Beruflich Dokumente
Kultur Dokumente
uf?(e
T RAN S C RIP T IITRIAL PROCEEDINGS IN COURTROOM 42 ON OCTOBER 7, 2011. HEARD ARE SUPERIOR COURT JUDGE HENRY WALSH, DEPUTY DISTRICT ATTORNEY ALVAN IIARZU, DEPUTY PUBLIC DEFENDER THOMAS HARTNETT, AND WITNESS CHRYSTAL CRAVER. RE: PEOPLE v. HECTOR MORALES. HW CC
AA
3
4
6
7 8
Honorable Henry Walsh Chrystal Craver Alvan Arzu Thomas Hartnett Unidentified Voice Unidentified Voice People versus Morales, let's have the
9
10 11
appearances now.
IlAA:
Alvan Arzu for the People your Honor. Thomas Hartnett for the Defendant, Mr. Morales, who is
11TH:
12 13
14
uh,
15
urn,
16
Defendant' s
Motion in
17
18 19
20
Limine and the People's trial brief, both of which address the, uh, use of the Alco-Sensor V Breathalyzer. you wanted the opportunity to speak with, of the People's experts. Have you Uh, Mr.
um, at that
had
21 22
opportunity? TH:
II HW:
I have, your Honor. All right. Uh, uh, Um, how do you wish to proceed?
23 24
25 26 27
11TH:
alcohol, uh, results from the (UNINTELLIGIBLE) HW: All right. Let me sharpen my question. Do you want to
examine witnesses as part of that, urn, urn, procedure? 11TH: Yes, please, your Honor.
28
-1-
liW:
Okay.
Um, call your first witness. just for clarification, because the People bear I believe
2
)
4
c)
11TH:
II II II HW :
Your Honor,
it will be the People's witness and they'11 have to Okay. -- establish the burden of proof. Mr. Arzu, apparently you concur so, uh, you call the
TH: HW:
7
8
9
10
Thank you.
Your Honor,
the
Peopl e
call
Chryst al
11 12 13
J4 15
(UNINTELLIGIBLE)
UF:
Do you solemnly swear the testimony you're about to give in the matter now pending before this court shall be the
truth,
you God?
16 17
cc:
UF:
do. Please state and spell your first and last name
Be seated.
18 19
cc:
HW:
AA:
Chrystal Craver.
C-H-R-Y-S-T-A-L- C-R-A-V-E-R.
20
21
Mr. Arzu, go ahead. Thank you. I'm a Uh, Ms. Craver what do you do for a living? forensics scientist for the controlled the Ventura
22
23
24
25
26
CC:
supervising
substances
and forensics
alcohol
sections of
And how long have you held that position? Urn, since, uh, January of 2010. And with that position, description? what are your duties and, uh, job
CC:
AA:
27 28
-2-
cc:
In
the
[HJpCl'vi[-;OlY
Ull,
position, of
urn,
my
duties
include
the
overall,
II II II
management alcohol
both
the
controlled of the
substances laboratory,
3
4
5
and
forensics
uh,
testing
6"
7
operating
procedure,
analysts
II
lIAA:
uh,
training and experience did you have to have present position? Degree in Aquatic Biology from the
9 10 11 12
13
II II CC:
thi~::;
have
Bachelor's
II
II II
Uni versi ty of Cal i fornia at Santa Barbara. to the Forensics Sciences Laboratory I analytical environmental supervisor, I chemis- -, field, have chemistry both as with an
Prior to coming
experience analyst
14
15
been
Ventura
County
Sheriff's and I
16
17 18
Forensics Sciences Laboratory since January of 1996, initially had training in the areas of
controlled
substances and prescription drugs in both bodily fluids and confiscated materials. cross-training that at time, in the In 2004, area of I specifically started to alcohol. During
19 20 21 22
23
forensics
that
time and other analysts on the analysis of bodily and breath how for the presence impairs and the concentration of system, urn, how it's
fluids ethyl
24
alcohol,
25
26
processed governing
through
California, analysis
regulations
forensics, urn,
alcohol testing
27
California,
breath
instrumentation,
28
-3-
AA:
Um, I've -
2 3
4
CC:
AA:
CC:
to.
If
you want
me
to
5
6
7
stop,
AA:
HW:
8
9
CC:
It was in actually Aquatic Biology. A-aquatics bi - -, Aquatic Biology. I see. A more general term for marine biology. Okay. Is that, uh, was that a BS? - - okay.
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
It was a BA. BA. All right. Go ahead, Mr. Arzu. turning your attention more so toward the uh, to, what uh, training and experience do you instruments used to measure a
HW:
AA:
regards
co:
Um,
I've attended a, a I-week's course put on by, urn, CMI, urn, the Intoxilyzer 5000
That course includes, um, accuracy and maintenance and I've attended a I-week's the Alco-Sensor uh, course has of
IV XL
25 26
27
28
system.
that, and
to do those
accuracy
check
calibration
instruments as well
as minor maintenance.
I rve attended
-4-
two
3-day
classes
put
on
by
Intoxillleters
on
the
Alco-
2
3
4
Sensor V Point of Arrest system and those course have to do with, those urn, accuracy and calibration and the operation of and, urn, minor maintenance. I've also
instruments
5
6 7
attended a, um, workshop put on by Intoximeters called the, um, Intoximeters users group I which, urn,
lS
--
can t
I
think it's a 4-day workshop that the country that use their issues
8 9
around
10 11
(CLEARS Title
THROAT)
17
And, how it
uh,
(CLEARS to
THROAT) these
tell breath
us
about
12 13 14 15
16
CC:
and
relates
alcohol
instruments. Um, well, uh, Title 17 covers, urn, some guidelines on how It covers,
I
um,
called
the
17
in California.
And it gives
18 19
20 21 22 23 24
25 26 27
AA:
guidelines on -- that we have to follow when accuracy checks and calibrations of those
what's,
give to,
us uh,
some
of
the
basic IV XL
requirements
an Alco-Sensor
Objection, relevance. You said the Alco-Sensor IV and I thought we were dealing with the V here.
28
AA:
Your Honor,
-5-
IIHW:
Okay. -. wi th regards to her (UNINTELLIGIBLE) so that we can move forward to the five.
2
3
4
II AA: II
cc:
Urn,
Title
17
requires that
urn, be ten
breath for or
testing
5
6
7 8
9
urn,
are
evidential
150
tested
once
subject that
whichever come
first.
those instruments be within .01 of the known concentration of the, uh, dry gas or simulator solution that we are using to check those instruments.
AA:
10
11
Okay.
And how
uh,
12
13
cc:
AA:
14
15
16
17 18
cc:
in that area in
and,
uh,
or the beginning of
2005.
19
20 21 22
Correct. Um, now let's talk about the Alco-Sensor V. uh, part of the team at the Crime Lab Uh, were you, that actually
23
24 25 26
oversaw the validation of those instruments, yes. And how long did that process take? it, we
27
28
CC:
-6-
Urn,
uh,
urn,
how it
we to
work,
internal
guidel ines,
5
6
compared to how we had the Alco-Sensor IV XL set up. then once they got them here in the laboratory,
validation took us about, about 2-1/2 to 3 months. And, uh, part of that validation process was actually
8
9
IlAA:
II
making sure the instrument was in compliance with Title 17, correct?
10
11 12
II CC:
Correct. And when what was the date that actually the
AA:
13 14 15 16
17
Well it got put into service over a period of time. Okay. The first instruments went out, urn,
I
CC:
the third or fourth week of January. fell on line. The last ones I
18 19 20
21 22
the end of, uh, February, beginning of March. HW: CC: HW: CC: HW: AA: Of, of which year? Of 2011, your Honor. Thank you. Your Honor. Go ahead Mr. Arzu. Thank you. Now, Ms. Craver, at some uh, point you made a
23
24
25
26
27 28
-7-
cc:
Urn,
it,
um,
took a little while for us to make that final We had some first indications that we had
/.
decision.
:3
4
c-)
something going on with the instrument about the beginning of February. didn't We started to see some error messages that we to see. Like, urn, radiofrequency
expect
6
7 8
9
interference when as far as we could tell there weren't any radios being used near the the manufacturer about about that. serVlce. instrument. urn, Urn, uh, we contacted to them
those and,
talked
10 11 12
Um, we also saw, urn, a sensor time out, uh, error It was meaning it was taking a cell to clear. It wasn't
13
14
getting a zero before the next, uh, test. 11TH: IIHW: "TH: IICC: 11TH: IIHW: CC: Objection, foundation as to field cell. Say it again, uh, Mr. Hartnett. Foundation as to field cell. Fuel cell. Fuel cell.
We took --
15
16
17
18 19
You want to tell us what a fuel cell is, please? Yes. urn, cell The, urn, Alco-Sensor V and the Alco-Sensor IV XL, Urn, fuel
20
21
work on what's called fuel cell technology. is a, urn, a fuel little apparatus kind of. cells now. We start
22 23 24 25
26
familiar
with
to see
In this one,
for the AS-4 XL it was about the size of a a it little bit sits just smaller, below the about the
quarter. size of a
27 28
sampling
-8-
cell instrument.
II (THROAT CLEARING)
2
3
4
IICC:
It
What
happens
is a
portion of
breath
is
brought
into the
there 's al cohol on there it reacts wi th The fuel cell, um, breaks it down to uh, a
5
6
And the,
uh,
7 8
9
a-amount of electrons that are released are proportional to the amount then that, of um, alcohol gives that a would be in the breath. of the And
digital
readout
alcohol
10 11 12 13 14
15
concentration. HW:
AA:
Go ahead Mr. Arzu. Okay. (CLEARS THROAT) Now, some urn, Ms. Craver, you stated that there might have been fuel cellon a few of the instruments.
HW:
AA:
issues with
16
Uh, you pulled those instruments out of the field, correct? CC: Yes. They were pulled from service after talking with the and those were sent back uh, to them for
17
18 19 20 21
.22
manufacturer evaluation.
three to four
Urn,
weeks to be able to reproduce what we were seeing. shortly after that we became aware of a -- an, uh,
subject
test and I had asked them when -- during their evaluation was there any chance that what they thought was going on could affect subject tests. And they said in their Then we
Urn, urn,
23
24
25
26
27
28
i-initially they felt that that was not the case. were brought a result that we knew was a problem. one of the agencies had used their own, uh,
-9-
Uh,
they'll be closer
2
3
4
it's around about a .11 on the screening and they used, uh, an AS-4 or an AS-5 and got a much lower than what they .04 in duplicate. saw on their So it was test.
screenlng
5 6
7
They brought their -- the subject back to their office and then performed another test on an AS-5 that was sitting in their facility and not outside because it was very cold
8 9
10
11
very
similar to what they had gotten on their screening device. At that point, I immediately called the manufacturer and
12 13
said okay,
I have something,
issue, but I'm pulling this from service and I'm sending it to you immediately for them to re--, to look at. HW: Excuse me, excuse me. Those two readings, .11 and .04,
14 15
16 17 18 19 20
they should have been within .01 of each other? CC: HW: CC: HW:
AA:
Oh, okay.
-
subject tests.
21
22
that
instrument was
pulled,
did all the instruments get pulled or what happened next? IICC:
Urn,
23
24
we were having them evaluate that to see if it was the They felt that it was. During that time we We had very
same issue.
25
26
saw another set of results that were very erratic. four to five different results that were very,
27 28
And as soon as we saw that and near the end of March, I talked
-10-
to
the
laboratory director
and, need
urn, to
our pull
:3
4
5
6
And,
uh,
let
me
ask
you
question
with
regards uh,
to
the
being so erratic.
Did that,
-- how
II
did that relate to Title 17? Well for, um, that particular test there was, urn, no 02
7
8
IICC:
II II II II
9
10
all the
11
12
13
cause
analytical range. AA: So the results were not within Title 17's requirements? Correct. Okay. And, um, before you pulled the Alco-Sensor V from uh, were in the field and how that were to pull
14
15
16
CC:
AA:
17
18 19
20
them had any readings that showed that, to the one that, uh,
caused you
CC:
Urn,
at the time I
only,
um,
21
22
23
24
sat down and really looked at, urn, all the data -AA: Okay. -until later. But they were pulled just -everything
25
26 27
CC:
28
But everything was pulled later and you did check the data?
-11-
CC:
Yes. And what did you learn? Um, I found somewhere, uh, and I have to -- would have to 'cause it's an amazing
2
3
4
AA:
IICC:
have that all data in front of me amount of, uh, more, uh, information.
5
6
7
But I did see somewhere we saw that had the RFI interference. We
status messages
Objection.
9
10 11 12
what you're - - I mean did you participate in these tests? Um, I did not do the validation. I reviewed all the data.
I had HW: Okay. All right. So, so you're telling me what you saw in
13
14
15 16
17
Correct. Now where's the objection to that? I guess what RFI means. Oh, all right. Tell us what RFI means.
Urn,
18 19
20
saw some, uh, blanks that, uh, when the instrument perform, performs a subject test or an accuracy check, air blank of the air around it. before it'll proceed. I Uh, it does an
21
22
23
saw several
24
25
blanks that were outside of that range so it aborted the test. It didn't allow it to go forward. But, urn, I was issues
26
27 28
AA.:
not expecting to see that many high blanks and, uh, of that type. Okay. And you stated that you pulled
-12-
and you sent them to the, uh, manufacturer. CC: AA: CC: Correct. Okay. Be--, Urn, why did you do that? urn, after talking with them they had, everything, they felt urn, urn, that, once they urn, that
2 3
4
5
6
'7
to look at
sample
8 9
designed and the way it kind of went current version of the that mouthpiece. that
10 11 12
13 14
definitely
decided
area
remanufactured and redesigned. AA: Okay. So in their based on what you learned i-it
appeared that they believed it was a design defect? IICC: AA: Yes. Okay. I'm And how does that design defect base -- step back, gonna lay some foundation. Um, were you in
15
16
17
18 19
communication with the manufacturer? CC: AA: Constantly. Okay. (CHUCKLES) just for effect on listeners for your, for
And, uh,
20
21
-- as you as a listener, um, what were you told about what was going on with the instruments? IICC: What we were told or what I was told is that under certain conditions that, um, condensation or liquid could be drawn And depending on where in that whether it was on the side of
22
23 24 25 26
27
28
the sample chamber or directly on the fuel cell itself, it could cause some erratic results, um, or, um, unusual
status messages.
-13-
AA:
And
based on what
you
were
told,
did
thi~:;
design
defect
2 3
4
cc:
Urn,
In
the I
checks in a the
that while
we see a
saw
within of
the high
couple read
5
6 7 AA:
in general,
instruments all
wi thin
the requirements of Title 17 during our accuracy checks. Okay. Now, as you -now, lab, outside uh, were of -this controlled have an
8
9
environment
within
the
did you
opportunity to see the Alco-Sensor V actually be used in the results, urn, after, urn, you identified these
10
11
12
cc:
HW:
AA:
I'm sorry, I'm not sure what you're asking. (CLEARS THROAT) Do you mean in the f--, Well you s- -, -- in the field or in the lab or where? Out in the field. Um, -- you stated that within the lab, uh, you stated that the instrument would be reading accurately. Um, did you have In the field. Uh, what
13
14
15
16
HW:
AA:
17
18 19
CC:
AA:
20 21 22
23
an opportunity to use or see the instrument used properly in the field and it provide accurate readings based on
cc:
Um,
didn't spend,
uh,
really very,
uh,
24
25
the field with the instruments with, with the officers. believe I went to one check point where they were, Um, I
where
26
27
28
don't recall for sure if it I'd have to go back and look Urn, and we
-14-
did
drinkinq of
study
I
wi th
them
and that
can t
I
remember the
t.he
timeframe
t.hat..
believe
was
during
first
3
4
part of the validation that we use them in a drinking study for an F--, IIAA: And Ms. uh, SFST class. now, uh, did you speak with the
5 6 7 8 9 10 11 12 13
14 IS
Craver,
II
II
know you stated that you spoke the different, uh, would
I
guess not be
II
II
which
the
instrument
But what did the manufacturer tell you about urn, in ideal si t uat ions working in
II
II
instrument,
compliance with Title 17? Um, they don't reference usually Title 17. Urn, We're the
IICC: II II
II
you know,
they stated
would be working accurately and properly but that they were under some specific dition--, this issue would most um, the uh, conditions this would be Um, those conditions
16 17 18 19 20 21 22 23 24 25 26 27 28
II II
likely occur.
II
II
being, um, --
multiple blows where there's a possibility, allows, um, three, three possible
instrument
II
If
attempts if the person's not getting enough volume through the instrument So, before urn, they re
I
required
to
change
II
II 1\
mouthpiece.
more than one blow or multiple blows, The other or um, a cold coming
the possibility of a higher condensation level. is the instrument and an being very -being cold
II
1\ II
evening
individual's
warm
breath,
together and causing more condensation that could get into the sample chamber. And now let's talk about the Alco-Sensor V instrument
IIAA:
-15-
number
5025.
That
was
an
instrument
that
was
being
2
3
4
maintained by the, uh, Crime Lab, correct? CC: AA: Correct. Okay. And you stated earlier that you had, uh, a kind
5
6 7
of a listing of the instruments that you, um, believed were that had erratic readings, correct? CC: IlAA:
II
8 9
10
11
those instruments? CC: Um, I didn't see anything in my review of the data for this instruments, instrument, where I saw, um, an
particular
12
indication or a condition that that, uh, might be the case. This instrument was though used, um, period of time.
I
13 14
15
16 17 18 19
15 tests total done on this instrument during the time it was in the field. AA: I'd like to mark this, your Honor. Um, People's --
20
21
show you what's been previously marked as People's one. actually has -- what is that? CC: This is a copy of, uh, downloads from our, uh,
22
23
intoxicant
database on accuracy checks for, urn, different instruments. AA: And particularly on both of those pages, is there an
24
25
26
27
28
accuracy check for instrument 5025? CC: AA: Yes, there is. Okay. And what are the dates for the accuracy check on the
first page?
-16-
CC:
AA:
The accuracy check was performed on 3/16 of 2011. Okay. um, 17? And based on your reading of that accuracy check
I
2 :3
4
5 6
7
CC:
Um l
on
this on
day
the
target
value
was .112
.111
with
the That
resul ts
the
instrument
being a
and a
. III .
8
9
And, um
And for
10 11 12 13 14 15 16 17 18" 19
And what were the results of that accuracy check? target value of a .110 with the results of
CC:
.111 and a
IlAA:
uh,
IICC:
IlAA:
Craver, of
since
uh, has
the the
Alco-Sensor manufacturer
has
been its
service,
changed
actual design? Yes. uh, call They have changed, port it, uh, the design of the sampling
I
"CC:
20" 21 22 23 24
or sampling nipple, and the mouthpiece. one programming, uh, that they had
II
II II II
AS-5
previously
which, um,
in the AS-4 XL it was a called a void, void code internal workings of the instrument look
25" 26 27 28
II II
II
interfering And
-17-
they
did
not
put
that
software it
originally
into
this
2
3
4
inst rument .
And we
requested
in our version
they put
that software into this instrument to help a-assure against any issues.
IIAA:
II
II
5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20
~1
And, you
Ms.
Craver,
after speaking with the manufacturer, with an being able to V identify would an be when
are an
instrument, accurately
Alco-Sensor it was
II
II
when
having
issue,
that defect that it had prior - - previously? Urn, I cannot completely, j-j-ju--, -urn, -they did not, to uh, be able the
IICC:
II
to give us issue w- -,
the ability
identify the,
II II
II
this exact temperature, Urn, but they gave, uh, uh, instances no -an
this is when it's going to happen. an indication of what types of, urn, when it would possibly occur.
II II
II
there's
absolute guideline.
II
IlAA:
But will the instrument actually give you signals when it's not working properly?
1\ CC:
Urn,
if,
if,
uh,
it's -- instance,
22 23 24 25 26
II
II
it will give a,
um,
II II
set of
see,
I do
know of the one where there was the two .04's that we know were incorrect and there was no status message given with that one.
27" 28
II
-18-
AA:
And I
guess what
Craver is,
uh,
2
:3
would the readings of an instrument that a person's blowing into, uh, show some sort of signs in its results that would
lead someone to say that it's not working accurately? CC: Um, well the things that I, um, would possibly see is, urn, um, high blank readings would be a possible indication.
I
s
6
)
If urn,
had,
um,
several
results
where
they
were,
8
9
low or high or not within an 02 and there wasn't um, me such as an like a large volume or it was a, a
10 11
indication
that
12 13
many times an individual had to blow, um, per, per attempt. Those are things that I would look at to see if, if, if my
14
15 16 17 18 19 20 21
AA:
opinion there was an issue. Okay. And, uh, giving you a hypothetical, if a person was
given -- was administered a blood alcohol breath test using an Alco-Sensor V, number 5025, urn, the particularly this one,. uh, instrument
at 3:03 and 3:06, the results were .12 and a subject, the same male subject gave a
And
evidentiary
.14 and
22
23 24 25 26 27 28
sample at 3:00,
.139.
Uh,
cc:
Uh,
in
my
with, my the
urn,
four it that
that
were
consistent, unlikely
opinion issue
that
-19-
IIAA:
And would those results be in compliance with Title 17? Um, yes, they would all be within the, uh,
.02
2
3 4
IICc:
of
each
other.
IIAA:
No further questions. Mr. Hartnett. Thank you, your Honor. with a Ms. Craver, you V said you in first early
5
6
IIHW: TH:
noticed February.
CC:
issues
Alco-Sensor
device
8
9
said February -- it
10 11
12
11TH:
13
14
IICC:
Um,
15
16
17 18
19
ones we took out of service. II TH: II CC: TH: Okay. Urn, Well let me put it this way. You testified earlier that
20 21 22
23
one of the Alco-Sen--, malfunctioning Alco-Sensor V's gave a blood result of .04, is that accurate -CC:
Y- -
24
25
--
TH:
CC:
in your testimony earlier? yes, I just don't recall the exact date. Okay. That--
26
27
28
11TH: IICC:
-20-
Urn,
2 3
4
Urn, beginning of, uh, March. Okay. And that device as you test i f ied earl ier actually
5 6 7 8
9
cc:
TH: CC: TH:
Yes.
Two consistent readings. Yes. And just looking at those two, two consistent readings,
10
cc:
TH:
Yes, they would have been in compliance with Title 17. And the only reason you knew those two readings were false was because of another Breathalyzer used, correct?
11
12
13
14
cc:
TH:
those
.04,
two
readings
are
15 16 17 18 19
cc:
TH:
Yes. So just, uh, two results within the .02 range of Title 17
20
21
22
cc:
TH:
And you had at least one machine that was able to .02 and it was later determined
23
24
25 26
27
cc:
TH:
that issue,
28
-21-
II CC:
"TH:
Correct. So it's possible that when they only used an Alco- Sensor'") V the variance would not have been known.
3
4
CC:
11TH:
It's possible. Now, you originally only took certain machines out of
5
6 7
service, correct?
II CC:
"TH:
8
9
10
11
Yes. But at that time you had no reason to believe that all the machines were at risk, is that correct?
12 13
14
15
CC:
TH:
Correct. So you kept those machines in the field? Yes, I did. 'Cause at the time those machines you thought may be
IICC:
TH:
16 17
properly working. CC: Yes. And I was given an indication from Intoximeters that
18
19
20
Okay.
21
22
Yes. And when did it change specifically, do you remember? Um, I would have to look at the original memo. alm--, -- the last week of, um, March, It was, urn,
23
24
25
CC:
approximately that
26
27
28
a couple more higher blanks, we were coming pretty much to the same decision as they were at the same time. It was
-22-
kind of like they said so and we kind of went oh yeah. 11TH: IICC:
II TH:
2 3 4
5 6
7
Okay. I don't recall the exact date though. Um, if I were to show you the memorandum would that refresh your memory
Y--
-- as to the date? Yes, it would. Okay. And I believe this is exhibit B. Thank you.
8
9
10
11
(THROAT CLEARING) CC: TH: CC: TH: Thank you. You're welcome. March 30th. March 30th. (CHUCKLES) And you've read the police reports in this
12 13
14 15 16
17
18
um,
real thoroughly
19
And you know that the arrest in this case occurred in March 19, 2:30 a.m. What? 2:30 a.m. What is the date they gave us?
20 21 22 23
24
TH:
AA:
TH:
UV:March 19. TH: CC: TH: March 19th. Yes. And that was prior to the memorandum that you submitted, pulling Alco-5 -- Alco-Sensor V's from service?
25
26
27
28
-23-
IICC:
Yes. And it was at that time that were you were the informed of that a the
2
3
4
11TH:
II
Alco-Sensor defect,
V's
results
product
design
IICC:
Urn,
6
7
II (COUGHING)
IICC:
II
-- they were telling us earlier on that they believed that that's what the issue was. formal, um, memorandum.
I
II
\I \I
10
11 12
than that,
but they were still thinking it wasn't affecting And -but they were still considering that
other tests.
II
1\
there was possibly gonna have to be some kind of change to the re--, architecture but they weren't giving us an absolute
13
14
15
16
But they did give you one by March 30th? Yes. Okay. And the absolute decision was that this machine
17 18
19 20
21
CC: TH:
Yes. And at that time you took steps to remove all the machines from service, is that correct?
22 23
24
Yes,
25
26 27
And that was the machine used in this casec Correct. And that machine was removed from service effective March
3D,
28
2011.
-24-
cc:
TH:
CC:
Uh,
Or at least the date of the memorandum? At least the date of the memorandum, couple that were slightly lagged. but we had, we had a
3
4
5
6 7 8 9
date that was removed from service if you'd like to know. TH: Uh, absolutely. Thank you.
(PAUSE)
CC:
That 30th.
one
was
actually
removed,
uh,
from
service
on
the
10 11 12
TH:
CC:
Okay.
On the 30th.
On the 30th. (UNINTELLIGIBLE) Objection. (UNINTELLIGIBLE) I didn't hear it anyway_ I want to go back to Title 17's requirements for a moment. Yes, sir. The variance rules you stated earlier were .02, correct? For, uh, subject breath tests. For subject a breath tests. has But to that's meet not for a the only
17
13 14 15
16
TH:
CC:
17 18
19
TH:
CC:
20
21
22 23
TH:
requirement compliance.
CC:
Breathalyzer
Ti tIe
Correct.
24
25
26
27
28
checks need to be within a plus or minus .01 of each other. The instruments have to be on the conforming products list.
-25-
TH:
I want list.
2
3
cc:
No.
5
6
And who maintains the so-called conforming products list? Uh, NHTSA, the National Highway Traffic Safe
8
9
Administration. TH: And prior to March 30th, was the Alco-Sensor V on the
10
11
cc:
It was on, it was -- there was a letter that it was on the actual years. printed one. It onl y gets updated every several
12 13
14 15 16
So the actual one if you were to look it up in the But what, uh, NHTSA stating
Federal Regi ster you may not see it. does is they supply
a
letter um,
from
manufacturers
that it will
- - it is,
17
18 19 20 21 22 23
24
conforming products list even though it may not be on the one that you would look up because that one is only updated every several years. TH: Okay. At the time that the Alco-Sensor V was placed into was the Alco-Sensor V on the
cc:
TH:
Yes.
conforming products list. At the time you made the decision to pull these devices
25
26
from service,
27
28
cc:
Uh, we requested that they verify with NHTSA that the, um,
-26-
that
the issue
that was
the,
urn,
2
3
4
retrofitting of
NHTSA
and
instruments
5 6
7
8
And,
asks,
laboratory
to
do
--
to
contact
NHTSA
directly
10 11 12 13
14
And our assistant lab director did that. NHTSA made the decision device, they we that they did need to
And
actually pushed I
II
that
insist
15"
16
re-Iooked at.
that NHTSA
made that decision as well on their own. II pushed it to make sure it was reevaluated.
But we definitely
17 18 19 20 21 22 23 24 25 26 27 28
II TH:
II
IICC:
Is that because you believed at that time that that device was not Title 17 compliant? Um, urn, not necessarily. What I wanted to make sure is
II
that before I had it back in my possession again, they had looked at the issue and that
that, urn,
II
II
11TH:
II
their blessing before we started to reevaluate it. So the list says it existed before then was not good enough to you to demonstrate that it was Title 17 compliant.
II
CC:
Would that be fair to say? Um, well at any time -as a scientist, any time we do
-27-
we go back and we recheck its calibration that it's working properly. And for us,
2 3
4
NHTSA is one of the big bodies that looks at breath testing instruments sure that in the Uni ted Sta.tes. And I wanted to make
5
6
7
that
the scientific field I pull a column out I'm gonna make recheck it's
that's what we would do when we -of an instrument instrument and put and a new one
in,
8 9
that
recalibrate
it
and
sure
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
The time these devices were pulled on March 30th, be fair to say that
would it
II IIcc: II
would put it
of our accuracy checks were within Title 17 criteria but in my opinion, it would be, um, kinda like, how's the easiest Urn, found
II
II
kind of like a recall of a vehicle. of vehicles out there and and they
II
II II II II II
sticking, same,
sticking
since
manufactured
the
it's possible
that
that
of how we treated -- they're all manufactured the same, the possibility is there, so pull everything out of service and Um, would, uh,
I
II
II
II II
make sure that everything's taken care of. there a possibility that, uh,
I was thinking in
-28-
more
of
that
this
is
an
individual
problem since I
with want
these
2 3
4
instruments.
I
to make service
need to get
them out of
5
6 7 8
You took them all out of service, correct? Yes, sir. And you informed the national governing body of
Breathalyzers of your decision, is that correct? IICC: Uhf we contacted NHTSA and we contacted, um, Department of , Public Health who, urn, the California
10 11
12
our methods up saying that we were going to be using this instrument and we wanted to let them know of the issue and that we would be taking them out of service until they
13
14
were, uh, retrofitted. 11TH: And NHTSA made assurances that no Alco-5's were in use at the time of March 30th, right? CC: Um, that's, um, when we took ours out of service. I know I know
15
16
17 18 19
that there were some being used around the country. now that, them. um,
20
21
22
some time after the 30th 'cause we were probably the first one to, to have brought everything to their attention and But they did
23
24
we -- you know, we're in the middle of that. call a general recall. them came out of service. 11TH: IICC: 11TH: But they were all pulled from service? Yes. All the ones in the United States.
25
26 27 28
-29-
cc:
Um, we did not replace them with different instruments. allowed, um, um, Intoximeters to perform their, um,
We uh,
2
3
4
retrofit and redesign the sampling port and the mouthpieces and, um, put in the new software that received them back in we the talked to them laboratory and
5
6 7
about.
And we
we're in the process of reevaluating them. TH: Okay. enough. I want to back up
I
cause maybe
wasn't
speci f ic
8
9
cc:
TH:
I'm sorry. It's okay. Correct. And you sent that a memo you to law make enforcing, available um, an enforcement alternative is that You removed them from service on March 30th.
10 11
12
13 14
cc:
TH:
notifying
would
15
16
cc:
TH:
Correct. And that device was the Alco-Sensor IV. The Alco-Sensor IV XL Point of Arrest system, plus we have several Intoxilyzer 5000 EN's that are stationary devices that are around the county.
17
18 19 20 21 22
cc:
TH:
Okay.
23
24
compliant device would be given instead of the device you removed moment? was therefore not Title 17 compliant at that
25
26
cc:
I'm not sure how to put this but I'm not quite comfortable
27
28
I'll have to feel - - my comfort level uh, we definitely pulled them from
-30-
Urn,
Urn, and
testing
said,
3
4
accuracy checks,
But we do
5
6 7
I apologize.
TH:
They were only within compliance with Title 17 insofar that there was a numerical agreement between two tests, correct?
8
9
cc:
11TH:
II
Correct. And you had seen a device that had been in numerical
10 11 12 13
14
cc:
TH:
Correct. And you knew that that device was itself defective. Correct. And at that time NHTSA hadn't made any decisions
Urn,
cc:
15
16
so it was still on the conforming products list. uh, a-a-a-at that point it was still
so, those
meeting
17
18 19
requirements of Title 17 but in -- but it was still, issue for us to get them out of the field. TH: Okay. didn't field. So would it -- how about this. feel confident that that
uh, an
20 21 22 23
24
device
cc:
TH:
Correct. And on March 30th you felt confident that the Alco-Sensor V as a whole did not belong in the field.
25
26
CC: TH:
Correct. Specifically you did not feel comfortable as an expert in your field .that Alco-Sensor V serial the field at that time. 005025 belonged in
27
28
-31-
CC:
Um,
felt
that
because
of
the
fact
that
all
the
2
3
4
instruments were manufactured the same way and there was a possibility that that could occur on any of them since they were manufactured the same. That -- yeah, so I pulled all
of them all from the field including 5025. TH: Okay. And the manufacturer discussed wi th you what they
6
7
8 9
cc:
TH:
Correct. And they told you that the problem was a problem of design. Would that be fair to say?
10 11 12 13 14 15
Yes. And that design applied to all Alco-Sensor V's? Yes. And that in order to make that device accurate they
16
17 18 19
yes.
Yes.
did change the design of the mouthpiece but the main issue was the design of the sampling port on the AS-5 itself. TH: And what is a sampling report exactly?
I
20
21
What's it relevance
22
23
cc:
HW: CC:
The easiest way for me to describe this. can I draw for a minute? Go ahead. I "am not an artist so --
24
25
26
27
28
-32-
1
2
HW:
CC:
You know everybody who does a diagram -Says that. -- they always say the same thing. (LAUGHS) Are we recording this, your Honor? Uh-hmm. So we're recording? Uh-huh. Okay. Kind of a rough design of an AS-5. the handle. There is a - - this
lS
3
4
HW:
CC:
AA:
5
6 7
8
HW:
AA:
HW:
AA:
10
11
CC:
12
13
It kind of comes down and has a long Inside there, The first there are two one being the
14 15
Okay.
16 17 18 19 20 21 22
pressure sensor which calculates the amount of volume and flow that goes through the system. And the second being
the sampling port where internally they're in there farther back than that. (UNINTELLIGIBLE) And the sampling port instrument and This
put into the sample chamber where the fuel cell is.
port -- this little piece right here was, in their opinion, the manufacturing defect. uh, flat on the top and, Urn, uh, just real quickly, it was,
23
24
25
26
27
areas for these two to pop into, two little openings. um, near
they felt that if condensation did get into that area that sampling port, with the top piece of that
28
-33-
2 3
4
could kind of get stuck there and drawn into the sampling chamber. TH: CC: TH: And that defect applied to all machines? Yes, it did. Okay. And you said recently that you received new machines
5
6 7
from AI--, um, from Intoximeters? CC: TH: CC: TH: CC: Well the same ones but all retrofitted. Retrofitted. Yes. Curing the design defect, would that be safe to say? Yes. That part was, um, redesigned. It was elevated about
8
9
10
11
12
13
14
uh,
And
15 16 17 18 19 20 21
22
II II
slightly I
plastic
something
believe
called
Santoprene
II 11TH: IICC: II II II II
II II
less likelihood for, uh, liquids to attach to it. And they also changed the programming I heard you say. they changed something in the program. And I don't believe
that they changed for all instruments across the country_ It's something after talking to them about it, we requested that they put in our version of the software. It was which is,
23 24 25 26 27 28
But when it electronically looks at the signal that's going across the fuel cell, um, Um, alcohol uh, uh, has a specific wave
II
II
design in electronics.
II
-34-
alert or an error message if it saw any kind of different waveform that didn't look like alcohol. They did not
2
3
4
5 6
7
and after we had them sent back and they told us this, requested that that, um, um, elec--,
be put back in or that software be put back in. TH: Would it be fair to say that you did not feel comfortable using this machine despite the fixing of the design defect without that software?
8
9
10 11 12
cc:
Um,
w--,
um,
It makes me much more comfortable having that software in there. TH: Would it be fair to say you were uncomfortable wi th the
13 14
15
16
cc:
TH:
yes,
it
was
uncomfortable having
them
in
the
field,
17 18
you
removed
them
because
they
were
not
working
19
20
properly?
cc:
TH:
CC:
That
there
was
possibility
that
they
would
not
work
21
properly. Based on a design defect? Yes. Okay. And the machines that you received from Intoxilyzer I guess the, we'll call it
22
23
24
25
26
27
TH:
cc:
Yes.
28
-35-
that
II
it
was,
uh,
reevaluated and,
and maintained
on
the
2
3
4
conforming products list. Okay. And have you at this time placed those Alco-Sensor
11TH:
II
V's in the field? CC: Uh, no. I am still undergoing an internal, um, evaluation
6
7 8 9
of them. TH: So they're still testing the new version? Yeah. They have finished testing them at NHTSA and they
cc:
finished testing them at Intoximeters, but I'm the one that has to sign for them to go back out in the field so we're still in the process of testing them. TH: Would it be fair to say that you're not yet entirely
10 11 12
13
comfortable in introducing them in the field at this time if there not yet?
14 15
16
cc:
AA:
Um, I am, uh, Objection, relevance. Say it again. Relevance, your Honor. What's the relevance? ItJs the basis of --- w-we're dealing with the one before the modifications. Urn, it's been modified. I mean --
17
HW:
AA:
18
19 20 21
22
23
TH: HW:
AA:
That's fine, your Honor, I'll withdraw the question. Any redirect, uh, Mr: Arzu? Briefly, your Honor. Uh, Ms. Craver, you stated that you
24
25
26
27
28
pulled the instruments because of the defect that was later found to be a design defect. you could not, uh, make a Um, was that defect such that determination as to what a
-36-
2 3
4
instrument? Urn, I would have to look at each case uh, on an that individual particular In my
look at
everything around,
5
6 7
8
9
have to look at everything about each instrument and look to see if I see any issues that give me an indication of
10 11
seeing that, um, defect or that, um, condensation occurring to give me an indication of it not working properly on a specific test. set of data.
AA:
12 13
14 IS
16
So you look at all the circumstances, correct? Yes. I would look -if I was asked to look at them I
CC:
would look to see if some -- if the temperature that e--, that -- at the time of the test was like in the 10 to 13 degree range so it was cold outside, I would look to see if there was -- um, with this new instrument one of the things that's, uh, nice is that every time someone attempts to it requires, um,
1500 ec,
17
18 19
20 21
22
23
blow, um,
1-1/2 liters, um, before it will capture a sample. someone says -for instance does a low blow
24
25
aren't able to get enough volume there, it actually records that they tried. So it will leave sample one, attempt one, Sample two -- sample one, attempt
26 27 28
And then if they finally get you know, what the volume
it'll say,
-37-
If
-~
2
3
4
And I
that information when looking at a, a specific test to, give my opinion whether not.
AA:
I
thought
it
was
appropriate or
6
7
What's the significance of multiple blows? With multiple blows, urn, the instrument allows
a
CC:
person to And
8 9
try three times before it aborts that specific test. with those three blows, mouthpiece. haven't urn,
10 11
12 13 14
AA:
So if you're blowing mul tiple times and you the mouthpiece, there'S a higher 'cause
changed
15
CC:
AA:
would look at that as well. Ms. Craver, Uh, uh, let's get down to the nuts and bolts the recall of a
16
17
Now,
of it. vehicle.
18
19
20
accurately
th~
and
that
the
21
22
readings?
Um, in my opinion there was an accuracy check to -- before and after that shows it was reading accurately. look at four results like this, in my opinion, And when I it would be
23 24
25
26
extremely unlikely to get four, urn, consistent results, urn, with there being an issue, urn, arising from condensation.
AA:
27
28
HW:
-38-
:I
11TH:
2
3
4
determine or not
from
the
alone
whether
machine
accurate,
5
6
CC:
Um,
No,
would be looking in I
7 8 9
10
11 12
it gives me greater confidence in the results. And we've said it before so I ' l l machine correct? that had mul tiple blows say it again, with the same you had a
11TH:
II
numbers,
IICC:
Yes. Not this but -There was one that had two, uh, low. two blows and the numbers were,
II TH:
13
14
15
Ilcc:
II
II TH: IICC:
And they were in agreement? Yes, they were. that alone cannot let you
16 17
11TH:
II
18
19
know whether or not the machine was working properly at the time it was used? Um, that that alone, uh, with just two results, no. I think
II
IICC:
20
21
II
II
the more
results
that
22 23 24 25 26 27 28
the better
II
11TH:
but it's not impossible that it, it could be occurring. Consistency and result is not indicative of whether or not that machine is functioning properly, would that be fair to say? Knowing that you had a consistent, uh, machine with
II
II
II IICC:
consistent results that was in fact broken. I'm sorry, I mi--, I lost the first part.
-39-
2
3
4
Would it be fair to say that consistency and results will not let you know if the machine is working properly or not?
5
6 7
CC:
i-i--, I had I
alone,
no.
that I
have more confidence in that. just two, uh, I would four have, or
instance
8 9
than
would
have
with
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
The machine that gave the two consistent results, removed from service immediately?
was that
CC: TH:
Yes.
So there wasn't an opportunity to see whether or not it was giving consistent yet inaccurate results over a longer
period of time?
cc:
TH:
Correct. And that's based on the fortuitousness of another machine, an Alco-Sensor IV being used along side that machine,
correct?
cc:
TH:
Yes. And it was likely had an Alco-Sensor IV machine been used -- not been used in that instance, remained in service longer, correct? that machine would have
cc:
TH:
Yes. And that machine correct? would, would have given consistent
25
26
results, results.
27
28
cc:
Possibly.
I,
couldn't
say
without
taking
-40-
,Y
(UNINTELLIGIBLE) but it possibly, TH: And knowing now those results would have been flat out.
2
3
wrong, correct? CC: TH: HW: Correct. Thank you. (CLEARS moisture (CLEARS Nothing further, your Honor. Ms. , we've Is the uh, Craver if you been know, the, the
4
5
6
,7
been that
t.alking or
about.. that.
8 9
10 11
does
originate
person
being
tested
either by the moisture in the breath or saliva? IICC: IIHW: Urn, it would be, urn, moisture in, in the breath. Okay. All right. Thank you. You can step down.
12
13 14
II (PAUSE)
HW:
All
right. urn,
Uh,
I'll
entertain
comment.
15
16
17
18 19
20
number of
problem goes to, urn, weight rather than admissibility. so, uh, that's somet.hing I, I need you to both,
Urn, uh,
address. IlAA:
21
Your Honor, based on what we are, uh, there are some issues wit.h the Alco-Sensor V, but in this case t.his instrument
22
23 24 25
26 27 28
was actually working, uh, based on the testing within Title 17 and, uh, t.hat being said, uh, it was actually, uh,
the expert stated that. she believed that it. was probably working accurately. And so, urn, I believe that it's jury and reading
t.his is an issue ,probably t.o be weighed by the such t.his instrument, this instrument and its
-41-
2
3
4
I'll
really
mean, out
everything
5 6
7
to the conclusion you want me to reach. TH: I'll and address first admissibility. the court's concern, And as I put in concerning weight my papers, the
8
9
California Supreme Court has made it very clear that blood alcohol results from a Breathalyzer machine are issues of admissibility to be decided by the trial judge. That the
10
11
12 13
14
Adam's test which I laid out in my filings with this court as being proper application of the Kelly standard and the admissibility of evidence, issue. and that this is solely a court
IS
16
So I think it's clearly an issue of admissibility. HW: TH: HW: All right. And -- go from there. that, urn, TH: HW: Okay. I think where she -urn, she Analyze what you think her testimony was Go--
17 18
19 20 21
22
23
has testified, uh, that this machine as tested was Title 17 compliant and it was on the, was
was~
24
25
on the CFL.
Um,
it was, was,
it uh,
perhaps uh,
26 27
28
letter or
authorization.
But,
there's
been
testimony
-42-
And -So go ahead. and the reason for that is, your Honor, is that, that,
2 3
4
that products list is only published every three years and it's published every year in the Federal Register. And
5
6
7
this was a rapidly develop, uh, developing factual scenario where the machine products was list approved and then and in published the matter on of a six
8 9
conforming
weeks which is much quicker than the Federal Registry can work, the device was seen as defective. I think all we
10
11
need to know about the issue of whether or not this device is Title 17 compliant came from the testimony. was pulled to out law of service immediately. and officials Two, that One, it Title this was 17
12
13 14 15
promised
enforcement
16
not a friendly witness, it is technically a hostile witness and she knew the magic words, but her actions speaks louder than the words. It was promised This machine was pulled out of service. that machines that Third, were, she were Title 17
17
18 19 20 21 22 23
compliant
would be
provided.
instructed the
was that the conforming products list was in fact an issue. And what NHTSA said and what the witness said is well it's not on the list. them in the field. We've been assured that there's none of So what NHTSA has done is said well we in a hurry because we know
24 25 26 27
28
from the manufacturer and we know from law enforcement that no one's using it. If no one's using 'ern then there's no
-43-
reason to rush a Federal Register which has time lines to amend the list. once again. We'll just wait And the 'til it becomes compliant admitted this
1S
2
3
4
manufacturer
And so what NHTSA says was fix it, and we'll put it back in the field.
6 7
They fixed
the design
This was a defect that applied to all the machines a couple of them. NHTSA approved it and then The idea Ti tIe 17
8
9
not just a,
Ventura County is in the process of approving it. that they can get the presumption that it was
10
11
12 13
compliant when it obviously wasn't for two months because of a lag in the Federal Registration publishing
14 15 16
They removed this device from the field. the that national nothing board. was in The the national field and board that
17
18
holding pattern,
19 20
21
fix this problem quicker than the publishing cycle of the Federal Register. I think it's pretty clear this was not a This device was pulled out of
22
23
the field because they couldn't know whether or not it was working. alone I think what's important to know is the variance ipso facto make it Title 17 compliant. And
24
25
isn't
that came out on the machine that recorded what we know an erroneous BAC result. Under Title 17 that It gave a .04, .04, but zero variance. we had a lucky
26
27
would be okay,
28
moment and the lucky moment was they had another machine
-44-
1
2
:3
4
There was no other machine in this case. (CLEARS THROAT) let me direct you to this. 5025, yes? The
Well let me
machine we're talking about was, um, Uh - h mm . Okay. uh, Um, that
5 6 7 8 9 10 11 12 13
was there any testing of that machine that you, you believe was, um, um, indicative of, uh, a
failure to comply with, uh, Title 17? Yes. Because its mouthpiece isn't working. And the
reason -HW:
II II II
Well,
no,
no, I
no.
Any,
any
testing product
of
the
machine.
dealt
liability
14" 15 16 17 18 19 20 21 22 23 24 25 26 27 28
II II II II
existence of a defect in and of itself doesn't get you very far. That s why I'm,
I
connection between what was recognized as a defect and, and a bum test, uh, to your client or anyone else. First, the burden is on the People to
um, I
11TH:
II II II
show that whether or not a machine is working or not can be gleaned solely from the consistency and results. our expert told us was no, I'd be she couldn't And what that
answer
II II II II II II
hypothetical.
She
said
more
comfortable
but she
couldn't do it and she gave an example of a one, we knew wasn't working. And two,
gave
And the only reason we don't -- we can't of four or five or six results is
hypothesis
machine was
immediately pulled
from service.
-45-
.1
know
that -we
cannot if a
glean
from
the
numbers
what
this
2
3
4
machine
I
Cause
we can't
look at results alone and or not working. Uh-oh, This thing 'em
5
6
7
working same
Intoximeters, thi s is
determination.
isn't something we can glean from the numbers. that comes up -and I think another
8 9
something
10 11 12
of a problem like Well you can always improve something, but that doesn't uh,
IIHW:
II
mean what
you're
13- II
before the improvement was made so. is if this fit device isn't fit for the
14 15 16 17 18 19
20
21
issue
field,
II
certainly isn't
for evidence In a
courtroom
and I think the issue is if law enforcement has pulled this device from the field, use this. If the if law enforcement has said we can't Highway Safety Administration
II
II
1\
II
National
know there's
1\ 1\
II
And when an expert says that they cannot tell by results, meaning just looking at a printout
22 23 24 25 26 27 28
they cannot know if the machine is working or not they've had a If broken all machine that says that that did give
1\
II
consistent
results.
machine even
1\
II
shouldn't be used and if all of that says even if it, if, uh,
the county law enforcement having gotten approval approval from the Intoximeters, they I re sti 11
1\
from NHTSA,
-46-
not sure whether or not it should go out in the field yet. They're still not sure. They're still checking. If they
2
3
4
pulled that machine, how can it possibly be appropriate for use in thi s courtroom? It can t
I
possibl y be appropriate.
5
6
7
Now I understand if this was a case that involved the new machine and the new approval process, meet the guidel ines. was the that maybe it would This the
But this was the old machine. Thi s was the machine wi th
8 9
broken machine.
defect.
This was the machine where they didn't know how to that's why they
10 11 12 13 14 15 16
tell if they were working or not working, pulled all of 'em out of the field.
in some of the machines that they leave in the field, would have kept them there. They pulled them out.
And the
idea that they can pull the machine out but still use it's resul ts in a criminal trial, I think falls well beneath
17
18
19
weight that goes to the jury because the jury simply isn't in a position to make this decision. working.
HW:
20
21
You,
you
(CLEARS
THROAT)
you
presented
it
with
great
22
23
clari ty.
24
25
Your Honor,
defense counsel saying that the abundance of caution that the, uh, that um, the lab the took should default any sort of
26
27
28
resul ts,
that
instrument
-47-
1
2
bit We
more. have,
We uh,
have you
the know,
checks the
prior
and
the,
3
4
properly. We
We
have
the
readings we
consistent. II II
II
have a
little more,
have a
little
5 6
7
8 9 10
11
more than just isolated two instrument or two breath tests. We have a little more and I think that is sufficient, urn,
to have the case go forward. All right. Ms. Most -- I thought most, urn, testimony was her descriptive in, uh, to an automobi le
IIHW:
II II
II
Craver's
analogy
where she said if they find a defect in one or two everything gets recalled but it doesn't mean that uh, uh, the probl em. testimony here And to
A
12
13
II
I,
thi nk
there's that
demonstrate lot
I
14 15
this machine was Title 17 compliant _ for cross-examination But do and in that. things terms The of
of good think a it
that
16
17
excluding is
entirely,
mot ion
denied.
18 19 20
21
We're back Tuesday at 1:30. TH: HW: TH: Your Honor, Go ahead. Um, this case moved forward on an A count only. The if I can make an additional motion.
22
23
~ould
24
25
that i t ' s relevant to the A count and I think the court has said i t is relevant as to weight, was charged be I was not as on proper it would because of the way this notice now that the And I machine would
26
27
28
would
litigated
be.
-48-
II
all
were that
not at we're
2
3
4
II
II II II
count
proceeding
with the
machine, of
I'm the
we're in
obviously of the
1 it igating
jury,
ef f icacy
machine
front
6
7
IIHW:
TH:
(CLEARS THROAT)
And that's just the way this -it was -that this was charged.
If
8
9
HW: TH:
HW:
AA:
Uh,
it' s
--
10 11
12
-- a B count I would understand. There's -I have no objection. All right. Mr. I'll Yeah. Uh, there's a little voice inside of me, Urn, uh,
13
14
HW:
II
saYlng being careful what you wish for. your continuance But, um, if, if you want to,
15
16
17
II
II
II
that you're gonna find that it solidifies the, of the prosecution. Now you're um, the uh,
18
tactician,
not
19
But,
sometimes that
can be
20
21
22 23
24
Uh, I
suppose it depends on how long it takes them to get you the data but, uh, --
the, uh,
And I'm not sure how long that would be, your Honor.
25
26 27 28
(BACKGROUND VOICES)
HW: TH: Got you covered. I think we're gonna move forward without the continuance,
your Honor.
Tuesday at 1:30.
-49-
Okay.
Fair enough.
2 3
4
5 6
7
8 9
II (COUGHING)
10
11
12
11TH:
Okay.
Thank you.
See you.
I already scolded him because it's bad enough that the gives me this with not two hole punches. it, it's not even frickin' stapled.
P.D.
13
14
15
(CHUCKLES) So I told him, I go -Well whose (UNINTELLIGIBLE) are stapled? -- you know when you submit documents for filing Oh. they're
16
17
18 19 20
21
UF: HW:
22
23
-- commented that Mr. Arzu is a pleasant man, but he's not the brightest star.
24
25
UF:
I was gonna say I -- this is the first time I've seen him, but I was like -- okay -- yeah.
26
27
28
HW: UF:
HW:
Well, uh, He didn't exactly strike me as -he did this, this morning (UNINTELLIGIBLE) do some
-50-
3
4
5
6 7
UF: HW:
the back row (UNINTELLIGIBLE) UF: HW: UF: HW: UF: Oh. (LAUGHS)
8
9
10
11 12 13
(END OF TRANSCRIPT)
MORALES HECTOR Trial Trans Chrystal C,-aver 100711 aa bm 11 T
14
15
16
17 18 19
20
21 22
23
24
25 26
27
28
-51-