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In The News

Tuesday, October 1, 2013

Why are we still guessing?

By Michael Nichols
Categories: Michael J. Nichols, Drunk-Driving, OWI

MENS REA October 2013

Developments in Science Allow Judges and Juries to be Fully-Informed About the the Limits of Breath Testing

Our criminal justice system is at the core of our democracy. We have the ability to be a beacon for the world about the responsibility of a government to prove a crime when it charges a crime. Even something that so many of you say is "minor" like a drunk driving. Ask yourself - if you were making one of the most important decisions in your life - would you want to be shown all of the evidence to make a decision? Would you want to know what that information or evidence means? We can give the juries what we know then let them decide whether it proves a claim beyond a reasonable doubt.

Developments in medicine and science have taught us much about the limitations of an instrument based on infrared spectroscopy. Dr. Michael P. Hlastala (http:// studied breath test devices for over 2 decades during his time as a professor of pulmonary physiology and research at the University of Washington. Dr. Hlastala taught medical students, nurses and others about the airway exchange of the lungs as the human body exhales. The simple medical truth is that the assumption on which all breath testing - not just breath testing in Michigan - is not correct.

All breath testing throughout the United States, not just Michigan, assumes that the human body functions as a closed system as a person exhales. Every breath test instrument assumes that the concentration of what is in the liquid and what is in the air above that liquid will remain in constant proportion. The keys to that phenomena are constant temperature and constant pressure. That is why the closed system assumption is the critical one because without a closed system neither temperature nor pressure can stay constant. It is a scientific principle known as "Henry's Law." In short, closed systems with constant pressure and constant temperature will maintain a constant proportion of the liquid and the gas within that system.

The human body does not work that way. There are temperature changes throughout the course of a breath travelling through that airway. The system does not remain closed as the breath courses its way from the lowest part of the lung to the mouth and into a mouthpiece to be carried into a sample chamber for analysis by a breath test instrument (see Hlastala "A Paradigm Shift," at

The first thing that you might say is that "who cares?" This is a breath test and not a blood test by breath analysis. Then I sat stunned in the middle of trial when I heard the testimony of none other than Dave Radomski. Mr. Radomski is the Vice President of National Patent Analytical Systems (NPAS). Mr. Radomski is an engineer and salesman at NPAS. He has been there for 30 years. He spent hours researching and developing the newest product, the datamaster dmt.

Mr. Radomski described how to properly analyze a breath sample. His testimony: "you want breath from the deepest part of the lung ... that is where breath is MOST representative of blood." (The transcript from Mr. Radomski's testimony is on order but not yet available as of drafting). In other words, we are convicting people not just of having a per se unlawful breath alcohol content but of having an unlawful alcohol content in the breath sample that is most representative of blood. I was stunned because for so long I heard so many prosecutors argue that whether or not the "partition ratio" is accurate is irrelevant because the crime is driving with an unlawful breath alcohol level.

Yet, here was the government's own witness, a person who counts among his customers the State of Michigan, a person who is paid to build a better mousetrap then defend it in court. He said, under oath, to a jury that the first thing that is required for a proper and accurate breath test is breath from the deepest part of the lung. It is not .08 grams of alcohol per 210 liters of breath, it is .08 grams of alcohol per 210 liters of breath that most closely resembles blood.

Then consider how the breath test device is checked for proper calibration. In Michigan, we have the "2 within 14 days" rule at Administrative Rule 325.2652. The state switched to a method called "dry gas." Remember, the weekly checks are not calibrations -- they are external checks of an evidential breath test instrument. The dry gas tank does not simulate human breath. The tank contains ethanol and nitrogen under pressure. Human breath is not an inert gas. Human breath is also not delivered in the same way. We do not open a valve and then use pressure to "shoot" our breath out of the lungs.

There is another major flaw with the new weekly accuracy check method. The tanks purchased by Michigan are at 209 ppm in 105 Liter volume. The mix does not equate to ,08 grams of ethanol/210 Liters of breath. It also does not appear on the conforming products list. Now, the rebuttal is that the calibration of the instruments is "cross- checked" every 120 days by a Class IV Operator. The 120 day check is with a wet bath simulator so it is an entirely different method. The problem is that even the slightest degree of variance in the temperature of the wet bath simulator will cause an exponential effect on the accuracy of the simulator. Further, there is almost no way to now how many simulations were required before the operator observed a check that fell within the 5% tolerance. There are no written protocols in the statutes, administrative rules nor are there any that have been located yet from the manufacture.

So, when a result is obtained in a breath test case, that means the instrument got a breath sample from the subject and reported a number. There are no requirements anywhere that validate the number. There is a difference between "readable" and "validated." The difference? The former is misleading to the fact-finder.

Mike Nichols is author of the Michigan OWI Practice Book, published by West and released with the "Gillespie Series." The latest update is due out in October, 2013. Nichols dedicates his practice to the defense of drinking and drugged drivers. He is an adjunct professor of DUI Law and Practice at the WMU/Cooley Law School Lansing Campus and is the Michigan Delegate to the National College for DUI Defense (NCDD)

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Peer Recognition

Mike Nichols is a national leader in drunk driving defense. He is a member of the Forensic Committee and Michigan delegate to the National College for DUI Defense. He is also a Sustaining Member of the College. Nichols is also a founding member of the Michigan Association of OWI Attorneys; a member of the American Chemical Society; an associate member of he American Academy of Forensic Science, Adjunct Professor of Forensic Evidence in Criminal Law and OWI Law and Practice at Cooley Law School. He is also author of the West OWI Practice book and several chapters in other books on science and the law.

Mike Nichols is recognized by his peers in Michigan as a “SuperLawyer” in DUI/Criminal Defense. Nichols has also been asked to speak at conferences by groups such as the NCDD; Various Bar Associations in other states.