intox ec/ir ii leonard r. stamm goldstein & stamm, p.a. 6301 ivy lane, suite 504 greenbelt,...

Intox EC/IR IIIntox EC/IR IILeonard R. StammLeonard R. Stamm

Goldstein & Stamm, P.A.Goldstein & Stamm, P.A.6301 Ivy Lane, Suite 5046301 Ivy Lane, Suite 504

Greenbelt, Maryland 20770Greenbelt, Maryland 20770301-345-0122301-345-0122

(fax) 301-441-4652(fax) [email protected]

www.lstamm.com

Mastering Scientific Evidence in DUI CasesMastering Scientific Evidence in DUI CasesNational College for DUI Defense and Texas National College for DUI Defense and Texas

Criminal Defense Lawyers AssociationCriminal Defense Lawyers AssociationNew Orleans, LANew Orleans, LAMarch 23, 2012March 23, 2012

Intox EC/IR IIIntox EC/IR II

Breath test history – some past/present Breath test history – some past/present issuesissues

Partition ratioPartition ratio TemperatureTemperature Rising BACRising BAC HematocritHematocrit New paradigm – Dr. HlastalaNew paradigm – Dr. Hlastala Mouth alcoholMouth alcohol

BelchingBelching RegurgitatingRegurgitating GERDGERD


20 minutes observation20 minutes observation DisconnectDisconnect Hiding the manufacturer of alcohol reference Hiding the manufacturer of alcohol reference

solutionssolutions Throwing out chromatograms of solution Throwing out chromatograms of solution

teststests Throwing out initial certification records of Throwing out initial certification records of

Intox 3000Intox 3000 Failing to identify technician who tested Failing to identify technician who tested

EC/IR during certification testingEC/IR during certification testing Failing to test solutions used during Failing to test solutions used during

certification testingcertification testing


Discovery violationsDiscovery violations Failure to comply with subpoenaFailure to comply with subpoena Destruction of evidenceDestruction of evidence Backdating certification certificatesBackdating certification certificates Failure to properly test simulator Failure to properly test simulator

thermometer – traceable to NISTthermometer – traceable to NIST Operator FTAsOperator FTAs Using calibration gas as validation gasUsing calibration gas as validation gas

Maryland’s programMaryland’s program

Foundation –Foundation – Casper v. State, 70 Md. App. 576, 521 Casper v. State, 70 Md. App. 576, 521

A.2d 1281 (1987)A.2d 1281 (1987) Operator certifiedOperator certified Test within 2 hours of apprehensionTest within 2 hours of apprehension Equipment approved by the Equipment approved by the

toxicologist – Courts & Judicial toxicologist – Courts & Judicial Proceedings Article § 10-304(b)Proceedings Article § 10-304(b)

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Approval is prima facie proof of accuracy Approval is prima facie proof of accuracy and reliability - Casperand reliability - Casper Evidence showing unreliability may shift Evidence showing unreliability may shift

the burden of proving reliability back to the burden of proving reliability back to the State and if not met – test may be the State and if not met – test may be excluded - Casperexcluded - Casper

May be proved by a certificate signed by the May be proved by a certificate signed by the toxicologist without the toxicologist toxicologist without the toxicologist appearing in courtappearing in court Certificate is prima facie proof of approvalCertificate is prima facie proof of approval

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Maryland Rule 5-1005 –Maryland Rule 5-1005 – A copy must be certified as a business recordA copy must be certified as a business record

Maryland Rule 5-902Maryland Rule 5-902 Bus. rec. without custodian - 10 days noticeBus. rec. without custodian - 10 days notice Business record Business record

(A) was made, at or near the time of the (A) was made, at or near the time of the occurrence of the matters set forth, by (or occurrence of the matters set forth, by (or from information transmitted by) a person from information transmitted by) a person with knowledge of those matters, (B) is with knowledge of those matters, (B) is made and kept in the course of the made and kept in the course of the regularly conducted business activity, and regularly conducted business activity, and (C) was made and kept by the regularly (C) was made and kept by the regularly conducted business activity as a regular conducted business activity as a regular practicepractice



State v. Bryant, 761 A.2d 925, 361 Md. 420 State v. Bryant, 761 A.2d 925, 361 Md. 420 (2000) – “This is to certify that the enclosed (2000) – “This is to certify that the enclosed medical records are an accurate reproduction medical records are an accurate reproduction of the medical records pertaining to patient of the medical records pertaining to patient WILLIAM BRYANT, which are created and kept WILLIAM BRYANT, which are created and kept during the normal course of business. These during the normal course of business. These records are housed in the Medical Record records are housed in the Medical Record Services Department of the University of Services Department of the University of Maryland Medical System from the time of Maryland Medical System from the time of patient discharge or release. Both inpatient patient discharge or release. Both inpatient and outpatient records are housed in one and outpatient records are housed in one medical record. To the best of my knowledge, medical record. To the best of my knowledge, these are the complete medical records of these are the complete medical records of this patient.”this patient.”



State v. Bryant, 761 A.2d 925, 361 Md. 420 State v. Bryant, 761 A.2d 925, 361 Md. 420 (2000) – “Nonetheless, Dr. Levine (2000) – “Nonetheless, Dr. Levine nevernever testified that the report was made at or testified that the report was made at or near the time of the tests or that it was near the time of the tests or that it was made by a person with knowledge, as Rule made by a person with knowledge, as Rule 5-803(b)(6) requires. Therefore, his 5-803(b)(6) requires. Therefore, his testimony also was inadequate to establish testimony also was inadequate to establish the necessary evidentiary foundation to the necessary evidentiary foundation to admit the toxicology report.”admit the toxicology report.”

Courts & Judicial Proceedings Article, § 10-Courts & Judicial Proceedings Article, § 10-204204

Certified copies of public records admissibleCertified copies of public records admissible

(a) A copy of a public record, book, paper, or (a) A copy of a public record, book, paper, or proceeding of any agency of the government of proceeding of any agency of the government of the United States, the District of Columbia, any the United States, the District of Columbia, any territory or possession of the United States, or of territory or possession of the United States, or of any state or of any of its political subdivisions or any state or of any of its political subdivisions or of an agency of any political subdivision shall be of an agency of any political subdivision shall be received in evidence in any court if certified as a received in evidence in any court if certified as a true copy by the custodian of the record, book, true copy by the custodian of the record, book, paper, or proceeding, and if otherwise paper, or proceeding, and if otherwise admissible.admissible.

Courts & Judicial Proceedings Article, § 10-Courts & Judicial Proceedings Article, § 10-204204

Contents of certificationContents of certification

(c) A certification under this section shall (c) A certification under this section shall include:include:(1) The signature and title of the custodian (1) The signature and title of the custodian or other person authorized to make the or other person authorized to make the certification;certification;(2) The official seal, if any, of the office; and(2) The official seal, if any, of the office; and(3) A statement certifying that the copy is a (3) A statement certifying that the copy is a true copy of the public record.true copy of the public record.

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Code of Maryland Regulations requirements Code of Maryland Regulations requirements for approval of EC/IR IIfor approval of EC/IR II

E. Initial Certification of Instrument Approval. E. Initial Certification of Instrument Approval. (1) Precision and Accuracy Testing. (1) Precision and Accuracy Testing. (a) Vapor containing 0.020 g/210L, 0.040 (a) Vapor containing 0.020 g/210L, 0.040

g/210L, 0.080 g/210L, and 0.160 g/210L g/210L, 0.080 g/210L, and 0.160 g/210L ethanol concentrations shall be introduced ethanol concentrations shall be introduced through the breath tube of the instrument. through the breath tube of the instrument.

(b) Each concentration shall be repeated 4 (b) Each concentration shall be repeated 4 times. times.


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(c) As an indication of precision, the (c) As an indication of precision, the combined average standard deviation shall combined average standard deviation shall be not greater than 0.0042 g/210L. be not greater than 0.0042 g/210L.

(d) As an indication of accuracy, systematic (d) As an indication of accuracy, systematic variations at each ethanol concentration will variations at each ethanol concentration will be calculated and shall be not more than 5 be calculated and shall be not more than 5 percent or 0.005 g/210L, whichever is percent or 0.005 g/210L, whichever is greater. greater.

(e) An instrument not meeting the precision (e) An instrument not meeting the precision and accuracy requirements may not be and accuracy requirements may not be approved. approved.


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(2) Acetone Detection Testing. (2) Acetone Detection Testing. (a) Vapor containing 0.020 g/210L ethanol and (a) Vapor containing 0.020 g/210L ethanol and

100 microliters of acetone per 500 mL solution 100 microliters of acetone per 500 mL solution shall be introduced through the breath tube of shall be introduced through the breath tube of the instrument. the instrument.

(b) Each concentration shall be repeated 4 (b) Each concentration shall be repeated 4 times. times.

(c) The instrument shall read between 0.015 (c) The instrument shall read between 0.015 and 0.025 g/210L. and 0.025 g/210L.

(d) An instrument not meeting the requirement (d) An instrument not meeting the requirement for acetone detection may not be approved. for acetone detection may not be approved.


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(3) Blank Testing. (3) Blank Testing. (a) Four samples of vapor containing no (a) Four samples of vapor containing no

ethanol or other solvents shall be introduced ethanol or other solvents shall be introduced through the breath tube of the instrument. through the breath tube of the instrument.

(b) No reading shall exceed 0.005 g/210L (b) No reading shall exceed 0.005 g/210L vapor. vapor.

(c) An instrument not meeting the blank (c) An instrument not meeting the blank detection requirement may not be approved. detection requirement may not be approved.

(4) If conditions outlined in §E(1)—(3) are met: (4) If conditions outlined in §E(1)—(3) are met: (a) The instrument shall be approved; and (a) The instrument shall be approved; and (b) The Toxicologist shall issue a letter (b) The Toxicologist shall issue a letter

certifying instrument approval.certifying instrument approval.


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Code of Maryland Regulations requirements Code of Maryland Regulations requirements for controls – only approvalfor controls – only approval

What discovery revealedWhat discovery revealed

Case EC/IR IICase EC/IR II

CalibrationCalibrationAlcohol Reference SolutionAlcohol Reference Solution

CertificationCertificationAlcohol Reference SolutionsAlcohol Reference Solutions

Alcohol Gas StandardAlcohol Gas Standard


EC/IR IIEC/IR II


Case EC/IR II Alcohol Gas StandardCase EC/IR II Alcohol Gas Standard



EC/IR IIEC/IR II



Case EC/IR II Alcohol Gas StandardCase EC/IR II Alcohol Gas Standard


EC/IR IIEC/IR II


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Discovery issuesDiscovery issues Source codeSource code Manual provisionManual provision IntoxNet reportsIntoxNet reports

Factual issuesFactual issues Source codeSource code Manual complianceManual compliance IntoxNet reportsIntoxNet reports 20 minute observation period20 minute observation period GERDGERD

VirginiaVirginia

The end!The end!

Leonard R. StammLeonard R. StammGoldstein & Stamm, P.A.Goldstein & Stamm, P.A.6301 Ivy Lane, Suite 5046301 Ivy Lane, Suite 504

Greenbelt, Maryland 20770Greenbelt, Maryland 20770301-345-0122301-345-0122

(fax) 301-441-4652(fax) [email protected]

www.lstamm.com

intox ec/ir ii leonard r. stamm goldstein & stamm, p.a. 6301 ivy lane, suite 504 greenbelt,...

Documents

b slide

certification testing

business activity

validation gas slide

business record maryland

breath test history

regular practice slide

reliability casper evidence