FIELD SOBRIETY TESTS 

The San Diego Validation Study reveals a lot about these tests



The San Diego Study shows that most arrests are not based from performance the three tests.



Most arrest decisions come from the Vehicle in Motion State + The Initial Contact Stage.

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3/1/2022

Validation studies are inflated by: Spectrum Bias 

Really Drunk People are Easy to Identify

Selection Bias 

Officer’s Choose to Arrest people who are obviously drunk/impaired

THE WALK AND TURN AND ONE LEG STAND HAVE A HIGH FALSE ARRREST RATE FOR SOBER DRIVERS

The Walk and Turn has a 53% false arrest rate of sober drivers.

The One Leg Stand has a 41% false arrest rate of sober drivers.

I’ll Prove it!

Walk and Turn: 

271 People Tested.



195 Had BAC above 0.08.



72% (195/271) is based on pre-SFST Observations.



Now add in the SFSTs.



179 (people with 2 + clues)/ Total with 2+ clues (219) = 82% (accuracy in arrest decision).



WAT Only added 10% to their accuracy.

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3/1/2022

Walk and Turn: But it gets worse!

The WAT has a High Arrest rate for sober drivers!



Sober Failure Rate: 53%.



Sober Drivers Arrested/total Drivers with BAC under 0.08 with 2+ clues.



40/76 = 53%, if no PBT.



273 people performed the OLS.



198 had high BAC (0.08+).



198/273 = 72% as well w/o need for OLS.



Take 182 (those with BAC over 0.08 who had 2+ clues on OLS)/213 (number with total number of those w/ 2+ clues = 85.4.

One Leg Stand:

One Leg Stand: False Arrest Rate 

75 people had BAC’s below 0.08.



31 had 2 + clues on the OLS.



31/75 – 41%.



If No PBT.

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3/1/2022

Examination of Vital Signs The DRE Will Check the Vital Signs of the Subject  Pulse

(three times)

 Blood

Pressure

 Temperature

Pulse (checked 3 times)       

Pulse is a Measure of Heart Rate.

Some Drugs will cause the BP to rise or lower.

This is generally accepted in the medical community.

This does not mean impairment.

DRE’s use the average of 60 to 90 BPM. Medical Range is actually 50 to 100 BPM. This means that many people with normal heart rates would possibly be considered under the influence by the DRE.

Blood Pressure 

It is Generally accepted in the medical community that drugs can increase or decrease blood pressure.



It is Not generally accepted that you can tell impairment from blood pressure.



DRE’s USE 120 to 140 Systolic BP as average



DRE’s USE 70 to 90 diastolic BP as average



Medical Avg. for systolic is 60 to 90.



This is important because the two most common drug categories allegedly decrease BP.



BP is subject to “white coat hypertension.”

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3/1/2022

Temperature 

Medical Expert’s Testified that Drugs USE can increase and decrease body temp.



This is Generally Accepted in the Medical Community.



DRE use average Temperature of 98.6° +/- 1°.



Medical Average Temp is….



96.8 to 100.4.

Vital Signs 

Drugs can increase or decrease vital signs.



This is generally accepted in the medical community.



DRE Opinion is highly Influenced by Vital Signs.



However, the DRE ranges for impaired/not impaired is too narrow.

Muscle Tone 

Used By Doctors to check for neurological impairment



Generally accepted in medical toxicology that certain drugs will cause hyporeflexia (flaccid muscle tone) like alcohol, opioids, anti-depressants.



Generally accepted in medical toxicology that certain drugs will cause hyperreflexia (rigid muscle tone) like Cocaine, hallucinogens, and dissociative anesthetics.



But this is not good for us, is it?

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3/1/2022

Muscle Tone

Muscle Tone Check As Done By a DRE

As Done in Medicine

13

3/1/2022

The Eyes 

Step 4 (preliminary Eye Exam)



HGN, VGN, Lack of convergence.



Generally accepted in medical toxicology that drugs can cause nystagmus.



But no evidence admitted that Nystagmus mean impaired.



No literature that these ocular signs mean impairment. There are too many factors for a doctor to consider, let alone a non-physician.

HGN Continued 

In the Robustness Study:



36 People were tested.



20 had BAC below 0.08 and showed 4+ clues.



That’s 62.5%!



9 had BAC’s below 0.05 = 25%.



Officers will find HGN anywhere they want!

HGN: San Diego Dissected 

290 people performed the HGN.



209 had high BAC (0.08+).



209/290 = 72% as well w/o need for HGN.



When HGN is performed, it only adds 15%.

(205/235 = 87.4%).

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3/1/2022

HGN: False Arrest Rate



Sober Failure Rate 37%.



Sober Drivers Arrested/total Drivers with BAC under 0.08 with 4+ clues.



30/81….if no PBT.

The Eyes: Pupil Size Examination Step 7 in the DIE DRE Examines Pupil Size in three lighting conditions:



Yes, drugs can affect pupil size.



Dr. Citek would have us believe that dilation always affects driving…and in some ways it can. However, researches found “[t]he decreases in vision performance were not, however, significantly related to the decrement in driving performance.”



According to Critical Care Toxicology, Second Edition, miosis is NOT a good diagnostic test for opioid use.



No scientific evidence that marijuana causes eye twitching.

* Room Light * Near Total; Darkness * Direct Light Uses a Pupilometer.

Examination for injection Sites 

All Experts testified that this was a good indicator for drug use.



But not necessarily a good indicator for impairment.



It is scientifically reliable in the medical community for drug use.

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3/1/2022

Interview with the subject



This is a reliable step.



Doctors often ask patients about medicine/drug use use.



Don’t need to be a Doctor to perform this step.

Opinion of DRE 

DRE’s use the DRE matrix to determine impairment.



It is only a screening tool for drug use.



DRE’s are not properly trained to make a diagnoses using the pervious steps and the DRE matrix.



Based on the work by the State’s expert in looking at the data provided there is a false positive rate of 80%.



Opinion is subject to Confirmation Bias.

DRE: A Statistical Analysis 

Discovery included:



5855 DRE Reports (Face Sheets, Rolling Logs, and, Reports).



1855 (27%) were missing tox results.



Experts hired to review.



Dr. Martin, Ph.D Psychology (State).



Dr. Ralph Taylor, Ph.D. Psychology (Defense).



DR. Enrique Schisetrman, PhD. Statistics (Rebuttal, State).

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3/1/2022

Statistical Measurements Sensitivity The ability to detect true positives.

Specificity

Accuracy

The ability to identify True Negatives.

The ability to discriminate between true positives and true negatives.

A function of Sensitivity and Specificity

Stats conclusion by Rebuttal Witness 

State witness believes relevant population is all drivers.



The Drug Influence Examination is sensitive 75 to 80%.



However, Specificity is all over the place 32 to 97%.



Can’t calculate accuracy.



DRE is subject to verification Bias: Impaired people already identified through earlier testing.



Thus, they cannot determine whether DRE is able to determine impairment.

Conclusion 

The DIE is NOT generally accepted in the medical community for determining impairment by drugs.



The DIE, as used by the DRE is problematic and will lead top false arrests based on normal medical medical ranges that fall outside the DRE normal range.



DRE’s do not do certain tests properly, muscle tone, Romberg Balance, finger to nose, etc., and therefore the DRE opinion is meaningless.



Police Departments should discontinue use of the DIE to avoid false convictions based on bad science and/or poor understanding of what the tests do.



This does not mean that people who are obviously impaired should not be arrested or prosecuted.

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Texas Criminal Defense Lawyers Association

28th Annual NCDD/TCDLA Mastering Scientific Evidence March 24-25 Royal Sonesta New Orleans, LA

Topic: Persuasive Motion Practice & Bench Trial Techniques Speaker:

Lenny Stamm 6301 Ivy Lane Suite 504 Greenbelt, MD 20770 (301) 345-0122 Phone (301) 441-4652 Fax stamm.lenny@gmail.com Email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Persuasive Motion Practice & Bench Trial Techniques Leonard R. Stamm Goldstein & Stamm, P.A. 6301 Ivy Lane, Suite 504 Greenbelt, Maryland 20770 301-345-0122 (fax) 301-441-4652 stamm.lenny@gmail.com www.lstamm.com Mastering Scientific Evidence in DUI Cases New Orleans, La. March 25, 2022

1

Introduction Preparing for this presentation forced me to reflect and consider: what do I do to increase my chances of winning a bench trial? In Maryland, where I practice, the vast majority of my DUI trials are before a judge of our District Court. Since we have de novo review, the rulings of these judges are only rarely reviewed on the record. Suppression motions are heard during trial, so favorable suppression motions result in an acquittal that is unreviewable. We also can always elect a jury trial on cases carrying more than a maximum penalty of 90 days, and have the case transferred to the Circuit Court for a court or jury trial, if it appears the client cannot get a fair trial before a particular judge in the District Court. I have come up with a list of the 20 top techniques for trying a case to a judge. These are not mandatory, but are suggestive only. Some of them also apply to jury trials. Some of them apply to the process of getting ready for a bench trial. I have learned these through the school of hard knocks. For almost every one of these techniques I can remember a specific case where I lost by not following each of them and cases tried later where I won by modifying my techniques. If you can use any of them in your jurisdiction, you are likely to start getting better results in a higher percentage of cases tried to the court.

1.

Prepare the defense — legal v. factual

Bench trials and jury trials both require thorough preparation. Some cases are just too emotional to try to a jury. However, you should keep in mind that many judges are more likely to grant relief on a solid legal issue than on a factual issue. Often the paperwork provided to the client by the police does not reveal any obvious mistakes or violations of constitutional rights.

Even in cases where there are obvious defenses at first glance, you should aggressively pursue discovery motions and subpoena requests, in order to possibly generate a defense. All legal and

2

factual issues should be thoroughly investigated and researched. If appropriate, memoranda of law should be prepared to file before or during trial.

2.

Know thy judge

It is critical that before pleading not guilty and starting a bench trial, you learn as much as possible about the judge. If you are in a foreign jurisdiction with an unknown judge, you should contact, or consider engaging, local counsel to find out what they can. After a judge has been on the bench for a while, in order to be consistent, he or she will often develop a judicial philosophy that makes it possible to gauge whether the judge has a predilection for leaning toward the State or the defendant at trial, and whether the judge is reportedly lenient or tough at sentencing.

Sometimes the harshest sentencers are very protective of constitutional rights and vice versa.

Often judges who are perceived as tough to win in front of will reward you for choosing a trial with them, in effect saying to you, "thank you for trusting me to hear your case." Don't forget, many of these judges spend their entire working lives taking pleas, and that can be incredibly boring. Some of them will be thrilled when you appear before them and elect a court trial. Don't assume that former prosecutors prosecute from the bench or that former defense lawyers will be sympathetic. That is often not the case. With new judges you may be trying it blind. However, these judges often do not know the law as well as you. Educate them and reap the rewards!

With all judges it is worthwhile to sit in the courtroom and listen to the comments they make on other cases. Then loop the comments into the arguments you make to them. Finally, in determining what defense to use, remember the distinction between the real law and the judge's law. Another way of saying this is that a judge may interpret the law in a way that is favorable to your client. Think up your motions, but don't rule on them and deny them. Make the argument even if you would not necessarily grant it if you were the judge, so long as it is not frivolous.

3

The real judge just might agree.

3.

Run it by the prosecutor or officer?

If you know the judge may be predisposed to enter a guilty finding based on the law or facts, or even if not, you might consider approaching the prosecutor and/or the officer and trying to convince them that you have a strong legal issue and it is in the State's best interest to resolve the case by reducing the charge, possibly accompanied with a guarantee that the client will attend and satisfactorily complete an alcohol education program, or by proof that the client has already done so. In many cases, they may not want to wait the entire afternoon for a trial or may be sympathetic to some mitigating aspect of the client's life. As the old saying goes, "If you don't ask, you don't get." Occasionally, prosecutors will incorrectly predict the outcome before a particular judge, or will see or know of an issue that has not yet occurred to you, and they may be willing to deal.

4.

Pre (or during) trial tactics - motions and memos

You should always aggressively pursue discovery and subpoena requests, except to the State's failure to answer disco very sufficiently, and oppose protective orders filed to keep the State witnesses from coming to court with documents that might be necessary to present a defense. Cole v. State, 378 Md. 42, 835 A.2d 600 (2003)(defendant was entitled to discovery of testing laboratory's standard operating procedures, including quality assurance manual, calibration record for gas chromatograph/mass spectrometer (GCMS) used by chemist to test the substance). You should thoroughly review the requirements for charging documents and service of process and move to dismiss if the process of initiating the charge failed to comply with all legal requirements. Although these subjects are not generally taught in criminal procedure classes in law school, many jurisdictions have well developed case law on the process of

4

initiating a prosecution.

See, e.g., Ayre v. State, 291 Md. 255, 433 A.2d 1150 (1981)(all

elements of offense must be included in charging document); Pedzich v. State, 33 Md. App. 620, 365 A.2d 567 (1976)(charging documents filed in the District Court must conform with constitutional requirements); State v. Beers, 21 Md. App. 39, 318 A.2d 525 (1974)("when a statute creates an offense and specifies several different acts, transactions, or means by which it may be committed, an indictment [or other charging document] for violation thereof may properly allege the offense in one count by charging the accused in conjunctive terms with doing any or all of the acts, transactions, or means specified in the statute"); Ayre v. State, 21 Md. App. 61, 318 A.2d 528 (1974); Thompson v. State, 26 Md. App. 442, 338 A.2d 411 (1975); Crampton v. State, 71 Md. App. 375, 525 A.2d 1087 (1987), aff’d, 314 Md. 265, 550 A.2d 693 (1988); Acton v. State, 80 Md. 547, 31 A. 513 (1895)(venue must be alleged in charging document); McBurney v. State, 280 Md. 21, 371 A.2d 129 (1977)(allegation of venue may not be amended over the objection of the defendant); Massey v. State, 320 Md. 605, 579 A.2d 265 (1990)(statute of limitations); Maryland Rule 4-212(h)(officer issuing citation must serve it on the defendant); State v. Preissman, 22 Md, App. 454, 323 A.2d 637 (1974)(a District Court commissioner is a judicial officer and may not serve process in a criminal case); Darrikhuma v. State, 81 Md. App. 560, 568 A.2d 1150 (1990)(where traffic citation was issued by the proper person, the police officer, but served by the commissioner, denial of a motion to dismiss could be considered harmless error).

You can use the litigation of the pre-trial motions as a means of testing the judge, to determine the receptiveness of the judge to the issues likely to arise during the trial and act accordingly. I love it when the clerk calls my client's case, and the judge obtains my client's file, and displays it to everyone assembled in the courtroom to show that it is 3 or 4 inches thick with

5

memoranda. It says, “this trial will cost us lots of time.”

5.

Gain and keep credibility with the judge and State

It is critical that at all times the attorney be well prepared, and conduct himself or herself in a completely ethical matter. Citations to cases and to relevant facts must be flawless. You must always be polite, appropriately attired, stay within the bounds of court decorum, and obey court rules. At the same time, you must zealously represent your client. It is important that an attorney try cases on a regular basis so that the judge and prosecutor will know that the attorney is not a "pleader," and is willing to sacrifice any amount of time and effort required to get his or her client the absolute best result.1 Try not to piss off the judge. This might work for appeal if the judge overreacts, but we don’t want appeals. And the judge will badmouth you to the other judges. It is definitely an unwise move.

6.

Leave an escape

In case you end up before a judge you know will not give your client a fair trial and sentence, it might be prudent for you to have left a way out if necessary, to request to postpone the case on the trial date. Unfortunately, there are some judges that no competent lawyer will allow their client to go in front of if there is any way to avoid it. These judges are not perceived as fair trial judges or fair sentencing judges.

Sometimes their demeanor is rude and

disrespectful. If your client is convicted, which may be highly likely in a particular case, he or

1

Of course, whether an attorney tries or pleads cases may be dependent on the way cases are handled in the jurisdiction. The test I use is whether the result of an unsuccessful trial will be worse than pleading guilty. Is there a trial penalty? Would the client prefer not to pay the trial penalty at all costs or is he or she willing to assume the risk of a loss with a significant trial penalty? For example, will losing the trial mean a significant jail sentence, where.pleading guilty would result in probation and the erasure of any conviction? All of these questions must be discussed with the client before proceeding to trial.

6

she is likely to go to jail without an appeal bond. While "judge shopping" is frowned upon, there is nothing wrong with asking for a postponement to complete discovery, to perfect service of a subpoena, to obtain properly certified medical records, or to do investigative or other work to be fully prepared for trial. In some jurisdictions, such as Maryland, requesting a jury trial simply transfers jurisdiction to the Circuit Court where the client can still elect a judge or jury. When necessary, you can ask for a postponement to more fully prepare. The judge may be just as happy to be rid of you as you are of him or her.

7.

Opening statement

Often you will find it unnecessary to open in a bench trial if the defense is reasonable doubt. However, if there is a unique issue, such as whether the defendant was driving, or the validity of a stop, you may choose to concede impairment in order to allow the court to focus on the only real issue in the case. Judges speaking at CLEs routinely state that they find an opening statement helpful to them. Help them. Of course you will request a rule on witnesses prior to opening so the State's witnesses don't get a chance to hear the defense. The rule will prevent them from communicating with the prosecutor, if necessary.

Generally, where opening is given, it should be short, concise, and informative. Here's an example: Your honor, Officer Smith stopped the defendant as a result of the vehicle the defendant was driving briefly touching the rumble strip one time. The officer neither noticed nor suspected any other violations of law. Under Rowe v. State, this is an illegal stop. At the appropriate point in the trial we will ask you to grant a motion to suppress.

8.

Object, object, object

Law professors lecture students that in a case where the lawyers are very experienced there are very few objections. In the real world, it can be the opposite. In a jury trial you may

7

refrain from making too many objections for fear of alienating the jury. In a court trial you must only avoid alienating the judge. However, the judge's tolerance for objections is often far greater than the jury's. You should consider objecting to every objectionable question and answer, unless you perceive a negative effect with the judge. With a new prosecutor, you should consider objecting to every question, until you have shut down the State's case.

Here is a list of standard objections: • • • • • • • • • • • • • • • • • • • •

relevance hearsay narrative leading calls for a conclusion compound question not responsive reading the testimony - not proper refreshment of recollection argumentative assumes facts not in evidence question is vague or ambiguous answer is vague or ambiguous no personal knowledge asked and answered authentication not the best evidence compound question calls for speculation state or federal constitutional violation (4th, 5th, 6th amendment) statutory or rule violation By objecting in this way to the State's case, it is possible to at least limit government

evidence and at best to prevent the State from proving a foundation necessary to make their case.

Think of the State's case as a time line beginning with the first observations. If you can successfully object to evidence necessary for the State to move on, you may win the entire case.

Occasionally, the prosecutor will simply get stuck, unable to pose a new question

8

for which an objection will not be sustained. At that point he or she will be forced, very reluctantly, to rest. You can then move for a judgment of acquittal.

Even where the prosecutor doesn't get stuck, he or she may be flustered by having to respond to a constant stream of objections, and forget to ask a question critical to the case, for example, leaving out that the defendant had a strong odor of an alcohol beverage where there was no other evidence of alcohol consumption. After the State rests, you may be entitled to a judgment of acquittal.

9.

Remind the judge not to prosecute

On occasion, while you are successfully objecting to the State's evidence, the judge will try to help the State, by telling the prosecutor what he or she needs to prove, telling them what question to ask, or by even taking over the State's case by asking questions themselves. You must object to the court's questions and advice, and politely remind the judge that his or her job is to call balls and strikes, not to throw pitches or hit the ball. On occasion, the court will overrule the objection. But just as often, the court will sustain the objection to its own question, refrain from helping the State, and occasionally, admit the error of its ways.

10.

Two-way communication

In order to properly object to a foundation the State has failed to lay, it may be necessary to communicate with the court in such a way as to not educate the prosecutor. This situation arises frequently when the prosecutor does not know the foundation necessary to introduce evidence.

For example, in Maryland, there is a case that sets forth the foundation for a radar reading, that courts also routinely apply to laser, vascar, and pace stops. Fitzwater v. State, 57 Md.App. 274, 469 A.2d 909 (1984). The court in Fitzwater stated:

9

Maryland has long recognized that the speed of a motor vehicle may be measured by radar. Md.Code (1974, Cum.Supp.1983) Courts and Judicial Proceedings Art., § 10-301.

Although the statute does not set forth any requirements for proving the accuracy of the radar, the Court in Great Coastal Express, Inc. supra, relying on United States v. Dreos, 156 F.Supp. 200 (D.Md.1957) and Villegas v. Brysor, 494 P.2d 61, 16 Ariz.App. 456 (1972), set forth some guidelines stating at p. 715, 369 A.2d 118, It is sufficient to show that the equipment has been properly tested and checked, that it was manned by a competent operator, that proper operative procedures were followed, and that proper records were kept. *** [There should be proof to indicate] the instilment relied upon was in good working order and accurate at the time the recording was made.

Fitzwater, 57 Md.App. at 280, 469 A.2d at 912. This can be broken down into six foundational facts: • • • • • •

the equipment has been properly tested and checked the equipment was manned by a competent operator that proper operative procedures were followed proper records were kept the instrument relied upon was in good working order the instrument relied upon was accurate at the time the recording was made The prosecutor may not know what foundational facts are necessary to admit the speed.

Where the officer testifies that he or she relied solely on the speedometer, radar, laser, or vascar reading in order to justify the stop, the foundation may be critical to the State's entire case. You must resist the court's desire to have you reveal the necessary foundation, unless absolutely necessary, in order to avoid educating the prosecutor. An educated judge will sustain the objection based on Fitzwater, not require you to educate the prosecutor as to the specific foundational requirements of Fitzwater, and not themselves educate the prosecutor, resulting in the State not being able to prove up the stop.

This technique applies wherever the State is unable, for whatever reason, to prove a foundation necessary for the admission of evidence it needs to prove its case.

11.

Don't take no for an answer

10

A mistake that counsel frequently make is allowing the court to rule against them without fully testing the court's willingness to entertain further argument. On occasion the court will be swayed on further reflection and argument, and change its ruling to one that is favorable to the defendant. You must be politely persistent in the case of an adverse ruling where further argument is appropriate, based on the comments the court makes during its initial ruling and ask the court's permission to make a few more points in support of the argument. Often the court will grant permission for you, and let you know when all arguments have been exhausted. Until that point though, it may be possible to reverse the judge's ruling. It's worth a shot - there is nothing to lose.

12.

Thank you sir, may I have another?

One of the hardest things for counsel to do in a bench trial is to remain polite in the face of an adverse ruling that you may believe is disingenuous, dumb, or just plain wrong.

Nevertheless, once all arguments on a motion have been exhausted, either because you have run out of arguments, or because the court has indicated it will not change its ruling, it is time to move on to the next issue. No rolling of the eyes or sarcastic comments are appropriate here.

Counsel must start getting ready for the next issue and wants the court to hear the next issue with an open mind. It is critical that you show the bench respect when getting adverse rulings. You must not give the court a reason to want to see you lose the case by losing his or her cool and disrespecting the court. Rather, you should politely thank the court and sit down.

13.

A little humor goes a long way

Every now and then, an opportunity to humor the judge will arise. If you can get the court to lighten up a little, it will be harder for the court to rule against you. An example of this occurred during a bond hearing. Attorney Alan Goldstein was trying to get a client a lower bond

11

so the client could get out of jail and pay the fee. He said to a judge who he knew would likely be receptive: Judge this case is governed by an old Latin phrase: high bondum low feeum -low bondum, high feeum.

Once the judge stopped laughing, she reduced the bond.

14.

Transfer hostility to the prosecutor or officer — turn it around to work for you

Unfortunately, some judges start getting cranky toward the end of the day, during trial.

They let you know they are not happy they are in trial, they overrule all your objections, and tell you to stop objecting. You might ask the court if it is telling you not to object. When they yell at you to sit down, you should consider requesting a mistrial. It seems obvious the case is already lost and you want a fresh start in front of a fair judge. After the mistrial is denied, you should persistently continue to try to poke holes in the State's case. The judge is angry, but not necessarily at you. If you are able to show that the officer or prosecutor has been duplicitous in any way, you may be able to shift the judge's anger to them and snatch victory from the jaws of defeat.

15.

Cross for bench trials

When you prepare for cross-examination in a bench trial you must keep in mind two things: first, you are most likely to win on a legal issue; and, second, if you must win on a factual issue, most judges are reluctant to find that a police officer lied. Write out a list of the good and bad facts in your case. Plan the cross-examinations using Pozner and Dodd's chapter method.

Standard chapters can include a chapter on when the police report was prepared (they often do not remember) and that the report is accurate, truthful, and complete. Additionally, most officers will concede that they only recorded the facts that supported their arrest decision, and that any

12

facts that supported the arrested decision are included. From there you can cross-examine on what I call the "white", part of the report. That is everything the officer left out that is consistent with sobriety, be it the manner the client responded to emergency equipment without difficulty, provided license and registration, exited the car, walked to the rear etc., etc.

On the field tests, I will sometimes subpoena the arresting officer to bring his NHTSA training manual and highlight the investigative techniques not used and clues not observed. I also usually question in detail the manner in which the tests were administered. It is not unusual to discover that the officer has ad ministered the tests improperly or scored them improperly, to your client's detriment.

Cross-examination for bench trials is similar to cross-examination in jury trials but unlike jurors, many judges have already heard hundreds of DUI trials. There are certain questions to which a judge might not be receptive. For example, a judge does not have to or want to hear the officer recite that he didn't have to pass the HGN, walk and turn, and one leg stand test in order to get his driver's license. Failure of the particular police department to use videotape, in a jurisdiction where videotape is rarely used, might not move the judge. However, many other questions will lead you to your goal, establishing a reasonable doubt. Many judges do know how to use this standard when they want and it is not unusual to hear a judge say, "I think your client was probably impaired, but I do have a reasonable doubt and therefore I must find your client not guilty."

16.

Using the clock

Most courtrooms have a clock mounted prominently where the judge and all others can see it. When trying a case before a judge, counsel should keep in mind that the judge may have a time in mind to conclude the trial, either to take a lunch break or to leave for the day. A well

13

prepared trial ending motion, such as a motion to dismiss, to suppress, or for a judgment of acquittal, where there is plenty of trial left if the motion is denied, is best made about 5 or 10 minutes before the anticipated adjournment.

17.

MJOA — pros and cons

If you are not preparing on putting on a defense, you might consider waiving the motion for a judgment of acquittal in a court with de novo review. The court in response to a motion for a judgment of acquittal may review all of the facts, but in a light most favorable to the State.

You may prefer the court to go straight to closing argument and evaluate the evidence in terms of whether the State has met its burden of proving guilt beyond a reasonable doubt.

On the other hand, a motion for a judgment of acquittal is a useful tool if you are preparing on presenting a defense or undecided whether you will present a defense. It is also a useful tool to eliminate counts that need to be eliminated. For example, if the defense is that the defendant was impaired by drugs or drugs and alcohol, you may need to eliminate that count first if it has been filed. Although the standard a court should employ is, "whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt," Jackson v.

Virginia, 443 U. S . 307, 318 (197 9), many judges will grant a motion for judgment of acquittal if they have a reasonable doubt, and relieve the defense from having to choose whether to put on a defense. Other judges will deny the motion but hint that they are ready to acquit by saying that on the evidence presented the motion for a judgment of acquittal will be denied "at this time." )

This can be a clue for you to rest, if you know and trust the judge.

18.

Listen to the judge

Often during the course of a trial a judge will give counsel an indication of what he or she is thinking and where counsel need focus their efforts. Just as often, counsel for one or both

14

sides are too wrapped up in their argument to listen to the judge. The judge is telling you how to win. Pay attention! Often the judge will not come right out and say exactly what they are thinking because they do not want to appear to be partial to one side. But if you listen carefully, you may hear the judge tell you what you need to do to win. Do it.

19.

Defense case?

In most DUI bench trials, the best defense is no defense. Putting your client on to call the officer a liar is usually not going to work with a judge. However, there are exceptions to the rule, where there is enough corroborating evidence that the officer is lying or mistaken, where a defense is appropriate. Certainly, medical records, properly authenticated by the custodian of records and served on the State prior to trial in compliance with local rules, that explain any observations the officer made that would otherwise be deemed consistent with impairment should be offered. An expert toxicologist can also be helpful to do a Widmark calculation or poke holes in the chemical test evidence. Keep in mind, that unless the test is borderline, it will be extremely difficult to win a bench trial if you are unable to exclude the test result(s) and the issue is impairment (as opposed to whether the defendant was driving for example).

20.

Closing argument

The type of closing argument you give in a bench trial depends on the judge you are in front of. For some judges, a brief and concise closing argument is all that is needed.

Your honor has heard the facts, and I do not need to repeat them. The State has failed to prove my client's guilt beyond a reasonable doubt.

In other cases, closing argument should be on the other end of the spectrum, as with a jury, an impassioned plea for justice.

One nice thing about court trials is that you can cite case law to the judge, and read pertinent portions of opinions that support your case. The State will invariably object because

15

the opinion is from another jurisdiction, saying "that opinion is not binding on the court." You respond, "yes, I am showing it to you because it is persuasive."

A case that every lawyer trying bench trials should carry with them is United States v.

Horn, 185 F.Supp.2d 530. (D. Md. 2002), because it cites scientific articles debunking the standardized field sobriety tests. Judges may also read scientific or other articles if they choose, in order to reach a decision.

Conclusion By following the techniques described in this article it is possible to win a higher percentage of bench trials. Do not assume that just because the State's case is impressive on paper that the officer knows how to testify or the prosecutor knows how to put on a case. If you are in a jurisdiction where most cases are pled out, then your officers and prosecutors probably do not have enough experience trying cases. When they try to try yours, it will show. Keep objecting, and listen to the judge. Do not get flustered or angry. You will be surprised that you are able to win these cases.

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TEXAS INDIGENT DEFENSE COMMISSION – ATTORNEY CASELOAD REPORTING & WEIGHTED CASELOAD STUDY HB 1318 was the most significant bill related to indigent defense passed by the 83rd Texas Legislature. It includes significant new reporting requirements related to caseloads handled by attorneys providing representation to indigent defendants. Commission staff met with a variety of stakeholders, including court and county officials, criminal defense practitioners, legislative staff, national authorities, and others to find ways to effectively implement HB 1318 in a seamless manner while providing meaningful information to policymakers.

New Attorney Reporting – HB 1318 included the following provision in Article 26.04, Code of Criminal Procedure: An attorney appointed under this article shall: … not later than October 15 of each year and on a form prescribed by the Texas Indigent Defense Commission, submit to the county information, for the preceding fiscal year, that describes the percentage of the attorney's practice time that was dedicated to work based on appointments accepted in the county under this article and Title 3, Family Code.

Beginning October 15, 2014, the bill requires all attorneys handling indigent defense cases to annually report to the county for the preceding fiscal year (October 1st - September 30th) the percentage of the attorney's practice time that was dedicated to appointed 1) criminal cases (trial and appeals) and 2) juvenile work (trial and appeals) in the county. This report should not include work on other types of appointed work such as CPS or guardianship cases, nor should it include practice time devoted to federal criminal appointments. Attorneys must submit this report to each county in which they accept appointments.

With significant input from TCDLA leadership, the Commission adopted this form and reporting instructions. The Commission is working with our partners at Texas A&M’s Public Policy Research Institute (PPRI) to create an electronic attorney reporting portal. This will permit attorneys to report their work in all counties at the same time directly to the Commission, with the report viewable by the counties. The judges in each county may specify through their indigent defense plan the method for attorneys to use for submitting their report (online or paper form).

Attorneys are not required to use a particular methodology to complete the practice time report. Some may do so by using time records, if they keep such records. Other attorneys may use a case counting methodology. The reporting form will ask the attorney to note what method(s) they used to calculate the percentage figures reported.

The Commission is working with TCDLA to develop a worksheet(s) that attorneys may use to help calculate the practice time percentages. The worksheet will help an attorney allocate their practice time among various case types and counties. Use of the worksheet is strictly voluntary and will not be submitted to the county or Commission.

Penalties for failing to submit a required practice time report by the October 15th due date may be prescribed by the judges handling criminal or juvenile cases in each county. Many judges have already chosen to amend their indigent defense plans to provide for an attorney’s removal from the list of attorneys eligible to receive future court appointments until they complete the report. This is similar to current enforcement of the annual CLE requirements.

Please review your local plan available at: http://tidc.tamu.edu/public.net/Reports/IDPlanNarrative.aspx

New County Reporting of Attorney Caseloads – HB 1318 included the following provision in Section 79.036, Government Code: Not later than November 1 of each year and in the form and manner prescribed by the commission, each county shall prepare and provide to the commission information that describes for the preceding fiscal year the number of appointments under Article 26.04, Code of Criminal Procedure, and Title 3, Family Code, made to each attorney accepting appointments in the county, and information provided to the county by those attorneys under Article 26.04(j)(4), Code of Criminal Procedure.

In addition to the attorney reporting requirements above, starting November 1, 2014 the bill requires each county to submit to the Commission annually the information provided to the county by the attorneys described above, along with information that describes for the preceding fiscal year the number of appointments made to each attorney accepting appointments in the county.

As to the new county reporting of case and fee data by attorney, the Commission decided based on its consultation with stakeholders to build on the existing reporting infrastructure in the annual Indigent Defense Expenditure Report (IDER). The IDER already requires county auditors (or treasurers) to report the aggregate number of cases paid by case type (Juvenile, Capital Murder, Adult Felony, Adult Misdemeanor, Juvenile Appeals, Felony Appeals, and Misdemeanor Appeals) and by court along with the amount paid each year by November 1st (the same date as the new reporting requirement). The new report will require this information to be broken down by attorney. County auditors have indicated that they already collect this information as part of the attorney payment process.

Weighted Caseload Study – HB 1318 included the following provision: Not later than January 1, 2015, the Texas Indigent Defense Commission shall conduct and publish a study for the purpose of determining guidelines for establishing a maximum allowable caseload for a criminal defense attorney that, when the attorney's total caseload, including appointments made under Article 26.04, Code of Criminal Procedure, appointments made under Title 3, Family Code, and other work, is considered, allows the attorney to give each indigent defendant the time and effort necessary to ensure effective representation. The study must be based on relevant policies, performance guidelines, and best practices. In conducting the study … the commission shall consult with criminal defense attorneys, criminal defense attorney associations, the judiciary, and any other organization engaged in the development of criminal indigent defense policy that the commission considers appropriate.

The goal is to provide policymakers with an objective analysis of the time required to represent different types of court-appointed cases. This kind of study has not been done in Texas before, but jurisdictions around the country have undertaken similar research because they have recognized the value of understanding data and its power to help improve their justice systems. The Commission is working with PPRI to conduct the weighted caseload study.

Attorneys have been recruited to document and categorize their time spent on cases for twelve weeks using simple timekeeping software developed by JusticeWorks. At the conclusion of the data collection phase, a panel of experts will review the time data together with survey data and make recommendations regarding the time demands of various types of cases.

While this study will not be the last word on indigent defense needs in Texas, it will be an evidence informed starting point to demonstrate what is necessary to provide appropriate representation in various types of cases.

The information learned through the study may serve as a management tool to guide decision making for public defenders and managed assigned counsel systems. For assigned counsel systems, the study will provide objective information to the courts about the resources different types of cases typically demand. This study will also provide policymakers at the state and local level with objective information upon which to base funding decisions.

To learn more about this research please visit the study website at http://texaswcl.tamu.edu.

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MARCH 2014

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