Panel Discussion
Garbage In / Garbage Out
Moderator for this panel discussion will be Gary Trichter.MR. TRICHTER: Before I start, I need to get you—all to give Larry and David a big round of applause for putting this together.
Okay, guys, panel, garbage in and garbage out.
Question: What in terms of garbage in and garbage out do you think make the greatest impression with the jury? Greatest impression with the jury?
Mimi?
MS. COFFEY: In term of the science or jury selection or ——
MR. TRICHTER: Well, breath testing.
MS. COFFEY: In terms of dealing with the science, well, quite frankly, I think that one of the —— when you deal with the heart of the science of breath testing and infrared spectroscopy. I think that you leave a pretty strong impression with the jury of your credibility, your scientific knowledge by basically building up the State technical supervisor, doing a little bit of education on infrared spectroscopy simplified the way that the technical supervisors do that.
And if you can stand up in your closing argument and argue how these jurors should say not guilty on the basis of good science from the prospective of the State technical supervisor, I think that you have a much greater chance of winning a home run.
And of course, garbage in—garbage out refers to the fact that a lot of these scientific issues, quite frankly, are seriously lacking. But realistically, you are not trying the case to six scientists, so it's best to simplify, be as honest as possible, and win your case using the science that the State supervisor uses. That's my opinion.
MR. TRICHTER: Okay. Thank you very much, Mimi.
Mike?
MR. FACTOR: I've actually had some judges do that to me. Redirect. I think the best avenue for Garbage in/Garbage out is to start with the intoxilyzer operator. In Tarrant County and certainly other places, the intoxilyzer operators are hourly employees who are not police officers and haven't been. And since they've been through the operators course, they don't remember much.
Obviously, the technical supervisor is going to have tapped answers. Mark characterized Mr. Fondren as a chipmunk. I have characterized him has a windup doll for the State. He's not going to help you. Most of them aren't going to help you. They do know the answers, and they have all these publications.
But here's the deal. If you say to the operator, Did you check the guy's temperature or ask him if he had a fever, he'll say, No.
You'll say, Well, now, you know that the temperature is critical in a breath test. And he'll say, I don't know that.
Well, there's a series of questions you can ask. We have some procedure where you —— some of our operators will say, Do you have anything in your mouth? Some of them will say, Have you belched or burped or anything like that? But most of them don't.
You can ask them some sort of common sense questions.
For example, you can ask them what the temperature was. And invariable they will say, It is within tolerance.
Okay. And you say, I didn't ask you that. I asked you what the temperature was. What was it?
And they'll say, Well, it was within tolerance.
And you'll say, Hey, you checked it. Surely, you wrote it down because you know that's important.
Well, no, they don't write it down. If they're honest, they'll say they don't remember.
I have never seen a intoxilyzer test where the operator actually wrote down what the actual temperature is, and I think it's because they don't really check.
The other question you can ask them is about verifying that the solution has been changed within, I think, 30 days or the last 50 tests. They'll say they did, and you can ask them for their logbook and say, Which way did you check?
They won't have an answer to that because they don't know.
In terms of garbage in—garbage out, I think you need to start with the operator, because the operators are more subject to attack than the technical supervisors are. Obviously, you can talk to the technical supervisors about all the big issues. But the operators are —— you know, the thing you want to leave the jury with the impression is that the operator is an idiot, which is often true; and often, the operators are not articulate. Often, they have no familiarity with any of these concepts and don't even do the things they ought to do as operators.
And the other thing you should always ask an operator is —— at least I ask this in our jurisdiction —— is: How many actual tests has the technical supervisor sat in with you? How many times does he check you with a real subject?
And he'll say, Never.
Some operators don't even know what Mr. Fondren looks like, because I've shown them pictures of Mr. Fondren.
Who is this guy?
They say, Well, I don't know.
And I'll say, Well, he's your technical supervisor; and he's going to say he certified you.
MR. TRICHTER: Garbage in—garbage out.
MR. MCCOLLUM: Right.
And you can ask the technical supervisor about the recertification of the people, and they have to fill out a written test with pass/fail.
But I'm just saying, the supervisor will verify —— at least our technical supervisor will verify he's never watched an actual test. And obviously, you can draw a medical analogy to this. How would you like a doctor ——
MR. TRICHTER: We've got to move on and share the podium.
Mike?
MR. MCCOLLUM: Okay. That's the question, right. Of course, you agreed, you know, with your supervisor generally speaking, you know, that the longer you blow, the higher the score. And this is how you get yes's out of them, and this is how you use them as your expert.
And of course, it's real important that when that measurement is taken of the alcohol concentration in that machine there, that it's not measuring alcohol from some contaminant or alcohol from another source. It's real important.
In fact, four out of seven of the operational steps when you test people that you're accusing of DWI had to do with cleaning that chamber out to make sure there's no alcohol left over from the last step; isn't that right?
And of course, you agree that the Model 5000, on a regular basis, it measures alcohol from sources other than human breath, doesn't it, sir?
You—all know that, don't you? It measures alcohol from sources other than the human breath. It does it every time, every time it runs a test score. It's the simulator. Because actually, what it's measuring —— it's just measuring whatever is in that chamber. It doesn't know where the source of that test came from. You can do this even if he won't give you the measured things, other than ethyl alcohol.
Even if he says, It'll only measure ethyl alcohol, the garbage in is, one, you don't know where —— the source of it is in the chamber. And of course, for us laymen, you say that this is a valid .12. If we assume that that valid 12 is actually ethyl alcohol coming from the deep blow of Mr. Smith over here, that machine didn't measure .12 grams of ethyl alcohol when he got that score, did it? It actually measured about 1.500 grams, didn't it?
And then for us laymen to understand, on a .12, that's about 21/ten millionths of an ounce, isn't it? Something like that, you can do the math. It's real easy. You—all know how to do your math on that, right? So, you write that up here, 1.12 equals —— and do it as a fraction. Don't do it as —— equals, you know, 19/ten thousandths of an ounce of ethyl alcohol. That's a tiny amount for us laymen, isn't it?
And that's why it's real important that each sample, each step doesn't have any contamination in it, doesn't get alcohol from any other source in that sample chamber when you're running the test on the subject; isn't that right, sir? Because it doesn't take very much at all to get a false high result, does it?
And you know, if you got them leaning your way, that's enough right there; and you don't have to know a heck of a lot to do it. And they'll give you the answers on those, because there's no way around it.
And that's garbage in—garbage out as long as it's a high score; tiny, tiny amount; contamination. We don't know where it could come from. We know the instrument measures alcohol from sources other than human breath on a regular basis. So, the argument, obviously looking at the videotape, you know, they can't prove beyond a reasonable doubt that that sample was contaminated by alcohol from the simulator solution, folks. That could be one explanation. We don't know why, but garbage in—garbage out.
MR. TRICHTER: George?
MR. MILNER: You know, I would say the assumptions do not apply. And what I try to do if you can in a breath test is as opposed to all of the generalized things —— and I don't think you should ever ignore the generalized problems with the breath box. But if you can and depending on what's easiest is articulate something about your client as to why this test is incorrect and overstates —— because the machine is based on assumptions; and those assumptions don't apply to your client, 2100 to 1.
But that could be exactly what Mike is saying, you know, it assumes that what is in that chamber came from the air being expelled from the blood, through the lungs, and from no other source. It assumes that what it believes to be alcohol is, in fact, alcohol.
Well, just like what Mike is saying, there's the potential that things —— that actual alcohol could come from a different source. And there's also the potential that there are things in that sample chamber which will absorb —— and I'm not a Saints guy, and I don't like the Saints —— you can do it in a simplified way, and you can say —— I wouldn't phrase it this way, but this is what it boils down to. There are chemicals that can be in that chamber and absorb infrared NG in the same way of ethyl alcohol, and that machine does not know the difference. And if it absorbs the infrared light, when the alcohol is given on the other end, the number is going to be smaller; and therefore, that means there is more alcohol according to the score. That doesn't mean there is more alcohol.
You can do that in a very simplified way. What I like is the breath machine normally works right, but it didn't work right on this occasion for this reason. If you've got that, you will win. I've lost one is the reason why, but it doesn't mean you win them all. But the truth is that's what a juror wants to hear, because they, unlike us, do not know that the breath box is bullshit. They believe it works.
And the simplest way to understand that is through the client.
The client thought, This is ridiculous. I didn't have 22 beers that night, when you start telling them what that score really meant.
And you say, Well, you know, the jury is going to trust them.
Well, that's not fair.
Well, listen, okay, you trusted it. I mean, why is it unfair that the jury trust it?
Their ass is not on the line.
Yours was on the line, and you trusted it.
Well, you're right.
All right. So, we've got to overcome that.
I mean, that's the reality. Your client trusted it. So, once they start, then you've got to get in the mind of the jury. That's how that works. So, it's easy to say, Well, you know, this works most of the time; but it didn't work on this occasion. It was inaccurate. And I just use that over and over and over and over in the trial, and then we tell them to do a word search on that after trial, be accurate. In this case, it was inaccurate. I know why, or I have a pretty idea why. And then we've got the videotape to tell you that it's not possible that he drank 14 beers or 18 beers or 22 beers, you know, whatever that number will turn out to be.
MR. TRICHTER: The next question, panel, is going to be: What do you think the greatest weakness is of the intoxilyzer, the greatest weakness?
While you're thinking about it, let me see a show of hands, who knows absolutely, positively, for sure what the proper operating temperature is if the reference sample solution. Raise your hand if you know. One. I get to buy you a drink later. You—all need to know that if you're going to try a breath test case. Very, very credible. Very, very credible.
Folks, you can make statements to your witnesses. The proper operating temperature of a reference sample solution was 40 degrees C, wasn't it —— 38 degrees C, wasn't it? And it's amazing how often an officer will agree with you. Don't ever give them the correct number. Because if you give them the correct number, you can't come back and hammer them if they just agreed.
If they agreed under oath, swore them to tell the truth and you give the wrong number and they ratify it, come back to it again, let them ratify it again. And then pull out your book under 803.18; and then approach them, and say, You know, what you said was 38 degrees C. The truth was you did not know what the real temperature was, did you? Silence before the room. You don't know what it is today, and you don't know what it was then, did you? They will either admit it or be silent if they didn't know. But you can't catch them like that unless you know what the answer is. So, you've got to study it, folks. It's very, very important to study.
Mimi?
MS. COFFEY: I'll try to make this fast. Weaknesses beats assumptions. If you will turn to tab 7 and if you'll look at the cross—examination testimony of Mark Fondren, that would be page 15, line 12 and 13. He looks at the intoxilyzer slip. It says, "Air blank, 0." What does that really mean? It does not mean 0. As a matter of fact, you can have ethanol of up to .019; and it will still read 0. The machine can only print out two things, 0, by agreement with CMI of Texas, or it's not an invalid test result. Typically, ambient air failure.
So good science means you give the benefit of the doubt to the subject. What does that mean? That means you knock off .019 —— that's almost .02 —— from that test result.
Other assumptions. In terms of —— use the margins. In terms of .01 —— and I never use the word "margins" when I'm doing cross—examination. That's dangerous language. But you ask —— say .01 the reference sample that the actual reference sample has to agree with the predicament by .01.
Okay. It's not possible for the human body to metabolize .02 in three minutes. What does that mean? Okay. What we're looking at are readings of .02. And Kurt Dubowski, scientific director of Oklahoma State, a very revered, world renowned scientist; and the science from these revered, world renowned scientists is right. A.W. Jones, Dubowski, Goldberg, they all have publications, good scientists. You know, they may write an article that might site just one particular case study; but when it comes right down to giving you the facts, they're going to give you the facts. Dubowski in Oklahoma, they have a variance of .03 between the two breath test scores. So, you're not arguing with the State scientist. You're just getting the premises laid out.
Also, really important, hematocrit, this whole business about the human being is not the same. Well, Kurt Dubowski, once again, he used the language of their folks. Because generally speaking, they're not going to ——
MR. TRICHTER: Mimi, tell us who Kurt Dubowski is?
MS. COFFEY: Kurt Dubowski —— technically speaking, A.W. Jones is the world's most revered alcohol toxicologist, lives in Sweden. He's British. Anyway, he lives in Europe.
Kurt Dubowski is American in Oklahoma. He's done breath test research since the first breath test instrument. He's a well—revered scientist. He has great publications; for example, The BAC from 14 minutes to 138 minutes. This is all great science for us. And in Oklahoma, he gives a variance of .03, same machine Intoxilyzer 5000. Dr. A.W. Jones, 93.23 Fahrenheit to 98.6.
For every one degree that you go up in temperature, that's a 6.5 percent increase; but his experts go over 8 percent. Be conservative. Use the State expert's numbers. Ask them, What is a third blow? You don't know what Jose Cuervo would have blown a third time, do you? So, when you come back in the closing argument and you knock down those numbers and you just throw out really good science.
But your assumptions are wrong, and I wanted to say that if you guys look up the case Andrews versus Cerano 649 EQVQ 5, Kurt Dubowski testified that in his research —— as I understand it, in his research, 14 percent of the time the human being had a hematocrit ratio —— pardon me —— partition ratio that was less than 2100 to 1. Well, what does that mean? That means a higher breath test score. And he recommended that you go ahead and knock off .025 from the breath test score. Why? Because it's in the interest of good science.
Where is this number going? We've already knocked off basically .02 from the 0 air blank that you can't make an assumption about. We're knocking off another .025. We're knocking off the breathing tolerance that they use, which is another .02. Okay. What is the intrinsic margin of the machine? Inherently, knock off a .01. And it is amazing. And that doesn't even account for temperature. And this is all good science.
MR. TRICHTER: You are amazing.
ATTENDEE: Would you cite the case again?
MS. COFFEY: I'm sorry. It's Andrews versus Cerano 649P2V256. And afterwards, if anybody has any questions, I'll answer them for you.
MR. TRICHTER: George?
MR. MILNER: You know, my thinking on the machine is the 2100 to 1 ratio; and I've had, you know, a situation with where that keeps coming up. And I guess if I understood Mimi correctly —— and she knows more about the science stuff —— is the idea that if you say 14 percent, then I guess two—thirds of the people who walk into my office are sitting at 14 percent.
There was a girl that just looked sober as a rock, had the misfortune of not being pulled over by any policeman, but being pulled over by one that you will not survive if you're pulled over by him; and she was flawless on the test. And she knew she was sober, so she took the breath test. She blows and blows a .10. I forgot where we got on that test. But here's where the real numbers came out, .10 on breath equated to .06 on blood, which went over badly for the State at trial.
But the reality is, you know, here you've got this lady that assumes that she's 2100 and assumes that she weighs 160/170 pounds and she doesn't. She weighs about 100 pounds. She's female. And that score from the government said she was 25 percent over the limit, and the truth was she was 25 percent under the limit. And had she not had the resources to spend —— afford to defend that right, she very well may have been convicted of DWI based solely upon the breath score.
So, you know, to me, that's the easiest one. In fact, they're not going to fight you. They won't fight over 2100 to 1. You've got to kind of ask the questions right, so you don't throw any objections about that. But to me, the machine assumes an average; and the truth is that not everybody is average. And if you're not average, if you're not who that machine was problemed for, then the score necessarily will be wrong. And that's as simple as it is.
And juries don't have to follow too much to understand exactly what that means. You know, it's a one size fits all. Everybody wears a 9—and—a—half—D shoe, every single person does; and they know that's bullshit. And they will follow.
And you don't sound like a paid advocate or something pulling the wool over their eyes. It sounds like, Look, this is just a simple test. They cannot design a machine that's unique to all 25 million people in the State of Texas. So they design one machine that is designed for an average human being. If you had to be average, it would be accurate on you. If you happen to be something different than average, it will not be accurate on you.
And in that regard, I kind of like it. I mean, I hate breath test cases in the sense it makes the trial longer. that's my only objection to them. Because if you try the breath test case right, it becomes a trial of the test; and you can forgot about tacky things like your client's inability to drive a like a normal human being. Your client's inability to recite the English alphabet.
I mean, I had a guy, .205. He didn't know what city he was in, road he was on, could not do any of the field test for sobriety; and when he tried the one—leg stand, after two attempts, he put his feet about 5 feet apart and said, That's as good as it's going to get.
I told him, I said, You're the only guy that ever walked because you were dumb enough to take that test.
And he was acquitted.
But the whole thing was it was a trial of the test. Three days, and we didn't talk about it. When we played the video the first day, then after that, there were no more references to that video, because the video was ugly. You couldn't have butchered the English alphabet worse if you tried. In fact, no two letters together in like order.
MR. TRICHTER: George, focus.
MR. MILNER: And point being, that's the benefit of a breath test case to the defense. If you try it right and you try the test, it allows you to not try the defendant. In a murder, you're trying the victim and not the defendant. I mean, it's the same kind of concept.
But I think the 2100 to 1 is the easiest way. I'm also a huge fan of extrapolation. If you understand and truly know how to handle 2100 to 1 extrapolation, that may be all you need, because that's about the only two things I do. I mean, I'll do temperature if I've got the right facts or if something else you need comes up. But as a general rule, extrapolation at 2100 to 1 will get you a not guilty a lot.
MR. TRICHTER: Mike?
MR. MCCOLLUM: What he said, 2100 to 1 is the biggest flaw; and it treats us all like 28—year—old male, Chinese men. That's the average person who doesn't exist. Where they could just as easily asked if my client, Jimmy over here, would submit to a blood test where they will be measuring his blood, his blood alone, where it's scientifically approved, acknowledged, the scientific method; and they choose not to do it.
So, you know, 2100 to 1 is the biggest flaw; and everything else flows from that. So, what you need to do is in your jurisdictions, you just have to understand 2100 to 1 backwards, forwards, so you can back into it. Some jurisdictions are not going to let you do it directly, because nobody appeals misdemeanors. They're wrong. But you have to know how to back into it if you have to, and I think earlier today somebody gave a real good way to do it. I don't remember who it was.
But you know, understand 2100 to 1. It's simple math. It's multiplication and division. It's easy. And like George said, that's the easiest thing; but there's a lot of other things you can do, too. If you got a lower breath test score, then these other things can get down below .08 if it were accurate. Of course, we don't think it was; but even if it were accurate, you can get it down below .08.
MR. TRICHTER: Panel, the next question is going to be: What is the hardest concept but also the most important concept that the jury doesn't seem to get in a breath test case? That's the question. The most important but also the hardest that the jury didn't seem to get?
So, while you're thinking about the answer to that, garbage in—garbage out, don't miss the obvious. Subpoena the technical supervisor to bring a mouthpiece or go buy a mouthpiece. Get it in a little plastic baggie. When you are cross—examining the supervisor or the operator, you simply put words in their mouth. Again, you make the statements with a question mark on the end.
Of course, this revents liquids or any type of contaminant from getting into the sample chamber, question mark.
They're going to say, Yes.
Well, during close, nobody can contradict you. You can take —— open that little mouthpiece that doesn't let anything get through. You can take a sip of water and blow through it; and I promise you, it will stream 20 feet. Garbage in—garbage out, the mouthpiece is garbage.
I'm sorry, Abe. Come on, brother.
MR. FACTOR: Everybody talked about participation and how they do it. I have a partition ratio PowerPoint that I used in a trial, and it sort of illustrates some of these examples. But I was allowed to admit every page of that as an exhibit in my trial; and it was Gary Trichter who said, "Don't let the breath test go into the jury panel by itself. Cover it up with your own exhibit."
MR. MCCOLLUM: What judge are you sleeping with?
MR. FACTOR: What?
MR. MCCOLLUM: What judge are you sleeping with?
MR. FACTOR: Well, I should point out that the technical supervisor agreed that every slide was true. And my predicate was that, Yes, that's true. Yes, that's true.
But I'm just saying he agreed that every slide was true. I asked him before we started; therefore, it all was in front of the jury. Therefore, the jury got whatever, I think it was 12 slides. So, like Gary Trichter said, "Don't let the jury go back and just look at that breath test. Give them something else to look at. It's good advice.
MR. TRICHTER: Folks, Rules 106 and 107 are the Rules of Evidence. Those are really neat rules to send in lots of stuff to cover up the breath test slip, but you need to know what they are in order to use them. So, you might want to write them down and revisit those rules.
I'll give you one little trick that will guarantee a reversal. When the State puts on their technical supervisor, be gracious; and there's no need to qualify this person as a technical supervisor. They will stipulate that they are a technical supervisor today as they were at the time of this test. Hopefully, the judge can just move along —— or move along faster; and we'll say, Thank you very much. And if the State tries to get into the educational qualifications of that person, they're just going to say, No, we don't need to do that. Didn't you just hear this lawyer? He stipulated that this is a properly certified person, qualified person.
Well, later on in the direct testimony where they may give an opinion of intoxication, the loss of mental and physical facilities, the case called —— it's a case out of Beaumont which says that, A technical supervisor is not automatically qualified to give an opinion. And while I'm looking for that, let me go ahead and turn —— oh, here it is. It's Durham, D—u—r—h—a—m, 710 S.W.2d 176 from the Beaumont Court of Appeals in Durham. It's a good little case to have in your trial book. It's the ultimate sandbag.
Mimi?
MS. COFFEY: Well, I think all of it is really difficult for the jury to understand. However, in terms of what is the most scientifically difficult issue about the Intoxilyzer 5000 or infrared spectroscopy —— and it sounds so basic —— is that the breath test machine does not measure how much alcohol is within the deep lung alveolar air. And I want to give everybody this site. It's www.mphlaspala.com. That's Dr. Mike Phlaspala.
And I can tell you that I've gone through the technical state supervisor thing twice for both alcohol and drug tests. The interesting attribute of Dr. Phlaspala is not only is he a professor of medical school —— as I understand it, a doctor of pulmonary physiologist —— his works are uncontraverted.
The Intoxilyzer 5000 does not measure what's in deep lung alveolar air. What is important about that? Well, we've all heard it. You know, the longer you blow, the higher your score. It's a very dangerous question, because a technical state supervisor comes back and says, Well, you know, the longer the blow, the more accurate the score. Not true. Why? Because ethanol doesn't have the same soluble qualities within the alveoli, like the gases oxygen in carbon dioxide. Now, I'm not an expert. Dr. Phlaspala is. But that's a really big problem.
Why is this important? Well, all of the assumptions are based on 2100 to 1. Dr. Phlaspala says, No, you can't do that, because you have too many variables. Within the globe, the temperature is changing, too many variables just to get a number.
Well, what do we know about the number? Once again, I'll refer back to Dr. Kurt Dubowski. He had a study in which he said, "Okay. If you have an individual that has a 1500 to 1 blood breath partition ratio, that's a .07. At 2100 to 1, that's a .10. And you can find that —— I think that this is a great textbook. It's the Intoxication Test Evidence textbook, 2nd edition, 1995 by Ed Fitzgerald. That's huge, a .03 difference.
We're also talking about blood issues. The density, because we know that ethanol is water soluble. What does that mean?
MR. TRICHTER: Mimi, talk faster. We only get five minutes.
MS. COFFEY: I'm sorry, Gary.
That means that you're going to have a higher concentration when you have less water.
So what do we know about this 2100 to 1? Well, it assumes that for a man and a female —— that's ludicrous, because that's different. We know that the average for females is 42, and 37 to 47 is an accurate number. For males, the range is 42 to 52 and an accurate number of 47. We do the science. We do the math. What do we do? We take that into percentage knowing that 45 is the number that the 2100 to 1 ratio is based on, 45 divided by "X." For example, you take a 54 percent hematocrit ——
MR. TRICHTER: Wait. Wait. Wait. Wait. Wait.
MS. COFFEY: No problem.
Anyway, the variation is .09 to .11.
THE COURT: Thank you, Mimi. You are spectacular.
I'm going to change the question. What is the one thing you ought to leave these lawyers with, these brother and sister fighters of freedom? What is the one thing in one minute?
George?
MR. MILNER: Well, the hardest thing to confront you is the presumption that it is accurate. Just like your client assumes it's accurate, the jury assumes it's accurate. Why would they use it if it didn't work? Answer: It's cheap, and they don't give a shit. I mean, that's the answer. They don't give a shit. They don't blow on it. Why would you use that airplane if you know it crashes half the time? I'm not riding on it. And it can work. I mean, let's be honest. Sometimes it works. A lot of times it doesn't. The hardest thing is getting them to understand or be truly open—minded. And in this case, it may be wrong.
Ladies and gentlemen, how many of you think it's right most of the time —— that it would be accurate most of the time? You get virtually every hand up. "How many of you think it's accurate 75 percent, 85 percent, 90, 95? At around 90 percent or so, hands start coming down, a lot of hands. By 95 percent, virtually all.
All right. And then I just say, You know, it just seems like, you know, concensus says maybe 90 percent. All right. If it's 90 percent of the time it's accurate —— 100,000 tests, assuming that's the number —— how many times is it wrong?
10,000 times.
What do we do to determine if it's wrong in a given case?
You have a trial.
And they'll say, We have a trial, right.
Then ask this question: Of the 100,000 breath tests done each year in the State of Texas, 200,0000 or 250,000, whatever the real number is —— and somebody down there in Austin I'm sure is counting —— what is the only one that matters for purposes of this trial?
So, it's the one he took.
Right. That is the only one that matters. Was this one accurate? I don't care. I don't care if it's 99 percent accurate. The only one that matters is the one that this guy took. And juries are cool with that. If you don't look like you're some extremist ——
MR. TRICHTER: Time out.
Mike?
MR. MCCOLLUM: Yeah, same thing George said. I wrote it down. If the government uses it, it has to be accurate. That's the biggest thing you've got to overcome, and it's no different from anything else you have to overcome when you're defending somebody in a criminal case. If it's a police officer, he's got to be right. So, it's the same presumption of guilt.
And just as George said, you've got to start in voir dire. And you use whatever hypotheticals you want, but you've got to get it across to those panel members that they quit thinking that if the government uses it, it's got to be right. They've got to at least be open enough to accept that just because the government did it, it's not right.
And there are a lot of different ways, he gave you one. I think, Mark used the same one earlier. That's a great example. All kinds of hypotheticals. But you start your case with that. If you do that, you don't have to worry about all this technical stuff, because, you know, you just give them enough to stick to the wall. And you know, the 2100 to 1 and extrapolation and an open—minded jury can make your day. In my case, they've got to like my client, not me.
MR. MILNER: And I will say, a lot of what I learned about how to do this, I learned from Mike, so I guess that's why we're here.
MR. TRICHTER: I did, too.
Abe?
MR. FACTOR: In the voir dire section of my section, you're entitled to a 3823 charge on intoxilyzer operation if you can raise any issue about operation. There's a number of cases that stand for the fact that if you raise an issue, even marginally, you're entitled to an affirmative charge on it. The reason I say that's important is because you can voir dire the jury on it and say, "Look, the law says if you have a reasonable doubt about whether the procedure correct, you have to throw it out. Well, that ——
MR. TRICHTER: Let me correct that. If you raise the issue, the government has to prove beyond a reasonable doubt it was working properly. Right. The burden is on the government to prove beyond a reasonable doubt it worked properly.
MR. FACTOR: Right.
So, if you have a voir dire about it, because —— you should voir dire about it in the same way that you can voir dire about bad stuff. Because if you voir dire about bad stuff, the jurors will be sensitive to bullshit stuff. If you voir dire about the law says if you have a reasonable doubt about it, you have to disregard it, then they're sensitive to the issue that it may not be accurate; and the judge is actually going to give them a charge to disregard.
MR. TRICHTER: Mimi?
MS. COFFEY: It's so complicated, you must make it practical for the jury. Unless you have a .15 or more where you can argue the disconnect, you need to take that breath test score in your closing argument —— I've learned this the hard way. It's not enough just to talk science. Make it practical. Bring that flip chart, like Jake Jenkins was talking about, and take that .14, knock it down to .07, and give the jury the power to say not guilty.
MR. TRICHTER: Cool.
Hey, folks, who's got a flat screen TV? Oh, come on, raise your hands. The reason we bought that stuff is because it's state of the art, it's new, it's cool, it works better, right? It works better, greater definition. Talk about the state of the art of breath testing.
Write this down. Preservation, volume, measures volume, measures temperature. Guess what? We use an Intoxilyzer 5000. It doesn't do any of that stuff. But the Intoxilyzer 8000 does. So you can cross—examine under a concept called state of the art. Most people think if it's newer, it's better. They fixed the mistakes from last time.
It's been a pleasure. On behalf of the panel, I want to thank everybody for coming to visit with me.
(End of panel discussion)