Kentucky is having the same DUI-DWI breath test problem as New Jersey …
Feb 12th, 2008 | By Michael L. Saile, Jr., Esq. | Category: Blogs, DUI-DWI-DAI (Drunk Driving)The courts of the Commonwealth of Kentucky are now faced with the same problem regarding the source code of the DUI-DWI breath testing machines. This is a legal issue new to many states. Until recently, no one has really reviewed or challenged the “computer programs” that run these breath test machines. It seems that the state legislators blindly approve of these important machines without inquiry as to their mechanical validity.
The challenge in Kentucky is against the Manufacturer CMI who manufacturers the Intoxilyzer 5000N. As you know, in NJ there is presently a case (many cases) before the NJ Supreme Court challenging the new NJ Alcotest machine.
In both states, the manufacturers of these machines are fighting the requests of defense lawyers to reveal these computer programs because the manufacturers claim this information is “proprietary” or “secret.”
Without the source code, these machines are essentially a “black box” whereby no person, but the manufacturer knows if the machine is even close to fair or accurate.
If we are presumed innocent under the law, why are we using these “magic boxes” if we don’t know what is inside?
The author of this Law Blog, Bucks County PA & Mercer County, NJ criminal attorney, Michael L. Saile, Jr., Esq. of Saile & Saile LLP, Attorneys-at-Law practices both New Jersey and Pennsylvania criminal, traffic violations, and DUI/DWI/DAI law. Check out our website for DUI penalties. We handle all NJ Municipal Court cases including DUI in the following NJ Municipal Courts: Hopewell Township, Ewing Township, Trenton, Lawrence Township, Hamilton, Pennington, and other Mercer County, Burlington County, and Camden County, NJ courts. We also handle lower bucks county DUI and traffic violation cases in the following towns: Bensalem, Southampton, Richboro, Newtown, Levittown, Langhorne, Doylestown, Warminster, Trevose, Feasterville, Warrington, Bristol, Fallsington, Yardley, New Hope, Holland, Washington Crossing, PA, and other Bucks County courts. We handle DUI cases in Philadelphia, Bucks, Chester, Delaware, and Montgomery County, PA. We are located just outside of Philadelphia in lower Bucks County.
it is a no brainer,… we know as a people, what is inside over 100,000 HPLC’S IN NJ ALONE.
HPLC’S ARE SO FUNDAMENTAL AND BASIC TO OUR EVERYDAY TESTING OF DRUGS MANUFACTURING AND DISTRIBUTION IN NJ, IT IS A NO BRAINER.
TO EVEN SUGGEST THE THE STATE REFUSES TO VAKLIDATE 500 ALCOTESTS MAKES ME SICK TO MY STOMACH.
THERE IS EVEN NO PROOF TO SAY THE MANUFACTURERS EVEN KNOW THEY WORK.
WHEN A PRIVATE COMPANY MANUFACTURERS AN HPLC OR OTHER ANALYTICAL INSTRUMENT, AND SELLS IT TO A FACTORY, THE STATE IN THE FORM OF THE FDA IS RIGHT THERE ALL ALONG THE ROUTE OF THE INSTRUMENTS LIFE SPAN. AS A PEOIPLE, THROUGH THE FDA, WE KNOW THE SOFTWARE WORKS,THE HARDWARE WORKS, AND THE RESULTS ARE CORRECT.
NOW, IN THE BREATH TESTING REALM, WHERE IT IS THE STATE BUYING AND USING THE MACHINES….. THE PEOPLE NEED TO KNOW, TO BE ABLE TO CHECK ON THE VALIDITY, THROUGH THE LIFE ON AN INSTRUMENT, FROM CONCEPTION, THROUGH MANUFATURE, THROUGH USE.
DEFENSE LAWYERS ARE NOT CAPABLE TO DO THIS, … WE NEED A CITIZENS BOARD , ONE THAT IS NOT POLITICALLY CORRUPTED IN ANY WAY, TO OVERSEE IT, A GROUP OF SOFTWARE ENGINEERING, VALIDATION ENGINEERS, SCOENTISTS, ANALYTICAL CHEMISTS, AND ORDINARY COITIZENS, A BOARD OF PEOPLE,,,, WHERE ANY DEFENDANT CAN GO TOI, TO GET THE ENTIRE HISTORY OF A PARTICULAR INSTRUMENT, SET UP LIKE THE FDA, AS FAR AS VALIDATION AND DOCUMENTATION.
when you say, knowing what is inside…. i am not sure most people understand what that entails or means.
it is an extremely comprohensive set of documents, reviews, approvals, validation, and more documentation and review,.. every step of the way, from the start of the manufacturing procees of any individidual instrument in a factory, throughout the instruments use during its liftetime.
however, we do not have to reinvent the wheel to do this…. the fda has all the rules and requirements, and procedures, in place to make it possible to know everything works and is ok.
all we have to do is adopt these things into a community /citizens board, to oversee this, kinda like a state form of the fda, and get on with it.
cost should be no concern. because as we see, a state like penn. can afford to spend 4 million for superbowl sunday to stop dui, far outweighing any revenue that could be generated from such a thing.
to fight dui, the cost will and should always be greater than the revenue generated from dui convictions.
what price do you put on a persons life?
as far as the software secrecy, it is a ridiculous argument…. agilent does not tell the fda they cant see the software on an hplc, or waters, perkin elmer, hitachi, shumatzu, thermo orion, ect…, they all submit the software to the fda, the instruments, everything and anything, not only from the factory they are made in, but also from the places of final use.
the fda comes to final use places and checks things out ….. and this is what we need in the states, a body of people to check on the alcotests and other breath machines, underr penalty of law, like the fda does for all other analytical instruments.
pretty much, the choice of instruments to use in a factory is based on what they are used to, what kind of service they get, can they supply the correct data and information, can you get along with the srervice engineers, customer support, on time fast technical assassitance, and things like this.
the choice of instruments to use in not based on the lines of code in the software, as long as the software and instruments works, can be validated, ect…
to say there is any reason to keep software secret from the pub lic is such a ridiculoyus argument, it is beyond belief.
if dragger makes a good instrument, supplies good service, the software should be available to the public, in the form of an fda type organization, that over sees its use…. it is a no brainer.
the argument that the software needs to be kept secret is beyong ridiculous.
aznd i am not saying the template of the sofware… i am saying each and every alcotest loaded with saoftware, that particular software in each instruments needs to be known and reviewable by the public, .. its not a nbig deal, because we do not purchase instrumentys based on it, e purchase instruments based on many other things.
so whaTS THE REAL PROBLEM HERE?
IF DRAGGER OR ANYONE ELSE MADE A GOOD INSTRUMENT FOR BREATH TESTING, THEY SHOULD WANT EVERYTHING OPEN, COMPLETELY OPEN FOR REVIEW BY THE PUBLIC, AND THEN SELL THEIR STUFF BASED ON SERVICE AND PRICE.
I would probably like one of my arguments in my case to be this….
do the police and state know, beyond a reasonable doubt, the software in the alcotest i was tested on is not only 3.11, but is exact line for line the sofware checked by base one and the state in the chun case.
i think i win this point, and should be allowed a printout of the software loaded into the paryicular instrument i was tested on, compare it line for line with that tersted in chun, and any difference means that even if the nj supreme court ruled the software in that case reliable, it did not rule the software in my instrrument was reliable.
the chun order is worded in such as way, as that a defendant could read it as saying that he is entitled to a reliabilty hearing on the alcotest, after chun, and the municipal court must rule in accordance with the nj supreme court….
so therefore, if the software i was tested on is not line for line the same, i can argue that it is not reliable, regardless of what the nj supreme court rules.
i really hope the nj supreme court understands this aspect of the alcotest.
in fact, there is nothing o record that would demonstrat the software loaded into the alcotest i was tested on is the same baseone or anyone else had acess too…. in other words, there are no controls to have any sense beyond a reasonable doubt.
in other words, the process should be completly reviewable and transparent, open and just under the law, as in any municipal court case this should be true.
the nj supreme court now has the ability, in this chun case, to work out every detail , make it fair , just, open, and reviewable… and if they do not, there will be another chun type case coming, i assure you, it wont be over.
hopefully the nj supreme court is taking such a long time, in order to write 500 pages of regulations regarding the use of the alcotest…. lol, but i doubt they are doing that.
this is the job of the legislature.
i hope each and every alcotest defendant gets an opportunity to pound on the law , and fight this alcotest into submission.
one point i want to drive home is this…
in the case of the alcotest,.. the software is loaded into the instrument in the factory in germany and sent to the united states.
i have the right to know as a defandant want controls are in place to ensure the correct software was loaded.
and if these controls were adhered to
one problem i have with this whole play, is that revealking the source code to defense lawyers does not solve any real big problem.
of course, it solves the immediate problem of litigating in the Chun case.
it doesnt solve new jersey’s problem or my problem.
without a citizens fda style board for validation and use, no one can get equal protection under the law.
as we saw in chun, the cost to review the 60,000 lines of code in the alcotest was over 200,000 dollars— each defendant wont be able to afford that.
and as it is my argument that each individual alcotest needs to be validated, nothing is solved.
however, with a fda style board and auditors in place, a line by line review of the source code in each instrument is not necessary, just the tracking of the software instalation at the factory, and the installation and use of the alcotest in its final resting place, all with software and hardware validation throughout its lifetime.
software vaildation is fairly easy,,, … it requires a false electronic signal to be sent into the software from an out side program, to see if the software calculates the coorect are under the curve , and then performs the correct calculation for the final result. it should take a validation enginneer about 5-20 minutes to complete this task, depending on how many times he runs it as per written protocol.
this is very very common for analytical insatruments.
so, that, along with a ton of oversight and documentation, should satisfy any requirement,,,,, once we get beyond chun and wheather the thing is overall reliable.
another very very important aspect of this instrument is the area under the curve, the peak area of the peak produced by alcohol. now, i am not sure if they are measuring the “oh” group peak or the “ethyl peak”, but for this argument it doesnt matter.
to me, as an analytical chemist with 20 years experience, this visual picture/evidence/document, is just about the most important document there is.
the picture of the test.
i drew some pictures in paintshop on my computer but i am unable to copy them on here… so i will once again try to explain.
picture a straight line across a page of paper 8 inches in width. picture about 6 inches down the line a tall thin triangle rising about 6 inches from the line (baseline), symetrical in shape, and about 3 milimeters in width at the baseline.
this is what is called a peak, and a classic desired peak.
now, the amount of area inside the shape of the peak is calculated by a computer program and converted into a number called “counts”
now, what the program does is this, it through its programing, determines when the peak starts and stops. draws a baseline under the peak, then calculates the area in counts , inside the triangle.
now, this count of a breath sample is compared to the count of a known standard solution, a mathematical calcultion is performed, and a final BAC is determined.
this is fundamental , most basic, analytical chemistry, for peak based instruments, like an ir in the alcotest.
in my carrerr in must have reviwed , looked at, millions and millions of peaks generated from such instruments to determine if the start and stop of the peak was determined corectly and if the baseline was determine correctly, and if the peak shape was ok, and if even the right peak was being used in the calculation, and if there were interferences.
without this picture, it is impossible for drager, me, you, the state, the fda, or anyone else in the world, to say the result is accurate.
in the millions of peaks i have reviwed in 20 years, i have found a lot of problems along the way… such as..
the start was determined wrong, the end was determined wrong, the baseline was drawn incorrectly, the wrong peak was used to calculate.
and an instrument can be running fine for 100 samples in a row, have one off, and 100 more good samples… its just the nature of analytical instruments of this type of analysis, and every peak needs to be looked at and signed off on.
with the alcotest there is bo picture, we have absolutley no way of knowing if the anything looked ok in a breath test.
do you understand what i am saying?
and it is not like i am looking for the world here, a simple ir machine that produces a picture is not only common, it is expected, required, taken for granted.
the cost of the alcotest is ridiculously high for an instrument that can not even produce a picture of the test.
then, to take this one step further, the “counts” for each sample and sample would be listed on the screen and printout, and an example calcultion would be typicaly performed for the first samnple by hand ,to ensure the program was caluculating correctly, and availble to perform for every sample tested.
all of what is in this post is a no brainer.
do you understand?
the process that calculates the area under the curve is called integration.
unless their is a visible hardcopy picture of the peak showing the start, stop and baseline, …. showing the peak, at the proper , in the case, wavelength, but in hplc retention time, and it is reviewed to determine the peak shape was ok, the correct peak was used, there are no interferences, and the integration had the right srat-stop-baseline, there is absolutley no way to say beyond a reasonable doubt any breath terst result is correct.
what really gets my goat, if you will, is that this really shouldnt be up to me to point out such fundamental basic aspects of analytical chemistry in blog postings.
this is something that Drager should know, probably does know, the State should know, probably turns a blind eye to, defense attorneys have no idea about, … and only analytical chemists that were tested on it and charged with a dui care about.
put it this way, one can not even begin to vailidate an instrument like thisin all seriousness, one that can take away a persons livilhood, freedom, driving priveleges, respect, without having the picture.
— this is not like the measuring of the ph in your pool water.
this is exact analytical chemistry science… and exact made by statute in virtue of the State differentiating between 0.07, 0..08, 0.09. 0.10% BAC >>
so, to not be able to even begin to validate an instrument like this, where the result is so important, and basic ir instrumentation allows for it, because drager didnt engineer it to produce a picture with the counts, is really unbelievable, and wrong, and not just.
what can i do to make people understand?
a key aspect in the alcotest case are the manuals supplied by drager to the chun defense team… which one of the attorneys, not my former one, was kind enough to suplly me with last summer for review….which i did review….
in these manuals are example pictures of the peaks produced by an ir scan for alcohol.
the methodology clearly shows a baseline, andpeak for the analysis , as i decirbed earlier.
my question to drager would have been, how do you know your instrument, the alcotest, produces these peaks, integrates them correctly, every time, 100% without flaw, drawing a perfect baseline to the peak everytime, with a perfect start and stop tic marks, and thus perfect integration.
the answer is they really do not know… albiet , they may have some hook up at the factory, nonthing was presented at the hearings,…. but most important, we do not know for each and every breath test the integration and result are flawless.
even a slight movement of the baseline drawing on the slighest wrong incline, or a start or stop of the peak that is even the slightest up on the peak rise, will create the wrong result. or maybe the start or stop was too soon or too late and occured in valley beneath the baseline.
this happening, if one way in a standard, another way in a breath sample, would result in results being way way off the mark.
there is no way to ever now how much off the mark it is.
‘
now, most instruments have software where you can change the integration parameters to force the instrument to properly intergrate certain peaks, however, in doing this, the standards, and bracketing standards, must be under the same parameters, and this reprocess of results must be documented with explanation as to why.
i am telling you, with 100 percent certainty that the picture of analysis by analytical instruments of the nature of the alcotest is the most fundamental document to support the result!
now, i would like to be able to get this argument in, in my particular dui case. the argument i have presented in my last 4 posts.
i will have to somehow figure out with my attorney how exactly we can get this argument on record, in order to have an appeal with this basis…. keeping in mind any appeal i wopuld have would be based on many thinfgs including speeding trial and lack of due process, but for this analytical argument to also come on record so it can also be appealable.
the fact is, and i dont know what the case law says on this, but i certainly hope to be my own expert witness as to analytical results of peak based analysis by software driven analytical insturments.
this on appeal, would be the new “chun”.
this fundamental aspect, of this type of analysis, as i have descibed in the 4 posts above, was not the main attack of the chun defense team, and shgould have been, …
in my opinion they could have won on this argument alone.
it is not a question of what alabama is doing, as the chun case seemed to rely on, or even what other states are doing, or what other manufacturers of breath testing equipment are doing….
it is a question, and case, of such fundamental basic analytical chemistry standards, as they exist today in nj.
its not nuclear science, its not rocket science, its so basic, and so fundamental, and so low level, that analytical chemists like me, with just a basic college education, and low salary, take for granted.
“producing a piture of an ir scan”, and its “intergration”, is so basic and fundamental, its equivalent to a auto mechanic checking the air in someones tire ( as far as it is being done),… that is to say NOT THAT IT IS EASY TO DO, BUT IT IS JUST SOMETRHING SO BASIC, SO FUNDAMENTAL, IT IS TAKEN FOR GRANTED IN THE ANALYTICAL WORLD.
the science is exact, the analysis is exact, so what are we missing….
we are missing the most fundamental piece to the puzzel, the actual picture!
what i am saying is this, albiet not exactly, as there are my points to validation well documented on hundreds of posts on here…
but, lets for this particular post argument, take for granted the methnodology is ok, the alcotest is ok, and works perfectly, validation is performed and is ok….
we still do not know, under basic and fundamental analytical chemistry , that any breatrh test was ok…. this is bcause we can not see the peak or the intergration.
not only is it not reviewable, it is not available
before they make any political compromises as to the chun case, understand one thing, my arguments are valid, not argued in chun, and will be put up on appeal all the way, as the new chun, if my case is not dismissed or acquitted after trial.
there is no way this alcotest, an analytical instrument, capable of taking away someone’s freedom, can be used without the picture of the ir scan and the counts from the integration re viewable.
i tihnk, i know,i got evryone over a barrel , with my points.
listen, i am a nobody ,.. and i iknow this….
however, there are 10,000 nobodys in nj that know what i know, …let alone 10,000 somebodys.
there is absolutely no way an analytical result, AS IN THE ALCOTEST, CAPABLE OF TAKING AWAY SOMEONES FREEDOM, CAN BE SUPPORTED WITHOUT THE ACTUAL IR SCANS AND COUNTS.
and to drive my point home, its no only not unusual, it is so commonplace that scans and counts are available, it’s taken for granted.
this point is the single most significant point against the alcoest, hands down.
here is a link to the worlds formost leader in infrared (IR) technolgy.
http://las.perkinelmer.com/Catalog/default.htm?CategoryID=FTIR+%26+FTNIR+Spectrometers.
now, IR is mainly used for identification purposes of raw materials, but there are applications which are quantitative, and breath testing is one , as well as many other APPLICATIONS in fda and epa methodology.
TAKE SOME TIME, READ THE WEB PAGE, EVEN CALL PERKIN ELMER…. M, Y GOD MAN, THE USE OF THE ALCOTEST IS MADNESS THAT CAN NOT BE SUPPORTED!
LISTEN, , YOU DONT NEED AN INTERGRQTION SCAN HARD COPY FOR THINGS LIKE PH, VISCOSITY, TURBIDITY, SPECIFIC GRAVITY,… THESE THINGS DO NOT HAVE TO BE SUUPOTED BY AN INTEGRATION SCAN, AND IN THESE CASES, NOT EVEN REQUIRED, AS THRE IS DIFFERENT TECHNOLGY USED.
HOWEVER, IN THE CASE OF AN INTERGRATED IR PEAK, THAT IS USED FOR QUANTIFICATION,, IT IS NOT ONLY PART OF THE TECHNOLOGYY AND METHODOLOGY, IT IS A MUST!!!!!!!!!!!!!
GOD FORBID I EVER PERFORMED A IR METHOID TEST, AND DID NOT HAVE THE SCAN AND INTEGRATION RESULT AS A HARD COPY…
TO MOST FACILITATE THIS, A HARD COPY WOULD BE PASTED/TAPED INTO MY NOTEBOOK…. OTHERWISE THERE WOULD BE SOME OTHER FORM OF HARD COPY AVAILABLE FOR REVIEW! AS WELL AS SAVED TO THE HARC DRIVE AND PERIODICALY TRANSFERED TO DISC/CD.
DO YOU NOT BELIVE ME?
I DEFY YOU TO NOT BELIVE ME… I HAVE LIVED AND WORKED IN THIS ENVIRONMENT FOR 20 YEARS!
an analytical result of this type, the alcotest, can not be scientificvaly supported with the scan and counts available for review!!!
how can i convince the general public, the state, defense attoryes, and drager…. when ewveryone has a closed mind to the real issuie.
i have always said that breath testing can be validated, can be precise, can be accurate,,,,,, and i have always said the result must be supported by hard copy of the scan and integration count results.
what more can i say…. i am sure i will find more…
can NOT BE SUPPORETED without the scan and counts for review***
i have sent the arguments i made today to sam sachs of the chun defense team, drager scientific, and a california defense firm..
ill probably clean up the spelling and send to the attorney general of nj and the nj supreme court.
i felll stronly, without any doubt at all, that i am right, and right on the money.
there is no scientic way to support such a result that comes from the alcotest, without the ir scan and counts being documented…
this should not even be in question, it is beyond a no brainer, it is so basic and fundamental.
it is beyond understanding how the State and Drager can think they can pass off an alcotest result, that does not provide the most fundamental requirement for analytical peak analysis, a hard copy of the peak itself and the integration count result!
ONE MUST ASK WHY NOT…. and i understand that most people would not even question why not, even not have the question in thier heads, but it is the most basic question any analytical chemist would have,,,, why not.
their is absolutley no reason or excuse the alcotest does not provide the ir scan as well as the counts.
i haVE TOUCHED ON THIS, CAME OFF IT, TOUICHED ON IT AGAIN, … TALKED ABOUT VALIDATION, ..
I HAVE ARGUEED PRO AND CON FOR CHUN, PRO AND CON FOR THE ALCOTEST, PRO AND CON IN MY PARTICULAR CASE… THROUGH ALMOST 700 POSTS ON THIS WEBSITE, PRO AND CON ON MANY DUI ISSUES….
I MUST SAY, OUT OF ALL MY POSTS, ALL MY ARGUMENTS, THE MOST QUINTESSENTIAL ARGUMENT AGAINST THE ALCOTEST IS THE FACT IS DOES NOT SUPPLY THE MOST BASIC , FUNDAMENTAL REQUIRMENT FOR PEAK ANALYSIS,….. A PICTURE OF THE PEAK ITSELF AND THE NUMERIC COUNT OF THE PEAK AREA.
JIM
dont take my word for it, go to major lab s in nj, major analytical labs at j and j, shering plough, merck, brystol myers squibb, OTC factory labs, contract labs, —go to these places and ask what they do, look at what they do, see for yourself.
its not a question of preferance, or policy from lab to lab, it is basic and fundamental, and required in code of federal register.
just take one of the most basic otc drugs we have in nj,.. acetominophen.
it is not ok to test and releaee acetominophen, by injecting the sample into an hplc and only getting a final result out, without a picture of the test or the integration results.
why is this?
it is because peak based analysis, where quantification with integration is used, needs to be supported by the picture and integration result….. for the reason i described in several posts above.
one lawyer said to me,”why, because you say so”,
well, dont take me word for it, i am only one analytical chemist in nj….. talk to the other who work in analytical laboratories, talk to directors, managers, supervisors, and chemists in these labs. intervirew 1000 of these people, … i guarntee not a one would disagree with me….
and its not based on opinion or judgement, it is basic science.
belive me the time and money and resources these companies use to analze drugs and otc products, in terms of even just amount of paper produced, is great, and they wouldnt do it if they didnt have to.
my basic argument is that the taking away of a persons freedom is so important, that the a picture of the ir scan of a breath analysis is paramount.
there is simply no way to sum up what i am saying in a few lines or paragraphs, …. there is no simple way to write a long argument to describe it either…
one must go see for themselves.
this is something the chun defense team refused to do, the State refused to do, and drager refused to talk about.
the level of importance on the breath test bac result is high, and thus needs to be supported by the picture of ir scan and integeration count result.
OK, I WAS ABLE TO POSTS MY LATEST ARGUMENTS ON THE SATAR LEDGER BLOG SITE TODAY TO THE LATEST ARTICLE ON THE ALCOTEST FROM JANUARY, I WAS ALBLE TO ALSO POST ON 3 OTHER NEWS PAPER BLOGS TODAY, SENT THE ARGUMENTS TO THE PHILIDELPHIA INQUIRER REPORTER, AND DRAGER.
I AM WORKING HARD ON GETTING MY INFORMATION OUT THERE FOR PUBLIC REVIEW
OK, HURRAY, I WAS ABLE TO FIND THE EMAIL ADRESS TO THE NJ SUPREME COURT, …. THEY NOW HAVE MY ARGUMENT IN THEIR EMAIL, I HOPE THEY READ IT, I CORRECTED THE SPELLING MISTAKES
MY AGUMENTS MUST BE TOUCHING A NERVE WITH SOMEONE NOW… I HAVE BEEN CONTACTED 2 TIMES BY A LOCAL AREA PRIVATE INVESTIGATOR , YESTERDAY AND TODAY.