Blog - Virtual Forensic Library

The NCDD Blog is for our members to comment on matters of general interest in the field of DUI Defense and to ask general questions concerning the topics posted.   NCDD does not monitor or control answers from the various lawyers (many of whom are regarded as among the best in the country) who may respond and the answers or comments they provide are solely their own.  Responses to questions and comments are not legal advice: they are only the opinions of the lawyer providing the answer or making the comment. No attorney client relationship is formed between the person who posts a question or comment and any attorney who posts an answer or comment. The NCDD Blog is not for the purpose of soliciting legal advice for any specific case and should not be relied upon for that purpose. No lawyer can provide advice for a specific case without far more information than can be included in a blog post.   Furthermore, the NCDD Blog is not to be used in any form, for any marketing, advertising or solicitation by any author.  If you need legal assistance or advice, consult a lawyer in your state. You can find NCDD member lawyers in your State listed under “Find an Attorney” in the menu to the left or at the top of the page. No opinion expressed by an attorney or other person on the NCDD Blog represents the opinion or views of the NCDD.



From Your Virtual Librarian: How Accurate is that Breath Test?

Breath test are based on assumptions. Assumptions that there is a ratio between the alcohol in the blood and the alcohol in the breath. These assumptions are based on Henry’s law. A law that states in a closed container, at a constant temperature and a constant pressure, you can calculate a ratio between the liquid and the gas. However, the body is not a closed container, and when the body is absorbing alcohol, breath can overestimate the blood by up to 230%. That’s a number that cannot ...read more

From Your Virtual Librarian: Errors in Pipetting

After nearly a week in Arlington, I had the chance to learn what a lab should do, and how to utilize those skills in trial. Serious Science: Drug Specimen Analysis gave me the tools to show where the government technicians make their mistakes, and why it makes a difference.

 

One area which leads to most mistakes is in sample preparation. When the technician removes the sample to prepare it to go into the machine, there are numerous steps that must be done correctly. If the ...read more

Accessing the Virtual Library. Tips from Your Virtual Librarian

One of the benefits of being a member is access to the virtual library. It is filled with numerous articles, manuals and presentations about what you might be looking for. This library is easy to search and easy to use, but there is one catch. You have to be in the google world.

 

In order to access the Virtual Library, you will need a gmail account. Go to google and create one. It’s fast and easy, and will make accessing the virtual library a snap. If you do not have ...read more

Method Validation, Proficiency Testing and Quality Results from Your Virtual Librarian

We know government labs create a conveyor belt mentality in its testing process. They force the techs to push through as many samples as they can, and they fail to properly train these techs on what to look for, and how to ensure there are no problems in the run. When a tech sees a problem, they do not see a problem, because they have not been trained to identify it as a problem. The same can be said for their understanding of Method Validation and Proficiency testing. In Analysis of the Relationships ...read more

Trouble in Breath Testing from Your Virtual Librarian

Police claim breath testing is accurate and not subject to error. Science says otherwise. When the government fails to assure the validity of the breath sampling process, there is trouble. And when it comes to breath test, as they say in the Music Man, “oh, we got trouble”. The trouble arises in the sample long before it marches into the machine.

 

In Scientific Principles of Evidential Breath-Alcohol Testing Up-to-date Technologies and Procedures by Hansueli Ryser, ...read more

From Your Virtual Librarian: The Fallacy of the Green Tongue

In just about every DUID marijuana case the officer states he saw a green tongue. That the green tongue is evidence of recent marijuana use. The green tongue is then used to justify an arrest and a DRE screen. We know this is BS, and what can we do to challenge it. Well, the virtual library, thanks to George Bianci, has a number of motions and articles related to the green tongue fallacy.

 

There is no scientific support for this claim. There is nothing to suggest that recent ...read more

From Your Virtual Librarian: The Necessity of Sound Forensic Procedures in Breath Testing

Most of my cases currently involve blood. When a breath test comes along, I have to reeducate myself about the various issues and challenges in order to prepare for trial. Breath testing is arguably the least reliable of all the processes, but the most common testing relied upon by the government. It is cheap, quick and requires little in the way of educating those responsible for the testing, as well as, for the maintenance of the machine. However, the government’s expert’s rarely ...read more

From Your Virtual Librarian: Problems In Retrograde Extrapolation

I am fortunate, or unfortunate depending on who you talk to, in Nebraska, as the state never presents evidence of retrograde extrapolation. However, over my years in the National College, I have heard of numerous other states who still engage in this process.

 

The problem with retrograde extrapolation is that it is an unreliable process when the state attempts to perform the calculation. Absorption is a complex process. There are many factors that impact on the elimination ...read more

From Your Virtual Librarian: Breathing Patterns and the Impact on Breath Test Results

Prosecutors believe that whatever the machine prints, the number is correct. We know this is wrong, but how do we prove it. There are a number of studies, and A.W. Jones, How Breathing Technique Can Influence the Results of Breath-Alcohol Analysis, available in the virtual library, is one tool demonstrating how unreliable breath test results can be.  The article can be viewed in the Virtual Library here:

 

How ...read more

Errors in Breath Testing

Breath testing is fraught with potential errors. Many of the assumptions are wrong. Due to the variations of the human body and how the sample is collected, the breath results can be over exaggerated. Dr. Hlastala noted a number of significant errors in breath testing in, Physiological Errors Associated With Alcohol Breath Testing found in the Virtual Library here:

Physiological Errors in Breath Testing

 

In ...read more

The SFST Instructor Manuals in the Virtual Library

Doesn’t it always seem like there’s different instructions on how the officers are told to conduct a DUI investigation and what is in the student manual. Sometimes, the instructor manual may have more detail about how the officer is required to perform the test. When that happens, it can be difficult to impeach them. But, with the instructor manual, you may be able to demonstrate that what the officer said they were told is not in the truth, or at least not supported by the evidence. ...read more

Crying Wolf: SFSTs Data Analysis in the Virtual Library

What do SFSTs mean? How do they assist the officer? As DUI Practitioners, we know how little they demonstrate sobriety. As a DUI Defense attorney, we know the unfortunate weight given to these tests by judges and jurors. However, as Dr. Greg Kane notes, “The science proves SFSTs do not work.” Dr. Kane evaluated the Sand Diego study date in, Crying Wolf, What never before published data proves about Standardized Field Sobriety Tests, in Trial Talk, August/September 2008, issue p. 35: ...read more

From Your Virtual Librarian: NCDD Amicus Briefs

With all the talk of the US Supreme Court’s oral argument in Bernard, Beylund and Birchfield, it reminded me of all the work the NCDD has done to assist in developing favorable law. The NCDD has an amicus committee consisting of volunteers who research and write briefs on behalf of the NCDD and its members in the US and State Supreme Courts.

 

The NCDD has drafted amicus briefs related to checkpoints, criminalizing test refusal and voluntariness of consent, just to name ...read more

From Your Virtual Librarian: What does the odor of alcohol mean?

Police always say they smell the odor of alcohol, and even worse, the odor of intoxicants. What the heck does this mean and why does it help to establish Reasonable Suspicion or Probable Cause? It sounds like it shouldn’t. In Police officers’ detection of breath odors from alcohol ingestion by Moskowitz, Burns and Ferguson, Accident Analysis and Prevention 31 (1999) 175-180, located in the Virtual Libarary here:

 

Police ...read more

Medical Problems with Breath Testing

Medical Problems and Unreliable Breath Tests We all know that breath testing is fraught with problems. However, the state refuses to acknowledge they exists, and definitely not for your client. That is where the Virtual Library comes into play. There are numerous articles about the medical problems leading to unreliable breath tests.

 

In the British Medical Journal, Volume 289, September 29, 1984, p. 832, found here: 

Medial ...read more

From Your Virtual Library: Breath Alcohol & VOC's

While breath testing may be a way to determine the alcohol content, it is fraught with potential errors. The problem with breath testing is that it does not only analyze alcohol, but any volatile organic compounds that appear in the limited light range the machine examines. Many of those things are common in the human body.

 

In Interfering Substances Identified in the Breath of Drinking Drivers with Intoxilyzer 5000S, the authors, notes the common occurring substances in the ...read more

RFI: A Government Recognized Problem to Breath Testing

As a DUI Defense Attorney, we are looking for any manner to challenge the breath test. One is the presence of RFI. However, the government is constantly telling us it’s not a problem. It doesn’t affect the test. They just trying to cloud the issues. But the government knows better, and it is a problem. While a bit dated, the NHTSA’s Limited Electromagnetic Interference Testing of Evidential Breath Testers points out this concern. You can find it in the virtual library here:

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From Your Virtual Librarian: Sound Scientific Practices Required

We are lucky to have members who ferret away materials, any materials, that may be of help to the defender of a DUI Case. Recently, George Bianchi wanted to update me with the 2016 IACT newsletter. When I asked if he had others, he sent me over 30 of them, dating back to the 1990′s. He also included an ASCLAD report or the American Society of Crime Laboratory Directors, or in reality, the police officers lab excuse machine. However, when they concede a point helpful to us, it’s awfully ...read more

From Your Virtual Librarian: Breath Temperature: Breath Machines Artificially Inflating Results

Breath temperature is a critical component to any breath testing program. Breath testing, in most machines, is assumed to be at 34°C. However, you know what they say about assume? This assumption improperly inflates your client’s true BAC result. Even the police acknowledge this problem in breath testing. The IACT Newsletter, Breath Temperature: An Alabama Perspective, found here:

 

IACT ...read more

Breathing Patterns, the Unreliable Test Result and Your Virtual Library

When I see a breath test being given, I always hear, “keep blowing” or “blow harder”. These commands make the subject keep blowing long after they need to, and it helps the police insure the breath test is higher than the true BAC. Especially in close cases, to the legal limit, or the enhanced limit, it can result in the difference between a not guilty and a guilty verdict. The police have no concern about inflating the number when they are rewarded for making more DUI ...read more

Quality Assurance in Breath Testing and the Virtual Library

I assume that my breath tests operators are like many of yours. They do not know anything about what they are doing, and frankly, they don’t care. They believe that by burying their heads in the sand, they are able to rely upon their lack of knowledge about breath testing as a defense to your cross-examination. While the officers may try to hide behind ignorance, they should still be cross-examined on the scientific requirements for reliable and accurate breath testing procedures. Either ...read more

Blood Draws and the Virtual Libarary

As we head into the weekend, many of you are preparing for trial. A number of you have a blood case, and are trying to pin down problems. One area that may bear fruit is in the blood draw process itself. What has the person collecting the blood done to protect the integrity of the sample. Usually, it’s all the thing they haven’t done to protect the sample. The Virtual Library has an article that can help you. In the library, you will find Procedures for the Collection of Diagnostic ...read more

The Key to Your Virtual Forensic Library

Searching the Virtual Library

 

One of the benefits of being a member is access to the virtual library. It is filled with numerous articles, manuals and presentations about what you might be looking for. This library is easy to search and easy to use, but there is one catch. You have to be in the google world.

In order to access the Virtual Library, you will need a gmail account. Go google and create one. It’s fast and easy, and will make accessing the virtual library ...read more

From Your Virtual Librarian, Bell Island. The 2015 SFST Manaul and the Virtual Library

The virtual library is full of useful information. We have all the SFST manuals, and have added the 2015 update. The NHTSA SFST manual on DWI Detection and Standardized Field Sobriety Testing is one of our best tools. I have found that the way the officers are instructed to investigate a DUI case is much different than how they actually conduct the investigation in the field. The NHTSA manual lays it all out on what they should be doing.

Some of the most helpful sections are the Vehicle ...read more

Meet our Virtual Librarians

NCDD.com is proud to announce that Regents Bell Island and John Hunsucker have been named our new Virtual Librarians.  Over the next few months, Bell and John will be walking you through our rather extensive Virtual Forensic Library.  You will be receiving regular information from our librarians via blogs and social media that will alert you to new articles as they are uploaded to our library.  In addition, our Virtual Librarians will be ...read more