BREATH TESTING IN DUI ARRESTS CAN BE FLAWED BY GERD
An attorney defending people for driving under the influence of alcohol (DUI) or driving while intoxicated (DWI) should always do a thorough consultation of a new client who has been arrested and charged with this crime. A thorough consultation includes, but is not limited to, making inquiry as to the medical conditions of the client. Often, a new client will tell the attorney that he or she has no medical conditions. However, the attorney should make inquiry as to whether or not the client suffers from regular indigestion or heart burn and self medicates with over the counter medications, such as, Prilosec, Tagamet, Rolaids, Tums, Maalox, and/or any other antacids. Many people do this and think nothing of having a medical condition which, in fact, does exist.
If the client discloses that he or she does use these over the counter antacids, the attorney should suggest to the client that the client see his or her physician for this condition and requests two tests. The first test is an endoscopy. During this test, a small catheter is placed down the throat of the subject, into the esophagus where it takes pictures of the esophagus and the Lower Esophageal Sphincter, (LES), looking for damage caused by acid from the stomach, also known as, acid reflux or regurgitation, and possibly a hiatal hernia. The catheter continues into the stomach and additional pictures are taken. If the LES is open, the client has a Gastroesophageal Reflux Disease (GERD) condition with a constant reflux/regurgitation. The words reflux and regurgitation are synonymous; see Steadman's Medical Dictionary 25th Edition Illustrated. However, the attorney and his experts should always use the term regurgitation as this is the common term in breath testing. When this condition is found, the LES open, two more questions arise. But first, the attorney should know that with an open LES, the gases from the stomach are allowed to escape, (back flow/regurgitate) into the esophagus which is now an open chamber to the throat and mouth. Whatever contents are in the stomach, food, water, acid, or alcohol, are now mixed together and their molecules are no longer kept in the stomach due to the defective sphincter, (LES), which allows these gases/molecules to leave the stomach in a constant regurgitation which end-up in the mouth and in its saliva and constant mouth alcohol.
While it is true that mouth alcohol will dissipate rapidly, one must remember that unlike a belch, which is an intermediate introduction of mouth alcohol from the stomach, a person with an open LES condition has a constant reflux/regurgitation. When the condition is constant, the mouth alcohol cannot dissipate as long as there is alcohol in the stomach. The condition will remain the same as long as the stomach contents remain the same. Thus, if alcohol remains in the stomach during this condition, the subject tested will have a constant flow of mouth alcohol from the stomach by means of reflux/regurgitation, and regurgitation will interfere with the breath test results which rely solely from uncontaminated alveolar air from the lungs for accurate results. It is important to know if the person still has alcohol in the stomach at the time of the test because if he or she does not, THIS IS NOT A GERD CASE, whether the person has the condition or not. If there is no alcohol in the stomach, there can be no alcohol interference. Additionally, the attorney should know that unprocessed or non-metabolized alcohol in the stomach is many times greater than that which has been metabolized and is coming from the lungs. For example, a person with 0.005 percent alcohol in the stomach, remember, we are not talking about 0.05, but 0.005, can read during the breath test 0.15. Next, the attorney needs to know how often the major episodes of reflux/regurgitation occur.
How frequent does the condition occur, and how long has it been present are the next questions that the attorney must know. How frequently the major episodes occur can be answered by the next and necessary test called the 24 hour pH test; pH is just the symbol for the acidity level in a person. This test is now done in two ways. The old way is to take a catheter and insert it into the nostril of the subject forcing it into the throat and down the esophagus. This is done twice. The first time, it is called a manomentry examination. Everyone's LES is at a different length, so the first insertion is to measure that length of the esophagus and to the LES. Once that measurement has been made, the catheter is removed. A new catheter is inserted in the same manner through the nostril, into the throat, and down into the esophagus where it is stopped slightly above the LES. The second catheter is then connected to a recorder and placed on the subject by a belt. The catheter remains in the subject for 24 hours. The subject is told to go about his or her daily activities including eating and drinking. The recorder monitors every episode of reflux/regurgitation during this time period. It will tell the doctor and the attorney how many episodes the person has during the day and whether the episode occurred in the upright position or supine (horizontal laying down) position. It will tell the doctor how long each episode lasted. For example, the client may have 30 episodes or more during the 24 hours measured, which means, that the client is having a major episode more than once an hour. The episode may last three (3) minutes in duration or longer. If a breath test was given within two (2) to three (3) minutes apart, and during a major episode, the results could be staggering. However, even if the test was not given during a major episode, remember if the LES is open, as shown by the endoscopy, there is a constant reflux/regurgitation, and even a constant mild episode causes continuous mouth alcohol interference. Thus, the breath test is invalid. There is also a new manner of doing the 24 hour pH test, but it depends on whether or not the hospital has the new equipment known as the Bravo testing equipment. If they do, it is much easier on the patient/client and can give better results. Instead of forcing a catheter into the nostril of the subject, a radio transmitter is placed on the esophageal wall and transmits each episode to the recorder. There is nothing stuck in the throat and coming out of the subject's nostril for 24 hours, and so, the subject tends to be more active and better readings are recovered. At the end of the 24 hours, the recorder is retrieved, and the transmitter eventually drops of the wall of the patient and exits through the colon without any discomfort. This can be seen by going to http://www.medtronic.com/physician/gastro/e_bravo.html. It is also advised that your toxicologist visit this web-site so that he or she may testify to having witnessed a 24 hour pH procedure.
The acidity levels should read approximately 5 or 7. When the acidity level drops to 4, a person may experience severe heartburn. I say may because each person's pain threshold is different. Some people have major episodes and never feel it, however, this is rare. But most certainly, a person who has a continuous mild regurgitation may never know that this is occurring, and when asked by a police officer if he or she has anything physically wrong with them, will say NO because they don't know they have a medical condition. This brings us to another point. The Officer will most surely testify that he or she observed the subject for fifteen (15) minutes, and during this time, the subject, your client, did not smoke, drink anything, eat anything, vomit, or regurgitate. Here is a big fact; you cannot see a person REGURGITATE . However, the police officer will always say the he or she observed the subject for at least fifteen (15) minutes, and they did not vomit, eat, smoke, drink anything, and the subject also did not regurgitate. How would the officer know if you cannot see a person regurgitating? Most people think that regurgitation means to vomit or attempt to vomit, therefore, they would see the body of the subject flexing, but the regurgitating is constant flow of gases back flowing and emitting from the stomach. You cannot see it happening. Think of the regurgitation as a constant belch without noise.
In fact, there are a few things that you should ask the Officer. First, you did the observation in compliance with the law? Yes, should be the answer. Now, when a person belches how would you know? The Officer will probably say, that he or she can see the stomach and chest flexing, hear the belch, and smell the contents of the belch. At this point, you can begin your cross examination as such: Officer, did you tell my client to take a deep breath, hold it, and then begin blowing into the breath mouth piece until the tone stopped. The answer again should be Yes. When my client took a deep breath, isn't it true that his or her stomach moved and the chest expanded? The answer had better be yes? The next question is and how is that different from someone's stomach and body flexing in the belching state? In fact, if it is moving in the same manner, you wouldn't be able to tell at that time would you? The answer may shift to the smell or noise. If it does, go back to just the physical portion being the same as a belch when someone blows into the machine; and this is true for all machines. The Officer will have to say he or she couldn't tell the difference. Now, you move to the noise factor. Officer, have you ever know someone to belch or done so yourself in a quiet polite manor so no one hears you? The answer will be or had better be Yes. Finally, you ask the Officer, if the subject is blowing into the machine through the mouth piece, and all of the expired breath is going into the machine, how would he be able to smell the contents? The Officer will have to say that he or she cannot. So, that would mean during the actual test, you would not be able to smell the contents of a belch, hear it, or tell the difference in the movement of the subject's body movements from that of just properly taking the test would you? The answer has to now be NO. At this point officer, you would have to rely on your training of checking the machine for the .02 disagreement between tests or a special symbol that MAY appear to tell if a person belched during the test, wouldn't you? The answer, at this point, must be YES.
As the attorney, in cross examination, you will have to deal with a toxicologist who undoubtedly have a degree in science and chemistry; I assume the attorney does not. Don't step over your head, but you can the learn the important science that you need for this cross examination. Spend some money and time with your toxicologist, and learn what happens to the food, water, acid, alcohol, and whatever else may be in the stomach, including the gases that are constantly in the stomach. Know the machines. How much lung capacity does the machine measure. Is it (IR) infa-red or (EC) electro chemical or both. Infa-red measures in real time the molecules of alcohol that are coming into the machine. It should have a slope detector which constantly measures the alcohol every 1.5 second for the entire blow of the test. If the measurement changes, drops or rises in its slope, the machine flags the test, or is suppose to, as mouth alcohol being introduced into the test. The operator should then stop the test, wait fifteen (15) minutes for the mouth alcohol to dissipate, and then start the test again. It really doesn't take that long for the mouth alcohol to dissipate, but most states, including California, require that time period to be safe; the manufacturers usually suggest twenty (20) minutes. If the slope detector fails, there may, and the operative word is may, show a difference of more than .02 between the two (2) tests. For example, the first test may read 0.12 and the second test may read 0.15. If this has occurred, mouth alcohol has been introduced during the test. A third blow may show a reading of 0.15. Many states will allow this test as long as two (2) of the three (3) readings are within 0.02 of each other, but remember if the machine shows a symbol that indicates mouth alcohol, the test must be done again after a fifteen minute wait. I believe that is why many of the manufacturers no longer use the slope detector with (IR) machines. With (EC) the measurement is not real time, so it does not matter because there is no slope detector; a slope detector requires real time measurement. The attorney should keep maintenance, calibration and test records of all clients that show recordings where there are indicators of infa-red results, for example, from the Intoxilyzer 5000 that shows mouth alcohol with a symbol of IVS for invalid sample. Many times you may see an IVS followed by two (2) other tests that read something like this: IVS, 0.12, 0.12, or 0.12, IVS, 0.12. Obviously this shows that the mouth alcohol was present but did not rise or fall as the experts say that it does. Also, keep your copies of tests that show more than .02 disagreement on this type of machine without the symbol appearing, e.g.., 0.12, 0.17, 0.12. The question here is why didn't the slope detector work and show the IVS? In any case, you keep these records so you have a file with them, and subpoena these records directly from the crime lab, have their expert bring them with them to the trail, for impeachment purposes; you are keeping them so you know which tests to subpoena.
With (IR) the machine runs an infa-red light inside the machine at a certain waive level that is compatible with alcohol. The more molecules of alcohol that fill the chamber, the less light that is transferred from one side of the machine to the other side via a beam. The less of the beam that makes it to the receptor, the higher the alcohol reading. With the (EC) machines, the machine uses a fuel cell that is gored and the gores are filled with acid that is allegedly sensitive only to alcohol. That is a fallacy. We will cover that fallacy in a moment, but first understand some of the principles of the fuel cell. On the Alco-sensor IV, a subject must blow, at a minimum, 1.5 quarts of expired air into the machine to activate the machine. Women tend to have smaller lung capacities than men, and sometimes cannot meet this requirement, thus, the Officer will say that the subject was deliberately trying to avoid taking the test. Not true. Some men have problems because they have breathing problems such as asthma. While we are on the subject of the Officer mis-interpreting a person's inability to properly blow, many Officers will tell the person to blow hard. If a subject blows too hard, that can cause the machine to fail with a reading of NOGO. Many Officers don't understand that this means the subject is blowing too hard, and the Officer interprets this as playing with the machine and deliberately trying to avoid the test; the Officer is suppose to the tell the subject to take a deep breath, hold it, begin blowing, and blow steady not hard.
Once the 1.5 quarts of air has activated the machine, as the breath diminishes, that is drops off in pressure about thirty (30) percent, the device will close off the chamber preventing the sample from escaping or more sample from entering. What is in the sample chamber will then be allowed to pass over the fuel cell. The alcohol as it passes over the fuel cell will create a chemical reaction. The more alcohol, the greater the chemical reaction. The fuel cell also has wires attached to it, and the chemical reaction is transferred over these wires to the monitoring system which produces an LCD readout for the amount of alcohol measured. Thus, electro-chemical or (EC). Now back to the other substances that appear to be alcohol but are not. For example, the Alco-sensor IV, made by Intoximeters, uses the fuel cell technology. The author owns an Alco-Sensor IV black dot. The author consistently has potential new clients try two (2) tests. First, the bread test. I have the client blow into the machine normally. The reading should be .000 assuming the client has had no alcohol in their system. Then, I have the client chew one (1) slice of white bread, not swallow, just keep chewing it until it is almost liquid, adding more of the slice of bread into the mouth and continuing the process until an entire slice of bread is in the mouth and almost liquefied. At this point, I reset the machine, and when the machine is ready, I have the client swallow all of the bread, then blow into the machine again. In most cases, you will get a reading. In fact, I have only had one (1) client out of many that did not get a reading. I have had readings from 0.019 to 0.056 with Wonder Bread. The argument will be that the client was never allowed to eat before taking a breath test, so this type of experiment is not relevant. The argument fails because the issue is not whether the subject ate something, the issue is that there is no alcohol in the bread and the fuel cell is suppose to be alcohol sensitive only, yet the machine with its fuel cell is recording alcohol as a number when there is no alcohol. The Drager 7410 Evidentiary Preliminary Alcohol Screening (EPAS) device uses the same technology; that is the fuel cell. Some machines actually have both infa-red and fuel cell technology working simultaneously, for example the Drager 7110, has and uses this dual technology. Additionally, soy sauce does the same thing, that is without alcohol in it, the Alco-sensor IV will give a numerical reading as if alcohol were present when there is no alcohol in the soy sauce. . This same type of test can be done with soy sauce. I have had readings from 0.10 to 0.23 Think about that for a moment. What other substances read as alcohol? Who knows? But that is not the point is it? The Alco-Sensor IV and the 7410 are fuel cell instruments that are suppose to be alcohol sensitive; that means they are only suppose to respond to alcohol, but we know that is not the case because they react to soy sauce, white Wonder bread, and Sara Lee Classic White bread. So much for alcohol sensitive!!!!
The State's toxicologist will probably have heard of these experiments but discard them because the subject was not allowed to eat or put anything in his or her mouth. However, the toxicologist, and here I am referring to the People's or State's toxicologist, will probably never have conducted this type of experiment. Why would they want to do so? If they did, and they saw this result, they would have to testify to it. In either case, for your GERD purpose it doesn't matter. There are certain things that you must do to properly present your case. You must find out who the People's toxicologist will be.
The People will never, or rarely, disclose this saying they don't know until someone is assigned and that will be the day of their testimony. DON'T let them get away with this. File a motion to compel and disclose these experts. If the agency had six (6) people, make the Court limit them to two (2) or three (3) people at the most, and disclose the names. It is an abuse of process to make you pay the cost and prepare for people the State knows or should know will not testify, and that denies the Defendant effective assistance of counsel: see the U.S. Supreme Court case of Kyles v. Witley 514 U.S. 419 (1995) not to mention the 6th and 14th Amendments of the United States Constitution that allow the Defendant a fair and impartial trial. Remind the Court that these are not percipient witnesses, they are experts, and in California under Penal Code Section 1054 you were required to disclose your witnesses. I always give them the name of my expert so that I can say that I complied. Equity requires the State to do the same; and so does the law. Bring in all the articles and things that you want to send to them to show the court how much there is and what the costs will unfairly be if the DA does not properly disclose. When the DA say that they have always done it this way, and the lab sends someone who is available on the day of trial, remind them that they can use the subpoena power whether it is convenient for the laboratory or not, and at minimum judge, just because it has been done this way for years does not make it right or in accordance with the law. You might remind the court that in the Southern states in the sixties (60's), the State courts said the black people could not vote unless they could pass a literacy test that white people were not required to take. It took the civil rights movement, civil unrest, and the Federal Government, with troops, to enforce the law that everyone now accepts. This is the law, so just because it is the way it has always been done does not make it right, and this Court should not allow an unfair advantage to the People.
Now that you have the names of the State's Experts, send them the following articles along with a letter that you want them to read as you will discuss each of the articles with them at the trial of this matter during your interview of them on the stand. Remember to send them, to each listed Expert Toxicologist, Certified Mail Return Receipt Requested; and make a copy of that for your trial book, just in case they say they didn't get it. Further, tell them in the letter to keep the material for review for future trials just in case they do not appear at this trial. If you do this, you will only have to send a letter to the person next time telling them what material to review that you had previously sent to them. The following articles should be sent to the toxicologists:
- by Dr. A.W. Jones, Ph.D, (1999) Room Temperature Influences on the Performances of Some Breath Alcohol Simulators . This will be the article that the DA will want to rely on because Dr. Jones found no difference in the tests that he conducted with people with GERD. However, in the study, there is a long absorption time for each of the subjects. That will be inconsistent with what the toxicologist will testify to or has previously testified to as the absorption time of alcohol in the human body; don't be afraid of this article. Use the absorption portion.
- Another needed article is by Dr. A.W. Jones, Ph.D (September 2005) DWI Journal. In this article, Dr. Jones again refers to his 1999 study, but he has a change in belief; that is that he now admits that more study must be done in this area because he became aware of a case where the machine did not detect the regurgitation. This is a change that is strong for your position of uncertainty, and remember all the studies are of five (5) or less people usually only one (1) person several times over.
- You should join the California DUI Lawyer's Association (CDLA) and obtain the MCLE video of Dr. Jones' lecture in San Francisco, California May 20, 2006 where he stated that GERD in breath testing is if not impossible nearly impossible for the breath testing machines to detect. Most certainly the machines must be operated correctly, and there should be at least six (6) minutes between tests. Make a copy of this on CD or DVD form and send it along with a transcript of the lecture that way you can use it in court.
- Dr. A.W. Jones has also written another article subsequent to the lecture in May 2006 at San Francisco, California, which reflects his statements at San Francisco that GERD may be very difficult to detect if not impossible to detect in breath testing. A copy of that can be obtained from attorney Darryl Genis at Santa Barbara, California. Email: email@example.com. You will also want to send the toxicologist a copy of the letter , and only the letter, that is included with a purchase of the GERD disc © by Donald Gray Drewry @ firstname.lastname@example.org which shows the three (3) stages of breath testing; lungs only with a valid test, a test with belching which is invalid, and two (2) tests with constant regurgitation (GERD) showing that the machine cannot detect this occurring and thinks the sample is valid coming from the lungs only. The significance of this letter is that Dr. Jones has reviewed this CD and endorses it as a correct and accurate demonstration for a person in a breath test. The CD can be used as demonstrative evidence. It is not direct evidence, is copy righted, and the DA is not entitled to a copy, Note, some courts will try to stop your expert from getting this demonstrative evidence before the jury claiming it was not prepared by your expert. It does not need to be and a California case comes with the CD talking about demonstrative evidence. However, keep in mind that the court does have discretion to let in any evidence or prohibit it, therefore, you should have the print outs sent to their experts and to the DA, and have a copy for the court for your motion in limine, and your expert did prepare the print out.. Additionally, not only for trial, but for APS hearings at the DMV, there is now a print out that can be loaded onto power point, and physical color pages printed by your expert frame by frame, which your expert can print, thereby being the author and having prepared the demonstrative evidence to show the jury. You can point out to the court that each page will take about one (1) minute to go through, so about forty (40) minutes of time will be taken up as opposed to the five (5) minutes of running the CD. Either way, the jury should be able to see the demonstrative evidence. Another thought is to be sure to have the medical doctor bring it in as demonstrative evidence just up to the breath test itself and show each condition getting the alcohol molecule into the mouth of the patient, your toxicologist can take it from there. Additionally, I would send the DA a copy of the print outs as the toxicologist report, not your blow ups, but the 8x11 size.
- Additionally, you should send the State's toxicologist a copy of the articles entitled Breath-Alcohol Analysis of a Subject with Gastric Regurgitation , commonly referred to as the Australian Study, by David Wells and John Farrar from the Office of Forensic Medicine, and Drager Australia, Melbourne, Victory, Australia. The study that was republished in the California Public Defender. In that study, a person with 0.04 blood by venous draw was simultaneously registering at times 0.3 by breath, not 0.03, but 0.3, and of course over time through, elimination declined.
- Another article that you should send is by William E. Giguiere from the International Association of Forensic Toxicologist (T.I.A.F.T.) Proceedings of the 27th International Meeting 19 23 October 1990 Perth, Western Australia reprint Study of GERD in breath Testing that was presented to the proceedings and later published and authored by William E. Giguiere (1990); Bill Giguiere is a renowned toxicologist in the San Francisco Bay Area and operates Park-Gilman Clinic at Burlingame, California.
- Also, send them the article Alcohol Absorption, Distribution, and Elimination (1985) by Dr. Kurt M. Dubowski, Ph.D. This article will show that absorption can take up to a little over three (3) hours. That means some alcohol is still in the stomach.
- And you should send a copy of Pre-operative Fasting Guidelines
J. Roger Maltby, MB, BChir, FRCA, FRCPC, Professor of Anesthesia, University of Calgary, Alberta, Canada that can be downloaded from the net at http://www.nda.ox.ac.uk/wfsa/html/u12/u1202_01.htm. This again reaffirms that gastric emptying takes 3 5 hours, and small amounts of food can take longer than regular meals, and explains why because of Distension . Further, if a person had diabetes, look at the section on (motility) (hypo-motility for diabetes) delayed emptying. Gastric Emptying does not occur in a maximum time of ninety (90) minutes; although, that is what the State's expert will try to convince the jury of happening.
- Get a copy of the Chapter 36 from Intoxication Test Evidence published by Thompson West. In that section, an inquiry was made from all the major toxicologist around the world, including, Dr. A.W. Jones, amongst others, regarding GERD and the effects on breath testing. He again will support the fact that more testing in this area needs to be done and that GERD can affect the test results; remember this is their key expert in this field. You now have him in several statements, subsequent of his first article, stating that GERD can affect the breath test. You should remember that Dr. A. W. Jones is a scientist, and just reports the results; he doesn't care what they are. He just reports them. If they are good for the Prosecution, so be it. If they are good for the Defense, also, so be it. He is only interested in the accuracy of the results, and that is why he has revisited this area and changed some of his earlier opinions. The change in his some of his opinions is based upon more studies and scientific reports of mouth alcohol interference with breath testing and people who have GERD. Dr. A. W. Jones, has also found that some people who are on the Atkins diet can have false positive readings as well.
Now, if you send all this, and you are familiar with the material, you are ready to take on the State's toxicologist. Don't expect them to agree to anything, just go through the articles by people who have published, which they, the State's experts, have not, and have done the experiments which they, the State's experts, also have not done; although, some may say they participated in one or two studies but have no data. Really!!!! Something this important and no data!!!! And, the data was never published!!!! Really!!!! Also, remember at the end of the trial to order a copy of the State's expert's testimony. This serves two (2) purposes. First, if they change their story at a future trial, you will be able to impeach them, so get it. Second, when you are sending all of the material above to the State's experts, send a copy of the transcript or if you have done more of these trials with different State experts from the same laboratory, send copies all of these as well. It can get interesting when people from the same laboratory disagree with each other; after all, if the State's experts cannot agree with each other, how can there not be reasonable doubt. On the other hand, if they have been unable to disagree with you in cross-examination that from the beginning of the blow until the end of the blow on the test of your client that there was mouth alcohol, not a belch or intermediate interference, but a constant contamination, and the machine cannot tell this because it was constant, then the machine would read this as alcohol coming from the lungs and record it as a number; you definitely want this material. And, if the same condition remained for the second test, nothing would change, and you would again get a number or alcohol reading that the machine believes is coming only from the subject's lungs. Further, if the condition remained the same, you would expect to get the same number or a number within the 0.02 agreement of the machine. These transcripts, again, should be sent to all the State's experts that will testify and you, of course, want them for trial. Remember to get a transcript at the end of each trial, even of the same expert, for each trial they do will build your resource and better prepare you for your next interaction with the expert at trial. The more they know you know about them the less argumentative they will want to be, and that includes their colleagues. Now, you have all this information, so how do you put together? You do it like this.
First, you start with the client interview. Find out if they have GERD or the possibility of having GERD. If they don't know, and you suspect that they may have GERD, send them to the doctor. Make sure they tell the doctor about the arrest and small amount of alcohol they had to drink. Make sure they tell the doctor about the indigestion that they have been self medicating for as long as they have thinking it was just indigestion as so many people do. That is the problem with commercials on this subject. Too many people self medicate and let the disease go untreated. Make sure they tell the doctor that you, their attorney, need not only the endoscopy but the 24 hour pH test, and that the 24 hour pH test is critical to their case. Also, get the client to sign a medical release form so that you have access to these records.
It is important that you subpoena in the police officer to the DMV hearing. At the hearing, be sure to get a full description of the reason for the stop, the contact, red and watery eyes, smell of alcoholic beverage, unsteady gait, etc. Make the Officer tell you all the reasons for the unsteady gait, red and water eyes, e.g., tired, sun, smoke, and with regard to the odor of an alcoholic beverage ask the Officer if the smell was similar to a belch? That is did come up strong or moderate, then disappear, and then return? The Officer will say no it was constant. That is great for you because that is a sign of constant regurgitation. Now, find out where and when he or she, the Officer, went to the academy so you can get a copy of the manual for Standardized Field Sobriety Test training (SFSTs). Go through each test one by one. And make sure to tell the Officer you want him or her to be SPECIFIC as to what they told your client to do. Many officers will say, what I usually do is. STOP THEM RIGHT THERE EVERY TIME YOU HEAR THAT, AND BE ALERT BECAUSE IT WILL COME UP AGAIN in your examination. Officer, I don't care what you usually do, I am only interested in what happened in this case, do you understand this? Yes. Good, now what did you tell my client to do for this test. Did my client do that? Now, how SPECIFICALLY did you administer the test? Watch out for the I usually. Keep the Officer on track. Go through it step by step. Repeat this for each test. Get a copy of the tape or CD of the hearing, and have it transcribed. Better yet, if you client can afford it, bring in a certified court reporter, only for the Officer's testimony, that way if your client testifies, and you want to use the transcript for impeachment at trial, you do not have the CD or tape marked and provide the District Attorney with a copy of the entire hearing. Even when my client cannot afford the court reporter, I only have the Officer's testimony transcribed, and give that transcript to the DA. However, they can have the entire marked tape or CD transcribed and try to impeach you client if they testified, and if they testify at trial. But, if you have had a court reporter at the DMV hearing, then you do not need the CD or tape, just the transcript, and the DA would have to get a copy, in the middle of trial of the hearing, from the DMV which usually does not keep them very long, so they may not be able to get a copy. Note, just in-case you cannot get a copy of the manual used by the police officer, ask the Officer at the DMV hearing and the motion to suppress, if they followed Police Officer Standards on Training from the State, and is the Officer familiar with the National Highway Traffic Safety Administration (NHTSA) rules on SFSTs. Just get it on the record at the DMV and the motion to suppress, don't challenge the Officer here. Once, he or she answers yes, then before the trial, but after the DMV hearing and after the motion to suppress where the Officer has committed as to how the Officer administered the SFSTs specifically, send the Officer a copy of the NHTSA , CHP, and POST rules on how the tests are to be instructed, administered and interpreted. Also, in the letter with the SFST rules, tell the Officer that you and your expert witness would like to talk to the Officer about his training in the DUI investigations, the SFSTs, and his or her observations of your client, so please call your office to set an appointment; and send it certified return receipt requested, so you have a copy for the trial. Every now and then, I get a phone call, but most of the time, I do not; which leads to a jury instruction in California that can be found in California Drunk Driving Law published by James Publishing,
At the DMV hearing, you will also want to present the evidence of the endoscopy and 24 hour pH test, along with the testimony of the client's doctor and your toxicologist, and in a case such as this, your client will need to testify to the day's activities and eating and drinking pattern unless this can be established by someone else, but usually, the client is the best source. The client can also talk about the length of the disease, the indigestion and frequency. Additionally, you should print out the pages of the GERD video of the normal lung with test results that your toxicologist believes the actual results are, and the portion of the animation showing the constant regurgitation and present these as evidence from your toxicologist. You can show the video on a laptop to the Hearing Officer, but remember, the DMV does not get a copy of the video as that is demonstrative evidence that is copy righted, that is why you have printed the pertinent parts of the video for them. This video can be shown twice. Have the medical doctor use it for the purpose of establishing that it is anatomically correct for the medical condition of GERD, and then have the toxicologist use for the effects on the breath testing machines used in your case. Also, subpoena the police officer to the hearing for his or her testimony. The cross of the officer should be standard to you.
Get background information, such as:
- Where did you attend the police academy?
- When did you attend the police academy?
- Did you have any prior police training outside of this academy?
- You took courses in report writing?
- You were taught to put all pertinent facts in your report?
- You were taught to do DUI investigations?
- How many hours of this training?
- In this investigation, did you follow your academy training in writing this report?
- Were the events that took place fresh in your mind when you wrote this report?
- When did you write this report, what date, location and time?
- Go through each observation, did you see bloodshot eyes?
- Smell alcohol coming from the breath of my client?
- Was it strong?
- Was it similar to a belch where it was strong, would then fade or dissipate, and come back strong again or was it constant? CONSTANT IS GOOD FOR GERD PATIENTS.
- Have the Officer go through each field sobriety test, that is, first for each test, what did you tell my client to do?
- Did my client do that?
- How did you administer this test, that is SPECIFICALLY, how did you do the test? If the officer starts with, what I usually do, STOP THEM, and tell them, I don't care what you usually do, I want you to tell me what you did in this case? And remember I WANT YOU TO TELL US SPECIFICALLY HOW YOU ADMINISTERED THE TEST.
- If SFSTs are involved, ask what the clues are?
- Why didn't you arrest my client when you first stopped him or her and smelled the alcohol?
- It is not illegal to drive with alcohol in your system is it?
- If a PAS was used, make the officer lay a complete foundation, and as he or she is not usually the person who does the accuracy and calibration checks, the officer will not be able to tell you and the Hearing Officer enough information to lay a foundation for the PAS results.
- You now have a transcript for trial from the officer, and as you only intend to use this testimony as impeachment, at least in California, it is not discoverable. If you brought a certified court reporter to the hearing, only have the court reporter transcribe the police officer.
Motion to Suppress or in California1538.5
You must now do a motion to suppress evidence in the criminal court.
REPEAT THE PROCESS AT A MOTION TO SUPPRESS HEARING AT A LATER DATE, AND IF POSSIBLE, HAVE A DIFFERENT ATTORNEY DO BOTH THE DMVH HEARING AND THE MOTION TO SUPPRESS. Many times, the Officer appears at trial and sees a new attorney, one he or she has not seen before, and they forget what they have said, change the story because there is a new attorney there, and then you have two (2) transcripts to impeach them with when they change their story. Jurors don't like drunk drivers, but the also don't like police officers who lie.
Many officers in a regular police department as opposed to the California Highway Patrol, always say they do not have their manuals anymore. So, after the DMV hearing and the motion to suppress, I like to send the Officers a letter asking him or her to contact me regarding their qualifications and the material in the letter, so I can talk with him or her in more detail with my expert toxicologist. Very few return the phone calls. I send the letter certified mail and return receipt request, and I make copies for trial. You can get a jury instruction on this point as bias if the Officer testifies that he talked to the DA but would not talk to you; see California Drunk Driving Law. Additionally, in the letter I attach copies of he NHTSA SFSTs, and the part that says that if they are not followed exactly, they are not valid; also, I send them a copy of the relevant parts of the CHP manual. Now, remember, this is after the DMV hearing and the motion to suppress where they have already committed to how they did the tests; I know we just covered this, but it is important and repetition is the mode of learning, so get into the habit of doing it. I served them with a subpoena for trial, just like the DA, only mine is a subpoena duces tecum with the parts of the manual I sent them. Now, they can either change their story from two (2) previous under oath testimonies, or admit that they did not follow their training. If it is the CHP, I just give them a subpoena, and I bring a copy of the manual; that is I still write the certified letter, but I don't send them the parts of their manuals. Once the DA has asked about the SFSTs, I cross examine and use their own manual against them.
For every trial that I do, I always do a trial book. It has an index, complaint, request for discovery, replies, from both DA and my office, motions to compel, notice of withdraw of general time wavier, subpoenas, motions in limine, opening statement, cross exam of each of the People's witnesses, direct examination of each of my witnesses, closing argument, jury instructions, special jury instructions, and case and statutory law.
ALWAYS, ALWAYS, ALWAYS do a written Withdrawal of General Time Waiver, and you, not some one in your office, you personally serve it on the District Attorney's office, and get your copy stamped received. Serve the Clerk of the Court, get it stamped as received, and go to the courtroom where the case is assigned, and leave a copy with the clerk in that courtroom; the last one will not be stamped because they don't have the file, but get the name of the clerk for your proof of service. Schedule your trial date, so that you will be able to serve the Withdrawal of General Time Waiver, so that the trial date and the thirty (30) days run at the same time. If they are not ready, you will win. Don't try to shorten the time on the DA to gain an advantage. By keeping the same date, there should not have been a problem because they were already aware of the date, and a motion to continue does not work, at least, in California. If you are in another state, review your rules for speedy trial. The problem with pulling the time waiver in open court is that the Judge may give you trial tax. That is, set your trial two weeks prior to the date you picked as the last day, and keep you in court for two (2) weeks before the last day of the trial forcing you to trial, all because you pulled the time waiver. The written withdrawal eliminates this, so when you show up, it is time for trial. Again, there is no disadvantage to the DA, as they were already aware of the date, and they were suppose to be ready.
The DA will argue that there were two breath tests. The preliminary alcohol screening (PAS) breath test in the field, and the Chemical breath test. For your GERD case, it really doesn't matter because the GERD effects all the machines the same. Even if there is nothing wrong with either or both machines, who cares? The ISSUE is not the accuracy of the machine. The ISSUE is the inability of any breath test machine, especially the machines used in this case, to recognize Alcohol molecules from the Alveolar air sacks; the deep air lung in contrast with Alcohol molecules from the stomach that is constantly regurgitating into the mouth and mixing into the saliva and with the lung gases. You will want a special jury instruction of Tile 17, 1219.3. That section specifically tells you that if a person vomits, eats, drinks, smokes, or regurgitates the test is INVALID. And best of all, the People's expert will tell you this. The Officer will tell you that he or she has been trained to watch to make sure that a person does not do any of the aforementioned fifteen (15) minutes prior to or during the test. Now, remember when you asked the Officer in the DMV hearing, and the motion to suppress, and again at trial if the smell of the alcoholic beverage was like a burp that comes and goes, or whether it was constant, and the Officer said it was constant? Here is where it comes in. During the trial, ask the Officer how he or she would know if the subject was burping? Yes, we have covered this, but it is important:
- Body movement
Now, you can ask the Officer, if the client is blowing into the machine, and all of the breath is going into the machine through the mouth piece how would you be able to smell it? Unless there is a leak in the machine, was there? Have to answer; I wouldn't be able to.
Now ask the Officer if he or she knows the difference from a loud belch and what is referred to as a polite belch where one does not hear the noise? Yes. So, if this was quiet you would not have been able to hear it would you? NO
Finally, Officer you said that you watch the body, correct? Yes. What would you see the subject's body do if he or she were burping? The chest would expand, and the stomach would move. Oh, and didn't you just tell my client to take a deep breath, hold it, and then exhale into the machine? Yes. And, that body movement of the chest and stomach would be different from the body movement of a belch? How?
Now, ask if the Officer can see through your client's clothes, skin, and into the organs of his or her body. NO. Then you would not be able see if the Lower Esophageal Sphincter is open and molecules of gases are containing alcohol are escaping from the stomach up the esophagus into the mouth and saliva, can you? No. Thank you.
In your cross examination of the police officer, you should have sent him a certified letter asking for the officer to contact you and your expert about the training of the SFSTs, if you recall. Also, include a copy of the cover of Steadman's Medical Dictionary, and pages 1338 for Reflux and 1341 for Regurgitation . Highlight Regurgitation and its definition. Now, the questions.
Officer, you were trained in the academy that you were to do a 15 minute observation of the subject before administering a breath test, correct?
Did you have practical experience in your training as well as lecture and written material?
What were the areas of your training? (You can get this from Title 17, Theory of Operation, etc) Have the Officer explain in detail each
Now, with regard to the practical experience, did you actually use the machine on a subject?
Did you really personally observe the subject for 15 minutes or just assume that the person had been observed for 15 minutes?
Did you make sure that the person did not eat?
Did you make sure that the person did not drink anything?
Did you make sure that the person did not smoke?
Did you make sure that the person did not vomit?
Did you make sure that the person did not REGURGITATE?
You know what eating is because in your life experience you have seen others eat and you eat, true?
And, you know what drinking is for the same reasons, correct?
You know what smoking is, again for the same reasons?
And the same with vomiting?
What about regurgitation? That is how does a person regurgitate?
Doesn't regurgitate mean a back flow of gas????
Well, if that is occurring from the stomach, how could you see that?
So, you have been trained that regurgitation is to be watched for, but you don't know how to what for it because you don't know what the signs are, do you?
In fact Officer, you cannot see a person regurgitate, can you?
If yes, ask the Officer if they can see a person's lower esophageal sphincter, and whether or not it is open or closed? If not, how do you know of the gas from the stomach is back flowing?
The truth is that you don't know if my client was regurgitating during this test, do you?
And when you told the jury, under oath, that my client was observed by you for regurgitation, and the client did not regurgitate, that was not the truth because you don't know?
And when you told the court at the motion to suppress, under oath on DATE, that my client had not regurgitated that was not the truth either, was it?
And when you told the Hearing Officer at the DMV that my client had not regurgitated, also under oath, that wasn't true either was it?
THE PEOPLE'S TOXICOLOGIST (EXPERT)
Their expert in Trial:
Ask their expert this simple sequence of questions.
First, the machine accepts the air from the lungs and measures it, correct?
The alveolar air, correct?
Now, if everything is working correctly, you should get two samples in two different blows within .02 of each other, isn't that true?
What happens when a person is taking the test, and intermittently, belches during the test causing alcohol molecules within the gases from the stomach to get into the mouth causing mouth alcohol? (They should tell you of the increase in reading)
Now, give this hypothetical: What would happen if from the beginning of the blow of the first test mouth alcohol was introduced from the stomach and it lasted all the way to end of the test? (Get a high number)
But, the machine would register a number, correct?
And, the machine would think that this was only alveolar air because it has nothing else to compare it to, correct?
OK, now lets assume that the same condition existed for a period of four minutes and the two tests were given within two of those four minutes. Do you understand the hypothetical?
You would expect to see numbers for both those tests wouldn't you?
And they should be within .02 of each other as the condition is the same, correct?
But, both test had constant regurgitation and contamination of mouth alcohol which are higher readings, so neither test would be accurate because this was not a true alveolar air sample, correct?
And, anytime there is regurgitation during a blow of a breath test, the test is not valid, is it?
When you testified, under oath, on DATE, that my client had not regurgitated that was not the truth either, was it?
And when you told the Hearing Officer at the DMV that my client had not regurgitated, also under oath, that wasn't true either was it?
In fact, you personally have absolutely know way of knowing whether or not my client was regurgitating during this test, do you?
You have been trained that the test is invalid if a person regurgitates during the test, haven't you?
Well, if you don't know if my client regurgitated, how can you tell this jury that the test was in compliance with the law, and that this was a valid test as you have already told them it was?
THE DEFENDANT'S DOCTOR
Your doctor should be able to explain that the regurgitation is constant. Medicine only slows the acid, but if the LES is open some gases are going escape from the stomach, and the molecules that are in the stomach will regurgitate up the esophagus into the throat, mouth and into the saliva. That is analogous to a constant belch. The Medical Doctor will also testify that you cannot see the regurgitation. Remember, in California, this is a rebuttal presumption to the 3 hour portion or relation back in the jury instruction 2110 for the bracketed part that begins with If the People have proved beyond a reasonable doubt that the defendant's blood alcohol level was 0.08 percent or more at the time of the chemical test& , so it should not be a part of the instruction. See the Bench Notes.
Have the doctor introduce the GERD CD, that he or she has reviewed it, the letter from Dr. A.W. Jones, Ph.D, and it is anatomically correct. Show it up to the breath testing in each stage. Once the gases are shown going to the mouth, your toxicologist can reiterate the stomach, and now how the breath machine is effected, and the entire video animation will be seen for the second time. And, of course, you will again show it in closing, just before you ask for NOT GUILTY ON BOTH COUNTS.
Don't forget that usually the doctor who does the endoscopy and the 24 hour pH test will not be the doctor testifying. Usually, the treating physician will testify, and as an expert he or she can rely on the records of the tests, but to get them into evidence, and you should, make sure you subpoena the custodian of records with a copy of the exact records that you are using and have already turned over a copy to the DA. I say exact because some times, there are other records that are not relevant to your case, and they should not be brought to the court. In fact, even if you do use the doctor who did the endoscopy and/or the 24 hour pH test, you will still need to subpoena the records and have the custodian of records appear in court. However, remember, that the doctor owns and operates his or her office, so even if they delegate the duties of file maintenance to someone else, in his or her office, they are ultimately responsible and are the custodian of records. Therefore, they can testify that they collected a copy of the records that they keep from their files in the normal course of their duties, and that they have brought them to court, and of course, they are true and accurate records of your client and their patient. Despite this ability, I always, and I recommend that you, subpoena the custodian of records with the records sealed that you will use in trial to the trial.
The Doctor will be able to determine if there was food in the stomach after fasting in the endoscopy and about how long the subject, your client, has had this disease. As the client may not go to the doctor until after talking with you, his or her attorney, because your client has believed that the heartburn and indigestion was just caused by spicy food or too much food, it is important to show that the disease was present before the arrest and tests, and this can be established by the two (2) tests; the endoscopy and the 24 hour pH test. For example, the author had a client that thought that he was having indigestion caused by his over eating. When he told the author how constant this was, the author told the client to go to his doctor for the aforementioned tests. The tests revealed that the damage was caused by GERD, and that the damage was consistent with the disease being present for one and one half years to two years. The tests also showed that the client had 30 major episodes in a 24 hour period; that is more than one an hour, and the minor episodes were not noticeable to the client but constant. Without these test, it never would have been known and the client would have been convicted of a crime for which he was not guilty.
I have also had clients take these tests and they revealed NO disease. That is the great thing about the tests, they are neutral, and the results are also neutral. Your client either has or does not have GERD.
Your toxicologist should now be ready to discuss the entire problem of the SFSTs, and why they are not reliable, and of course, the mouth alcohol interference into the mouth and breath testing equipment that is a violation of the law when reflux/regurgitation is present as in your case. You should bring out on direct examination why the toxicologist did not do a blood breath analysis on your client.
To do this correctly, the toxicologist must stay with the client and monitor his or her every action for at least six (6) hours to make sure that no food or liquid is consumed during the time period of gastric emptying. Once this six (6) hour period has been completed, the toxicologist must have the client eat some food. Following the food, the toxicologist will wait approximately one (1) hour, and then begin giving the subject know amounts of concentration of alcohol. The toxicologist will next draw blood, which will be analyzed, and also take a breath sample of the subject on a breath machine so the two (2) samples can be compared. This will occur over several hours. As you can see, before the analyzing of the blood at least nine (9) hours has passed. By the time the procedure is over the total time will be approximately twelve (12) hours. Most toxicologist will charge approximately three hundred dollars ($300.00) per hour for this type of testing, so about three thousand six hundred dollars ($3,600.00).
Another major problem with this testing and analysis is that by the time the subject or client gets to the toxicologist he or she has already been to his or her physician who has sent them to a doctor that is a specialist who has already done the endoscopy and 24 hour pH test which answer questions of the condition much better than any attempt to re-create the exact day that your client was arrested and tested. Additionally, the physician will now have the client on medication to correct the harmful effects of the disease, and for the toxicologist to perform this testing procedure, the toxicologist would need to take the subject off the medication, and subject him or her to a serious medical condition and try to reproduce the condition that existed on the day of the chemical test, if that can be done, with medication having already started to repair some of the damage. This is not recommended, and in fact, taking someone off medication without the approval and consent of the person's physician may even be criminal as the toxicologist is not licensed to practice medicine.
The attorney should keep in mind that if the client does have GERD, but there is no alcohol in the stomach, there is no GERD defense. Don't embarrass yourself with this defense when it doesn't exist. People who suffer from this disease are at a disadvantage for breath testing, and they should take a blood test instead of the breath test if they 1, know that they have the disease, and 2, if they know they have the disease and that it will effect the machine and the results. The purpose of this information is to help defend innocent clients and help prevent the attorney from committing malpractice by ignoring a viable defense; it is not intended to create feigned defenses.
The information that I have provided is far from complete, but it is a good start in defense of this disease in breath test clients charged with DUI or DWI. The attorney should read all the aforementioned material, consult with physicians, toxicologists, read from the internet, be familiar with gastric emptying, diabetes, SFSTs, breath testing equipment, the effects of alcohol in the human body, absorption, distribution, and elimination, and more.
This problem is so big that it needs repeating. As the GERD defense grows, District Attorney offices all over the country are doing everything they can to try to stop this defense. The GERD CD blows their case away, so they argue foundation even though it is demonstrative evidence. As I stated above, one thing that I do for the DMV hearing is stop the CD where I want specific pictures in each of the CD, and print those pictures. Then when I go to the DMV for the Admin Per Se hearing, I bring the laptop with the client's case already programmed in. Obviously, the DMV cannot get a copy, copyright, so they don't want to let it into evidence because they do not understand demonstrative evidence. Incidently, this is demonstrative evidence, so that means that the District Attorney or City Attorney or Attorney General whoever is prosecuting the case is entitled to see the CD before you use it, but they are not entitled to a copy of it as it is copyrighted. However, they can purchase a copy from the Law Office of Donald Gray Drewry just the same as anyone else can. Now back to the CD evidentiary problems and what to do when you are having trouble getting the CD before the Judge or Jury. Use the photographs from the CD. The photographs from the CD that were printed in color are accepted and to better explain them, we, my toxicologist and I run the GERD program off the hard drive. Likewise, in court those judges that want to assist the Prosecution will do whatever they can to stop the GERD CD from being used. One ploy is to say that your expert did not prepare the CD him or herself, and therefore, it cannot be used; NO FOUNDATION. Toxicologist, Ken Mark of Hayward, California brought to my attention this is just another DMV hearing. It works like this.
You prepare your GERD CD for your case, burn a copy, and an extra, and bring them to court. Do the motion in limine, and the judge will say if foundation is laid you can use it. Make sure to have your medical doctor review it, and have the M.D., introduce it based off Gray's anatomy that this is how the medical condition of GERD works. Get the alcohol molecules all the way up into the mouth and into the saliva. Don't do the breath test portion with the M.D. Then, when the toxicologist gets on the stand, he or she can take it from there, starting all over again on the CD. Also, remember, in DIRECT examination, get their expert to admit that a belch will cause the alcohol in the stomach to interfere by means of gas into the mouth causing exaggerated contamination of regurgitation and exaggerated test results. They have now opened the door that stomach alcohol will contaminate the readings. So, when the Judge says, sorry, you cannot present the GERD CD because you did not prepare it. Have your printouts from the CD that you wish to use because these your doctor and/or toxicologist has prepared them by printing them from the software; this answers the question of who prepared the exhibit. Be sure to point out to the Court that to use the pictures, blow ups or power point, will take a much longer time because there will be about forty or so pictures you will print and discuss one by one, and it would only take about 5 minutes to run the GERD CD, but if you insist, we will do it picture by picture. The DA will object, in California under Penal Code Section 352 prejudice and time consumption.
Nonsense will be your reply. First, the demonstrative evidence applies to the exculpatory facts of your client's defense. They are not common knowledge and this will greatly help the jury understand what is happening in each stage of a breath test and why the results in your client's tests are inaccurate. Second, 352 prejudice was developed to protect the defendant, and therefore, to deprive him of an opportunity to rebut the evidence is a denial of Due Process. The cases further says, that in order for the prejudice to effect the DA it must be Extremely Harmful . Demonstrative evidence that is being talked about in open court as direct testimony cannot be Extremely Harmful to the Prosecution; remember their expert talked about a belch? As far as time consuming, the only thing that is making it more time consuming is the Court because the CD can be played in 5 to 10 minutes as opposed to forty (40) or so pages, with each one taking at least a minute. You can get this material in, and it will help your case.
For foundational purposes of the GERD CD, here are the following credits for the preparation of this demonstrative evidence:
GERD Animation Based on Gray's Anatomy and Prepared by:
David R. Lewis, Toxicologist, FAS, Director of Park-Gilman Clinic, Burlingame, CA, and former Chief Toxicologist for the Counties of San Mateo, San Benito, and Santa Cruz, CA;
Dewayne K. Beckner, Criminalist, FAS, Los Angeles County Sheriff's Dept., Retired
Endorsed for Anatomical Correctness in Breath Testing by:
Dr. Alan Wayne Jones, Ph.D., DSc, Professor
Reviewed as Anatomically Correct for GERD Medical Condition by:
Dr. Thomas B. Hargrave, III, M.D., Chief of Gastroenterology for:
Hill Medical Group and Summit Medical Center, Oakland, CA, and
Dr. Hossain Ronaghy, M.D., Assoc. Professor Univ. Cal. at San Diego, CA
Donald Gray Drewry, J.D.
IOTA Design at Fremont, CA
Donald Gray Drewry
14895 E.14th Street, Suite 485
San Leandro, CA 94578
Phone: (510) 346-6666