Fraudulent Crime Lab DUI Tests: Update

Posted by Lawrence Taylor on February 5th, 2008

My last post reported on the findings of a panel of Seattle judges which concluded that the state’s crime lab responsible for breath testing had routinely engaged in “fraudulent and scientifically unacceptable” practices that have compromised breath-test readings across Washington. 

On February 2nd, a Seattle television station ran a more in-depth investigation, resulting in an interesting report on their news program.  The complete video can be seen and heard at ”Up Front: DUI Breath Tests Thrown Into Question”, and begins with comments concerning the judicial findings:

…A scathing report of what was going on at this state agency lab.  Judges say it was fraud, a total disregard for accuracy.  So what does it mean for DUI cases going back for years?…

The judges are brutally blunt and saying it’s not just mistakes, it’s fraud, and the breath tests results simply cannot be trusted…

Defense attorneys say the problem is not with the police or with how the test is administered, it’s a meltdown at the state toxicology lab.

Defense Attorney Ted Vosk:  They deceived the judges, they deceived the prosecutors, they deceived the officer out on the street.

The panel of three King County judges agreed, finding “Ethical lapses, systemic inaccuracy, negligence and violations of scientific principles.  Literally thousands of breath tests performed in recent years were effected through a multiplicity of errors.”…

How did it happen?…

The report goes on to give a credible account of what’s been going on in the Washington state crim lab. No problem, though, according to the King County prosecutor:

Reporter:  When you see a breath test today, how much confidence do you place in the results?

Prosecutor: I’m quite confident.

How did it happen?  The same way it’s happening in police crime labs across the country:  the role of the crime lab has shifted from one of analyzing evidence to one of facilitating convictions…whatever it takes.

  • standup

    Hey screwed,
    Very good post indeed. You may want to join in our forums over at RIDL is a group that is trying to fight back !!

  • jim

    The following is what the real argument should have been against the Alcotest.

    A very important aspect of the Alcost breath testing instrument is the area under the curve, the peak area of the peak produced by alcohol. I am not sure if they are measuring the “oh” group peak or the “ethyl peak”, but for this argument it doesn’t matter.

    As an analytical chemist with 20 years experience, this visual picture/evidence/document, is just about the most important document there is.

    The picture of the test.

    Picture a straight line across a page of paper 8 inches in width. picture about 6 inches down the line a tall thin triangle rising about 6 inches from the line (baseline), symmetrical in shape, and about 3 millimeters in width at the baseline.

    This is what I call a peak a classic desired peak.

    The amount of area inside the shape of the peak is calculated by a computer program and converted into a number called “counts”.

    What the program does is this, it through its programing, determines when the peak starts and stops. draws a baseline under the peak, then calculates the area in counts , inside the triangle.

    This count of a breath sample is compared to the count of a known standard solution, a mathematical calculation is performed, and a final BAC is determined.

    This is fundamental , most basic, analytical chemistry, for peak based instruments, like an IR in the Alcotest.

    In my career I have revived , looked at, millions and millions of peaks generated from such instruments to determine if the start and stop of the peak was determined correctly, if the baseline was determined correctly, if the peak shape was ok, if the right peak was being used in the calculation, and if there were any interferences.

    Without this picture, it is impossible for Drager, me, you, the state, the FDA, or anyone else in the world, to say the result is accurate.

    In the millions of peaks I have revived in 20 years, I have found a lot of problems along the way.

    The start was determined wrong, the end was determined wrong, the baseline was drawn incorrectly, the wrong peak was used to calculate.

    An instrument can be running fine for 100 samples in a row, have one off, and 100 more good samples. It is just the nature of analytical instruments for this type of analysis, and every peak needs to be looked at and signed off on.

    With the Alcotest there is no picture. We have absolutely no way of knowing if anything looked ok in a breath test.

    Do you understand what I am saying?

    It is not like I am looking for the world here, a simple IR machine that produces a picture is not only common, it is expected, required, taken for granted.

    The cost of the Alcotest is ridiculously high for an instrument that can not even produce a picture of the test.

    To take this one step further, the “counts” for each standard and sample would be listed on the screen and printout, and an example calculation would be typically performed for the first sample by hand,vto ensure the program was calculating correctly, and available to perform for every sample tested.

    All of this is a no brainier.

    Do you understand?

    The process that calculates the area under the curve is called integration.

    Unless their is a visible hardcopy picture of the peak showing the start, stop, and baseline of the integration…. showing the peak, at the proper , in the case, wavelength, but in HPLC retention time, and it is reviewed to determine the peak shape was ok, the correct peak was used, there are no interferences, and the integration had the right start-stop-baseline, there is absolutely no way to say beyond a reasonable doubt any breath test result is correct.

    A key aspect in the Alcotest case are the manuals supplied by Drager to the Chun defense teaM, which one of the attorneys, not my former one, was kind enough to supply me with last summer for review….which I did review….

    In these manuals are example pictures of the peaks produced by an IR scan for alcohol.

    The methodology clearly shows a baseline and peak for the analysis , as I described earlier.

    My question to Drager would have been, how do you know your instrument, the Alcotest, produces these peaks, integrates them correctly, every time, 100% without flaw, drawing a perfect baseline to the peak every time, with a perfect start and stop tic marks, and thus perfect integration.

    The answer is they really do not know. They may have some hook up at the factory but nothing was presented at the hearings. The most important aspect though is, we do not know for each and every breath test the integration and result are flawless.

    Even a slight movement of the baseline drawing on the slightest wrong incline, or a start or stop of the peak that is even the slightest up on the peak rise or fall, will create the wrong result. Maybe the start or stop was too soon or too late and occurred in valley beneath the baseline, thus causing a bad result.

    There is no way to ever now how much off the mark it is without seeing the picture.

    Most instruments have software where you can change the integration parameters to force the instrument to properly integrate certain peaks, however, in doing this, the standards, and bracketing standards, must be under the same parameters, and this reprocess of results must be documented with explanation as to why.

    I am telling you, with 100 percent certainty, that the picture of analysis by analytical instruments of the nature of the Alcotest is the most fundamental document to support the result!

    yet is doesn’t exist!

    What really gets my goat, if you will, is that this really shouldn’t be up to me to point out such fundamental basic aspects of analytical chemistry.

    This is something that Drager should know, probably does know, the State should know, probably turns a blind eye to, defense attorneys have no idea about, … and only analytical chemists that were tested on it and charged with a dui care about.

    One can not even begin to validate an instrument like this in all seriousness, one that can take away a persons livelihood, freedom, driving privileges, respect, without having the picture.

    This is not like the measuring of the ph in your pool water.

    This is exact analytical chemistry science. Exact also made by statute, in virtue of the State differentiating between 0.07, 0..08, 0.09. 0.10% BAC >>

    To not be able to even begin to validate an instrument like this, where the result is so important, and basic IR instrumentation allows for it, because Drager didn’t engineer it to produce a picture with the counts, is really unbelievable, and wrong, and not just.

    What can I do to make people understand?

    I would like to be able to get in the above argument in my particular dui case.

    I will have to somehow figure out with my attorney how exactly we can get this argument on record, in order to have an appeal with this basis…. keeping in mind any appeal I  have would be based on many things including speedy trial and lack of due process, but also for this analytical argument to also come on record so it can also be appeal able.

    I don’t know what the case law says on this, but I certainly hope to be my own expert witness as to analytical results of peak based analysis by software driven analytical instruments.

    This on appeal, would be the new “Chun”.

    This fundamental aspect of this type of analysis, as I have described above, was not the main attack of the Chun defense team, and should have been.

    In my opinion they could have won on this argument alone.

    It is not a question of what Alabama is doing, as the Chun case seemed to rely on, or what other States are doing, or what other manufacturers of breath testing equipment are doing.

    It is a question, and case, of such fundamental basic analytical chemistry standards, as they exist today in NJ.

    It is not nuclear science, it is not rocket science, it is so basic, and so fundamental, and so low level, that analytical chemists like me, with just a basic college education, and low salary, take for granted.

    Producing a picture of an IR scan and its integration, is so basic and fundamental, it is equivalent to a auto mechanic checking the air in someone’s tire ( as far as it is being done),… that is to say NOT THAT IT IS EASY TO DO, BUT IT IS JUST SOMETRHING SO BASIC, SO FUNDAMENTAL, IT IS TAKEN FOR GRANTED IN THE ANALYTICAL WORLD.

    The science is exact, the analysis is exact, the statute is exact,  so what are we missing?

    We are missing the most fundamental piece to the puzzle, the actual picture!

    Before they make any political compromises as to the Chun case, understand one thing, my arguments are valid, not argued in Chun, and will be put up on appeal all the way, as the new Chun, if my case is not dismissed or acquitted after trial.
    There is no way this Alcotest, an analytical instrument, capable of taking away someone’s freedom, should be used without supplying the picture of the IR scan and the counts from the integration.

    One lawyer said to me, “why, because you say so”,

    Well, don’t take me word for it, I am only one analytical chemist in NJ….. talk to the others who work in analytical laboratories, talk to directors, managers, supervisors, and chemists in these labs. Interview 1000 of these people, … I guarantee not a one would disagree with me….

    It is not based on opinion or judgement, it is basic science.

    Believe me, the time and money and resources these companies use to analyze drugs and OTC products, in terms of even just amount of paper produced, is great, and they wouldn’t do it if they didn’t have to.

    My basic argument is that the taking away of a person’s freedom is so important, that the a picture of the IR scan of a breath analysis is paramount.

    There is simply no way to sum up what I am saying in a few lines or paragraphs, …. there is no simple way to write a long argument to describe it either…

    One must go see for themselves.

    This is something the Chun defense team refused to do, the State refused to do, and Drager refused to talk about.

    The level of importance on the breath test BAC result is high, and thus needs to be supported by the picture of IR scan and integration count result.

    Don’t take my word for it, go to major labs in NJ, major analytical labs at J&J, Shering Plough, Merck, Brystol Myers Squibb, OTC factory labs, contract labs, —go to these places and ask what they do, look at what they do, see for yourself.

    It is not a question of preferance, or policy from lab to lab, it is basic and fundamental, and required in code of federal register.

    Just take one of the most basic otc drugs we have in NJ,.. acetominophen.

    It is not ok to test and releaee acetominophen, by injecting the sample into an hplc and only getting a final result out, without a picture of the test or the integration results.

    Why is this?

    It is because peak based analysis, where quantification with integration is used, needs to be supported by the picture and integration result….. for the reason i described in several posts above.