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]]> http://www.duiblog.com/2012/11/05/the-disappearing-right-to-defend-yourself-against-dui-accusations/comment-page-1/#comment-128876 DUI-The Constitution Need Not Apply Wed, 14 Nov 2012 14:20:14 +0000 http://www.duiblog.com/?p=3613#comment-128876 Disclosure of ALL manner of information about the machine, technician, maintenance and repair is exactly what is required in every case.  The odds are at least even that the machine is out of calibration, has not been properly maintained, and/or the custodian has falsified quality control reports.  It is likely that a thorough forensic analysis of all of the information will reveal faults useful to the defense. For instance, the state of Kansas:  In-depth analysis of COBRA downloads, Monthly Certified Standard Reports, Maintenance and Repair Logs, and email communications covering 2010-2012 revealed that most LEAs were continually and substantially in NON-COMPLIANCE with statutes, administrative regulations, and standard operating procedures designed to insure the machines are scientifically reliable and accurate.  Quality Control has become something to be ignored without consequence.  At least three seperate counties had been placed on "double-secret" probation for falsifying monthly QC reports (reporting checks that were never done).  I say "double-secret" probation because the Kansas Breath Alcohol Program never informed defendants, courts, or the defense bar of the official misconduct that compromised the reliability of the machines in these jurisdictions.  The operators who falsified evidence faced zero consequences. During the time frame for which information was available in this study, one agency was proven to be in strict compliance with all requirements.  Of the 230 LEAs in Kansas..;..ONE was provably above board in the maintenance of their breath machines.  The agency that oversees these LEAs is the Kansas Dept. of Health and Environment Breath Alcohol Program managed by Christine Houston.  The information reveals that "oversight" of LEAs actually means helping agencies cover up misconduct of operators, improper maintenance, and non-compliance with standards of reliability.  Ms. Houston has testified repeatedly that the KDHE BAP considers LEAs and prosecutors as their "customers", and is there to assist them in any way they can.   Topeka (KS) Police Dept. had no records (printouts) of weekly QC checks being done for about a full year.  They did have the Monthly Certified Standard Reports, handwritten by the operator, reflecting that these checks were done.  Without printouts there is no way to verify these checks were done.  This is a problem because there were instances found where a machine would QC check outside of tolerance (.075-.085) and then be recorded on the MCSR and forwarded to the BAP.   Upon review, the BAP would find the week outside of tolerance, send an evaluation back to TPD (1-2 months later) and advise the custodian to change the MCSR to reflect that the machine was taken out of service for that week, and returned to service the next.  Of course, in reality the machine was NEVER takien out of service and returned to service.  Retroactively falsifying records routinely used in court cases at the behest of the officials responsible for oversight of agencies.   Kansas statutes defer to Kansas Administrative Regulations which defer to Standard Operating Procedures established by the Secretary of Health and Environment for maintenance of breath machines and programs.  In the above cited case Ms. Houston testified, under solemn oath, that TPD was clearly not following SOP, but SOPs were merely guidelines.....suggestions.  If agencies choose not to follow them it's no big deal.  The bottom line:  ALWAYS request every piece of information related to a machine, agency, operator, and supervision.  States and agencies are lazy and corrupt.  Their culture of corruption leaves them vulnerable to attack.  Use it against them.     Disclosure of ALL manner of information about the machine, technician, maintenance and repair is exactly what is required in every case.  The odds are at least even that the machine is out of calibration, has not been properly maintained, and/or the custodian has falsified quality control reports.  It is likely that a thorough forensic analysis of all of the information will reveal faults useful to the defense.
For instance, the state of Kansas:  In-depth analysis of COBRA downloads, Monthly Certified Standard Reports, Maintenance and Repair Logs, and email communications covering 2010-2012 revealed that most LEAs were continually and substantially in NON-COMPLIANCE with statutes, administrative regulations, and standard operating procedures designed to insure the machines are scientifically reliable and accurate.  Quality Control has become something to be ignored without consequence.  At least three seperate counties had been placed on "double-secret" probation for falsifying monthly QC reports (reporting checks that were never done).  I say "double-secret" probation because the Kansas Breath Alcohol Program never informed defendants, courts, or the defense bar of the official misconduct that compromised the reliability of the machines in these jurisdictions.  The operators who falsified evidence faced zero consequences.
During the time frame for which information was available in this study, one agency was proven to be in strict compliance with all requirements.  Of the 230 LEAs in Kansas..;..ONE was provably above board in the maintenance of their breath machines.  The agency that oversees these LEAs is the Kansas Dept. of Health and Environment Breath Alcohol Program managed by Christine Houston.  The information reveals that "oversight" of LEAs actually means helping agencies cover up misconduct of operators, improper maintenance, and non-compliance with standards of reliability.  Ms. Houston has testified repeatedly that the KDHE BAP considers LEAs and prosecutors as their "customers", and is there to assist them in any way they can.  
Topeka (KS) Police Dept. had no records (printouts) of weekly QC checks being done for about a full year.  They did have the Monthly Certified Standard Reports, handwritten by the operator, reflecting that these checks were done.  Without printouts there is no way to verify these checks were done.  This is a problem because there were instances found where a machine would QC check outside of tolerance (.075-.085) and then be recorded on the MCSR and forwarded to the BAP.   Upon review, the BAP would find the week outside of tolerance, send an evaluation back to TPD (1-2 months later) and advise the custodian to change the MCSR to reflect that the machine was taken out of service for that week, and returned to service the next.  Of course, in reality the machine was NEVER takien out of service and returned to service.  Retroactively falsifying records routinely used in court cases at the behest of the officials responsible for oversight of agencies.  
Kansas statutes defer to Kansas Administrative Regulations which defer to Standard Operating Procedures established by the Secretary of Health and Environment for maintenance of breath machines and programs.  In the above cited case Ms. Houston testified, under solemn oath, that TPD was clearly not following SOP, but SOPs were merely guidelines…..suggestions.  If agencies choose not to follow them it's no big deal. 
The bottom line:  ALWAYS request every piece of information related to a machine, agency, operator, and supervision.  States and agencies are lazy and corrupt.  Their culture of corruption leaves them vulnerable to attack.  Use it against them.    

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