THE NEW DUI LAW
2001 TRIAL MASTER’S PROGRAM

By Steve Hayne

The most recent amendments to the DUI laws offer both challenges and opportunities to the DUI practitioner. One of the most significant changes to the DUI laws is the creation of a new offense, Negligent Driving in the first degree. The new crime is intended to snare negligent drivers who “exhibit effects” of alcohol-persons who are in fact not guilty of drunk driving, but who have had something to drink. It applies when the driver:

1. Has the odor of liquor on his or her breath, or
2. Exhibits that he or she consumed liquor by
   1. Speech,
   2. Manner,
   3. Appearance,
   4. Behavior, or
   5. Lack of Coordination.

AND the driver:

1. Is in possession of or in “close proximity to” a container that has or recently had liquor init, OR

3.Is shown by “other evidence” to have recently consumes liquor.

The law also targets drivers who drive negligently and who “exhibits the effects” of having consumed drugs. Which drugs? Illegal drugs, obviously, but also prescribed drugs which are legal to take, but which are not being consumed in accordance with the prescription directions and warnings. It is a defense to this crime, which must be proved by the defendant by a preponderance of the evidence, that the driver has a valid prescription for the drug consumed, and has been consuming it according to the prescription directions and warnings.

A driver “exhibits the effects of having consumed an illegal drug” when by speech, manner, appearance, behavior, lack of coordination, or otherwise the driver exhibits that he or she has consumed an illegal drug and either:

I. Is in possession of an illegal drug; or

II. Is shown by other evidence to have recently consumed an illegal drug

A conviction for Negligent Driving First Degree (alcohol or drugs) is treated as a prior DUI conviction if the negligent driving charge was originally filed as a DUI charge. RCW 46.61.5055. Thus, in cases where a DUI charge was plea bargained to First Degree negligent driving, the negligent conviction will be treated as a DUI conviction if the driver is charged with and convicted of a DUI in the next five years. This fact gives great power to the arresting officer, who could decide to charge any drinking driver with DUI so the resultant reduction of the charge to negligent driving would be treated as a DUI conviction. Thus, that person has a “DUI” without ever having been convicted of the crime.

2. Drugs/blood test:

In addition to “Wet negs,” the legislature granted power to police officers having “reasonable grounds” to believe a driver is on drugs to request a blood rest in lieu of a breath test (under penalty of license revocation for a refusal). RCW 46.20.308.

3. Penalties/priors:

The legislator also decided previously dismissed (successfully completed) deferred prosecution count as priors for penalty enhancement purposes (despite obvious ex post facto problems) and reduced the mandatory minimum for second offenses within five years to thirty (from ninety) days, both changes, contained in RCW 46.61.5055.

4. Repeal of the first free bite:

Finally, the legislature repealed the court’s power to recommend against driver’s license suspension for the first time offenders when agreed to by the parties.

II. SUMMARY OF SIGNIFICANT CHANGES TO WASHINGTON ADMINISTRATIVE CODE.

The state toxicologist was also busy tightening up the WAC breath test standard in several ways.

1. Three digits:

The most obvious change was adding a third digit to the test result, and defining the method for calculating the acceptable range for admissibility. WAS 448-13-060(2)(a-e).

2. Presumed breath alcohol content:

In addition, the toxicologist has declared that he lower of the two results, truncated to two digits, shall be the person’s presumed breath alcohol content” for purposes of civil and criminal statutes. WAS 448-13-065.

3. Interferent/blood test:

Another change in the breath test procedure involved “interfering substance.” Under new WAC 448-13-055, “a subject whose breath registers the presence of an interferent on two or more successive breaths shall be presumed to be incapable of providing a valid sample.” Thus, the officer is empowered to request a blood test, under penalty of license revocation should the suspect refuse the test.

III. SUMMARY OF CASES EFFECTING DUIs.

Unlike previous years there were few cases involving significant DUI issues

Decided by Washington appellate courts this last term. The following are the most important:

1. Seattle v. Williams, 128 Wn.2d 341 (1996).

May individual jurisdictions set “per se” breath test levels (.08 here) which differ from the state’s 0.10 level? “No” answered the Williams court. To do so would contravene RCW 26.08.020, a statue which requires traffic laws to be “applicable and uniform throughout this state,” as well as RCW 46.08.030, a stature which requires traffic laws to be “applicable and uniform upon all operating vehicles upon the public highways of this state.”

2. State v. Lewellyn, 78 Wn. App. 788 (1995)

Seattles once and for all the questions of admissibility of the arresting officer’s “opinion” that the defendant was under the influence, e.g.; that he is guilty as charged. See also Seattle v. Heatley, 70 Wn.App.573 (1993)

3. State v. Nelson, 81 Wn.App 249 (1996)

Held that a police officer may make a custodial arrest based upon probable cause to establish Negligent Driving (the non-jailable variety). The “negligence” in this case involved driving away after being served with a speeding ticket, scattering gravel onto the officer’s uniform.

4. State v. Rife, Wn. App. 258 (1996)

Held detention of a driver stopped for an infraction for a “reasonable time” (10-20 minutes here) to check for warrants was not unlawful, even though not biased on either articulable suspicion or probable cause to suspect criminal activity.

IV. SUMMARY OF MOTIONS IN DUI CASES

Untimely filing

1. To dismiss based on the with mandatory filing requirements of CrRLJ 2.1(d) and (2), State v. Greenwood, 120 Wn.2d 585 (1993) and Seattle v. Bonifacio, 127 Wn. 2d 482 (1995).

CrRLJ 2.1 (d)(2): The citation and notice [to appear in court] shall be filed with the clerk of the court within 48 hours after issuance. A citation and notice not filed within the time limits of this rule may be dismissed without prejudice.

Bonificio: Failure to file in timely manner “constructively” begins speedy trial time period from date citation should have been filed.

Portable Breath Test

2. To suppress any breath test results performed on a portable breath test machine. Frye v. United States, 293 F. 2d 1013 (D.C. Cir. 1923); State v. Cauthron, 120 Wn.2d 879 (1993), Seattle v. Peterson, 39 Wn.App. 524 (1985); State v. Riker, 123 Wn.2d 351 (1994), Bokor v. DOL, 74 Wn.App. 523 (1994), RCW 46.61.605(3).

Bokor held: In determining whether probable cause exists to make an arrest, a police officer may not rely on data obtained from a portable breath test unless the officer (1) has some understanding of how the evidence works or assurances of its reliability from an expert with knowledge of the underlying principles on which the device is based and (2) a reasonable basis for believing the device will produce reasonably reliable results under the circumstances in which it is used, including adequate maintenance and correct operation.

Gaze Nystagmus

3. To suppress the results of any nystagmus “gaze test” administered to the Defendant in this matter. Frye v. United States, 293 F.2d 1013 (D.C. Cir. 1923); State v. Cissne, 72Wn.App. 667 (1994), Seattle v. Peterson, 39 Wn.App. 524 (1985); RCW 46.61.605(3)

Cissne: Frye standard of genera acceptance in relevant scientific community must be met prior to admissibility and proper foundation must be laid by proponent of evidence.

Radar

4. To suppress all evidence gathered following use of radar as a basis for stop. Frye v. Unites State, 293 F. 2d 1013 (D.C. Cir. 1923); Seattle v. Peterson, 39 Wn.App. 524 (1985); CrRLJ 6.13(d)

Peterson: Frye standard applies as pre-requisite to radar result admissibility requiring adequate foundation as to reliability.

Dilated pupils

5. To suppress any testimony regarding pupil dilation and / or reaction to light observations. Frye v. United States, 293 F.2D 1013 (D.C. Cir. 1923); Seattle v. Peterson, 39 Wn.App. 524 (1985), State v. Cauthron, 120 Wn.2d 879 (1993), State v. Riker, 123 Wn.2D 351 (1994).

Riker: Frye standard for admissibility of “scientific” evidence still applies in criminal cases, notwithstanding U.S. Supreme Court holding in Daubert v. Merrill, 113 S. Ct. 2786 (1993).

Stop/detention/arrest

6. To dismiss or, in the alternative, for suppression of evidence based on the illegal stop, detention and arrest of the Defendant. Was. Const. Art. 1, § 7; U.S. Const. Amends. IV and XIV; RCW 46.64.015; and Cr.RLJ 3.6, Terry v. Ohio, 392 U.S. 1 (1968), State v. Thornton, 41Wn. App. 506 (1985), and State v. Michaels, 60 Wn.2d 638 (1962).

Article 1, § 7: No person shall be disturbed in his private affairs, or his home invaded, without authority of law.

Field sobriety tests

7. To suppress all evidence obtained in the course of “field sobriety” or other physical agility tests administered to the Defendant herein. Washington Const. Art. I, § 7; U.S. Const. Amend. IV, Frye v. Unites States, 293 F. 2d 1013 (D.C. Cir. 1923), State v. Riker, 123 Wn.2d 351 (1994), Seattle v. Personious, 63 Wn.App. 41 (1991).

Personious: The City concedes, however, that Personious had no legal obligation to perform a field sobriety test and we emphatically agree. (at 465)

Defendant’s statements

8. To suppress all statements attributed to the Defendant at the time of arrest and for hearing pursuant to CrRLJ 3.5. In addition to suppress all statements allegedly made by the Defendant in response to the officer’s questions following his request for counsel and / or invocation of right to remain silent. Edwards v. Arizona, 451 U.S. 477 (1981), State v. Johnson, 48 Wn.App. 681 (1987).

Johnson: …an accused who asserts his right to counsel during custodial interrogation is not subject to further interrogation without counsel unless the accused himself initiates further communication, exchanges, or conversations with the police. (at p. 685, quoting Edwards v. Arizona, supra.).

Right to counsel

9. To dismiss or, in the alternative, suppress evidence due to violation of the right to counsel based on Wash. Cost. Art. 1, § 22; U.S. Const. Amend. VI; State v.Fitzsimmons, 93 Wn.2d 436 (1980), Spokane v. Kruger, 116 Wn.2d 135 (1991), State V. Pork 107 Wn.2d 153 (1986), Seattle v. Koch, 53 Wn.App.352 (1989), Seattle v. Box, 29 Wn.App. 109 (1981) and the provisions of CrRLJ 3.1(c)(2).

Inaccurate warnings

10. To suppress the breath test results on the grounds that implied Consent Warnings read to the defendants were erroneous and inaccurate in that no probationary license is conferred upon minors following a test result of .02 or above, pursuant to State v. Bartel, 112 Wn.2d 882 (1989), Spokane v. Holmberg, 50 Wn.App. 317 (1987), Cooper v. DOL, 61Wn.App. 525 (1991)

Bartels: … when the State has interfered with a driver’s opportunity to make an intelligent judgments whether to submit to a blood alcohol test, we have suppressed the test results. (at p. 889).

Non –statutory language in warnings

11. To suppress results of the breath test on the grounds of inclusion of additional language in violation of the requirements of RCW 46.61 and the holdings of State v. Bartels, 112 Wn.2D 882 (1989), Spokane v. Holmberg, 50 Wn.App. 317 (1987) and Cooper v. DOL, 61 Wn.App. 525 (1991).

Holmberg: [The State argues] that suppression of [the breath test] would penalize society simply because the officers derogated from the statute’s mandate and since the defendants were not prejudiced by this derogation. We disagree. Society is penalized when officers derogate from the mandates of the Legislature…we believe strict compliance is the better rule. (at p.324)

Uncertified software

12. To suppress the breath test results on the grounds that the software utilized in the BAC Verifier DataMaster breath test machines has not been properly tested nor certified pursuant to the requirements of Frye v. United States, 293 F. 2d 1013 (D.C. Cir. 1923), State v. Cauthron, 120 Wn.2d 879 (1993), State v. Riker, 123 Wn.2d 351 (1994)

Ex-parte communication

13. To dismiss or, in the alternative, for suppression of the breath test results based on the prosecution’s ex-parte communication of the alleged breath test reading to the court in violation of RPC 3.5(b) and the Defendant’s right to due process of law. State v. Romano, 34 Wn.App. 567 (1983), State v. Giebler, 22 Wn.App. 640 (1979).

Romano: [A judge] should avoid whenever possible receiving ex parte statements concerning the defendants [because] even where there is no actual bias, justice must satisfy the appearance of fairness. (at p. 568-9).

Refusal

14. To suppress evidence of the Defendant’s alleged “refusal” to take the breath test pursuant to ER403 and State v. Long, 113 Wn.2d 266 (1989); State v. Parker, 16Wn. App. 632 (1976).

Long: While a refusal to submit to a breath test is generally admissible, the trial court may exclude such evidence if the probative value of such evidence is found to be substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury.

Knapstad

15. To dismiss for lack of facts sufficient to support a finding of guilt beyond all reasonable doubts. State v. Knapstad, 107 Wn.2d 346 (1986).

Knapstad: … a trial court may dismiss if the State’s pleadings including any bill of particulars, are insufficient to raise a jury issue on all elements of the charge. (at p. 352).

Defecting charging document

16. To dismiss based on a defective charging document. Auburn v. Brooke, 119 Wn.2d 623 (1992); State v. Leach. 113 Wn.2d 679; State v. Kjorsvik, 117 Wn.2d 93 (1991).

“Two hour rule”

17. To dismiss based on the stature/ordinance’s “two hour” provision for violation of Wash. Const. Art. 1, § § 3, 9, 22 and U.S. Const. Amend. IV and XIV.

Pending argument before Washington Supreme Court, (State V. Crediford).

Double Jeopardy

18. To dismiss based upon the Double Jeopardy provision of the Fifth and Fourteenth Amendments to the Unites States Constitution and Article 1, Section 9 of the Washington State Constitution.

Pending argument before Washington Supreme Court, (State v. McLendon).

Corpus delicti

19. To dismiss the charge in the grounds that the prosecution is unable to prove the requirement element of identification of the defendant as the driver in that there is insufficient evidence of the corpus delicti of the crime independent of the defendant’s statements, pursuant to State v. Hamrick, 19 Wn.App. 1(978), Bremerton v. Corbett, 106 Wn.2d 569 (1986).

Corbett:

State v. Hamrick, supra, recognized that proof of the corpus delict in a case charging driving or being in physical control of a vehicle while intoxicated differs from many crimes where identity is not an element of the corpus delict. Hamrick, at 419. Proof that a car ran off the road caused an accident or stopped in a traveling lane does not establish that an element of the offense was committed. Likewise, proof that someone was intoxicated does not prove that the person drove or was in control of the car. Inherent in the offense is the requirement that the intoxicated person was the driver or was in control. The corpus delicti cannot be proved without proving someone’s criminal agency which in turn requires identification of a particular individual who is under the influence. Thus, as in Hamrick, the corpus delicti of the offenses charged here cannot be established absent proof connecting the petitioners with operation or control of a vehicle while intoxicates.

CHALLENGES TO MUNICIPAL ORDINANCES

.08 ordinances

20. To dismiss based on the legal doctrine of pre-emption and prohibited conflict with State law. Republic v. Brown, 97 Wn.2d 915 (1982), Seattle v. Williams, 128 Wn.2d 341, (1996).

Unconstitutional delegation

21. To dismiss based upon the City’s unconstitutional delegation of its legislative powers by purporting to adopt future amendments to the State’s DWI law “by reference”. Brinkley v. Motor Vehicles Division, 613 p.2d 1071 (Or. App, 1980), RCW 35A.12.140, 65.16.160 Seale v. McKennon, 215 Or. 563, 336 P.2d 340 (1959)

Seale: [w]hen a stature adopts by specific reference the provisions of another statute, regulation, or ordinance, such provisions are incorporated in the form in which they exist at the time of the reference, and not as subsequently modified. (at p. 572.)

DISCOVERY MOTIONS

Witness presence at hearing/ trial

22. Defendants hereby notes an objection to proof of any material fact at hearing or trial by affidavit or certificate. A certified BAC Verifier DataMaster technician and the person(s) who conducted any quality assurance tests as well as the person(s) responsible for preparing, storing and installing the simulator solution concerned herein IS HEREBY DEMANDED AT HEARING OR TRIAL, including any and all records pertaining to the preparation, checking and installation of the simulator solution used in this case, including the gas chromatograph charts regarding the solution in accordance with CrRLJ 6.13 and RCW 46.61.56(6),a long with a copy of his or her permit.

Expert witness

23. For discovery of the identity of any state expert witness concerning evidence of either breath or blood concentration or the effects of alcohol or any drug on the defendant’s ability to operate a motor vehicle. CrRLJ 4.7, State v. Dunnivan, 65 Wn.App. 728 (1992).

Experts background/ basis of opinion

24. Defendant requests discovery of the education and training of nay expert witness the prosecution intends to offer, both general and specific to the subject of his or her testimony, experience relative to the operation, maintenance, and theory of the instrument used to test the defendant’s blood or breath, or simulator solution and a description of the place, date, and subject matter of all training taken by said witness regarding the instrument in question or the effects of alcohol or drugs on the human body and a full description of any experiments in which said witnesses have participated or about which he or she may testify, and any documents, studies, reports or other materials relied on or material to any aspect of his or her testimony. CrRLJ 4.7(a), State v. Dunnivan, 65 Wn.App. 728 (1992)

Datamaster records

25. To compel production of all documents and records of certifications, evaluations, maintenance, repairs, and telephone complaints for the Datamaster machine in question. RCW 46.61.506(6) and CrRLJ 4.7(d) State v. Dunnivan, 65 Wn.App. 728 (1992)

Bill of Particulars

26. For written Bill of Particulars, including a description of all facts upon which the prosecution intends to rely to support the charge pending against the Defendant, and a copy of the specific statutes or ordinance under which the Defendant is charges. CrRLJ 2.4(e); State ex rel Clark v. Hogan, 49 Wn.2d 457 (1956).

Subpoena duces tecum

27. For instance of a Subpoena Duces Tecum directed to the Communications Division, Washington State Patrol Breath Test Section or any other applicable division or person within the Washington State Patrol for production of all records of complaints of malfunctions, operator error, or other communication in the Patrol’s possession concerning operation of the BAC Verifier DataMaster used to test the defendant’s breath herein.

CrRLJ 4.8(b):

Subpoena Duces Tecum

1)

Upon application of either party, the court may issue a subpoena duces tecum, commanding the person to whom it is directed to produce books, papers, documents or other object designated in it. The court may direct that books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may, upon their production, permits the books, papers, documents or objects, or portions of them to be inspected by the partied and their lawyers.

2)

On motion made promptly the court may squash or modify the subpoena duces tecum if compliance would be illegal, unreasonable or oppressive.

V. SUMMARY OF OPERATION OF DATAMASTERS, NEW AND OLD, CROSS OF THE STATE’S EXPERT

1. Introduction

   The BAC Verifier DataMaster II breath testing machine reared is ugly head in our state in 1985. Prosecutors and police like to call it “state of the art”, which is off in light of the fact it is not even as powerful as those in the most primitive of PC’s. Despite its shortcomings, the machine continues to be an intimidating mystery to many defense attorneys. More than a few of us shy away from taking an otherwise defensible DUI case to trial because of lack of confidence in effectively challenging it. While one may never learn to really enjoy cross of a BA tech, one need not to be an expert in the intricate workings of the machine in order to deal with it in court. What follows are some suggestions for cross examination, with a particular focus upon the officer who administers the breath test and also two descriptions of the workings of the DataMaster; first, a simple explanation of how the machine works – enough basic information for the defense attorney to confidently cross-examine regarding breath test issues and, second, a more detailed primer-information for those who want to learn of the innermost workings of the DataMaster. Finally, we have described the critical modifications found in the latest version of the DataMaster, which is now in use in Eastern and Southwestern Washington (and coming soon to other locales).

2. Cross examination – arresting officer

   Our Tried and True Rules to Follow to Avoid Disasters During Cross Examination before stepping into court are worth reviewing once again:

   1. Ask leading questions which suggest a simple yes or no answer (‘Isn’t true’, ‘Wouldn’t you agree’)
   2. Keep control of the witness from the very beginning by asking easily understood questions and insisting on an answer to the question asked (cops love to “interpret” the question and give you the ‘wrong’ answer).
   3. Don’t allow the cop to answer a yes or no question with a speech (A cop loves an opportunity to give a speech. When he turns and faces the jury, watch out!).
   4. ‘Corral’ the witness with foundation questions which inevitably lead to the desired point-then keep him corralled.
   5. Think ahead-unless he’s firmly in the corral, don’t ask him questions you don’t know the answer to.
   6. Don’t get greedy – when you have enough to argue the point in summation, stop! (That insignificant little point can grow into a monstrous reasonable doubt by the end of the case-if you have the good sense to leave it alone).

      Cross examination of the arresting officer may serve either (or both) of two goals:

      (1)to prevent the prosecution from laying a foundation for the use of the breath test results, and (2) to cast doubt on the reliability of the test results if admitted into the evidence. Further, under legislation passed effective July 1, 1994 (and amended again in 1995) effective cross examination might also result in more lenient sentence, either by creating doubt as to the breath test level (over or under .15) or doubts about whether your client actually refused to take the test. Let’s start with the alleged “refusal” scenario.

   1. “Refusal” evidence

   Many trial courts have read State v. Long, 112 Wn.2d 266 (19890 as requiring that refusal evidence is always admissible despite that the court’s admonition that it depends on the facts of each case. The DUI law amendments require an increased penalty where the defendant refused to submit to a breath test. RCW 46.61.5051. But under the new law, a jury question is presented on the refusal issue. If the jury has a doubt regarding whether your client actually refused, no enhanced jail time is required.

   Did your client actually refuse, or did the officer simply lose patience with an individual who was trying to blow, but the machine did not accept the sample? Maintenance records for these machines reveal that they can be very difficult to blow into. If you see a maintenance record revealing problems with the thermistor or sample control board, you have evidence that the failure of the machine to accept a breath sample was not the fault of your client. You would establish this fact with the technician, not the arresting officer, but some officers will admit that the machine, on occasion just would not accept a sample and the officer did not know why.

   Review the BAC Verifier DataMaster Operator’s Manual (available through the Washington State Patrol Breath Test Section, Seattle, WA). The section (3-4) dealing with alleged refusals to submit to the test is as follows:

   “OTHER CONSIDERATIONS”

   a. If, after two minutes, the subject has not furnishes an accepted breath sample, the instrument will display:

   SUBJECT REFUSE (Y/N)?

   (1) If the subject refused to provide a breath sample, type Y for breath test ticket, when printed, will document the refusal and the breath-sampling sequence automatically ends.

   (2) If the subject has made an earned attempt to furnish a valid breath sample, is not accepted by the instrument, this is not a refusal. This is an incomplete test. The evidence ticket, when printed, will document the incomplete test.

   The DataMaster database documents all cases of incomplete tests and refusals. In The “earnest attempt” situation, examine the database for other cases where the officer indicated that the subject refused. You may find that this officer had a “hair trigger” when it comes to refusal evidence. You might also find, as I have occasionally, that there was an “incomplete” sample given by your client but which is not mentioned in the police report. The officer must then concede that your client was “earnest” on at least that blow, and that his procedures required him to document this earnest attempt as an incomplete sample. Your DUI case could become a trial over whether your client was “earnest” when blowing, a fact uniquely within your client’s knowledge despite the officer’s opinion to the contrary.

   2. Foundational Issues

   The prosecution has a number of foundational issues to prove before the breath test may be admitted. A few of those issues can only be proved by testimony from the officer. Using the officer, the prosecution must prove:

   1. That the officer who administered the breadth test checked the subject’s mouth at least fifteen minutes before the test, that no foreign substances were present, and that the subject did not vomit, eat, drink or smoke 15 minutes before the test (WAC 448-13-040). State v. Baker, 56 Wn.2d 846 (1960);
   2. That the simulator temperature was checked and found to be 34 degrees Centigrade plus or minus 0.2 degrees Centigrade (WAC 448-13-040);
   3. The batch number of the simulator solution used in the test. State v. Straka, 116 Wn.2d 859 (1991);
   4. That the officer was certified to operate the machine and was taught by a qualified instructor (WAS 448-13-150);
   5. That the officer possessed a valid permit issues by the State Toxicologist for this purpose (RCW 46.61.506 (3));
   6. That the officer completed “data entry” as part of the test (WAC 448-13-0501(1)).

   If the prosecution has not established a necessary foundation fact, defense counsel would be wise not to ask the officer about it and establish it for the prosecution. However, particularly regarding the “15 minute” rule, cross examination of the officer can reveal that the period of observation during the fifteen minutes before the test was not uninterrupted or simply nor performed.

   1. OFFICER IS USING REFERENCE MANUAL AND TYPING DURING OBSERVATION.

      The machine requires the officer to answer a number of questions before a test can be run. This is the “data” part of the administration of a DataMaster breath test. Normally, the officer asks the client for this information, fills out a “Data Entry Form,” and then types the answers into the machine when prompted. Particularly regarding questions 12 and 13, the officer will have to translate the answers given by the subject into “codes” to put into the machine by referring to a binder kept near the machine. He simply cannot write these answers down on the Data Entry Form, look up the codes and then type them into the machine all while keeping your client continuous observation.

   2. OFFICER WAS ASKING THE “34 QUESTIONS” DURING THE OBERVATION PERION.

      Many officers ask the questions included on the “alcohol influence report” just before giving the breath test. You can determine when the questions were asked by looking at question 28, where the subject is asked “What time is it?” and the officer’s response, where he indicates the “correct” time. This form requires the officer to fill in thirty-four boxes, during which time it would be most difficult to keep the subject under observation.

   3. OFFICER WAS OUT OF THE ROOM, GIVING THE ACCUSED A “PRIVATE CONVERSATION” WITH COUNSEL.

      In those cases where the accused requests counsel, the officer is required to provide access to counsel and a “private conversation.” CrRLJ 3.1, State v. Fitzsimmons, 93 Wn.2d 436, 445, 610 P. 2D 893 (1980). If the conversation was truly private and it occurred just before the breath test, the officer could not have had your client in continuous observation for the required period. Did e turn his back ads he walked out the door to give your client privacy? Explore the privacy issue in a pretrial motion and determine whether this forms a basis to challenge the admission of the test results for lack of foundation.

   4. OFFICER USED HIS WATCH INSTEAD OF “DATAMASTER TIME” TO MEASURE THE FIFTEEN MINUTE OBSERVATION PERIOD.

      The time “observation began” is listed on the breath ticket because the officer typed in a response when prompted by the machine. This time does not necessarily coincide with the internal clock in the DataMaster, which is notoriously inaccurate. The DataMaster clock is so inaccurate and require resetting so often, that technicians have been instructed not to fill out maintenance sheet when the reset the time unless the time was more than one half-hour off! It is likely, then, that “DataMaster” time will not coincide with “officer time.” The DataMaster indicates the time of the breath sample using its own clock. In cases where the observation period is close to fifteen minutes, determine which clock the officer used to mark the commencement of observation. You might reveal that the officer’s testimony regarding the fifteen minute period is illusory.

   5. OFFICER SHOULD HAVE RESTARTED THE FIFTEEN MINUTE PERIOD BECAUSE OF INVALID SAMPLE.

      Many officers do not appreciate the difference between an incomplete sample and an invalid sample. If you know the difference, you might be able to show a violation of the fifteen minute rule. An incomplete sample occurs when the individual blew earnestly bit the machine did not accept the sample. An invalid sample occurs when the machine detects mouth alcohol. In the case of the incomplete sample, the officer can ask the individual to try again immediately. An invalid sample, on the other hand, requires an additional fifteen minute period of observation. The DataMaster operator’s manual directs the officer to “recheck the subject’s mouth and have the subject under direct observation for an additional 15 minutes.” (P. 3-8.)

      Do not assume that the officer appreciates the difference between an incomplete sample and an individual sample. An incomplete sample will be recorded in the database, whereas an invalid sample is not recorded. If an officer writes that an “incomplete sample” occurred in his report, but the database shows no such entry it really was an invalid sample. If there was no additional fifteen minute period of observation, the breath test results should be suppressed.

3. General theory of operation of the datamaster
   1. The simple explanation

      In a nutshell, the DataMaster woks as follows: After the cop types I the “demographic” data, the machine runs a room air (“blank”) test and a check of its calibration using a quartz filter (“internal standard”). The defendant is then instructed to expel a long, steady breath sample into a baffled mouthpiece inserted into the “breath tube” (A new mouthpiece must be used for each sample). The breath travels down the tube (heated to minimize condensation) to the “thermistor”. This device measures the airflow to insure that the defendant is blowing hard enough and with sufficient volume to give a “good” sample (i.e.; alcohol saturated deep lung air).

      The breath then travels though the “three-way valve” and into the “sample chamber,” where the alcohol content is actually measured. The measurement takes place by passing a beam of “infrared light” through the sample chamber to the “detector.” The light must bounce off mirrors at 45 degree angles (two 180 degrees turns) in the sample chamber (necessary to lengthen the light path for greater resolution).

      If alcohol is present in the breath sample, the detector will measure a loss of energy which is assumed to be caused by the present of alcohol. In fact, the defendant’s breath sample is tested four times per second as he or she blows into the machine, to make sure alcohol content is rising (as the breath comes from deeper and deeper in the lungs). The goal is to get the most alcohol saturated sample possible. Thus, the longer one blows the higher the result (the real reason for differences between your client’s two breath samples).

      The process of measuring the breath once every four seconds is commonly known as the “slope detector”. This is designed to make sure that a “valid” sample is being introduced, since if mouth alcohol is present, the “slope” would be reversed, i.e.; a higher concentration at the beginning rather that end of the breath. Should the machine detect an “invalid” sample, the test is aborted and the officer must start all over with a new 15 minute observation period. No record of the “invalid” test is retained in the database and an evidence ticket will not be printed.

      When the detector sees alcohol due to a decrease in the amount of light striking the detector, it uses an extreme complicated (and secret) mathematical formula to compute the defendant’s breath alcohol concentration in vapor. The test continues with another “blank” (room air) test and then a test of the “external standard” (simulator solution).

      The simulator solution is a mixture of alcohol and water which approximated a .10 concentration in vapor. The mixture, kept in jar attached to the back of the machine, must remain heated to 34 degrees Celsius (plus or minus .2 degrees). This causes the evaporation of alcohol at a predictable rate into the space in the jar above the solution (per Henry’s Law). It is from this air space that the machine sucks a sample for testing between the defendant’s two samples and the results must be between .090 and .110 (inclusive). It is this process (along with other factors) which the State Toxicologist claims “certifies” the machine’s accuracy on each defendant’s test.

      Next is another room air/blank test, followed by the defendant’s second sample, which must be within plus or minus 10 percent of the average of both tests in order to be “valid” (per WAC 448-13-060).

      The test sequence ends with a final .00 blank test and the “evidence ticket” is printed out and ultimately used against the defendant at trial.

   2. The detailed explanation

      Conceptualize the infrared light source as a flashlight on one end of the sample chamber, and the molecules of ethanol as impediments to the light emanating fro the flashlight reaching the end of the sample chamber. In essence, the DataMaster determines the difference between the amount of light emitted by the flashlight and that which is received by the detector at the end of the sample chamber. It assumes that ant decrease in light is a result of ethanol molecules blocking (or absorbing) the light. There are numerous parts to the DataMaster worth discussing, as follows:

      1. BREATH TUBE- The defendant’s breath sample is introduced into the machine through a detachable breath tube that includes a heating wire. The heating wire is intended to heat the breath tube to approximately 50 degrees Centigrade. The purpose of this is to prevent condensation from developing in the breath tube, which could capture and retain alcohol and contaminate subsequent tests. There is no instrument check of the temperature. The officer has been instructed to touch the breath tube to make sure that it is warm.
         
         
      2. THERMISTOR – The thermistor monitors the breath flow rate. The defendant’s breath cools the thermistor and as it cools electronic resistance increases. The machine’s microprocessor monitors a voltage drop which must meet certain predetermined parameters for five seconds to be considered valid. The purpose of evaluating the breath flow rate is to ensure that a person is providing a sufficient sample to alveolar (deep lung) air. While the defendant cannot blow into the machine too strongly, if the person does not blow sufficiently, the machine will not accept the sample.
         
         
      3. THRE WAY VALVE – The three-way valve has two inlet parts and one outlet. Its purpose is to direct the floe of the air from either the simulator of from the breath tune and provide the sample into the sample chamber of the machine. When the vapor from the simulator solution is being introduces into the machine, the three-way valve shuts down the inlet from the breath tune. Conversely, when the breath sample is being provided, the vent from the simulator solution is theoretically shut. The valve is operated under the control of the microprocessor. There have been at least three different versions of this valve, and some DataMaster machines now come with a “five way” valve, which includes the capability to “recirculate” the simulator solution thus increasing depletion of that solution.
         
         
      4. SAMPLE CHAMBER- The sample chamber holds 50ml. of breath and is divided into three portions, essentially three tubes that are all next to each other. At the end of each tube arte mirrors that reflect the infrared light into the next tube and eventually through the alcohol and intereference filters to the infrared light beam which improves resolution and allows for more precision of measurement. With the introduction of human breath or room air into the sample chamber, the potential exists for the accumulation of moisture and condensation to occur. Additionally, over the passage of time, dust and other debris can gather in the sample chamber, settling on the mirrors. The danger in the accumulation can be partial deflection of the infrared light or the actual absorption of infrared energy by the water or debris, which can be misinterpreted by the infrared detector as ethanol.
         
         
      5. QUARTZ STANDARD (INTERNAL STANDARD) –During the testing sequence, a quartz crystal is inserted into the light beam. During calibration, the precise amount of infrared light that is allowed to pass through the quartz standard is determined. The quartz standard is a check on the internal calibration of the machine.
         
         
      6. INFRARED SOURCE - The infrared source is a lamp that is controlled by a current regulation circuit and is activated by the machine’s microprocessor as the breath sample is being introduced. The infrared beam generated by the lamp is passed through the sample chamber deflecting off each of the mirrors and eventually reached the infrared detector. There have been at least two different versions of the lump. The first type was self-contained and attached to the end of the sample chamber. The second (and newer) type mounts to a portion of the sample chamber. There have been six different manufactures of the lamp.
         
         
      7. FILTERS - There are two filters in the DataMaster: the alcohol filter and the interference filter (which is now called acetone filter). Initially, the light passes through the alcohol filter which is a narrow band pass filter designed to allow only a frequency with a wave length of 3.44 microns to pass through it. The alcohol filter is in place throughout the time that the individual is blowing into the machine. It is also in place when the quartz standard is lowered and when the simulator sample is being provided and also when the machine is zeroing.

         The acetone filter is introduced into the path of the infrared light at other times during the measurement process. It too allows a narrow band to pass of frequency with a wave length of 3.37 microns. The interference filter replaces the alcohol filter six times during the course of a test sequence. The switching back and forth of the alcohol and interference filters is controlled by the microprocessor. There have been at least two versions of filters used, with more recent version having a smaller diameter.

      8. DETECTOR - The detector is another name for a transducer which is a device that converts infrared energy into electrical energy. That electrical energy is forwarded to a digital converter and the microprocessor applies several mathematical formulae to interpret the result. The Breath Technicians say that “The detector receives the infrared energy inversely proportional to the concentration of alcohol in the sample chamber. “I plain language, the detector determines the amount of infrared energy generated by the lamp. The detector is more “precise” when it operated at low temperatures. It is thus “cooled” nearly to freezing temperatures, by the detector cooler. There is not process by which the DataMaster monitors the cooling of the detector.
         
         
      9. DETECTOR BOARD - This is the circuit board that processes the signal received from the output of the detector. It is adjusted calibration. There have been at least versions of the detector board. The versions are claimed to be functionally the same” but they do employ different circuitry to accomplish the same goal. The various versions look different in that the more recent versions have fewer potentiometers (called “pots” by technicians) – screw like devices- to adjust the necessary voltages.
         
         
      10. EPROMS AND CPU - Most of the steps, functions and calculations of the DataMaster are controlled by two very important parts of the computer, the Central Processing Unit (CPU) and the EPROMS. EPROM stands for Erasable, Programmable, Read-Only Memory, and refers to small centipede-like “chips” that contain the DataMaster software. The EPROMS are literally the brains of the DataMaster which utilize the CPU to work for it. It instructs the CPU to make a certain calculations, and when the CPU has concluded that calculation, it asks the EPROM what to do next. Such a set of instructions is called, in computer geek-eze, an algorhythm

          The EPROMS are identified by a number and each contains a portion of the operating computer code:

          EPROM U-23 “Service” routines. Math, printer, display characters, communications, modem instructions.

          EPROMS U25 AND U26: Breath test sequence and machine interfaces.

          EPROM U16: Power –up-vectors (alpha or numeric on keyboard) and data prompts.

      11. CPU BOARD - This is the largest circuit in the machine, and arguably the most critical. The CPU and EPROMS are on this board. There is also a clock chip (notoriously inaccurate) on this board, used to display the time. There is a battery-backed RAM memory section which stores the critical “calibration factors.” There have been at least three versions of the board, an undoubtedly more to come.
          
          
      12. SLOPE DETECTOR – The slope detector is not a part of the DataMaster, it is a function on the software. Technically speaking, the “sample acceptance parameters” portion of the operating computer program also contains the slope detector. When the defendant blows into the machine, it commences taking readings of the sample every one quarter-of a second. This is accomplished by a chopper which interrupts the travel of the infrared light. In this way the DataMaster is able to plot a slope as the alcohol content of the breath rises.
          
          

          The slope detector has two functions. The machine expects the initial breath to contain less alcohol than the latte portions of the sample. If, however, there is mouth alcohol present, the machine is designed to detect that fact since at some point in time the breath sample will contain less alcohol than the initial portion of the sample. In that event, the machine will assume mouth alcohol and abort the test with an “INVALID SAMPLE” reading. The slope detector is intended to insure that only deep-lung air is measured. It does this in the same manner as it detects the presence of mouth alcohol. It continues to monitor the alcohol content of the breath every one quarter of a second. At some point in time, the slope that is being constantly calculated by the microprocessor begins to “level out.” Once the machine determines that there is a “near zero slope” the test is concluded and the last alcohol reading is recorded.

      13. POWER SUPPLY BOARD - A computer does not use straight 110 AC power which comes out of your wall. The many circuits in the DataMaster require at least seven separate power settings, such as seven and 12 volts DC, Some circuits require “millivolts.” This circuit board is intended to supply reliable, smooth, “filtered” electricity which is essential to properly operating computer. It is also designed to prevent the DataMaster from crashing when a power surge occurs. Judging from maintenance records we’ve seen, it is not very effective for this purpose.
          
          
      14. PUMP DRIVER BOARD - This provides circuitry to regulate the operation of the two pumps. Proper voltage must be maintained on this board for the pumps to run appropriately.
          
          
      15. RFI BOARD – The “radio frequency interference” board provides the circuitry intended to detect unwanted radio energy that could influence a breath test reading. There is an antenna on the machine for this purpose. The operation of this board is suspect, since it is never tested in actual field conditions
          
          
      16. DATAMASTER BOARD – This circuit contains the RAM memory chips which store breath test results for the later downloading to a central computer. Up to 8K of data may be stored, but it is lost if the battery on this board expires. The Washington State Patrol in September, 1995. The Patrol reports that while the outside of the machine looks a bit different (the keyboard is built into the cover) the only difference inside is the DataMaster Board has been eliminated. The data retention function now exists on the CPU board. This means, of course, that the design of the CPU board has also changed.
          
          
      17. MODEM BOARD – This circuit board is plugged into the phone line and permits data transmission. It also allows the DataMaster to be called by another computer and operated by remote control. It transmits at 300 baud, the slowest rate possible for a modem. Most desktop computers with modems use 2400, 9600, 14,400 or 28,000 baud. This fact might be used with the more computer literate persons in a jury panel to demonstrate that the DataMaster is not all “state of the art.”
      18. SIMULATOR - This device attached to the top of a jar. Currently, peanut butter jars are the favored “jar of use”. The “external standard” is a water/alcohol solution in the jar, which is made in a batch by technicians at the State Toxicology Lab.
          
          

          The DataMaster uses the simulator during each test between the two breath samples that are measured. This simulator holds the external standard in the jar and the solution is heated to 34 degrees Centigrade (plus or minus .2 degrees centigrade.) This should create a vapor of .100 alcohol content. The machine is programmed to suck the vapor into the machine at the appropriate time to determine that the machine is reading alcohol accurately.

   3. Detailed breath test sequence:

      A breath test sequence is commenced by the officer pushing the “RUN” button. This Done after fifteen minute observation period has occurred and after the simulator solution temperatures has been checked to be with the proper parameters. The instrument then displays “INSERT TICKET” and the operator inserts the evidence ticket in the appropriate slot marked “IN,” face down. Thereafter, the machine sequentially displays 14 questions pertaining to the defendant and the circumstances of arrest. The officer uses a keyboard that is part of the DataMaster to answer these questions. Once the questions have been answered, the machine asks the officer “REVIEW DATA?” allowing the officer to make sure that the information entered is correct. Once the officer is satisfied that the data is correct, he or she types “N” which stores the data into the memory of the machine and commences the breath test sequence. Once the process commences, the machine displays sequentially the following:

      1. “PURGING” During the purging procedure, which occurs several times during the test, room air is being pumped into the sample chamber by means of a pump. The purpose of this purge is to clear the sample chamber of any alcohol remaining from previous test, as well as to test the ambient room air for the presence of any alcohol or other interferant.
         
         
      2. “AMBIENT ZEROING” This step is to set atmospheric ethyl alcohol to zero.
         
         

         What it means is that if the machine detects any alcohol during this phase it compensated for it by deducting that amount during the subsequent step’s process. This is done all the way up to a .10! Later zeroing procedures only allow for a .00.3 reading. More than that will abort the test with an error code “SYSTEM WON’T ZERO.”

      3. Following these steps, the machine displays “BLANK TEST” which is the result of the zeroing process and is recorded on the evidence ticket.
         
         
      4. “INTERNAL STANDARD CHECK” During this step the quartz filter is dropped into the infrared light source path. The quartz filter absorbs infrared energy in a known amount that is determined during the initial calibration of the machine. The infrared detector receives a reduced amount of infrared energy than was transmitted by the infrared detector receives a reduced amount of infrared energy than was transmitted by the infrared source. The reduced intensity is evaluated mathematically by the microprocessor and a predetermined result must be achieved. This step is an evaluation of the machine’s entire electronic system, signal analysis and processing system to determine that everything is working properly. It is recorded on the evidence ticket as “INTERNAL STANDARD VERIFIED.”

         The operator then removes a new mouth piece from its plastic bag and inserts it into the breath tube. The operator instructed to avoid touching the mouth piece during this step. The machine now displays “SUBJECT REFUSE? (Y/N).” The officer has one minute to answer this question or the machine erases memory and the entire test procedure, including the data entry, must be resequenced. If the defendant has refused a breath sample, the officer types “Y”, the evidence ticket will document the refusal and the breath sampling sequence is automatically terminated. If the defendant has agreed to take the breath test, the officer types “N” and the display flashes “PLEASE BLOW.” The officer is instructed to tell the defendant to “provide a slow, consistent, continuous breath sample through the mouth piece,’ and further to tell the defendant “blow until I tell you to stop.” As the defendant blows into the machine, the words “PLEASE BLOW” no longer flash but remain on the display. The defendant must continue to blow until the machine displays “TEST RESULT” and gives a two-digit alcohol content number.

         If a sample has not been accepted by the machine after two minutes from the time “PLEASE BLOW” is displayers, the machine will again display “SUBJECT REFUSE? (Y/N).” At this point, the officer again answers that question according to his or her sometimes subjective evaluation of the defendant’s intentions. As the defendant’s breath sample is introduced into the machine through the breath tube, it passes the thermistor and enters the sample chamber. The infrared lamp is activated and the breath is evaluated at the rate of four times per second. It then passes through either the alcohol or interference filters depending on which has been sequenced to interrupt the light source. The detector calculates the amount of infrared energy that has reached it, forwards it to a digital converter and the microprocessor.

         When the defendant blows into the machine, if the machine detects mouth alcohol, it will display “INVALID SAMPLE.” This should not be confused with an insufficient sample which results in an n “INCOMPLETE” indication on the printout.

         If an interfering substance is detected by the machine it will display “TEST RESULTS” with a two-digit interferant reading. The machine is designed to automatically subtract the interference value from the total reading and then display the actual breath alcohol as previously indicated. Whether it actually does so is hotly contested. The evidence ticket will show the present of both the interfering substance and the adjusted alcohol level.

         After the first result has been obtained, the machine will again sequentially display “PURGING,” “AMBIENT ZEROING,” “BLANK TEST” and “EXTERNAL STANDARD.” The first of these displays indicate the machine is performing the functions previously described. On the evidence ticket, only the “BLANK TEST” and the “EXTERNAL STANDARD” are shown. After the first sample is tested, the microprocessor automatically activates the simulator. The result of the simulator solution test is printed on the evidence ticket in three digits. When the simulator is run, the machine displays “TEST RESULTS” with a three-digit alcohol number displayed. However, the evidence ticket reads “EXTERNAL STANDARD.” The machine then again displays “PURGING,” “AMBIENT ZEROING,’ and “BLANK TEST.” The machine is again running those functions. Again, only the “BLANK TEST” is displayed on the evidence ticket. The officer again replaces the mouthpiece with one that is new and unused. After the machine shows “BLANK TEST,” it again displays “SUBJECT REFUSED? (Y/N)” and a second breath sample is taken in the same manner as the first sample.

         During a test “error codes” may appear. Error codes appear on the display panel when a malfunction occurs or a situation arises which either aborts the test or prevents an operator from proceeding. A description of various error codes follows:

   4. Error Codes:

      ERROR CODE 1: SYSTEM WON’T ZERO. Many situations cause this particular error code; however, they all relate t the circuitry detecting the presence of alcohol in the machine during the purging phase. This may or may not be a result of alcohol actually being present. What causes the “SYSTEM WON’T ZERO” error code is a decreased amount of infrared energy reaching the detector at a time when the microprocessor anticipates a greater amount. This can be caused by alcohol being present in the chamber, by an inadequate amount of light being sent from the infrared source, by a deflection of light by water or debris or by complete or partial failure of the alcohol filter or interference filter to enter the infrared light beam at the appropriate time.

      ERROR CODE 2: TEMPERATURE LOW. This indicates that the sample chamber temperature is improper. If this message is displayed, the machine will not function.

      ERROR CODE 3: TEMPERATURE HIGH. This indicates that the sample chamber temperature is improper. If this message is displayed, the machine will not function.

      ERROR CODE 4: CYLINDER SEIZED. This error code is designed to be used with DataMasters that have been configured with the optional (and not used in Washington) breath sample retention kit. This kit permits independent retesting of breath samples to check the accuracy of the DataMaster.

      ERROR CODE 5: RADIO INTERFERENCE. This error code is displayed when radio frequency interference is detected by the radio frequency antenna. This error code will be displayed only if the radio frequency antenna is operational. The microprocessor does not monitor the functioning of the antenna, nor is it regularly tested by maintenance technicians.

      ERROR CODE 6: FATAL SYSTEMS ERROR (address included). This code occurs when there is a problem in the software programming located in the EPROMS, and the results where some are of the software program shuts down.

      ERROR CODE 7: CALIBRATION ERROR. This code occurs if the quart plate is pulled into the infrared path and the signal measured is not in accordance with the predetermined standard. This can also occur if in fact the machine is not calibrated. That can occur if for some reason the portion of the computer memory that retains the information for calibration is lost. In other words, the machine can “forget” its calibration. These calibration factors are all checked at the initiation of each test.

      ERROR CODE 8:PRINTER ERROR: This code is displayed if the evidence ticket jams or the printer malfunctions.

      ERROC CODE 9: CRC ERROR (address included). CRC stands for Cyclic Redundancy Check. The error code is followed by a number which is giving a location in the memory where the error was found. The microprocessor goes through the information that is in the portion of the memory being checked and determines that it is all correct. If it is not, the error code is displayed. The data entries that are made during the administration of a breath test are eventually stored in a central computer “database” at the State Crime Lab in Seattle. Also included in the database are the test results of all tests run on the machine and the recorded error codes. As to the individual tests, the database provides greater information regarding precision, since it records to three digits. It also records the time the test started (which is different from the first incident recorded on the evidence ticket.-the blank test) as well as demographic information regarding the defendant and the incident. It can also disclose whether error codes occurred during the attempt to administer a test to the individual defendant.

      As to the history of the machine, the database is invaluable. It can determine the frequency with which machines have experienced specific error codes, the proximity of such episodes to the client’s test, the extent to which a machine yields imprecise results, whether such problems are episodic, and, when compared to repair records, whether the machine has been properly and timely repaired pursuant to State Patrol guidelines.

VI. THE “NEW-NEW” DATAMASTER

In 1995, the Washington State Patrol, with the blessing of the Washington State Toxicologist, installed DataMasters with “enhanced” software in certain parts of the state. Soon this machine will be used statewide. Law enforcement use of any infrared breath testing device which bears the name” DataMaster” or DataMaster II appears preapproved by the State Toxicologist under WAC 448-13-020 AND 448-13-030 (“DataMaster” means BAC Verifier DataMaster, instruments including those carrying the designation BAC Verifier DataMaster II and the BAC DataMaster.”) What follows is a summary of the major points of interest about Washington’s latest breath testing machine, the BAC Verifier DataMaster II (with “enhanced” software.)

1. The calibration procedure is different. As with the current machine, a test ticket is produced on calibration (typically during QAP) which includes the “calibration factors.” A new calibration factor is found: A21. This factor relates to the machine’s ability to detect interference. Note that the old machine was limited in that it only could detect acetone, and they actually introduced acetone into the machine on calibration. Now no acetone is introduced at any phase of calibration. Instead, the machine compares readings it gets at the two filter frequencies: 3.44 and 3.37 microns for the same simulator solution, typically the .10 solution. (3.44 will always read lower than 3.37, .10 vs.12) The proportionate difference between these readings is the A21 CAL factor which is put into memory. Any deviation from this proportion will indicate interference and the test will be aborted at that point. Several points to note:
   1. It “looks” for any interferant, not just acetone. The current machine looks specifically for acetone and Rod admitted that it cannot detect toluene.
      
      
   2. It does not report an interferant unless the interferant level is .01. Therefore, the .01 level still cannot be excluded as an interferant.
      1. However, this is sliding scale. The threshold is .01 up to a reading of .20. After that the threshold is 5% if the reading. Thus at .30 the threshold is .01
2. The X/q factor on the calibration ticker will be important to us in the future. This is the actual reading at calibration of the internal standard filter. The new database contains the actual reading of the internal standard (although I believe it still simply says ‘verified” on the breath test ticket). We can compare the two readings and determine whether the machine is reading high or low. [A prosecutor could do the same, but they hopefully won’t think of it.]

   Here’s the good news: a 10% variance is allowed in this reading. If it is outside this range a calibration error occurs and the test aborts. However, in trial we can add up the percentages of error and argue for doubt based upon that. (So far we have .01 + 10% of reading. The WAC also allows another +/- 10% of the average. I’m sure I’ll find more as I learn more about this machine.)

3. Some of the new “safeguard” on the new machine:
   1. If the officer enters an observation time at the start of the test which is less than fifteen minutes from the current DataMaster time, the machine will not let him go further with the test. In no case will an evidence ticket have a fifteen minute violation on its face. The display will show “minimum observation time not met.” This does not exclude the possibility of a violation, however, in the event that the officer’s watch is not synchronized with the machine.
      
      
   2. If the machine’s reading of the external standard is outside the WAC range, the test is aborted. However, they still rely on the officer to properly check the temperature and this is not monitored.
4. Now there is ONE EPROM, not four. Approximately 28K of programming resides on it. The microprocessor is the same, a 6809 Motorola
   
   
5. The sample chamber is of the same dimensions.
   
   
6. The mathematical formula determining ETOH is the same, but the algorhythm for calculating interference is different. [Approved by Sr. Tox?]
   
   
7. The thermistor appears smaller and now is capable of detecting ‘flow rate” and calculating volume of exhaled air. [Mike Hlastala might be particularly interested in this.]

10. The sample acceptance parameters are different. A five second minimum blow is still required. Here are the parameters:

1. Five seconds of exhalation minimum
2. Slope of curve rising/ plateauing acceptably, not dipping
3. Flow rate across thermistor acceptable, must be 1.5 volts or greater for five seconds min.
4. Volume must be a minimum of approx 1.5 liters. Measured across the thermistor. “Volume=Flow x Time” (V=F*T); Volume =liters/seconds. What all this means is that a person who blows real hard satisfies the parameters more quickly than one who does not do so.

10. The number of circuit boards is reduced from nine to eight.

Eliminated is the DataMaster board, where all the data was stored. Now it is chip on the CPU board, probably with greater data capacity. They are:

1)Detector Board
2)Printer Board
3)CPU
4)Modem (I need to find out the speed of it –state of the art?)
5)Power Supply Board
6)Sample Control Board
7)RFI Board
8)Pump Driver Board

11. The Database is much more detailed. Here are the fields, in order:

1. DATE
2. OBS TIME- Machine will not start unless the time entered is at least 15 mins earlier than current DM time.
3. OPERATOR
4. CITATION-
5. “T” (Test type)
   1. 1=regular breath test
   2. 2=supervisory test run by a tech
   3. 9=error code happened. The code will be listed at the last field.
6. “S.TM.” Simulator Temperature Y or N observed and entered by officer.
7. AGENCY
8. DOB
9. SEX
10. RACE
11. LICENSE (state is first two letters, i.e., WAWHEELDM4459 =Wa.
12. CO (County - a number ie, 03 etc.)
13. CR = crime arrested for. 01=DUI
14. ACC (Y or N for accident-doesn’t indicate fault but no doubt will be reported as “alcoholic involved.”)
15. DrinkLoc=drinking location by liquor control license number.
16. BATCH
17. IS (Internal standard reading. We’ll see numbers like “88” there and this corresponds to .88. We can compare this to the X/q factor on the calibration factors ticket. That number will look something like: Xq .877996300 –01. It might give us some actual error from the original calibration factor. In the absence of that, and in the absence of a database, the defense ma point out that the software permits a 10 % error from the original calibration factor.
18. BAI “Breath Attempt One” This is the number of times that the person tried to blow into the machine, as defined by the voltage across the thermistor exceeding 1.5 volts on separate occasions throughout the attempt(s). If voltage exceeds 1.5 drops and then exceeds 1.5 again, the number in this column would be 2. (A subsequent column indicates total time of the blow.) As defined, the database Rod and I worked with showed tremendous variability in “breath attempts.” There were 21 breath attempts on a subject which produced an invalid sample. 23 attempts over a 18 second interval produced an invalid sample. Five breath attempts over a 6 second period produced a reading of .067.
19. ET1 “Exhalation time One” How long the subject blew on the first attempt measured every quarter of a second. The number 36 in this column indicates a 9 second blow.
20. BrAC1 “Breath alcohol, first sample” There are five possibilities:
1. I=Incomplete test
2. R=Refusal
3. V=Invalid Sample
4. X=Interference
5. Test result, without the decimal point, i.e.

   (1)167= .167, and if less than .10, the 0 is omitted, as in
   (2)56= .056 actual result, not .560.

21. INT.1 Interference, if any, on first breath sample.
22. B1.TIME This is the time printed opposite the first breath sample results on the printed out ticket. It indicates time of sample acceptance, not when the person began to blow.
23. SIM Reading of the external standard. If not within 0090 and .110, test is aborted.
24. INT.S Interference, if any on the simulator reading.
25. S.TIME Time of acceptance of simulator sample
26. BA2 Breath Attempt(s) Two-number of “attempts” on second sample, measured as voltages over 1.5 across thermistor.
27. ET2 “Exhalation Time Two” (I have seen a number as high as 95 indicating a 23 second blow, resulting in a reading of .167) [We might be able to use these readings to prove that the longer you blow, the higher the reading. The tech might counter that the “flow meter” is the great equalizer, since at least an “equivalent” of 1.5 liters is required of all subjects.]
28. BrAC2 Second breath sample
29. INT.2 Interference, if any, on second sample
30. B2.TIME Time of acceptance of second subject sample
31. Err This column will show the error codes, which will be (*indicates the error code is already used in current machine –see BTS 470)

1. *SYSTEM WON’T ZERO -Unable to zero detector voltage.
2. TEMPERATURE LOW (Sample chamber below 45C)
3. TEMPERATURE HIGH (Sample Chamber above 55C)
4. – no code
5. *RADIO INTERFERENCE
6. FATAL SYSTEM ERROR (ADDRESS) – Ram, Rom or PIA not responding properly
7. *CALIBRATION ERROR -Internal standard does not read within 10% of the value determined at the time of calibration.
8. *PRINTER ERROR
9. *RAM ERROR (ADDRESS) –[Previously called CRC Error] –RAM checksum does not match that calculated following last write.
10. PUMP ERROR – Flow detector does not detect pump operation.
11. BLANK ERROR Instrument obtains reading greater than .003 during blank test. [Here is another small % of error- could it affect a close case on the 10% rule calculation?]
12. DETECTOR OVERFLOW Detector output exceeds that readable by the A/D converter.
13. FILTER ERROR – Filter solenoid not activating properly.
14. SIMULATOR OUT OF RANGE Outside acceptable limits.
15. DATA MEMORY BATTERY LOW RAM backup battery failing.
16. AMBIENT FAIL Ethanol or other substance detected is sample cell after purge.