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Fresno Criminal Defense Attorney | DUI Cross Examination of DOJ Expert in a Criminal Defense Case

Posted by Jonathan E. Rooker | Jan 31, 2018 | 0 Comments

The following is a partial transcript from an actual trial that shows Mr. Rooker using his scientific knowledge for the benefit of his trial.  This trial did not result in a conviction of Mr. Rooker's client.  Names are omitted from the transcript, and the this is not a complete transcript of the cross-examination, more to show a specific aspects rather than have the typing continue for the over 90 pages of examination, cross examination, re-direct, re-cross, etc . . .

Q:  So If a person was driving a vehicle properly and the officer observes them driving the vehicle properly, that's an indicator that they're not impaired?

A:  It would indicate that they're not displaying physical effects.

Q. Now, you said mental effects have an earlier onset than physical effects, correct?

A: That is correct.

Q: That would include the ability to follow directions?

A:  It may, depending on the individual, yes.

Q. Now, the field sobriety tests are a lot to take in, aren't they?

A:  It can be, yes.

Q:  The instructions are fairly lengthy?

A: Yes.

Q: That's a lot to remember on the side of the road, late at night, isn't it?

A:  Depending on the individuals, it could be, Yes.

Q. And if they properly performed the field sobriety tests and understood them, that's an indicator that they were not impaired, correct?

A: It's an indicator, yes.

Q:  This one field sobriety test -- the horizontal gaze nystagmus -- is not dependent upon tolerance, correct?

A: Correct.

Q:  And it's the most scientifically validated of the tests?

A: Yes.

Q.  It is actually the only one that was scientifically validated, correct?

A.  I think it's  had publications on the horizontal gaze nystagmus and one-leg stand and the heel-to-toe, but I'm not for certain.

Q.  Are you familiar with the San Diego study?

A. No.

Q.  How accurate is the horizontal gaze nystagmus according to NHTSA?

A.  I can't tell you precisely.

Q.  Does 81 percent sound about right?

A.  I do not know.

Q.  Do you know how many clues it takes to fail or reach the decision point on the horizontal gaze nystagmus?

A:  No.

Q. Are you aware that there is a decision point?

A.  It wouldn't surprise me.  I know that there's six clues, but I don't know what the cutoff is.  I don't recall that.

Q.  If there isn't distinct nystagmus at maximum deviation, that would indicate the subject was not impaired, correct?

A.  That's beyond my area of expertise.  I'm aware of field sobriety tests, but I don't know for certain.

Q.  If a person did not display an early onset of horizontal gaze nystagmus, that would show that they were not impaired, correct?

A.  Once again, I am familiar with field sobriety tests, but to me, that's beyond my area of expertise.

Q.  If a person passed the horizontal gaze nystagmus, that would show they weren't impaired?

A.  It could.  Once again, in my opinion the field sobriety tests are just indications of impairment.

Q.  If a person properly performed the one-leg stand, that would show they were not impaired, correct?

A.  It would show that -- it would provide indications that they were not impaired.

Q.  If the person could properly follow the instructions to perform the field sobriety test and understand them, that's an indication mental impairment had not set in, correct?

A.  No.

Q.  If a person is mentally impaired, they would be less likely to follow direction, correct?

A. They may,

Q. Taken by itself, when there is no bad driving present, that is an indicator the subject is not impaired, correct?

A.  An indicator, yes.

Q.  When they pass the HGN, that's an indicator they are not impaired, correct?

A.  Correct.

Q.  When they properly perform the one-leg stand, that's an indicator that they're not impaired?

A.  Correct.

Q.  When they properly perform the one-leg-stand, that's an indicator that they're not impaired?

A.  Correct.

Q.  Now, this Draeger 7510, the preliminary evidentiary breath test, it has two modes, correct?

A.  Yes.  Just so you know, it a portable evidentiary breath test.

Q.  Portable evidential.  It used to be the PAS and the EPAS.

A.  Yeah.

Q.  It recently changed?

A. Yes.  Excuse me.

Q.  Now, it has a -- what would be correlated with the PAS mode is available?

A.  Yes.  The instrument that we provide to the agencies has both a screen test and an evidential function.

Q.  You've testified as to Draeger machines for quite a while, haven't you?

A.  Yes.

Q.  And there is many explanations on why a test comes back not accurate, correct?

A.  I'm not sure I understand your question.

Q.  There's many explanations on why a breath sample may not correlate with the blood -- a blood sample, correct?

A.  Yes.

Q.  Once of those is during the absorption phase, it misstates the alcohol content in the blood by up to 300 percent, correct?

A.  During the absorption phase, there's a lag between what's in the blood and what's in the breath.  SO yes, especially at low levels, there can be a huge difference between the breath and the blood.

Q.  They can overstate it by roughly 300 percent?

A.  I believe that in the absorption, it understates it.  But I'm not for certain.

Q.  In the absorption, it understates it?

A.  Yes, I belief so.

Q.  Okay.  Alcohol goes in the mouth first, right?

A.  Yes.

Q.  Down the throat and int the stomach?

A. Yes.

Q.  They it has to -- the stomach starts compressing, and it goes through the pyloric valve, correct?

A.  It enters the intestines.  I'm not sure which valve it goes through.

Q.  You've heard of the pyloric valve?

A.  Yes.

Q.  It's the one between the small interesting and the stomach that lets it out?

A.  I'm not certain.  I'm not a doctor.

Q.  And it goes in the small intestine where it -- most of it is absorbed, correct?

A.  A majority of the absorption does occur in the intestines, yes.

Q.  And how long is the small intestine?

A.  I do not know?

Q.  When it absorbs to the small intestine, it goes through the portal (Sic) valve to the liver, correct?

A.  I couldn't tell you.

Q.  When blood leaves the liver, it travels directly to the lungs and transfers within the alveoli sacs into the lung gases, correct?

A.  I'm not for certain.

Q.  Measuring breath alcohol and correlating it to blood alcohol during the absorption phase is about the equivalent of sticking a thermometer on the heater jet of a hot tub before the rest of it is warmed up.  It overstates the temperate or the amount, correct?

A.  I'm not certain.

Q.  And --

A.  During the absorption phase, there are differences between the blood and the breath.

Q.  You testified on trial up in Oakhurst a couple years ago; didn't you?

A.  Yes.

Q.  John bel, Rachel Cartier, and (Inaudible) were there?

Prosecutor:  Objection relevant.

Mr. Rooker:  I'll get there.

Court:  Overruled at this point.

Witness:  Yes

Q.  And you testified in that trial that it can overstate blood evidence by up to 300 percent during the absorption phase, correct?

A.  I believe that's Mr. Okarocha.

Q.  Di you agree with that or disagree with it?

People:  Objection.  Relevance.

Cuurt:  DO you agree or disagree with that wold be the . . .

Q.  Do you agree or disagree with that?

A.  I would disagree.

Q.  Are you familiar with A.W. Jones?

A.  Yes.

Q.  Have you read his work?

A. Yes.

Q.  Is he a foremost expert in the field?

A>  He's an expert in the field of blood and breath alcohol testing.

Q.  Worldwide known?

A.  Yes.

Q.  Are you familiar with his opinions?

A.  Yes.

Q.  Do you agree with his opinion, that during the absorption phase, it overstates blood alcohol content?

A.  I do not recall.

Q.  No, your current opinion.

A.  I couldn't provide an opinion on that.  I don't recall reading that.

Q.  Are you familiar with Dr. Dubowski?

A. Yes.

Q.  Is he one of the most widely known experts in the world?

A.  He's also well known in the forensic alcohol analysis community, yes.

Q.  Are you aware of his opinion that the breath alcohol machine will overstate blood alcohl during the absorption phase.

A.  Once again, I do not recall that.

Q.  You've read Dubowski?

A.  Yes.

Q.  Do you at least have an opinion that it makes a difference, whether they're in the absorption, distribution, metabolism or elimination phase of alcohol?

A.  Yes.  If a person is absorbing alcohol and they're -- it it's at the very beginning of drinking, then that can have as significant effect between the blood and the breath.

Q.  And the breath alcohol may not be anywhere close to the blood alcohol?

A.  That's correct.

Q.  How long does that take to burn off .02 alcohol?

A.  Typically, an hour or -- plus or minus, depending on the individual.

Q.  If two results vary by .02 within a matter of minutes, the blood alcohol wouldn't have changed much during that time, would it?

A.  You said if two breath results?

Q.  I'm sorry.  Let me withdraw it.  A person doesn't  burn off very much alcohol in about three minutes; do they?

A.  For the purposes of forensic alcohol testing, no.

Q.  Not .01?

A.  They're not going to burn off .01 percent in three minutes.

Q.  .02?

A.  No.

Q.  Can you calculate how much they should burn off in three minutes?

A.  Doing that kind of retrograde extrapolation -- I mean, yes, I can.  .0007, approximately.

Q.  So Seven 1--t-thousands of one percent?

A.  .0007.  I'm not going to try to figure it out into the --

Q.  Hundred- thousandths, then-thousandths. Definitely not .02?

A. A person is not going to burn off .02 in three minutes.

Q.  So if the have a machine that has been tested and it's accurate to within .001 -- that's a given.  That's your hypothetical.  This machine has been tested before and after, and it's .001 accuracy, and it comes up with .02 difference bet wen those two tests.  Both tests cannot be accurate, can they?

A.  Is it a blood testing instrument or a breath testing instrument?

Q.  Breath.

A. Breath, I would say those results are consistent.

Q.  They cannot both be accurate to within .001?

A.  They're different.  It's based off the breath sample that's introduced into the instrument.

Q.  Given two samples that are .02 apart within three minutes of each other during the elimination phase, both of those cannot be accurate to within .01, can they?

A.  Accurate to what?

Q.  The true blood alcohol content.

A.  The true blood alcohol?

Q.  Yes.

A.  Typically, breath instruments measure breath alcohol, not blood alcohol.

Q.  And they correlate it to blood alcohol, correct?

A.  No, they don't correlate it to blood alcohol.

Q.  So if we have a breath alcohol test, there is not correlation to blood alcohol level?

A.  A breath alcohol instrument, such as the 7510, measures breath alcohol, and it does not correlate it to blood alcohol.

Q. You know what a partition ration is, don't you?

A.  Yes.

Q And that's the ration that's used by the machine to correlate the breath alcohol to the blood alcohol content, correct?

A.  No.

Q.  Please elaborate.

A.  On what a partition ration is?

Q>  Yes.

A.  Partition ration is the rate at which the alcohol molecules will eave the blood and go into the lungs.

Q.  And the multiply it by -- what is it?  210 liters of breath is whats used in this test?

A.  It ranges from person to person.  But typically most studies who that most people have a 2300:1 ration.

Q.  And that ratio is what's used to take the amount of alcohol in an expired breath and calculated what is in the blood, correct?

A.  For out instruments, no.  Our instruments report results in grams per 210 liters of breath.

Q.  And it has no relevance -- you cannot -- a breach machine to figure out what's in the blood?

A.  You can calculate that.  But the instrument's not going to do it for you.

Q.  So a breath alcohol can be totally different than a blood alcohol?

A.  I'm not sure I understand you question.

Q.  So they're not necessarily the same, a blood alcohol content and expired breath?

A.  That's correct, there can be differences between blood and breath alcohol.

Q.  And it can be fairly large?

A. Typically, based off my training and experience especially my correlation study -- breath testing underestimates blood content by about ten percent.

Q.  That's during he elimination phase, correct?

A. Yes.

Q.  Not during the absorption phase, correct?

A.  Correct.

Q.  Thank you.  Now, during a DUI, we're trying to figure out blood alcohol content, not breath, correct?

A.  No. You can determine blood or breath alcohol concentration.

Q.  The statues specifically ask for blood alcohol, correct?

A.  I believe it lists values for blood or breath.

Q.  Are you sure about that?

A.  Pretty sure.

Q.  Good enough for government work?  Now if two people - identical people -- both (Hieght/weight Omitted due to protecting client -- stood next to each other and drank alcohol and you measured their blood alcohol level or breath alcohol level, it would not be the same between the two?

A.  At what level? At what point?

Q.  They would not absorb at the same rate?

A.  That's correct.

Q.  They would not eliminate at the same rate?

A.  They may.

Q.  They may.  It's a small chance, correct?

A.  I'd say its pretty likely that they'd be consistent.  It also depends on what decimal place you're looking at.

Q.  There would be variations between the two?

A.  That's correct.

Q.  If a person holds their breath for an extended period of time before they breath into the machine, that could cause it to give an errantly high result, correct?

A.  No.

Q.  Does breath temperature matter on the machines?

A.  Yes, it can.

Q.  And what temperature is the machine programmed at?

A.  For the temperature of the breath?

Q. Yes.

A.  I don't recall.

Q.  Thirty-seven degrees Celsius?

A.  Probably closer to 34.  But I'm not certain.

Q.  Thirty-Four. and Most people actually exhale at about 35 degrees Celsius?

A.  That sounds abut right.

Q  And each degree over 34 will overstate the content by about eight percent?

A.  I'm not certain.  I don't know about eigh percent.  It may overstate it slightly.

Q.  Q.  The machine is set at 34, right?

A.  I believe 34.2.

Q.  And most people exhale around 35 degrees?

A.  I can't know for certain.

Q. Assuming they exhales at 35 degrees, that extra degree would cause the machine to overstate their true blood alcohol content?

A.  It's possible.  Given the -- once again, you're comparing blood to breath alcohol, though.

Q.  I'll get to that later.  All we have is a breath sample to determine the blood alcohol content, and it's meant to correlate between the two, correct?

A.  We just have a breath alcohol reading.

Q.  But we have no idea what his blood alcohol content is?

A.  We just have a breath alcohol reading.

Q.  But we have no idea what his blood alcohol content is?

A.  I could convert it.

Q.  Doesn't the machine convert it?

A.  I stated previously that it does not.

Q.  How do you convert a .136 breath to a blood -- sorry.  .135. apologies.

A.  It would depend on the partition ratio, but a .135 . . .

Q.  Using the partition ratio programmed into the machine.

A.  There isn't a partition ration programmed into the machine.

Q.  The machine is not taught to use a partition ration?

A.  No.

Q.  It's not programmed to be?

A.  No.

Q.  How much air does this machine capture?

A.  Approximately a quarter centimeter.  If you were to loo at your little finger and look at the fingernail, if ou were to rotate that around, that is about one cubic centimeter.  This instrument measures on quarter of that.

Q.  And then it extrapolates that one cubic centimeter out to 210 liters, correct?

A.  It's a quarter cubic centimeter.  No it does not.

Q.  It odes not extrapolate it to 210 liters, as reported by the printout?

A.  Yes.  Actually, I'm sorry.  I misspoke earlier.

Q.  It does convert it?

A.  It reports it in grams for 210 liters of breath.

Q.  So it does take that cubic centimeter -- quarter cubic centimeter and convert it -- extrapolate it to what it would be in 210 liters of air?

A.  That is correct.

Q.  Okay.  You do not know whether my client has a tolerance for alcohol; do you?

A.  No, I do not.

Q.  Assuming he has no tolerance for alcohol and passed the field sobriety tests, that would be an indicator he is sober, correct?

A.  IF he had no tolerance to alcohol and he passed the field sobriety test, that would be an indicator.

Q.  When a person giving the field sobriety tests, it's important that hey know how to score them, correct?

A.  Yes.

Q.  And it's important that they give the instructions properly, correct?

A.  Yes.

Q.  And with the standardized tests, the're to be given the same every time, correct?

A.  Yes.

Q.  As dictated by NHTSA?

A.  That would really be up to the officer, but yes.  Like I said, this is outside my expertise.  I'm familiar with field sobriety tests, but I've never administered them.

Q.  You're familiar with the term NHTSA, aren't you?

A. Yes.

Q. What does it stand for?

A.  National Highway traffic Safety Administration.

Q.  And they're the party that put together the three standardized tests battery, correct?

A.  Yes.

Q.  And validated it?

A.  Yes.

Q.  And the one-leg-stand is one of thse tests?

A. I believe so.

Q.  And if my client passed the one-leg stand without exhibiting a single clue, that's an indicator that he was not impaired?

A.  That's correct.

Q.  Definitely unlikely that he was .13?

A.  No.

Q.  It's 68 percent, according to NHTSA, that he's under .10?

A.  Perhaps 68 percent of individuals.

Q.  If a person passes the one leg stand, there's a 68 percent change they are not over .10, correct.

A.  That's perhaps 68 percent of indvidiuals would be under a .10, but I don't know for certain.

Q.  Horizontal gaze nystagmus, people displaying less than four clues are -- 81 percent of the time are not impaired, correct?

A.  You've giving me statistics that I don't know.  I can't verify.  I don't recall that.

Q.  Isn't that important, if you're going to testify that somebody's impaired, that you know this?

A.  Like I said previously, based off my training an experience, field sobriety tests are just indicatons of impairment, so I place less wieght on them.

Q.  You don't bleieve aperosn over .08 can drive a car correctly, safetly?

A.  That's correct.

Q.  And if a person was driving a car correctly and safely -- we have that evidence that they did it proeprly -- that's an indcator that they are not impaired, correct?

A.  That's additional factors other than just driving the vehicle.  It's their reaction time, their porcessing of position.  If none of those functions were tested, then -- even though at a particular moment they might bhave been driving safely, staying within the lanes, driving the speed limit, I would still say that if they were over a .08, they wouldn't be able to saefely handle all the siutatins that come with driving.

Q.  If a person pulled over in a timely manner when an officer asked them to.  That's an indicator they were driving safely, correct?

A.  That could be an indicator, yes.

Q. They kept their car within their lane anddrovetheir proper speed, that's an indicator they wer enot impaired, correct?

A.  That's correct.

Q.  If they didn't fumble with their license, that's an indicator they wer not impaired, correct?

A.  Correct.

Q.  If they didn't fumble with their license, that's an indicator they were not impaired, correct?

A.  That's correct.

Q.  Now, when food goes into the stomach, it takes a while before it passes the small intestine;  doesn't it?

A.  Yes, that's correct.

Q.  And as long as there's food in the stomach ,alcohol can be trapped within the food, liquids, digestive juices within the stomach, correct?

A.  No definitely.

Q.  As long as there's water there -- alcohol is hydrophilic -- it goes to water, correct?

A.  That's correct.

Q.  So there would be some alcohol in there.

A.  That's correct.

Q.  It wouldn't stay in their indefinitely.

Q.  Eventually, it would pass through the pyloric valve into the small intestine, correct.

A.  It would go to the small intestine,and it's also digested inside the stomach.

Q.  And when a person eats, sometimes the food stays in their stomach a long time, correct?

A.  Yes, it can.

Q. And there's been studies that show that sometimes it takes two, three, or even four hours to fully absorb alcohol after ingesting on a full stomach, correct?

A.  I'm not familiar with four hours.  But yes, there has been studies that show extended absorption time of approximately two hours.

Q.  Some medical textbooks go as long as six hours correct?

A.  I haven't read any medical textbooks.

Q.  Dubowski will go as long as three hours, correct?

A.  I'm not certain.

Mr. Rooker:  No more questions.  END OF CROSS EXAMINATION

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