South Carolina DUI Lawyer Blog

South Carolina's Breath Test Machine's Track Record- Charleston area

Mon, 19 Apr 2010 13:38:26 -0500

Would you buy a used car from this machine? I have uploaded for your review, reports of Charleston area breath machine “status codes.” These codes used to be called “error codes” but the state police changed the description.

Remember, these machines replaced the previous breath test machines even though there were not broken, as we say.

However, as brand new machines installed last February, you decide if things are going well. Charleston County Jail Report

In an almost Orwellian sense, the explanation offered for these “status code” reflections is that the error codes, sorry, status codes, mean the machine is working correctly since “it” tells you when it is not. “It?”

Concerns I find relevant include, why did the status occur? What prior or post tests that did not reflect a status were effected? How do we know? Are the codes evidence of a problem warranting more attention? Have any of the machines been sent back to the manufacturer for replacement? Or are the state police making repairs here in South Carolina documenting their work in one line reports like, “voltages checked and/or adjusted?“

In a simplistic sense, an analogy to a new car is unavoidable. Let's say the “check engine” light comes on in your car twelve or more times during the first year of ownership. Each time you take it to the dealer, the dealer assures you that this is a good thing. It doesn't mean that there is anything wrong with the car he says, since the car is telling you when there is something wrong with it. You say something about your expectation that a new car check engine light shouldn't come on at all, much less up to over 20 times. He takes you over to look at the new models.

The only difference is that evidence produced by the breath test machine is used in the prosecution of citizens in criminal proceedings.

Here is a look at a Mt. Pleasant machine's report. Mt. Pleasant Machine Report

Check out a few others.

The City of Charleston Machine Charleston City Police Machine

The Summerville City Machine
Summerville City Machine

The other Mt. Pleasant Machine
Mt. Pleasant Machine no. 2

The Isle of Palms Police Machine
Isle of Palms Machine

The other Charleston City Police Machine
Charleston City Machine no. 2

Charleston County Jail Machine no. 2
Charleston County Jail no. 2

This information is publicly available and was taken from the SLED website. You too can go there and conduct your own research.http://services.sled.sc.gov/ImpCon/LawyerBac.aspx Just pick a police department from the pull down list and select a date range. Then select ”status records“ or better yet, ”Inspection records.”

SC Police Now Not Giving Immediate Access to Breath Site Video?

Tue, 06 Apr 2010 16:49:25 -0500

When arrested for DUI, a person is offered a breath test. This test is offered in a jail setting. South Carolina law provides that the administration of the test must be videotaped. This has been the law for several years.

When this law was first applied, videotaping was accomplished with tape- based, VHS format tapes.

A few years ago, without a great deal of pronouncement, a new system was adopted by the state police, SLED. Digital, web-based recording of the breath test administration replaced VHS tape-based systems.

Whether a person arrested for DUI provided a breath sample or refused to do so, a ticket or test form was printed by the breath machine. This form contained printed information such as identifying information, arrest information, and within the subject of this post, a box containing a unique user name and password for access to the video recording.

These details allowed a person to access, through the SLED Internet website, and with the response to the person's email address, a link to the actual digital video recording of the breath test process. This link will take you to the SLED Web site where the video recording could be downloaded, if the user name and password was possessed. SLED access to video recordings

Of late, it appears that this breath test ticket does not contain this information which has been provided for years. Of late, what this data box contains, is ”Contact officer for video code information.“

It appears that the policies and procedures of SLED, not regulations, address this issue. These policies and procedures can be reviewed by anyone, and I urge you to do so, at SLED Implied Consent Policies and Procedures.

The policy relevant to this issue provides: ”A prosecutor/officer may supply video access to a defense attorney/defendant, upon a valid legal request (i.e. discovery motion, court order).“

I would imagine that I have a least one hundred breath test tickets or forms in my office files for clients that contain access to the ”codes“ permitting immediate review of the video recording of the administration of the breath test. While the language of the SLED ”policy,“ not regulation, has been ”on the books“ for some time, if is difficult to imagine why a change in practice seems to be underway. Many lawyers are at a loss to explain this.

If the statute requires video recording, a person to whom the breath test is administered has no option but .... to be recorded. Why shouldn't that person have immediate access to his or her recording? Particularly when a custom of doing so has been established?

Back from the Breath Machine Factory

Wed, 24 Mar 2010 18:00:32 -0500

I recently attended the factory class at National Patent Analytical Company in Mansfield, Ohio. This opportunity provided a hands-on experience in the operation of the breath test device used in South Carolina.

I look forward to reporting my experiences in greater detail.

Click here to view the certificate - DM School certificate

Minnesota Supreme Court Rules on Source Code

Thu, 30 Apr 2009 20:06:16 -0500

The Minnesota Supreme Court has ruled on the issue of source code production in breath alcohol testing devices there. Read the full opinion here.

Download file

The Ohio Supreme Court Speaks.

Sat, 28 Mar 2009 16:30:32 -0500

The Supreme Court of Ohio just reversed the conviction of a lady for DUI. Read why the court reached this conclusion.

On significance of the opinion is that administration of field sobriety tests and the scoring thereof, is not a subjective decision for the officer to make contrary to the belief of many officers and unfortunately, as prosecutors sometimes argue in the trial of a case.

This summary is taken from the Ohio Supreme Court website.

Roadblocks- The Rules Must Be Followed

Fri, 23 Jan 2009 11:25:32 -0500

Roadblocks or checkpoints are a tool used by the police in traffic enforcement. These procedures cannot be haphazardly applied or conducted at the whim of the police. Our courts have held that specific requirements apply when the police employ this form of contact with the motoring public.

As reported at bradentonherald.com a Manatee, Florida judge applied the law, which is the responsibility of the court to do. Read the article below:

Breath Testing and Source Code from A Scientific Perspective

Thu, 22 Jan 2009 11:03:32 -0500

Ed Brayton offers an interesting perspective about these issues in his blog at www.scienceblogs.com

Well worth reading. See the post below.

A Nationwide Problem- No Independent Testing of Breath Test Machine Software

Fri, 16 Jan 2009 13:59:51 -0500

This article illustrates the point-no machine, particularly, one producing results used as evidence in criminal cases, should be free from independent examination for flaws.

As noted in the Bradenton Herald opinion page, these companies should be eager to resolve the issue as opposed to running from it.

Read the article for yourself....

Source Code Software Battle-Florida Rules That A Defendant's Rights Trump A Trade Secrets Defense!

Wed, 14 Jan 2009 09:00:10 -0500

A reported below, in the confusing world of infrared spectroscopic breath alcohol testing machines, an asserted defense by one of the many companies to court ordered production of the source code software for independent testing has been REJECTED.

Now, $2 million dollars in contempt fines against the device manufacturer, CMI, as pending.

After defenses of copyright, trademark and other stonewalling failed for some of the companies, the defense of trade secrets was waived like a Don't Tread on Me flag. Courts were sympathetic to a company's interest in preservation of that which, if learned by a competitor, could effect the companies financial well being.

But what trumps in a criminal case? The right to a fair trial or the health of a company which refuses to allow verification of the very indispensable component of the machine-software?

Well, for now, the issue in the state of Florida is resolved-the right to a fair trial in a criminal case prevails. See the story below.....

DUI Case Overturned -Maintenance Records Cannot Be Thrown Away

Mon, 05 Jan 2009 15:12:51 -0500

I have posted on this case before I believe. The case involves the same device used in South Carolina- the Datamaster.

The rule is old-you cannot cherry pick evidence.

South Carolina has a law requiring records maintenance:

56-5-2954. Breath testing sites; records of problems with devices.
ARTICLE 23. RECKLESS HOMICIDE; RECKLESS DRIVING; DRIVING WHILE UNDER THE INFLUENCE OF INTOXICATING LIQUOR, DRUGS OR NARCOTICS

The State Law Enforcement Division and each law enforcement agency with a breath testing site is required to maintain a detailed record of malfunctions, repairs, complaints, or other problems regarding breath testing devices at each site. The records required by this section are subject to compulsory process issued by any court of competent jurisdiction in this State and are public records under the Freedom of Information Act.

Here is the story.

Drunken-driving case overturned by appeals court
Man may withdraw plea because of breath-test uncertainty
BY RUSS ZIMMER • ADVOCATE REPORTER • DECEMBER 27, 2008
Read Comments(16) Recommend(1)Print this pageE-mail this articleShare

NEWARK -- A controversial drunken-driving case is back in Licking County Municipal Court after a successful appeal, according to an appellate opinion, a move that might pave the way for other challenges to local OVI convictions.

The Fifth District Court of Appeals decided 3-0 that a New Albany man should have been allowed to withdraw his 2006 no-contest plea after information surfaced earlier this year that cast doubt on the validity of a breath test, states the opinion that was released Tuesday.

In April, local attorney Rob Calesaric filed a motion to reverse his client's plea after officials learned the Licking County Sheriff's Office had not been calibrating its BAC Datamaster properly, putting as many as 100 tests in doubt, Calesaric said. The Newark Law Director's Office, which is handling the prosecution, could not be reached for comment Friday.

Municipal Court Judge Michael Higgins rejected the motion the next month, writing in a judgment entry that the defense had failed to prove a manifest injustice -- the burden borne by defendants who ask to change their pleas after sentencing.

The Fifth District disagreed, stating in its opinion the test results should have been thrown out at the suppression hearing, which likely would have affected the defendant's decision to change his plea.

REGULATIONS NOT FOLLOWED

The deputy had testified during an October 2006 suppression hearing for the case at hand that he had followed all state regulations.

However, Calesaric filed a transcript from a November 2007 suppression hearing in a separate OVI case where the same deputy gives testimony about his procedure that shows it to be in direct opposition to some sections of the law.

A sheriff's office internal investigation in April found the deputy, who has been removed from that duty, had not followed state regulations, but had not done so maliciously, according to investigation materials.

Specifically, he had thrown away records of instrument checks that fell outside the acceptable range.

According to the Ohio Administrative Code, the BAC Datamaster must be checked for accuracy at least every seven days. This calibration check on the breath test machine is conducted by using an ethyl alcohol solution with a known value -- the equivalent of the 0.08 blood alcohol content, the legal limit in Ohio.

For the machine to pass the weekly test, it must register a reading within 0.005 grams of the listed value on the ethyl alcohol solution. If it falls outside that range, a new bottle of solution should be opened and tested, and if a failing result is again registered, the machine must be serviced.

All calibration check records -- pass or fail -- must be retained for at least three years, the law states.

The case will return to Higgins' docket, but Calesaric said he is uncertain what will happen next.

He said the case should be dismissed, but he admits there is some "wiggle room" in the higher court's ruling.

"What I would like to do is sit down with the law director's office and the court and fashion a game plan for where we need to go from here," he said.

MORE CHALLENGES POSSIBLE

The appellate court's decision could have far-reaching effects if those already convicted make the effort, Calesaric said.

"Anyone that was convicted of a breath-test case on the Licking County Sheriff's Office machine in that time frame (for two years before December 2007) needs to re-evaluate the validity of their case," he said.

People facing a felony charge for their fourth OVI in six years might be able to challenge a previous conviction if one was based in part on a BAC Datamaster reading from the sheriff's office, he said.

Other scenarios, with less at stake, exist where people could fight previous penalties, but Calesaric said it was more likely those who already have fulfilled the terms of their sentence will not push to have it overturned.

The defendant, who will not be named by The Advocate because the charge is a misdemeanor, has not served any jail time or completed a mandatory driver's intervention class, Calesaric said.

Russ Zimmer can be reached at (740) 328-8548 or razimmer@newarkadvocate.com.

The BATMOBILE IS IN TOWN- Mt. Pleasant DUI Enforcement

Fri, 19 Dec 2008 16:15:27 -0500

While it will be announced publicly for purposes of a deterrent effect, here is the schedule for the use of the SC Department of Public Safety “Batmobile” or the truck containing breath testing equipment. The mobility of the device saves making a trip to the police station or the county jail where breath testing devices are kept.

REMEMBER, the law states that only those persons who are UNDER ARREST for DUI can be asked to provide a breath sample. You cannot be asked to provide a breath sample UNLESS you are under arrest based upon probable cause for the offense of DUI.

The schedule is:

Looks Like Ohio Will Go With the Intoxilyzer-NOT THE DATAMASTER AFTER ALL

Tue, 09 Dec 2008 15:38:39 -0500

State likely to OK DUI-testing device

Tuesday, December 9, 2008 3:04 AM
By James Nash
THE COLUMBUS DISPATCH
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Some Ohio police could begin using a controversial portable device to test suspected drunken drivers as early as January after a legislative panel declined to sidetrack the device yesterday.

State safety officials want to buy 700 Intoxilyzer 8000 instruments to distribute to police agencies around Ohio. The devices can be used in the field, unlike stationary blood-alcohol testers.
The $9,000 devices have drawn legal challenges in other states that have used them, and critics in Ohio have urged the state public-safety and health departments to hold off on approving them.
On Dec. 1, the state Controlling Board reversed its decision to approve buying the Intoxilyzers and rescheduled the matter for Dec. 15.
Ohio Department of Public Safety spokesman Tom Hunter said he's confident that the Controlling Board will approve the purchase next week, which would put the devices in the hands of some police as early as January. He said a pilot program likely will begin in southwestern Ohio.
The Joint Committee on Agency Rule Review, a legislative panel, took no action against the Intoxilyzer yesterday. An association of local judges that had warned that using the device would clog courts with appeals dropped its objection yesterday. The judges association did not explain its reasoning.
Lance Himes, assistant general counsel for the Ohio Department of Health, said he doesn't expect the device to draw legal challenges in Ohio because state law forbids drunken-driving defendants from challenging the accuracy of the breath tester.
jnash@dispatch.com

News of Breath Testing Wars Makes Its Way from Ohio to Charleston, SC

Mon, 01 Dec 2008 14:48:56 -0500

This is a story worth following.

Background. The manufacturer of the breath testing machine we use in the Palmetto State, National Patent Analytical Company, is located in Mansfield, Ohio. So, you would think that when Ohio decided to replace Datamaster devices (some of which are popping up for sale on Ebay for pennies on the dollar of what Ohio paid) the Datamaster would get due consideration. (Currently, 90 percent of the breath test machines in Ohio are Datamasters. Ohio did not opt to purchase the new model of the Datamaster, the DMT, which South Carolina has opted to purchase.)

No way. Mid-November, an Ohio Board approved without question spending $6.4 million to purchase the breath alcohol testing device made by a chief competitor to the Datamaster Located in Kentucky.

DUI conviction consequences In Charleston and elsewhere in the state

Tue, 25 Nov 2008 13:43:12 -0500

The consequences of a DUI conviction are under appreciated. While each case outcome turns on the facts and circumstances of the case, the jurisdiction in which it is made, and unexpected consequences during the preparation of a case for trial, getting convicted of DUI is not simply being convicted of a traffic ticket. Read on...

Ohio Turns Blind Eye to Ohio Breath Tester Company That Makes the South Carolina device????

Tue, 25 Nov 2008 11:41:08 -0500

As reported by NBC News in Columbus, Ohio, on November 18, 2008, there is a great deal of controversy underway regarding a decision by the state of Ohio to spend nearly $6.5 million to buy breath testing devices made in Kentucky. Point is, National Patent Analytical Company which makes the Datamaster, as used in South Carolina, is an Ohio company based in Mansfield, Ohio.

The device Ohio choose was not the Datamaster but the Intoxilyzer 8000 made by CMI, Inc. It is reported that Ohio bypassed the Datamaster, despite the fact that several states around the country including Arizona and Florida have been or are in the middle of litigation with the maker of the Intoxilyzer over how the machine operates.

CMI has refused to produce the source code software in electronic media format for defense lawyers to have independently tested according to currently accepted software engineering testing standards.

Interestingly, National Patent (Datamaster) has offered its source code software for a price via a message on its website, but subject to an “agreement.” I am requesting a copy of the agreement and I will followup with another post.

As I have said before, without the software, the device is useless for anything other than an oversized paperweight. The software directly governs the breath alcohol test readings that the machine produces.