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“Did the sample that was analyzed and reported meet the minimum breath volume criteria for a sample?”

Tampa, Florida DUI Attorney, Lawyer W.F.”Casey” Ebsary, Jr. ran into a potential witness in during our live coverage of the Intoxilyzer 8000 hearings in Tampa’s Circuit Courthouse. He has given us some interesting findings of breath test data that is not disclosed to Florida DUI Defense Attorneys that may be helpful to fighting DUI charges that use a breath result. DUI consultant Stephen Daniels with DUIUndo.com has given us some interesting information about the Intoxilyzer 8000, I-8000.

“The state cannot prove that any breath test result from Intoxilyzer 8000 is reliable without presenting the individual Cobra data for the specific test in question.”

We already knew, before Mr. Daniel’s report, that the Intoxilyzer 8000 used in Florida DUI prosecutions will automatically log on to the Florida Department of Law Enforcement’s computer network and upload activities including calibration, testing, and individual DUI defendant’s tests. This auto-login will occur every 150 DUI subject tests. This data is commonly referred to as C.O.B.R.A. Data. C.O.B.R.A. stands for Computer Online Breath (BrAC) Archives. We routinely access these records in defending DUI charges in Tampa, Florida and elsewhere.

Breath Test Issues in a DUI Case? Click the Call Me Button above or give me a call, tell me your story 813-222-2220.

Some people refer to COBRA as: In simple terms, C.O.B.R.A. is a cross-jurisdictional database search and analysis system. In Florida, COBRA Data is referred to as: “Computer On-line Breath Archives” We publish the story and a few notes by Florida DUI Attorney, Casey Ebsary, below:

Stephen Daniels Writes on Intoxilyzer Software

I had my first out of state case and attached is the Cobra Data from an Oregon Intoxilyzer 8000. If all Intoxilyzer 8000’s are the same, and if all states design their own software, could the defense bar raise an argument as to whether FDLE/ATP ‘intentionally’ designed the Florida Cobra Software to ‘exclude’ extremely critical breath tests data from the defense? If they did, wouldn’t this be an ‘Intentional Tort’ or Official Negligence and wouldn’t that because for suit. If yes, then would this also not be a Brady Violation and a violation of the [Florida Rules of Criminal Procedure]:

Florida Criminal Procedure 3.220 (4) As soon as practicable after the filing of the charging document the prosecutor shall disclose to the defendant any material information within the state’s possession or control that tends to negate the guilt of the defendant as to any offense charged, regardless of whether the defendant has incurred reciprocal discovery obligations.

Note From Florida DUI Attorney: The Intoxilyzer 8000 used in Florida DUI prosecutions will automatically log on to the Florida Department of Law Enforcement’s computer network and upload activities including calibration, testing, and individual DUI defendant’s tests. This auto-login will occur every 150 DUI subject tests. This data is commonly referred to as C.O.B.R.A. Data. C.O.B.R.A. stands for Computer Online Breath (BrAC) Archives. We routinely access these records in defending DUI charges in Tampa, Florida and elsewhere.

Oregon Cobra Data Sample

If you notice pic 082 jpg of Oregon’s Cobra Data, that data includes two more lines of data than the Florida Cobra data. Those two additional lines of data; the sample duration and the ‘sample attempts raise serious doubts as to what is actually analyzed and reported. If you notice the 1st sample has

BrAC: 0.184
Breath Volume: 2.355
Sample Duration: 8.28
Sample Attempts: 2

This breath test sample did not have a ‘VOLUME NOT MET’. It was the result of two (2) sample attempts each of ‘unknown’ sample duration. The print out from the Florida and Oregon Intoxilyzer 8000 printers only show the BrAC results and air blanks. Florida Cobra shows the additional Cobra data of the ‘Breath Volume”

However, the Oregon Intoxilyzer 8000 Cobra data shows ‘additional data’ not only of the breath volume, it also shows the following information that is vital to determining what actually happened during the individual breath test blows The Oregon Intoxilyzer printout that the state discovered only shows that my client provided two test results. But the Oregon Cobra Data (pic 82 jpg) from my PRR revealed data that shows that my client actually made to (2) sample attempts on the 1st test blow:

Sample Duration: 8.28
Sample Attempts: 2

Question From Tampa, Florida DUI Attorney: Why is each state making custom software modifications to these machines that have been approved by the United States Department of Transportation D.O.T.?

The questions become, ‘Does that void of vital test information in Florida’s Cobra go to the admissibility or the weight of the evidence? And then the questions for the evidence become: ‘What sample was analyzed the 1st or 2nd? And, ‘What was the time duration of the sample analyzed and reported? And, ‘Did the sample that was analyzed and reported meet the minimum breath volume criteria for a sample?’

Florida Intoxilyzer Test Requirements

We know from the online FDLE/ATP records that the Intoxilyzer 8000 does not need the 1.1 liter of breath volume to issue a BrAC result. There are 1000’s of breath test results that have a BrAC result with only a 0.015 breath volume. My point is, per Florida’s records, and applying the missing Oregon’s Cobra Data to any test result from a Florida Intoxilyzer 8000, could the defense not argue that ‘without’ full disclosure of the ‘individual Cobra Test data’ the state cannot proffer these results as ‘scientifically reliable or accurate’. Why? Because the state cannot show that the minimum criteria was in fact met when more than (1) sample was provided during the 1st or 2nd breath samples, and without this data the state cannot prove that any BrAC result from a Florida Intoxilyzer 8000 is in ‘Barfield’s terminology’…. wait for it….. Quantitative of the Subject’s Breath Alcohol Level.

What does Cobra stand for and how can it help us Beat a DUI Breath Test?

C.O.B.R.A. stands for Computer Online Breath (BrAC) Archives.

Oregon Cobra Data Set

The state cannot prove that any breath test result from Intoxilyzer 8000 is reliable without presenting the individual Cobra data for the specific test in question. This data includes additional data surrounding test actual breath test sample and what was happening ‘exactly’ during each breath test sample. The COBRA data that is available on the Intoxilyzer 8000 is:

1. BrAC result
2. Breath Volume
3. Flow Rate (R Value)
4. Sample Duration (seconds)
5. Sample Attempts
6. Sample Chamber Temperature
7. Barometric Pressure
8. All Diagnostics During Sample Collection
9. Rounded Slope
10. Rounded Intercept
11. Stored Tests in Memory Mask

Tampa DUI Attorney Note: Florida only requires the report spit out of the machine at the time of testing and a few documents that establish monthly and annual testing / calibration to be put before a jury.

Attorney

Florida Drug Recognition Experts DRE

Using Drug Recognition Experts (DRE), in Florida DUI cases and across the nation, law enforcement and prosecutors are trying to circumvent the ability of jurors and Judges to reach their own conclusions as to the impairment, if any, of criminal suspects.

We have obtained training manuals and reviewed the evidence used to support these “experts” and you may also conclude the ability of these witnesses to meet the stringent requirements for admissibility of “scientific” evidence is far from generally accepted within any communities other than law enforcement. Such witnesses should be stricken from Prosecutors’ witness lists. In five minutes you will know: What is the History and Origin of the DRE? What is done during Drug Recognition Experts (DRE) training? Who does the DRE training? What special skills are Drug Recognition Experts (DRE) taught that judges and jurors don’t already have? Does DRE “evidence” meet the standard for admissibility under Florida law and the Daubert standard?

What is the History and Origin of the Drug Recognition Expert (DRE}?

The Los Angeles Police Department developed this area of alleged expertise in the 1970’s. The federal law enforcement agency, the National Highway Traffic Safety Administration (NHTSA) soon jumped on the bandwagon. Strikingly, the “certification” is now issued by the cop’s own International Association of Chiefs of Police (IACP) and not by a generally recognized educational or scientific institution.

7 Days to a Better You (DRE)

What is done during DRE training?

A Seven (7) day school is supposed to cover a 706-page manual. The curriculum begins by citing the Frye standard for admissibility, a standard that was abandoned in Florida in 2013 (see discussion below: Does DRE “evidence” meet the standard for admissibility under Florida law and the Daubert standard ? ).

During the 7 day romp, cops are allegedly trained in the following areas: Eye examinations; Physiology; Vital signs; the Central Nervous System; Depressants; Stimulants; Physician’s Desk Reference; Dissociative Anesthetics; Narcotic Analgesics. That is only half of the allegedly scientific in-depth training.

Let’s visit the second half of this highly accelerated educational program: Inhalants, Vital Signs, Cannabis; Signs and Symptoms; Drug combinations; Writing a resume (Curriculum Vitae); and wrap it up with a list of questions defense attorneys will ask when the newly minted expert tries to spew this garbage in court.

Seven days to a better you – In short, street cops become quasi-medical professionals in only one week.

Who does the Drug Recognition Experts (DRE) training?

The National Highway Traffic Safety Administration (NHTSA) and the International Association of Chiefs of Police (IACP).

What special skills are Drug Recognition Experts (DRE) taught that judges and jurors don’t already have?

None. Generally, witnesses are not allowed to opine on the guilt or innocence of the accused. When police try to use these “experts” they are attempting to tell the jury how to rule and why. Since the alleged expert issues a highly prejudicial opinion on an ultimate issue in the case, courts must allow only legally admissible evidence to reach jurors.

Does Drug Recognition Experts (DRE) “evidence” meet the standard for admissibility under Florida law and the Daubert standard?

No. In July 2013, Section 90.704, Florida Statutes, was amended to read: “Facts or data that are otherwise inadmissible may not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.” Since, 2013, there is little guidance from courts and judges on the validity of this testimony.

Florida Rule of Criminal Procedure 3.220 requires disclosure of “reports or statements of experts made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons . . . .” The rules also discuss, “expert witnesses who have not provided a written report and a curriculum vitae or who are going to testify . . . .” In 1996, the rules also contemplated, “experts who have filed a report and curriculum vitae and who will not offer opinions subject to the Frye test.” FRCP 3.220 at 151 Note ( July 1, 2014).

Florida Drug Recognition Experts DRE are only alleged experts who issue highly prejudicial opinions on ultimate issues in the case, courts must allow only legally admissible evidence to reach jurors under the 2013 amendments to Florida law and the ruling of the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), General Electric Co. v. Joiner, 522 U.S. 136 (1997), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), and to no longer apply the standard in Frye v. United States, 293 F.2d 1013 (D.C. Cir 1923) . See generally, http://laws.flrules.org/2013/107 .

Standardized 12-Step Drug Recognition Experts Protocol

The 12-Step Drug Recognition Experts (DRE) Protocol is standardized because it is conducted the same way, by every drug recognition expert, for every suspect whenever possible. In the above video, the 12-Step Drug Recognition Experts (DRE) Protocol is not shown.

1. Breath Alcohol Concentration (BAC) Test administered to suspect
2. Interview with the Arresting Officer about BAC, the reason for stop & suspect’s behavior, appearance, and driving.
3. Preliminary Examination and First Pulse. DRE asks questions about health, recent food, alcohol, and drugs, including prescribed medications while DRE observes suspect’s attitude, coordination, speech, breath, and face. DRE examines pupils uses horizontal gaze nystagmus (HGN) and takes suspect’s pulse. If needed seek medical assistance immediately. Otherwise, the evaluation continues.
4. Eye Examination. behavior, appearance, and driving. DRE uses HGN, vertical gaze Nystagmus (VGN), and looks for a lack of convergence.
5. Divided Attention Psychophysical Tests. DRE administers the Modified Romberg Balance, the Walk and Turn, the One Leg Stand, and the Finger to Nose test.
6. Vital Signs and Second Pulse. DRE takes the subject’s blood pressure, temperature, and pulse.
7. Dark Room Examinations. DRE measures at pupil sizes under three different lighting conditions.
8. Examination of Muscle Tone. DRE examines the subject’s skeletal muscle tone (normal rigid, or flaccid).
9. Check for Injection Sites and Third Pulse. DRE looks for injection sites and takes suspect’s pulse.
10. Subject’s Statements and Other Observations. DRE reads Miranda, asks questions about drug use.
11. Analysis and Opinions of the Evaluator. DRE forms an opinion as the suspect is impaired. If DRE believes there is impairment, then the category of drugs will be indicated.
12. Toxicological Examination. DRE requests a urine, blood and/or saliva for toxicology lab analysis.

Sources: http://www.wsp.wa.gov/breathtest/dredocs.php

Tag: Breath Test

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