T RAN S C RIP T

CC: I do.
HW: Go ahead Mr. Arzu.
for the record.
Yes, urn, I thought
(UNINTELLIGIBLE)
HW: Mr. Arzu -- oh, we've got everybody.
(BACKGROUND VOICES)
HW: Do you have another witness, uh, Mr. Arzu?
you God?
truth, the whole truth, and nothing but the truth so help
the matter now pending before this court shall be the
UF: Do you solemnly swear the testimony you're about to give in
I
Cr. wv-<A IS T
:fT.
leave, the choice is yours.
you had lost one but no. All right. All present. Urn, Mr.
HW Honorable Henry Walsh
CC Chrystal Craver
AA Alvan Arzu
TH Thomas Hartnett
UV Unidentified Voice
UF Unidentified Voice
(GROANING)
AA: Yes, your Honor, the People call Chrystal Craver.
Arzu, do you have further questions for, urn, Deputy Arthur?
AA: No, your Honor.
UV: Go ahead and stand right here.
HW: All right. Mr. Arthur, you're free to stay, you're free to
UF: Be seated. Please state and spell your first and last name
TRIAL PROCEEDINGS IN COURTROOM 42 ON OCTOBER 12, 2011. HEARD
ARE SUPERIOR COURT JUDGE HENRY WALSH, DEPUTY OISTRICT ATTORNEY
AUVAN ARZU, DEPUTY PUBLIC DEFENDER THOMAS HARTNETT, AND WITNESS
CHRYSTAL CRAVER. RE: PEOPLE v. HECTOR MORALES.
CC: Chyrstal Craver. C-H-Y-R-S-T-A-L- C-R-A-V-E-R.
AA: Ms. Craver what do you do for a living?

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I'm a supervising forendics --forensics scientist for the
controlled substances and forensics alcohol sections of the
Ventura County Sheriff's Forensics Sciences Laboratory.
And with that position what are your duties?
Um, ~ n this position my duties include the overall, uh,
management of both the controlled substances and.forensics
alcohol sections of the laboratory, writing standard
program.
And what sort of training did you have to go through to
hold your current position?
I have a Bachelor's Degree in Aquatic Biology from
University of California at Santa Barbara. Prior to coming
to the Forensics Sciences Laboratory I have 9-1/2 years of
analytical chemistry experience in the environmental field,
both as an analyst and as a supervlsor. I have been with
Ventura County Sheriff's Forensics Sciences Laboratory
since January of 1996, and originally had training in the
analysis of bodily fluids and confiscated materials, uh,
for the presence of, uh, controlled substances and
prescription drugs. In 2004, I started cross-training
specifically in the area of forensics alcohol. During that
training, I had in-house training wi th the supervisor at
that time and other analysts for the analysis of bodily
fluids and breath for the presence of concentration of
ethyl alcohol, how alcohol impairs the system, how it's
urn, County's Breath Alcohol Testing
technicians, urn, reviewing case work.
analysts and
Urn, overall, uh,
urn, supervising, urn,
oversight of t h e ~
operating procedure,
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processed through the body, California regulations
governing alcohol analysis in the State of California,
field sovi- -, field sobriety testing and different legal
aspects associated wi th alcohol analysis. I've taken a
I-week's course put on by the California Criminalistics
Institute called the Forensics Alcohol Supervisors Course.
That is a course that goes over the different types of
methodology of analysis of bodily fluids and breath for the
presence and concentration of ethyl alcohol, how alcohol is
processed through the system, how it impairs the system.
Uh, California, um, regulations, uh, and field sobriety
testing. One of things that's included in that course is
at the end of the course there is a written examination and
there's what's called a proficiency test. Each analyst
that has attended the course is given blood samples wi th
un-unknown alcohol concentrations and we have to analyze
those and get the appropriate resul ts to have passed the
course. I've taken a I-week's course put on by Indiana
University called the Borkenstein Course, uh, for alcohol
and legal aspects. That is a course that's a little more
attuned to breath .alcohol testing, but it does include
topics on the different methodologies of analysifis -- of
analysis of bodily fluids and breath. Um, how alcohol, um,
impair.s the system, how it's processed through the body.
It has some topics on field sobriety tests and then it goes
into more depth on the different types of breath testing
equipment that is, uh, available across the country. I've
taken, uh, two I-week's courses put on by the manufacturers
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of, uh, two of the breath testing instruments that we use
here in Ventura County. One is the Alco-Sensor IV XL
Point of Arrest system and the other is the, um,
Intoxilyzer 5000 EN. Then I've taken two 3 -day classes /
um, on t h ~ Alco-Sensor V Point of Arrest system. And all
three of those classes, um, have to do with the accuracy
and calibration, um, of those instruments as well as, um,
minor maintenance that can be performed at the laboratory.
I I ve taken a I-day workshop put on by a company called
Guth, which is the manufacturer of a little apparatus
called a simulator which we use, um, during out/ um,
accuracy and calibrations of / of breath testing
instruments. I've taken a 1/ uh, actually a 3-day workshop
put on by the, um, California Highway Patrol on
standardized field sobriety testing based on the National
Highway. Traffic Safety Administration/s criteria. I/m
designated by the California Department of Public Health as
a, um, forensics alcohol supervisor. I've taken a I-week/s
course put on by ASCLD, the American Society of Crime Lab
Directors, Laboratory Accreditation Board. And that's kind
of a two-part class. There's a I-day class that goes over,
um, the different kind of / um, uh, standards that are
required during, um, accreditation. And then a following
4-day, uh, workshop on the specific, uh, ASCLD criteria for
forensics ~ l c o h o l laboratories.
AA: Okay. What is wet lab and have you been a part of a wet
lab study?
CC: Uh, yes, I have. Um, a wet lab or a drinking study, urn,
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quantities of alcohol.
are times where, uh, we dose people up with known
We often do these In association
with, uh, a CHP standardized field sobriety testing class.
Urn, where they have officers sequestered and, and
undergoing training, and we have a group of individuals
that we're dosing up with known quantities of alcohol and,
uh, testing their breath every so many minutes. And then
we, uh, provide these individuals that have consumed
alcohol to the officers for them to, uh, practice their
field sobriety tests on.
AA: And are you familiar with Title 17?
CC: Yes, I am.
AA: And what is it?
CC: Title 17 is, uh, a group of regulations in t-the California
code of regulations. Urn, it governs forensic alcohol
It gives us rules
analysis in the State of Cal ifornia.
that we have to follow.
AA: And guidel ines on how to maintain, uh, and use breath
instruments?
CC: Breath instruments, urn, how to perform blood analysis. It
gives us certain criteria we have to follow for both.
AA: Now you have quite of an extensive background with regards
to, uh, alcohol studies, correct?
CC: Repeat that question.
AA: You have quite an extensive background in your reading and
taking classes involving alcohol consumption and how it
affects the body.
CC: Yes. I've taken several classes and done some reading in,
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in the area.
AA: And can you explain for the jury how alcohol affects the
body?
cc: Uh, yes. Alcohol affects the body in both mental and
physical ways.
The easiest way for me to kind of describe
it is I like to break it down into three areas. The first
would be cognitive functions. That's how we process
information. It starts to effect one's, um, uh, judge,
judgment and, uh, thinking. Um, it starts to affect one's
short-term memory. They might remember where they live or
where they, uh, um, just came from. They m-may not
remember people they just met or things that just recently
happened. Those things don't always seem to get set in the
memory. It starts to affect one's, um, risk taking.
People, uh, start to become a little more riskier. They
might do things they wouldn't normally try.
It starts to
affect one's, um, reaction time. It's kind of a
combination of mental and physical. It takes a little bit
longer for us to process that something's happened and
actually react to that happening. So just dropping,
dropping something off the ground is ooh, I dropped
something. It takes a little longer for us to get that,
get that memory or get that thought in and then react to
that thought. It starts to affect one's divided attention.
And divided attention is the ability to do several
different tasks at one time. Um, we start being able to do
fewer tasks and others start to fall away. Um, the next
thing I'd like to talk about is kind of, um, our sensory
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functions. How we perceive our environment. It can affect
both, um, hearing and taste. They can start to become
dulled or tinny. Um, but one of the things that can become
greatly affected is it starts to affect an individual's
vision. It starts to af fect one's rapid eye movement.
That's the ability to the for the eyes to look at
several different things all at, you know, one time, kind
of bouncing around from thing to thing. We start being
able to have, urn, less of that, urn, of that sight. It
starts to affect one's, urn, gaze fixations. We kind of get
stuck on things. It takes a little while for our eyes to
come back to things that we're focused on, like ooh, pretty
car. And it takes a little while for us to bring our focus
back to what was actually happening. Urn, and then it
starts to actually affect, urn, our sight from like bright
lights. It has a harder time for our iris to come back
from, from bl ight [sic] 1 ights or bright objects being
passed In front of our field of vision. It takes a little
while for us to be able to focus from that. The third
thing I'd like to talk about is physical types of things.
How we move through our environment. Um, it starts to
affect, um, gross motor functions which are, are it
kinda comes a little later.
ability to walk, walk smoothly.
It starts to affect the
Start to m--, possibly be
unsteady on our feet, might start to have slurred speech.
It starts to affect fine motor skills such as the ability
to pick change off the ground or possibly get paperwork out
of our glove compartment. Urn, then it starts to affect the
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ability to move several muscles at one time and have that
fine motor control. Um, again, uh, that, uh, combination
of divided attention and the ability to divide our
attention between different things such as something
physical and mental, um, that starts to occur as well. And
again that reaction time which lS a part of mental and
physical, a little bit longer that something's
happened and physically respond to that occurring.
Are you familiar with field sobriety tests?
Yes, I am.
What are they used by officers for?
Um, field sobriety tests, um, are used by officers in the
field to help them get an indication whether an individual
is impaired for the purposes of safely driving a motor
vehicle.
And how does field sobriety exercises relate to driving?
Well there are three field sobriety tests that are usually
used for alcohol, and two of those three are actual divided
attention exercises. And they I re fairly simple divided
attention exercises. Someone's asked to, uh, do a small
mental task as well as a small physical task. And that
relates to driving a motor vehicle because driving a motor
vehicle is a divided attention exercise and it requires
both our mental and physical functions to be working
properly to safely drive that motor vehicle. Mentally we
have to know whether it's safe to stay in that lane, do we
need to move over? boh, is that a stop sign up ahead or
has the light changed? We have to mentally think about
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1 those things and the traffic around us. And we physically
2 have to be able to man-euver [sic] that vehicle down the
3 road. We have to be able to keep it within its lane --
4 (COUGHING)
5 CC: -- whether, um, it's appropriate to turn and, and how we're
6 gonna move that steering wheel to make that vehicle move.
7 Um, whether we need to stop -- the ability to stop and move
8 that vehicle properly.
9 AA: And how, based on your training and experience, how does a
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person's performance in a field sobriety exercise relate to
the ability to identify whether that person's under the
influence at all?
Well it gives the offic--, officer, uh, the ability to look
at them performing divided attention exercise, and divided
attention exercises and, and it gives them the ability to,
to look at those and see if they believe they would be
affected by -- affect their ability to safely drive a motor
vehicle.
Have you actually watched officers administer the field
sobriety exercise?
Yes, I have.
And have you made note as to how these, uh, signs and
symptoms are clues that, uh, uh, officers are looking for
how they're related to people's blood alcohol level?
I'm not quite sure what you're asking.
Have you watched officers in the field sobriety exercise?
Yes.
And, um, what have you learned from people's performance on
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the field sobriety exercises, uh, as they apply to the
person's ability to drive and their blood alcohol level?
I'm still not one-hundred percent what percent sure what
you're trying to ask but, urn, I've watched individuals
perform field sobriety tests and then see what alcohol
concentrations they are at a later date or during wet
workshops. Kind of see what their alcohol concentration is
in conjunction with field sobriety testing exercises, and
see that those do correlate, um, fairly well. And there
were several studies, urn, on the use of field sobriety
testing for, for an indication of the presence of alcohol.
Talk to us about the study.
Well there were several. There were some that were done,
uh, both In the laboratory and at roadside. Urn, they
started back in the 1970s and went up through, uh, the 19,
uh, 90s'. The original studies were done In the
laboratory, urn, where they actually were looking originally
at a whole series of tests to decide which ones they felt
would be the most applicable and easiest to use in the
field to give officers, uh, a tool to help them decide
whether someone was, um, impaired for the purposes of
safely driving a motor vehicle. After those original
studies they narrowed that down to three. Urn, then they
did further studies, urn, with officers that were trained
both, uh, on those three tests and then actually performed
studies both in the laboratory and at roadside to see how
that th--, how those, uh, tests actually performed in the
field.
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1 AA: And let's talk about the standardized tests that came from
2 those studies. What are they?
3 CC: Uh, there were three. The horizontal gaze nystagmus, uh,
4 the walk and turn, and the one-leg stand.
5 AA: Let's talk about the hori zontal ga ze nystagmus test. Uh,
6 what is that field sobriety exercise and how --
7 (CLEARING THROAT)
8 AA: -- was that -- how does that relate to a person being under
9 the influence of alcohol?
nystagmus test lS a test of one's eyes as a st imul us is
being passed across the field of vision. And when there,
uh, is alcohol on board, urn, t-this horizontal gaze
nystagmus can start to be seen. Urn, what they're asked to
do is an individual s- -, is asked to stand in a specific
fashion. A stimulus is passed across the field of vision
in a specif ic pattern approximately 12 inches fr- -, 12 to
15 inches from the eyes and just a little bit above, uh,
above eye level. And during this time they I re actually
looking for three distinct cues per eye. The first is the
lack of smooth pursuit. And the easiest way for me to
describe that is if you were to turn your windshield wipers
on in your car and it was raining, they would move sloo--,
smoothly back and forth across the field of that
windshield. If you were to turn that on when your car was
dry, it would kind of lag behind and kind of jerk and, and
stop along. The other way to look at that is a smooth
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CC: Um, well just in general the word
involuntary jerking of the eyes. Um,
nystagmus means an
the horizontal gaze
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If a male, 5' II",
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pursuit would be a marble rolling across glass as opposed
to a marble rolling across rough sandpaper. The second
thing they're looking for is the dist inct and sustained
nystagmus at the extremes. They're looking to see if it is
there for approximately four seconds. So they'll bring the
stimulus out just to about to ear level when it's just
about the edge of their vision. They I re gonna look for
this rhythm bouncing. And they're looking to see if it is,
as I said, distinct and sustained for f0ur seconds. The
third thing they're looking for is how soon that bouncing
starts to occur. They're gonna kind s- -, - - they want to
look to see if it happens on or before, or before 45
degrees. Forty-five degrees is kind of half way between
your ear and your nose. So their looking to see if they
bring the stimulus out here if they start to see that
rhythmic bouncing. Officers are trained that four out of
six of these cues is an indication of impairment.
Now I'll give you, uh, a hypothetical.
180 pound male --
I'm sorry, what was the weight.
180 pounds (UNINTELLIGIBLE) male.
Okay.
Yes, 5' II", 180 pounds, male with no head injuries, no,
uh, medical defects in any way, was given the horizontal
gaze nystagmus field sobriety exercise and this male
displayed a lack of smooth pursuit in both eyes, showed
nystagmus at the maximum mediation, and the angle of onset
for the nystagmus was 35 to 40 degrees, would this
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be
had
who might
that he that,
person with a
alcohol
Um, the individual is asked to stand in a, a three.
performance be consistent
affected or impaired by
consumed?
Uh, yes. This would be six out of six cues and it would,
uh, be an indication that there would possibly be alcohol
aboard and impairment.
Now, Ms. Craver, what lS the walk and turn field sobriety
exercise? Based on your training experience, what are
deputies or officers tr-trained to look for?
The walk and turn test is one of the, uh, st-standardized
specific fashion with their hands at their side. And
during this time they're given a set of instructions. And
the walk and turn actually has two parts to it. There's a
instructional phase and there's a walking phase. During
the instructional phase, the officer is looking to see if
the individual can maintain that specific position or that
balance that they've put them in to get -- to listen to the
instructions. And they're looking to see if they have
started too soon before they're finished giving
instructions. So there's two cues within the instructional
phase. The second part of the test is once the
instructions are done, they're to follow through and
they're told to, um, uh, walk in a specific fashion, heel
to toe, nlne steps out; looking at their feet and counting
their steps, do a specific type of turn and walk back nine
steps. During this portion of the test, the officer is
looking for six cues. They I re looking to see if the
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individual has missed heel to toe, whether they've stopped
walking, whether they've stepped off this line, the number
of steps that they have taken. Um, if they've done, uh,
improper turn and whether they've raised their arms more
than six inches from their sides to help them maintain
balance. So a total of eight cues total. Two in the
instructional phase and six in the walking phase. Officers
are trained that two out of these cues is an indication of
impairment.
And giving you another hypothetical. If a 5' 11", 180
pound male was given the walk and turn test and during the
walk and turn test this individual missed heel to toe for
Would you, in your opinion, say that his performance on
this field sobriety exercise would be consistent with a
person who's possibly affected by the alcohol In their
system?
Uh, yes, In my opinion, uh, that would be three cues.
Cannot keep balance during the instructional phase, um,
misses heel to toe. Even though the fact they're saying
that this happened several times, it's one cue, no matter
if they did it once or if they did it five times. Um, and
then steps off line, again, one cue. Um, the turn, they
might have been a little off balance but it doesn't really
indicate to me that that was necessarily an improper turn.
Um, so I would say that there's three out of eight of the
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most of the steps,
most of the steps,
instruction phase,
more than two. He stepped off line for
could not keep his balance during the
uh, and whose turn was unbalanced.
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1 cues and that would be an indication of, um, impairment.
2 AA: Can you explain what I s the one-leg stand field sobriety
3 test is?
4 CC: Uh, yes. Uh, the one-leg stand is the third of the three.
5 Um, an individual is told to stand in a specific fashion
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and when told to do so, lift, uh, one of their, uh, feet,
their choice, approximately six inches off the ground,
point their toe, uh, look at that foot and count in a
specific fashion until told to stop. During this time the
officer is looking for four cues. They're looking to see
if the individual, um, is having sway, whether they start
hopping to maintain balance, whether they've raised their
arms, um, more than six inches to help them maintain
balance, or whether they've putt their foot down. Officers
are trained that two out of four of these cues is an
indication of impairment.
17 AA: And giving you a hypothetical of 180 pound, 5' 11" male was
18 administered this test and during the performance, this
19 individual swayed while balancing, used his arms to
20 balance, uh, put the foot down on steps 4, 4, 8, 11, II,
21 started too soon, shuffled their foot his fo?t, and
22 leaned back. Would this performance be consistent in a
23 person was, uh, affected or impaired by alcohol which they
24 had consumed?
25 CC: Uh, yes, that would -- there, there was, um, three of the
26 standardized cues that were, uh, seen. Uh, sway, using
27 arms for balance and putting the foot down. That would be
28 three out of the four, uh, cues.
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1 AA: And for all the hypotheticals of the 180-pound male
2 admitted to consuming alcohol earlier, uh, now --
3 TH: Objection. That's not a question. Counsel's testifying
4 HW: Yeah. Uh, no gratuitous remarks, Mr. Arzu.
5 AA: Okay.
6 HW: Ask a question.
equated performances on field sobriety exercises to blood
alcohol?
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AA: Okay. Now, Ms. Craver, have there been studies that have
10 CC: Uh, yes, there, um, uh, some --
actually equate them to a specific concentration.
think their, uh, FSTs are not usually written that way any
CC: Yes. Some of the original studies they actually -- I don't
But they used to more on the, on the, um, actual manuals.
(UNINTELLIGIBLE) AA: 11
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16 AA: And are you familiar with what they are?
17 CC: Urn, yes.
18 AA: Can explain what they, what they were?
19 CC: Urn, the original, uh, validations were equating them to an
field sobriety, uh, studies where they equated them to a
0.08, but the original studies they were looking at a 0.10
concentration.
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alcohol concentration of 0.10. They did later, um, uh,
CC: Well the original studies there was actually some
percentages given for, uh, . uh,
TH: Objection. Vague is the studies.
HW: Sustained. Um, can you further clarify the studies, Ms.
24 AA: Now, let's talk about the 0.0
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1 Craver?
2 CC: Urn, gosh can I remember the name of the original study that
3 the -- those came from. It wasn't Florida, it wasn't the
Colorado.
anything to strike, uh, Mr. Harnett so
Okay.
let's have the next question.
Do you remember any of the studies that (UNINTELLIGIBLE)
has actually used in FST's to the, uh, to a blood alcohol
level?
Urn, well the later studies such as the, urn, Colorado study
and the Florida study, urn, and I believe the San Diego
study as well, urn, looked at the, uh, field sobriety set,
as a set and, urn,
Objection. Vague as to Colorado Study, San Diego study.
No, I think that's specific enough. Overrule.
Urn, showed that with the use of the three test battery that
the officers were, urn, 90% made the correct arrest
(UNINTELLIGIBLE) correct arrest decision over 90% of the
Was it Grand Rapids?
Objection.
No. Grand Rapids is a
recall the actual name
there's
totally different study. I don't
of it. The first, urn, FST class
actually talked about the actual
recall that off the top of my head.
that
I don't
study that
percentages.
I apologize.
Your Honor, move to strike class (UNINTELLIGIBLE)
Well we, we never got an answer. I don't think
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1 time.
2 AA: And, um, correct arrest based on the FST performed?
3 CC: Yes.
4 AA: And that took into consideration the horizontal gaze
(UNINTELLIGIBLE) your training experience?
Um, well the, urn, modified detition [sic] uh, position of
attention or Romberg is a check of one indidigitals [sic]
individual's internal clock. Um, an individual is asked to
stand in a specific fashion. When told to do, they are to
close their eyes and tilt their head backwards and estimate
30 seconds in their, in their head. And when they believe
30 seconds is up, they're supposed to tilt their forward --
head forward and open their eyes and say that they're done.
And giving you a hypothetical with a 180 pound male who had
consumed alcohol earlier in the evening, was given the
Romberg test and during the test shad had a one to two
inch sway and estimated 30 seconds to be 27 seconds, what
would you say about that performance?
the walk and turn, and the one-let stand?
Craver which is the, uh,
taught to look for based on
field the Romberg
field sobriety test that,
more often used for, um,
uh, Recognition, um, Evaluation
can give an indication of, of
Um, it's
an additional
use.
the DRE or the Drug,
program. But it also
alcohol.
And what are officers
nystagmus,
Yes.
sobriety test?
The Romberg is a,
um, officers can
Now, Ms.
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1 cc: Well, um, possible -- the sway can be a possible indication
2 that, uh, something's on board. But the 27 is 30, officers
3 are trained that 30 seconds plus or minus 10 is
4 appropriate. So pretty much anywhere between 20 and 40
5 seconds is actually, um, normal. So there's no, um, real
6 indication based on the, the time estimation.
7 AA: And are you familiar with the finger-to-nose field sobriety
8 exercise?
9 CC: I'm familiar with that, don't have as much experlence in
10 that, but I am familiar with it.
11 AA: And are you familiar with what officers are looking for
12 when they're evaluating a person who's doing this field
13 sobriety exercise?
14 CC: Um, they're looking to see if they can follow instructions
15 on which arm to, um, uh, point to their nose with. And
16 they're looking to see, um, where if the person's
17 actually able to touch the tip of their nose or if they
18 actually missed that.
19 AA: And if a 180 pound male was given this field sobriety
20 exercise and during this exercise they, uh, opened their
21 eyes, did not return their hand to their side, uh, and had
22 a sway, would that be consistent with a person who may
23 possibly be impaired by alcohol they had consumed earlier?
24 CC: It's possible. They're told to bring their, uh, instructed
2S to bring their hand back to their side every time so that
26 would be possible indication not being able to follow
27 instructions.
28 AA: And Ms. Craver, let's talk about Alco-Sensor V breath
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responsible or in charge of actually having this instrument
put in?
Yes, I was.
Well, uh, let's go through the process as to how you made a
decision to have the Alco-Sensor product that's going to be
used for the Ventura County Crime Lab and, and the
Sheriff's and the CHP.
Well part of that decision was actually done, urn, before I
became supervisor. The supervisor at that time, Janet
Anderson-Seaquist, had written a proposal f--, to the, urn,
the office of Traffic Safety requesting a grant, urn, to get
new breath testing instruments for the Ventura County, urn,
uh, Sheriff's Department and the rest of the agencies in
the county. And during that, urn, uh, writing of the grant
and looking at different instruments, uh, to, uh, choose,
we evaluated several instruments that are manufactured
across the country to, uh, decide on which instrument we
thought would work the best for Ventura County. And
through that, urn, checking of different instruments and
doing some in-house, uh, work with them, we chose the Alco-
Sensor V Point of Arrest system.
And, uh, when did the Alco-Sensor V actually be, uh,
was -- w-when was it was placed into the fields?
Urn, the, uh, first ones were placed into f--, the fields,
urn, about the second to third week of January of 2011.
And prior to that had it had extensive testing
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alcohol section
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Were
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Yeah, we had gone through a, uh, validation study of it in
the laboratory looking at different concentrations and, uh,
it's precision over I ike 25 different tests. It was also
evaluated by the Natioanl Highway and Traffic safety
administration.
And, uh, at some point did the Alco-Sensor V get taken out
of the field?
Yes, it did.
Okay. Explain why that happened.
Urn, it happened for a series of reasons. It happened over
about, urn, a month and a half's period of them being out in
the field. Originally around the end of January, we
started se,eing some error messages that we, urn, didn't
quite expect to see, urn, with the instruments In the
laboratory during accuracy checks. We saw some
radiofrequency interference which usually would indicate
that there is a police radio or some other radio being
used. Urn, and we saw some, uh, sens--, what are called
sensor time outs which means that the sensor in the
instrument wasn't clearing as quickly as we would have
thought it would to get a clean blank, um, before being
used. We saw a couple of the radiofrequency interferences
during our validation but at that time we found that ,some
of the analysts were listening to the radio in the
laboratory, so we associated that with that issue and
stopped doing that. When we saw these, urn, messages that
we weren't expecting to see, um, I personally contacted the
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a test done by one of our agencies and they actually have
their own breath testing instruments that's a different
instrument than the AS-5, that they can use as a screening
device. And what had happened is they had performed a
screening analysis and they got a concentration of around
0.10, 0.10, 0.11. They then to went to go do their
evidential testing on the AS-5 they had with them out in
the field. Um, it was cold that evening. They performed
this test and they got a 0.04 and a 0.04, which was very
different than their screening result. Um, they then took
the individual back to their station where there was an
AS-5 that was sitting in, in there, uh, just charging.
They tested him on that instrument and got a 0.10 again and
manufacturer and asked them about this. They requested
that we, uh, send them back for them to evaluate. Um, we
took them out of service and sent them back there -- sent
those back there to them to evaluate to see if they could
figure out why it was actually giving these error messages
that we didn't expect to see. It took them about a month
to actually recreate what we were seeing in the laboratory.
Um, they gave me some indication about the end of, uh,
February that they thought that there was some condensation
possibly getting into the instruments, um, during the
accuracy checks, but they did not feel that it was
affecting any subject tests. In the about the first
week of March, the very beginning of March we actually had
a test come in that we knew was a subject test and we knew
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it was incorrect.
What we saw was, is that there had been
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a 0.11, approximate. I don't remember the exact numbers.
So we knew that that 0.04, 0.04 in the field was incorrect.
The agency let us know about this immediately. I contacted
the agent, uh, the manufacturer and said we've seen this.
Is this the same issue that we're seeing during our
accuracy checks? They weren't sure. They asked us to pull
it from service. We pulled it from service and sent it to
them. Again, we were keeping all the other ones in service
at that time. We were, uh, given the indication that they
didn't feel it was affecting subject tests. About another
week and a half after that, around the 15th of the month
in, um, March, we had a set of, of numbers that were out in
the field of different tests where the numbers were very
erratic. It gave a number that was actually not supposed
to be within the linearity of the instrument. We pulled
that one from service and sent that one back to them. Um,
starting to worry about the fact that, you know, this looks
like it's possibly affecting all the instruments or it
could. Um, the end of the month, urn, end of, uh, March, we
got some final inforJllation from them that yes, that this
possibly could affect, um, could affect subject tests and
could give erroneous results or unusual error messages and
possibly, urn, more likely low- results but could cause, um,
low or high depending on where the issue that they found
was involved. Um, at that point, um, I talked to the.
assistant laboratory director and we chose to pull all the
instruments out from the field and return them to t.he
manufact.urer for -- they let us know that. t.hey t.hought. that
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Urn,
And what were the odd results?
Urn, they ranged for, urn, I don't have the actual numbers
(UNINTELLIGIBLE)
-- objection. Lacks foundation, what instrument, when?
Sustained. Go back and redo it.
Do you have -- do you remember the instrument number that
was used that was giving the sobriety reading?
I actually have a sheet of paper with me that lists the
first -- original eight that were pulled out of service and
I can refer to that to know which instrument this was.
If it will refresh your recollection, will you do so and
read it?
they needed to, urn, re--, uh, do a refit of one of the
parts called the sampling nipple. Urn, and redesign that.
So we pulled them all from service and sent them to the
manufacturer.
Now, Ms. Craver, you stated earlier that the instrument,
the first instrument that you saw the improper reading, uh,
that it was actually reading lower?
Yes. That one was reading lower.
And you stated also that the there was another
instrument that was reading it right, so does that mean it
was reading high and then low?
It was actually reading kind of, uh, -- they actually ended
up doing about five blows. There was -- it was --
odd urn, urn, the, that had
005097.
Uh, yes, the instrument
results was serial number, urn,
Yes.
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had one that was a 0.7. And the actual linearity range of
the instrument is 0.44. So it was giving a number that
wasn't even possible, um, by that instrument.
So when it was actually not working properly, being 005097,
uh, it would actually -- it was over a course of four or
five blows?
Uh, yeah. Um, they had done I believe two screenings and
then one evidential for a total of about five different,
uh, blows into that instrument over about, I think it was
about 45 minutes to an hour.
And so those were, in your opinion, kind of obvious signs
and symptoms that the instrument wasn't working accurately
at that time?
Yeah, that was very obvious that there was an issue.
Now, Ms. Craver, at any time was, uh, instrument number
005025 ever one of the instruments that was found to be
working, uh, correctly?
It was not one that -- where I saw a clear indication that
there was an ~ s s u e .
Now, Ms. Craver, at some point were you able to find -- to
learn from the manufacturer what the exact problem with the
Alco-Sensor V was?
Uh, yes. Um, we had an indication around, um, the end of,
uh, February that they felt it had to do with the way, um,
the sampling nipple or where the sampling port was
designed. Urn, and a combination of that and the way the
There was, uh, one of the five was like a 0.12
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with me.
and then it was, uh, another one was a 0.25.
Then we
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1 mouthpiece and them worked together. And it was kind of a
2 square across the top. And what they found was that if,
3 uh, under certain conditions that condensation could
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actually to collect around that area and actually get over
the top of that flat sampling port and possibly draw, um,
uh, liquid directly into the sampling port and into the
7 sampl ing chamber. And have the that in the sampling
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chamber depending on where it was, could cause, um, uh, uh,
error status messages, um, high results and different,
high, low or erratic results.
11 AA: And, um, based on the information you obtained, was that
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defect, was that defect then, uh, addressed by the, uh,
I
manufacturer?
14 CC: Yes. They have redesigned that, um, sampling, uh, nipple
15 or sampling port. They have raised it about a sixteenth of
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an inch to make it a little bit higher and gived [sic] it a
domed profile and used a different kind of, uh, plastic
that allows, uh, or that .there's less reaction with the
19 hold to liquid. Then they also remanufactured the
20 mouthpiece to fit in just slightly different. Uh, the
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other thing is they actually in our personal versions here
in Ventura County, we can decide how we want some of our
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software to be ran.
into our software.
They actually added some, uh, things
Um, the version that we had before is
25 we had something called an Alco-Sensor IV XL Point of
26 Arrest system. And in that version of that software for
27 that instrument there was something that was called a void
28 code 14. Urn, and what that actually did is it actually
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Um,
other, um software issues in there as well.
Ms. Craver, the instrument, the Alco-Sensor V is lD a
controlled environment in most cases, in most cases. It
actually -- based on what you knew, was really accurate.
Objection, leading.
She's an expert, conventional wisdom as you can lead an
expert. Overrule.
In my opinion, um, during accuracy checks the instruments
were working properly and accurately and in my opinion,
looking at the data as I've had over the time that the
instruments have been pulled from service, my opinion, the
majority of the results, um, appear to be fine.
And those are results that were able to be identified as
not being accurate, those instruments were taken out as
soon as it was identified.
looked at the electronic waveform for, um, the reaction as
it's going across the fuel cell. And alcohol has a
specific wave, waveform. And what this allowed it to do is
electronically look at that waveform and if it was
different from what it expected alcohol -- it was different
from the alcohol that it expected, it would call the, the
sample to stop.' It wouldn't allow the sampling to go
forward and give a, a void code message. Um, in the new
one, they did not put that in the AS-5 originally and, um,
when they remanufactured the part, we asked that they put
that into the new software for our version of the
Um, and I believe they changed some
instrumentation.
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ones were, uh, remained into service until they made their
-- found what was going on and made their decision.
Correct me if I'm wrong. It sounds like, uh, most of the
time the instrument was actually giving some sort of
As soon as we saw those, um, initial issues with the, urn,
um, error messages. The ones that we initially took out of
service to send back to the manufacturer to look at, we did
see some error messages, um, a little later, the same ones.
We didn' t continue to take all the rest of them out of
Objection.
-- it would actually show --
I'm gonna object to counsel testifying, lack of foundation.
Yeah. (CLEARS THROAT) You can lead a little bit Mr. Arzu,
but when it comes to outright testifying, that's where I
draw the line. So rephrase your question.
malfunctioning, would it give you a statement? Would it
give you a sign?
Um, it would depend. Um, when we had the 0.2, 0.04's that
we know were wrong, we know that they were low. Had there
not been a screening instrument done by the officers, we
would not have known that that was an improper reading. We
wouldn't have known. When we get the error messages such
as, um, uh, sensor time blank out, sensor time out or an
your
uh,
And the other
It would --
based on
was man- -,
Craver,
manufacturer to evaluate
issue was.
Ms.
an Alco-Sensor V
Honor. your
when
improper reading, errat--, erratic reading.
Strike that
observations,
service. We were allowing the
what we had seen and see what the
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RFI, urn, status message, it doesn't allow the instrument to
go forward and stops the testing. But for the one such as
something like the .04, .04, had there not been another
test, there would not been any clear indication that that
was a problem.
Now, Ms. Craver, uh, I'm gonna show you what's been
previously marked as People's four.
Which one is it?
Four.
Can you show me real quick?
And particularly, I'm gonna ask you to look at test 00630.
Do you recognize what that is a printout of?
Yes, I do.
What 1S it?
This is a printout from our, uh, laboratory data base that,
urn, we print out, urn, on a, uh, biweekly basis of subject
evidential and screening tests, and this is a set of
screening tests.
And for that particular screening test, what were the
results?
Um, on which screening test are you asking?
The 0063.
Okay. Sorry.
I'm gonna object to foundation.
Overrule. Overrule. Go ahead.
Um, the test results for, um, test number 0060630 on serial
number 5025, there was a first, uh, subject test of a 0.129
and a subj ect - - second subj ect test of a point, uh, .136.
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the, uh, prosecution's second witness and last witness so,
uh, losing twenty minutes now is not going to impact the,
um, the fact that we'll probably finish her testimony, uh,
the mid or late morning tomorrow. And at that point, the
lawyers will be arguing the case and I will be instructing
you. So when, when we began this, uh, case I think I told
you my intuition told you that we would finish on Friday
and that in an abundance of caution I was saying Tuesday.
Um, tomorrow is Thursday and the likelihood is that you
will have this case, uh, for you deliberation some time,
um, tomorrow afternoon. So were gonna stop now. Um,
AA: And this instrument 1S maintained by the Ventura County --
was maintained by the Ventura County Crime Lpb?
CC: Uh, yes.
AA: And I'm going to show you what I s been marked as People's
(UNINTELLIGIBLE) There's a three page document --
TH: Your Honor, may we approach?
HW: All right.
(BACKGROUND VOICES)
HW: All right. Ladies and gentleman, we normally would quit at
4:30, but I've had a procedural issue brought to my
attention by the, uh, by the lawyers, so we're gonna stop
now so that I can unravel that. Um, we're not compromising.
Uh, Ms. Craver is
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at all the, the conclusion of the case.
don't, uh, talk to anybody about the case.
tomorrow morning. Have a pleasant evening.
(PAUSE)
HW: You can step down Ms. Craver.
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Uh, 9: 30
on.
Urn, be here at,
That went out the window
HW:
CC: Thank you.
(BACKGROUND VOICES)
UV: (UNINTELLIGIBLE)
HW: Oh, sure, go ahead.
(BACKGROUND VOICES)
UV: I gave it to the Judge. It's Bull--,
HW: The case is, is Bull, Bullcoming --
UV: Bullcoming.
HW: -- versus New Mexico.
UV: I keep wanting to say Bullwinkle.
HW: It's 564 U.S. something. I'll -- I'm happy to run a copy
of this for you Mr., urn, Arzu. Urn, I can't help but
observe, I've been - - some of the other work I do, I've
been reading Cal.2nd's, you know the older ones.
TH: Uh-hmm.
They wrote short opinions.
about
(LAUGHTER)
HW: -- twenty years ago and I mean they just go on and on and
HW: Urn, so we all need to, uh, to read this.
(LAUGHTER)
HW: All right. Let's do this, urn, you're gonna want to read
this because the, urn, uh, the, urn, dispute seems to be one
of excluding the result entirely which is what the, urn, the
defense is arguing to me. And you're saying it goes to
weight as opposed to admissibility.
TH: Right.
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is, uh, lS, is, is light so that will give me a chance to,
jurors that they would probably be deliberating tomorrow
afternoon, do you have further witnesses Mr., uh, Arzu or
lS, is Ms. Craver's it?
urn, about ten after nine tomorrow.
I've got my law and motion calendar
That ought to give us
Um, now, having promised our
time to nail it down.
uh, to get through that.
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8 AA: Uh, what will end up happening Your Honor, lS based on your
HW: All right. Are there gonna be
AA: But it mostly will be one person.
HW: All right. Are there gonna be any defense witnesses?
TH: Uh, not this time.
HW: All right. Is it a close call or do you feel pretty
confident on that (UNINTELLIGIBLE)
determination, I might have to bring in another witness. 9
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TH: I feel pretty confident.
how cross examination is.
It will, it will largely depend
18 HW: All right. Now, I got the, uh, the jury instructions. Um,
parenthesis and the genders and the singulars and the
the extent of being able to say, urn, if you're gonna have
o b j e c t ~ o n to any of them?
I can probably do that without a great deal of
Have you seen these, uh, Mr. Hartnett, uh, to
the uh,
Urn, (CLEARS THROAT) I
edited them regarding,
I haven't had time to read it yet --
I've looked through them quickly.
haven't edited them,
I've been given it.
plurals.
difficulty.
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27 HW: All right.
28 TH: -- your Honor.
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.
.. I I ..
1 HW: Um, you've, you've asked Calcrim301, Mr. Arzu, which is
2 single wi tness' testimony. The text is except for the
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testimony of blank which requires supporting evidence the
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testimony of one witness can prove any fact.
did you have in mind with that one?
What, what
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I, I would, I would strike that first part your Honor.
There's --
8 HW: Okay. Um, I need verdict forms. They shouldn't be hard.
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One of each. That'll help.
TH: I have them right now, your Honor.
HW: Pardon?
TH: I have them.
HW: Okay. Give those to, uh, my clerk and I will see you In
the morning.
15 TH: Thank you.
16 (END OF TRANSCRIPT)
17 MORALES HECTOR Trial Trans Chrystal Craver 101211 aa bm 11 T
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1 T R AN S C RIP T
. .
2 COURT PROCEED1NGS IN VENTURA COUNTY SUPERIOR COURT ON OCTOBER
13, 2011 IN DIVISION 42; CASE 2011009885. RE: PEOPLE V. HECTOR
3 MIGUEL MORALES.
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HW
=
Honorable Henry Walsh
AA
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Alvan Arzu, DDA
TH
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Thomas Harnett, DPD
CC
=
Crystal Craver
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7 HW: And here is present. Uh, good morning one and all. And urn,
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Mr. Arzu, we have uh, Miss Craver is still on the stand.
You're examining. Go ahead.
10 AA: Thank you, Your Honor. Now Miss Craver, our
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(UNINTELLIGIBLE) previously was - - been marked as Peoples
III. This is a three page document. Urn, on the first page
of that document do you recognize what that is?
14 CC: Yes I do.
15 AA: What is that?
16 CC: That is a printout of an evidential uh, breath test from
17 our urn, laboratory database.
18 AA: And is that breath test from uh, Alco-Sensor V? Entered at
19 number 5025.
20 CC: Yes it is.
21 AA: And is the reading uh, from the date of March 19th, 2011?
22 CC: Yes.
23 AA: And is that breath sample that it illustrates taken from a
24 Hector Morales?
25 CC: Uh, yes.
26 AA: And is it uh, administered by a Deputy Robert Arthur?
27 CC: Uh, yes.
28 AA: And what were the results that that document shows of that
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within plus or minus .01 of the known value. And with the
target of .111 and a result of a .112 and a .111 this
instrument would be working properly and accurately on that
day.
Now turning your attention to page three of Exhibit III uh,
is instrument number 5025 on that page as well?
Yes it is.
And is does that page document and accuracy check done
uh, after the date of March 19
th
, 2011?
Yes it does.
What date was actually the accuracy check done?
3-23 of 2011.
And what were the results of the accuracy check done uh, on
instrument 525 -- 5025 on the date of March 22nd, 2011?
Urn, on that day urn, we used a Dry Gas Standard. The target
value was a .110. And the results were .111 and a .112.
And in your opinion was the instrument working accurately
on that, accurately on that date?
Uh, based on the uh, results being within Title 17
criteria, yes.
Okay. So basing your -- uh well, stepping back.
What was the date of the accuracy test as reflected on page
two of that exhibit?
3-16 of 2 0 ~ 1 , Your Honor.
Thank you. Go ahead Mr. Arzu.
Now Miss Craver do you have an opinion with regards to the
Alco-Sensor V and urn, your belief as to uh, whether it was
working within Title 17 on the date of March 19th, 2011?
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ICC: Uh, based on the accuracy checks on uh, 3-16 and uh, 3-23
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urn, the instrument would be working properly and accurately
on ..the 19th.
AA: Now, Miss C r a v ~ r , we also spoke a little bit yesterday
about Field Sobriety exercises or tests. And uh, there was
point where we discussed or I asked you question
regarding uh, a correlation between uh, field sobriety
exercises and uh, the probability of. a person being .08 or
a .10. And there was a particular study that we mentioned.
Urn, do you now remember what that study was?
11 CC: Urn, I actually went back to.the laboratory and uh, actually
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looked that up 'cause I was embarrassed that I couldn't
remember that yesterday. Urn, and uh, the original uh, data
was combined from research. And in uh, 1981 done by urn,
Marceline Verns uh, Mr. Thorpe and Moscowicz and its com--,
uh, combined' information, The actually numbers that urn, are
reflected like in the FST manuals and on the NHTSA, it
looked like they're urn, a combined numbers that NHTSA
looked at. They aren't actually the numbers themselves in
the study that I could find. Urn, there was some information
off of the NHTSA website urn, which has uh, it listed as
combined from that research from 1981 and they give those
list of numbers.
24 AA: Uh, what are those numbers?
25 CC: Urn, based -- urn, from the information NHTSA website urn, and
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what they're little area says, It says, Combined, Combined
data from Burns, Thorpe, and Moscowicz 1981. Is the way
it's labeled in, in their information. Urn, it was found
-5-
the
the
time.
AA: And did that correlate to number -- a percentage of blood
alcohol level?
CC: Uh, for the research from 1981 it was .10.
AA: So the results of the field sobriety exercises uh, let's go
through them and you can kind of explain. If the Hor--, on
the Horizontal Gaze Nystagmus urn, . how many of the cues
would a person have to exhibit to be to uh, for the
actual study to be -- well, how many cues is -- are needed
on the Horizontal Gaze Nystagmus?
TH: Objection. Asked and answered.
HW: Asked and Answered?
TH: Yes Sir.
HW: Sustained.
AA: Okay. Miss Craver, now this study stated that if .you showed
four out of six cues that it would be a showing of
impairment, correct?
cc: Correct.
CC:
that urn, that officers arrest decisions based on just the
um, Horizontal Gaze Nystagmus were 77% accurate. Um, for
their decision to arrest. On the Walk and Turn alone it was
68% accurate. And on the One Leg Stand it was uh, 65%
a c c u r a t e ~ And there was uh, a listed -- a combined accuracy
when.using all three of 81%.
AA: So using all three would result in an 81% like-likelihood
of an accurate? Or what does the 81% represents?
It, it represents um, the correct arrest decision of
officer. So they arrested uh, uh, correctly 81% of
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Objection. Leading.
No, overruled as leading. Go ahead.
And that
Correct.
-- four out of six would -- is what equates to the 77%?
For that test alone? Yes.
Yes. And for the Walk and Turn it was three out of -- err,
two out eight cues, correct?
Correct.
And that would result in the 68%?
Correct.
Okay. And for the One Leg Stand it was two out of four
cues, correct?
Yeah. And it would actually say a minimum of two out of
four 'cause it's two out of four, two out of eight, or four
out of six. And that's the minimum required. It could be
more that they had found.
And the combined if, if all three of those tests had
those results it was the 81% likelihood that it was a
proper arrest and the person was a .10 or greater based on
the 81%?
It was, it was um, that, that 81% of the time they were um,
accurate in their cho-choice to arrest based on that level.
Okay. Now, Miss Craver, do you have an opinion as to an
individual's ability to drive a motor vehicle while under
the influence of alcohol?
Uh, yes.
What is that?
-7-
1 CC: My opinion is that all individuals are impaired for the
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purposes of safely driving ~ motor vehicle at a .08 alcohol
concentration or higher.
individuals performs urn, uh, Field individuals per--,
Sobriety Tests and uh, seeing their alcohol concentrations
urn, in-individuals at that level are urn, not able to
function in the way that a normal sober person would urn,
perform.
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4 AA: Okay. And how does that relat.e to being under the influence
of alcohol?
Urn, in the studies that. I've seen and in watching
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12 AA.: Now, Miss Craver, let's talk a little bit about alcohol
13 absorption. Uh, explain how the body absorbs alcohol.
14 CC: Urn, well it '.s easier ~ o r me to just kind of do it as a
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whole process. Urn, when someone starts to consume a dose of
alcohol it undergoes a process called um, uh, Absorption
Distribution urn, and Elimination. Urn, alcohol's a very
small polar mole-molecular. It's very different from other
drugs of abuse. It wants to pass through cellular walls
fairly quickly. So someo--, when someone consumes a dose of
alcohol approximately 20% is absorbed through the esophagus
and stomach walls. About 80% passes through pyloric valve
in the bottom of the stomach into the small intestine where
urn, absorbs into the portal vein. From the portal vein it
goes out to the liver. From liver it goes up to the heart.
From the heart it goes out to the lungs where urn, oxygen
exchange happens which is why we can do breath testing.
Then back to heart and then it's distributed to the rest of
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. :
1 the urn, uh, brain and body tissue. Urn, at the same time
2 since it is such a small molecule actually you I re having
3 some eliminate start to occur urn, pretty shortly after that
4 dose is consumed. About 5 to 10% is eliminated unchanged
5 through urine urn, sweat. Urn, about -- excuse me -- urn, 90
6 to 95% is broken down-by the liver to carbon dioxide and
7 water.
8 AA: And wh- what about elimination rates. Uh, can you explain
9 what that is how it relates to your studies and training?
10 CC: Urn, well urn, there have been some studies done that urn,
11 look at elimination rate and how fast urn, alcohol leaves
12 the body. There has been a found to be a range of from
13 about a .01% to about a .026% per hour. With some urn,
14 alcoholics it can be . a little bit higher than that if
15 someone I s really used to having alcohol on board. But the
16 urn, majority range is about .01 to about a .0 -- uh, 2% per
17 hour. With the average being found uh, for most individuals
18 being about a .018% per hour. That would mean that if a
19 person had an alcohol concentration of, of a .18 it would
20 take approximately 10 hours for them to come back to a
21 concentration of zero.
22 AA: So if a person consumes alcohol, the alcohol doesn't just
23 stay in their body uh, and sit there for uh, eight hours?
24 CC: No. It's going through th-this constant process of
25 elimination.
26 AA: Okay. And in your training uh, and experience urn, what's a
27 contribution per drink for a, a male -- a 5'11 male on --
28 and 180 pounds.
-9-
tell us what Miss Craver,
I did.
As part of your answer,
contribution is.
CC: I was planning to. Thank you.
HW: I-mean, you know, he knows. I don't. I'm sure the jurors
don't. So tell us that.
CC: A male weighing 180 pounds would have what I call a
contribution per drink of a .021%. What a contribution per
drink is is it's a calculation based on an individual's uh,
AA:
HW:
gender and weight. That if they consumed one standard drink
-- okay, gonna have to go back. A standard drink.
HW: What's a standard drink?
CC: Uh, let me explain a standard drink. In uh, the scientific
community or the forensic alcohol community urn, we have to
have something that we consider standard. Nowadays we can
go to a, a restaurant and we can have a" yard of b ~ e r or a
32 ounce margarita. And different size of drinks that are
cc: Let me
AA: A male with uh, no medical issues.
cc: Okay. Just let me --
TH: Objection being contribution, Your Honor.
HW: Well, you understand contribution?
cc: Yes I do.
HW: Okay. Well.
TH: Objection. Foundation.
HW: No. Not on foundation. No. Go ahead.
tC: Sorry. I'm not sure. Take me just a minute. You did say 180
pounds, correct?
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AA:
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just completely different. So what we have as a standard
drink is one 12 ounce beer that's around urn, 4 and a half
to 5%. Uh, 6 to 8, 8 ounCes of table wine or one ounce of
100% proof alcohol. Or one and a quarter ounces of 80%
proof alcohol. We consider these a standard drink \ C9.use
they all contain approximately one half of an ounce of pure
ethanol. We c o n s i d e ~ those all standard. So a contribution
per drink is based on an individual's urn, gender and
weight. How much one standard drink could possibly raise
their alcohol concentration if we didn't take into account
elimination happening. So an individual that was male
weighed 180 pounds, if they had one standard drink and we
didn't count any elimination the highest concentration they
could possibly get from that one standard drink would be a
.021%.
All right. And, Miss Craver, have you heard of or are you
familiar with these uh, a beer called Steel?
Urn, I had not heard it till urn, I reviewed the paperwork
for this case and you actually handed me something here on
the stand. I was -- I don't drink beer. I don't like beer
so I'm not very familiar with it.
And is a, a Steel beer a standard beer?
Urn, based on the information I was handed urn --
Objection to hearsay.
Well her and, and what 's, what I s the opinion? You I re
entitled to give us the opinion. Is it a standard beer? Yes
or no?
No.
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No.
All right. Go on.
Is it a, a higher concentration beer?
Uh, based on the information I've seen, yes.
And are you familiar with malt beer? Malt, malt beers or
liquor?
Urn, I usually know that they often can have higher alcohol
content but I'm not really familiar wi th, you know, as l
said, not very fond of beer.
And, Miss Craver, is the Steel beer a malt liquor.
Urn, I would have to refer to the information that I was
given to, to know that.
Okay. And would it refresh your recollection to look at it?
Objection to proper refresh.
Say' again?
Improper refresh. He didn't know at all.
No, she's entitled to rely. on, hearsay to give an opinion
Mr. Ar-Arzu but you can't tell us what the document says.
Right.
You're gonna have to rephrase your question.
Okay, Your Honor. Miss Craver, you know that the -- that
Blue St-Steel is not a standard beer, correct?
Correct.
Okay. Now let's move forward. Let's - - I'm gonna provide
you with a hypothetical Miss Craver. And I want you to
assume the following, okay? And I want you to as-assume
that a 180 pound healthy male who stated that they -- or he
had consumed one to three beers between a time of 10:30 and
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12:00 a--, 12:30 -- or 10:30 pm and 12:00 am. To consumed a
hamburger at 4: 00 pm. Stated that he felt. the effects of
the alcohol a little bit. This individual had the smell of
alcohol coming from their person. Had .thick and slow
slurred speech. Was nervous. Poor coordination. Had red,
bloodshot eyes. And during the Horizontal Gaze Nystagmus
test showed six out of the six cues. Lack of smooth pursuit
at maximum deviation. And angle of onset was 35 degrees.
During the Romberg had a one to two inch sway. Estimated 27
seconds for 30 seconds. During the Walk and Turn test
missed heel to toe for most steps. Stepped off line for
most steps. Ra - - , urn, took the proper amount of steps.
Could not keep their balance during the instruction phase.
Had an unbalanced turn. During the One Leg Stand' the
individual swayed while balancing. Used their arms for
balance, Put their foot down. Started t.oo soon. Shuffled
his foot. Leaned back. During the Finger t.o Nose test this
individual opened their eyes. Did not return t.heir hand t.o
t.heir side. And swayed. And also during the One Leg Stand
test -- going back a little bit -- the test was stopped by
the officer because the individuals balance was poor. A
preliminary alcohol screening test was given at 3:03 am and
3:06 am and the results were a .12 and .13. The instrument
used was Alco-Sensor V. Uh, instrument number 5025. A.
evidentiary breath test was given at 3:14. At. 3:17 using
the same instrument. And the results were at 3:14 at .14.
And at 3:17 a .13. Miss Craver, are these facts consistent
with someone who was under the influence of alcohol?
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CC:
AA.:
cc:
. AA:
HW:
TH:
cc:
Urn, in my opinion with urn, objective signs of alcohol. The
order of alcohol. A fl--, a slow, thick speech. Urn, red,
bloodshot eyes. Urn, poor coordination. Urn, Field Sobriety
Tests of six out of six pn the Horizontal Gaze Nystagmus.
Uh, three out eight on the Walk and Turn. And three out of
four on the One Leg Stand. And a screening and evidential
results being a .12, .13, a .14 and a .13, in my opinion
this individual would be impaired for the purposes of
safely driving a motor vehicle.
Okay. Now, Miss Craver, why urn, have you been able to rely
on the breath samples? What about that uhf gives you uhf
enough confidence to make that opinion?
Urn, in my opinion urn, when we talked about the issues that
were happening with the urn, Alco-Sensor V. Urn, and we did
see the two urn, results that were .04 ~ t h a t we knew were urn,
incorrect. In my opinion, the more resul ts that we have
that are consistent, in this case we have two screening
results and two evidential results, the more information
that I have urn, uhf in my opinion it would be extremely
unlikely for we us to have four consistent results and
the instrument be, instrument be exhibiting urn, that issue
of condensation. So the more results that I have gives me a
stronger urn, confidence in those results.
No further questions .
Mr. Uh, Harnett.
Thank you Your Honor. Miss Craver, the Alco-Sensor V is no
longer used in the field, is that correct?
Urn, not at this time. It will be shortly again though.
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TH:
cc:
TH:
cc:
TH:
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But the Alco-Sensor V that was used in this case, on March
19th, won't be 'used in the field?
No um, the same instrument number will be back but it will
have the urn, modifications done by the uh, manufacturer.
S6 the instrument was used on March 19, 2011 doesn't exist
anymore?
Uh, in its original version, no it does not.
Okay. And the new machines have yet to return to service?
Correct.
And why is that?
Urn, I'm undergoing a thorough validation study within the
laboratory. Looking at urn, all the possible issues that urn,
we thought could have caused the issue with the first
instruments. To make sure we've covered everything and look
at every possible problem that I could think of.
Okay. So still not conf-confident e n o u ~ h yet to put those
model numbers out in the field?
Well it takes a, a long time to go through a 125
instruments and uh, uh, look at them individually and then
take portions of th6se to look at all the different aspects
that I think could be involved. So I wanna make sure that
that's thoroughly done before that goes out in service and
that validation that I've uh, protocol that I've written up
is not completed yet.
So not confident yet?
I wouldn't use the confident yet because the majority of
the data that I've looked at so far is good. But I haven't
completed all the steps that I wanted to complete before I
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TH:
cc:
TH:
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sent them out in the
Okay. Let's ba,ck up a little bit. Urn, I'd like to ask you a
couple general questions about breathalyzers in general.
Are you familiar with other breathalyzer models? Like the
IV?
I am familiar with Alco-Sensor IV, yes.
And you've been trained on the Alco-Sensor IV?
l've had some training on the Alco-Sensor IV 1
'
m more
familiar with the Alco-Sensor IV XL, which was our previous
version.
Okay. Alco-Sensor IV XL.
Okay.
Okay. Urn, what are breath machines measuring?
Urn, they're measuring urn, well when you I re talking about
something like the Alco-Sensor IV XL or the Alco-Sensor V,
both of them run on fuel cell technology. And that fuel
cell is urn, uh, the easiest way for me to describe it is --
it kind of looks like an Oreo cookie. Urn, it has two black
platinum uh, disks with a porous electrolyte solution
inside. And when a individual breath sample is captured and
placed onto this fuel cell the alcohol that's in the fuel
cell reacts with the fuel cells and releases electrons. The
amount of electrons that are reI-released are proportional
to the amount of alcohol that is in, in the sample. And it
gives a 'digital readout of that, of that currant.
And a breath machine is supposed to measure blood alcohol
level, is that correct?
No, a breath machine measures breath alcohol concentration.
-16-
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TH:
cc:
TH:
cc:
TH:
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TH:
cc:
TH:
cc:
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Cc:
TH:
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TH:
cc:
Okay. So a breath machine is not capable of measuring a
blood alcohol concentration?
Well there's .a correlation between the two. But, no, you're
not actually measuring blood when you're blowing into a
breath testing instrument.
Okay. So if I put a shot of whiskey in my mouth and swished
around and spat it out and blew into a breath machine would
the breath machine show a reading?
Urn, if you did that uhf directly after doing that?
Um-hm.
Yes it would.
Okay. Would I be impaired for the purposes of driving
having qone just that?
No you would not.
Okay. So breath a breath reading doesn I t necessarily
correspond to impairment?
Well when you're talking about the situation you were just
discussing that's more mouth alcohol. And no that would not
urn, relate to impairment.
Okay. So mouth alcohol does not relate to impaired?
Urn, not when uhf tested in that fashion. Correct.
Only blood alcohol relates to impairment, is that correct?
Urn, the testing of blood would be a direct measurement of a
blood alcohol concentration. Urn, but breath alcohol testing
has been accepted and used nationwide as a form of testing
for alcohol concentration in the body.
In blood?
There have been originally in the uh, the -- in California
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cc:
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TH:
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TH:
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TH:
cc:
TH:
cc:
TH:
it was originally that you were -- you had to correlate the
two. Urn, nationwide my understanding and from what I've
taught, that they now look at those two completely
differently and you do not have to correlate --
Um-hm.
-- uh, specifically back to a blood concentration.
Okay. We're talking about impairment today though, correct?
Correct.
And alcohol impairs when it's the blood, correct?
Yes. When it's in the system. Yes.
Alcohol does not impair when it's in the mouth?
Correct.
And the breath machine will measure alcohol in the mouth?
Correct?
It's
Even if it's not in the blood a number will come up?
If you had alcohol just in the mouth, yes. If you did 'not
have that and there's things the officer does in the field
to help a--, ensure that what your uh, testing is the deep
lung air. WhicfJ. is where the alcohol urn, or uh, oxygen
exchange happens between the, the blood and the alveolar
air of the lungs.
Okay. So let's slow it down a little bit. For the purposes
of determining if someone's impaired a breathalyzer is in
effect indirectly measuring blood alcohol le- -, content,
would that be fair to say?
Yes, that would be fair to say.
And it makes that indirect measurement blood alcohol based
-18-
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cc:
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on -- I heard you say, alveolar air. Could you explain that.
concept?
Uh, yes. Urn, when we're talking about breath testing uh,
what we I re talking about is wanting to get what's called
deep lung air. Down in our lungs there are little air sacks
called Alveoli and uh, we're talking about trying to get
that deep lung air. What happens is you have the blood
system. That the blood that supplies the lungs. And when we
have oxygen exchange, we have oxygen exchange and carbon
dioxide exchange since um, alcohol is a volatile it'll
also go through urn, that exchange and come out with the
carbon dioxide. It comes out through the alveolar air and
up through the lung system.
And -- in so far that a breath machine is used to determine
if someone's under the influence the machine 1S in
effect would this be fair to say measuring the
alcohol piggy backing on the back of carbon dioxide from
the lower lung?
I don't know if it would use a piggy backing but it's
coming out in the same fashion.
Okay. And what types of amounts are we talking about? Are
we talking the molecular, the molecular level of alcohol?
I'm not quite sure what you're asking.
Let's do this. A breath machine indirectly measures blood
alcohol content?
Uh, yes.
Okay. It's not a direct measurement of blood alcohol
content?
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Nope. We're not actually pulling the blood out and
measuring directly.
And the machine has a program or an equation to extrapolate
the amount of alcohol through breath and turn that itito a
number of -- that can relate to blood, is that correct?
Yes.
And what is that equation or assumption?
Urn, uh, that assumption is uh, based on urn, research that
was done. Uh, they -- it -- every millimeter of blood is
the same as 2100 millimeters of expired alveolar breath.
Okay. And quantify for me in -- of -- in litters. How much
a litter of bl--, well, let's back up. Would that be called
the partition ratio?
Yes.
And is that fixed for all breathalyzer machines?
In the United States it's fixed at 2100 to 1.
And all machines register on that exact same equation
ratio?
Correct.
Okay. And that's Alco-Sensor IV EX, Alco-Sensor V urn, name
another breathalyzer.
Alco-Sensor IV XL.
Okay.
Urn, Intoxilyzer SOOOEN. As far as I know all the
instruments in the United States are set for that ratio.
Is that ratio chronicled in Title 17?
I believe so. I don't recall.
Okay. Now it's impossible to know a person's actual
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".' :.'
in every machine?
Correct.
Even though that same equation doesn't exist in any person
parti tion ratio at the time they make a breath into the
machine, would that be fair to say?
That would be fair to say.
Okay. The partition ratio could be higher than 2100?
Yes.
The partition ratio could be lower than 2100?
Yes.
It could be low as 1400?
the
Blood
the person
Would that
would expre - - ,
the true BAC;
ratio of
than 2100.
it Or, to put it another way,
breathalyzer would over estimate
alcohol content?
At 2100 to 1 if they're true urn, partition ratio was 1700
to I, yes.
So the breathalyzer would be high?
Yes, if that were the case.
And that's based on the fact that this is the same equation
Urn, I have not seen that. The range I usually see is from
around 1700 to about 2800.
Okay. And let I s say the partition
blowing into the machine is less
reflect a higher BAC in the machine?
Sorry, I have to write it down to think about it.
Okay. That's fine.
Uh, yes. The urn, lower partition ratio would give a lower
alcohol concentration.
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at any given time?
Urn, yeah, we do not know an individual's specific partition
ratio at the time of the test.
So it I S an assumpt ion that the machine depends on to
measure the blood alcohol content?
Yes.
Okay. I mentioned Title 17. I wanna go into a little bit
further. Would it be fair to say that all breathalyzer must
comply with the requirements of Title 17?
For evidential breath testing, yes.
Okay. And Title 17 is meant to insure basic minimum
. standards, correct?
Correct.
All right. And what are the minimum standards that
breathalyzer must meet to meet Title 17?
Um, it one of the main things is it must be on the
conforming products list of the National Highway Traffic
Safety Administration.
And what is that?
Urn, conforming products list is a list put out by um, uh,
the National Highway Traffic Safety Administration that
gives a list of the appropriate instruments that meet their
criteria for doing evidential breath testing. It also gives
lists of like the simulators that we use. And the gas
tanks that we use. Which of those are appropriate to be
used in forensic alcohol testing in the United States?
Okay. And what is the National Highway? Is that what NHTSA
is?
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Yes. NHTSA. National Highway Traffic Safety Administration.
So when you've been saying NHTSA you been saying the
National Highway Traffic Safety
Safety Administration, yes.
And that's a federal agency?
Yes it is.
Okay. What other requirements?
Urn, to be used urn, by officer there are requirements for
individual breath tests. Urn, is that what you're asking?
Uh, yeah. Title 17 I S minimum requirements for a
breathalyzer to be in compliance.
To be in compliance? Well urn, we have to have the accuracy
checks done once every ten days or 150 subject tests.
Whichever comes first. Urn, when an officer is urn,
performing these tests out in the field they are required
to do a 15 minute observation period of the individual
before they actually submit to the breath test. During that
time the subject's not allowed to do certain things.
They I re not allowed to put anything in their mouth. Urn,
have smoked, ate uh, drank or consumed any alcohol during
that time. Urn, then it's required that there be two breath
tests and that those breath tests be within a .02 of each
other to be considered appropriate.
Okay. And that's all breathalyzers have to meet that
standard?
All evidential breath tests, yes.
Okay. Would it be fair to say that a minuscule change in
environment will affect the breathalyzer's' result? For
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And I believe you said 20% of all alcohol enters the system
through that es --
I sa-sa
Esophageal tissue, is that correct?
Said I said the urn, mouth, esophagus and stomach
walls.
Okay.
About 20%.
So it's absorbing in this tissue? The mouth --
It can be absorbing uh, all the way down through the
stomach. About 20%.
And that tissue is -- can be saturated with alcohol?
Um, possible but very unlikely. I've done mouth alcohol
tests. Urn, which we've done in uh, wet workshops. Where it
showed that the alcohol that's actually in the mouth
evaporates and dissipates extremely quickly . Well within
about two minute.s. Urn, we had some tests where we had. the
issue of soy sauce coming up in a case a couple years ago.
People don't think of soy sauce as being alcohol but it's
fermented soy beans and it is actually quite strong in
alcohol. And what did um, during this drinking study -- the
people that actually w e r ~ n ' t actually drinking so, us
observers were taking soy sauce, swishing it around in our
mouth urn, spitting out and then blowing directly into a
breath testing instrument. And we were able to get urn,
immediate concentrations of about as high as .30 urn,
percent alcohol concentration. And then we would wait two
minutes. Um, which is the required amount that we have
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scheduled between our .instrument breath tests .. Wait two
minutes and do a second test and all of those results were
down to a .01 or a .0 after two minutes. So that alcohol
that's in the "mouth cavity dissipates very, very quickly.
Now when you expel air it passes the esophagus or the
windpipe and esophagus combined in that throat tissue?
Would that be fair to say?
Urn, I'm not a physiologist. I would have to go back and
look at that. But, you know, that's coming up through that
area but I don't know the exact --
If -- let's put it simpler, a cough -- when you drink water
and it goes down the wrong way you cough it out. You cough
it out. Your lungs say, Get this liquid out of here. Wrong
hole. Is that fair to say?
That's fair to say.
That I s - - so when the airs coming out of it it's passing
that joint?
Correct.
And would it be fair to say that the breathalyzer assumes
it's exclusively measuring alcohol as it comes from the
lungs and it's not picking up alcohol along its way out?
Would that be fair? For the purposes of measuring blood
alcohol content?
Objection. Lacks foundation.
Overruled.
Urn, uh, yes but as you're expelling air it's coming through
the, the entire lungs so it would possibly pick up anything
that's there but the thing that's gonna have the -- in my
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opinion -- the highest concentration is that deep lung air.
Okay. But --
I think the rest is gonna dissipate fairly quickly.
But it can pick up alcohol on its way out?
I guess it's possible.
Okay. And the breathalyzer as a, a measurement for blood
alcohol assumes that it's exclusively measuring alcohol as
it came from the lungs and it didn't pick up anything else?
Urn, that is theory. Yes.
And, and that's why there's rules about vomiting?
Yes. You don't wanna bring any stomach contents up into the
mouth.
Because that could affect the result?
Yes it could.
And we're talking about molecules and atoms?
Uh, when, when you're talking about the amount of the
alcohol in the breath, it's a very small amount, yes.
It's a miniscule amount?
Don't like the word miniscule. It just usually uses a very
small amount.
What -- you don't like the word miniscule? Can you see it?
Objection. (UNINTELLIGIBLE) Your Honor.
Well --
Argumentative.
It is argumentative.
Okay. Withdraw the question.
You don't have to withdraw it just ask another one.
Okay.
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Yeah.
So it's a small amount?
Correct?
Invisible? Can you see the amount? With the naked eye?
Well I don't think you can see breath with the naked eye.
With --so I would say no.
So a tiny amount? (UNINTELLIGIBLE)
Yes.
And this again applies to all breathalyzers?
Yes.
Okay. I wanna move on to the Alco-Sensor V.
Okafo
And just to review you're the supervisor of the
forensics?
Of the forensic alcohol section, yes.
Of the forensics alcohol section? And you began noticing
problems with the Alco-Sensor V in -- what was it -- late
February or earlier?
It was urn, late uh, January.
Okay. And what types of problems were you seeing early on?
Was it error messages?
We were seeing urn, uh, RFI urn, status messages and sensor
blank timeout messages.
So you're saying RFI which is Radio Frequency Interference?
Yes.
And you wrote that off to analysts playing the radio in the
testing center?
Well when we were -- we qriginally saw some of that during
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our validation study which would have been before January.
That would have been in September or November. And in those
instances during the validation we urn, people were
listening to their radios and their uh, Pandora on their
cell phones. And we contributed seeing that to that kind of
thing during that time. Later when they were doing accuracy
checks they were not allowed to use those urn, items in
there and we did start to see it during accuracy checks of
the actual instruments once they were in the field. And
that was about the end of January.
Okay. And then you saw that RFI error?
Correct.
Okay. And -- but you thought it was confined to -- was it
testing conditions?
Well what we did is we pulled uh, two of them. We didn't
know what it was contributed to. Urn, we removed the -- a
few t h e ~ from service. I think it was uh, two or three at
that time. We sent them back to the manufacturer for them
to evaluate. Um, it took them about uh, about four weeks.
It was near the end of February that they came back and
thought that there was possible condensation issues. Urn,
that were uh, leading to that. Uh, uh, those error
messages. At that time they didn I t feel it was affecting
subject tests 'cause if it gives the error message then it
won't allow you to go forward with an actual subject test.
It stops the test.
Okay.
So they felt it was not affecting subject's tests.
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And you learned that was false. That it was in fact
affecting subject tests?
That it could possibly affect subject tests, yes.
And it was in fact affecting subject tests?
Uh, well I know of two for sure that it was affected.
Okay.
That were affected.
And you I re initial impression was that confined to just
these special two?
Well the first one when I saw the urn, instrument that was -
- uh, we knew had the 204 I sand it was low. I didn I t know
if that was the same issue or if there was something
particularly wrong with that particular instrument. So I
pulled that instrument from the field and sent that back to
the manufacturer. And it took them a little while to look
at that one and they came back with the opinion that, yes
that the condensation issue with the other on--, with the
uh, what we saw with the RFI and the simpered sensor time
blank out was uh, the, the likely issue that was happening
with those two or 04 readings. And also the one that I sent
back about 15, days after that around the uh, middle of
March, where I had the five readings that were very
erroneous, I pulled that one 'out and they looked at that
one as well. And by the end of March they had made the
opinion that uh, this condensation issue could affect urn,
uh, I believe their statement in their letter to us that it
could cause erroneous status messages or erroneous results.
And this product of a design defect, is that --
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automobile recall. Urn, even though the issue was not
Yes it was.
And that design defect affected all the machines?
Uh, the design e--, defect was in, in they're all
manufactured the same so the possibility uh, would -- could
possibly happen in any of them. Yes.
And the design defect applied to every single machine
including the one used in this case?
Correct.
And after you learned of the design defect you took steps
to remove the machine from the field, is that correct?
Yes. We removed all 125 of them from the field.
So this effect and it only applied to certain serial
numbers, would that be fair to say?
Urn, as a urn, instrument for
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it's kind of like a, a -- an
all
the
the fact that there could be
-31-
or, Mr.
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" . ~ ,
instruments out in the field that would give us incorrect
information. Urn, that's inappropriate. And in my opinion,
yeah, I would have considered it urn, a big deal.
Okay.
Would, would have been an issue.
And once you learned that it was a design defect you took
steps to remove all of them from the field?
Correct.
And they have yet to return to the field?
Correct. I'm still in the process of looking at them.
And the Alco-Sensor used in the defense case was removed
from the field?
Yes it was.
And the Alco-Sensor in the defendant I sease
Morales'S case was never returned to the field?
Uh, none of them have been returned to the field yet.
Okay. And you were working with various agencies to deal
with this problem? Would that be fair to say?
Uh, we were dealing mainly with the manufacturer. But we
also uh, let the urn, California Department of Public Health
know which urn, urn, governs Ti--, err, manages Title 17 in
the state. Since we have uh, copies of our methods on file
with them. As well as we actually contacted NHTSA to make
sure that the manufacturer had talked to them as well.
So you were working with NHTSA?
Yes.
You were working with the manufacturer?
Correct.
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Y6u were working with other agencies within California?
Uh, yes we were. Talked -- we didn't really work with them
but we talked to other agencies in, in California that had
the same instruments to see if they had seen any of these
same issues,
Palo Alto?
Palo Alto.
San Jose?
San Jose.
San Diego?
Urn, didn I t really talk very much to San Diego. Know that
they had instruments as well but didn't really to discuss
the issues wi th them \ cause they had - - my understanding
was that they had just received their instruments. I don't
think they had really done much with them yet. But Palo
Alto and uh, San Jose had their instruments from the field
though.
And you also worked with the District Attorney's Office?
Uh, yes once the uh, issue came to rise we let them know
of, of the issue and gave them a list of all the testing
that had been done on those so they could take a look at
the information.
Okay. And people were asking you thought concerning the
breathalyzer machine, didn't they?
Objection. Vague at the people.
Well
They asked your opinion as to the ethnicity of these
results from this machine, did they not?
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Lacks foundation. Calls for hearsay.
And once more on the question. Are you referring to ,uh;
something that Mr .. Arzu brought up on direct or something
that took place outside the courtroom?
It's something that took place outside the courtroom.
All right. Rephrase your question ..
Would it be fair to say you had a series of meetings with
officials from intoxment errors, via telephone?
Exceeds scope. Indirect, Your Honor.
Overruled. Go ahead.
Uh, yes.
Would it be fair to say that you had meetings with
representatives of the District Attorney's Office
concerning the Alco-Sensor V?
Uh, we actually had a meeting with urn, uh, the misdemeanor
supervisor. Um, about uh, us taking them out of service.
And uh, what we were told by the manufacturer.
And you gave an opinion at the meeting, did you not?
Uh, yes.
You said you were not confident in the results from these
machines?
Objection. Calls for hearsay and lacks (UNINTELLIGIBLE)
No. Asking what she said. Overruled.
Urn, what I stated is if I had to rely only on the
information from the AASV alone that I would not be able to
make an opinion because that um, since even then -- in
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even though I feel
majority of the data
looking at all the data that the
is just fine. The fact that there has
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been an issue with a couple of the tests urn, makes it
harder based on just those number alone to make a uh,
determination of, of the accuracy.of those numbers.
You told them you were not confident in the results, isn't
that correct?
I stated that but with some caveats on looking at just
those numbers alone.
You told them that they should not proceed on a case where
the Alco-Sensor V was the only machine used, is that
correct?
Yes. Withotit bther corroborating information.
Now, would it be fair to say the District Attorney
disagreed with you?
Objection. Irrelevance. It calls for hearsay.
Well it lacks foundation.
Okay. Let's back up.
And it is irrelevant.
When you first learned of the problems you were contacted
by Intoxilyzers, correct? Or you contacted Intoxilyzer? The
manufacturer of the Alco-Sensor V?
Yes.
And you requested uh, a draft letter outlining what the
problems were and what their proposed fixes would be, isn't
that correct?
Uh, once they found -- what they had -- once they had uh,
decided err, started giving informat ion of what that
was, yes I requested a draft letter uh, to explain what the
issues were and what their proposed fixes were.
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or that probably late February. Before the final
their initial evaluation. Yes.
So the manufacturer wrote you letter stating the problems
with their machine, correct?
Yes.
They asked you to edit it, correct?
They asked me to review it, yes, to see if I had anything
that urn, I wanted clarification or I thought was
inappropriate.
Okay. 'that you thought was inappropriate? Okay. And the
manufacturer used the word contamination?
Yes.
And you thought the word contamination was inappropriate
and struck it?
Okay. And that letter was to come from the manufacturer?
Correct.
And they asked you to edit that letter, didn't they?
Uh, they a$ked us to review the letter and see if there was
anything in there that urn, I wanted more clarification on
or that I thought urn, wasn I t clear. Yes.
Okay. And in that letter they gave you they used the word
contamination, did they not?
Yes they did.
And ln your edits to that letter you struck the word
contamination from that letter, is that correct?
That is correct.
And that letter was in February?
I don I t recall the date of that original draft. It was
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Urn, I us- -, would Use a different word. Urn, and I don't
remember which word urn, we uh, discussed. I actually
discussed it with them. And urn, contamination, I believe is
a, an inappropriate word. 'Cause in contamination urn, we're
talking condensation from breath contamination when we talk
about science it usually means that it's something that's
come from a different source. For instance, ~ f I was
talking uh, drugs and. I was talking about cocaine there
might be some kind of contamination from the manufacturing
process. So contamination from a scientific gave me a
different concentration. And felt appropriate for the, the
possibility of condensation coming into system. Urn,
contamination felt like an inappropriate word. I could see
how some would see that -- say that it is an appropriate
word but from my sc--, forensic experience I think of
contamination of something usually coming from a different
source that -- than that. That is why I looked at that word
and felt uncomfortable with it.
Okay. And following that edit, Intoximeters never used the
word contamination in any other documents describing "Alco-
Sensor V, is that fair to say?
Not that I know of, yes.
They didn't use it in their letter to your office on March
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?
No they did not.
. Okay. And you informed Intoximeters that they needed to
inform NHTSA of the problem, would that be fair to say?
I wanted to that's fair I wanted to make sure that
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1 uh, the governing body that decides whether this
2 instruments are on the Conforming Products Lists are not --
3 knew of the issue and urn, uh, wanted to make sure that they
4 had the opportunity to decide whether they needed to
5 reevaluate the instruments or not. Wanted to make sure that
6 whatever manufacturing change that Intoximeter had to make
7 or any software change they had to make wouldn't jeopardize
8 the instrument's compliance to be on that list.
9 TH: Okay. And at that time and Intoximeters informed you
10 that they did need to make a manufacturing change, is that
11 correct?
12 CC: Uh, correct. Actually they let us know that uh, actually in
13 late February. Um, but the change that they decided then
14 uh, is not the final change that they decided. They
15 actually kind of changed their mind on how they wanted to
16 do that. And their final decision was in the letter uh, on
17 the end of March.
18 TH: Okay. And they had to redesign the mouth piece?
19 CC: They had to re--, they did redesign the mouth piece but the
20 main thing they redesign is the sampling port on the Alco-
21 Sensor V itself.
22 TH: So it's the mouth piece and the sampling port? There was a
23 problem with those two pieces interacting with one another?
24 Would that be fair to say?
25 CC: Um, yeah, that's fair to say. But I don't believe that --
26 from discussing it with them, the sampling port itself was
27 the, the main part of the problem.
28 TH: Okay. And this problem with the sampling port and the piece
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1 TH: And that was based On looking at the calibration tests and
2 the field tests?
3 CC: Uh, yes. The subject tests and the screening tests, yes.
4 TH: You, mentioned earl ier there was a machine at the end of
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February -- a machine that gave a .04, .04 reading, is that
correct?
7 CC: Correct.
8 TH: And that machine was number 5161?
9 CC: Let me refer to my list. Just - - I've looked at lots of
10 instruments. Yes.
11 TH: And machine number 5161 gave a reading of .04 at 3:13. And
12 then .04 at 3:16 is that correct?
13 CC: I don't actually have the uh, actual printout of that with
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me. All I have is just a little that says what uh,
instruments were taken out of service and why.
16 TH: Shown to opposing counseling. Uh, I'd like that marked at
17 Defense A.
18 AA: I have not received that list Your Honor. I'd object.
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TH: I'll give him a copy right now,
(UNINTELLIGIBLE)
Your Honor. It's
21 HW: All. right. You can exhibit. Give it to the clerk and have
22 her put an evidence tag on it.
23 TH: Thank you.
24 HW: There'S no question pending.
25 TH: Oh. I'm sorry. Do you recognize that as the machine that
26 issued ..
27 CC: Urn, I recognize this as the serial number uh, at issue,
~ .
28 yes.
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0.
And is that particular test?
Urn, I I m not sure. 'Cause I, I would have to go back .and
look at my records to see which exact tests were -- 'cause
I don't know what other tests were done on that instrument.
I don I t recall. Urn, and I know we had to uh, remove the
subjects tests but that would have helped me see if it was
the same individual with the two different, different
results, Urn, so urn, I can't say for sure that this is. Urn,
it appears that it possibly is but I can't say for sure.
When you let's back up when you discovered that
machines resul t did you email Intoximeters concerning the
disparity?
Yes.
And in that email did you attach a scan of the tests?
Yes.
And if you were to see that email would that reflect your
recollection as to whether or not that was the accompanying
scan on that email?
Urn, it would be easy if I had the entire email with the
scans. Yes.
Okay.
Okay, have it marked Mr. --
Oh, sorry Your Honor.
-- Harnett. And if you have others give them all to the
clerk so she can do them all.
Would that be the forwarded email with the attached scans?
Urn, it, it ap--, it appears to be. Again, since the names
were redacted it1s a little hard to see. 'Cause urn, but it
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''1/1''.
looks like it is. But, ag.ain, without seeing the names it's
hard for me to-see it's the same one. But it appears to be.
The name of -- so you identify the results by the name of
the subject?
Wellum, the name of subject would have -- shows that the
two were from the same person.
Okay.
Which was -- allows me to see that, yeah, it was the same
ones done on the sq.me night on the same individual that
would -- if that makes sense? So um, it appears to be. I
can't say 100% for sure. But it appears to be the correct
one. With the same officer on both of them. The same
evening. Um, approximately, you know, 15 minutes apart.
Most likely um, I know that the uh, part of the issue that
can happen with the instruments lS uh, cold temperature.'
Uh, the instrument being cold. Warm breath. The possibility
of more condensation. So the first test is at 8.3 uh,
degrees. And the second one being inside at 20. So this
appears to be the one. I just can't say 100% without
actually seeing the names.
More likely than not?
More likely than not.
Go from there.
So that reading is .04 and .04?
Yes Sir.
Okay. And that's in compliance with Title 17, is it not?
It 1--, both those results are within .02 of each other,
yes.
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So that's a success test?
Based on Title .17 criteria, yes.
And looking at that test alone you couldn't tell if that
machine was functioning or nonfunctioning, could you?
CC: . If we looked at results, no that -- alone
uh, myself or the officer would have no idea that that
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result was incorrect.
TH: But the only reason you know that result was wrong was
because there was Intoxi--, uh, uh, I'm sorry -- an Alco-
Test IV that was used later?
CC: An Alco-Sensor IV --
TH: Yeah.
CC: -- that was used earlier.
TH: Used earlier? And because of that (UNINTELLIGIBLE) result
that machine was flagged?
CC: Yes.
TH: But looking at -- within the .02 alone that couldn't tell
you whether or not a machine was working I would that be
fair to say?
CC: That would be fair to say.
TH: And even though that, that machine appears on its face to-
comply with Title 17 we now know that machine is broken,
correct?
CC: We now know that that in this particular test the
instrument was not working properly.
TH: We know in that particular test the instrument was
suffering from the very design defect we discussed earlier,
is that correct?
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in large part because of that
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Yes. But it might also have the majority that are fine.
Uh, might have. That machine, .04, .04, was suffering from
the defect, correct?
Was suffering from that issue, yes.
And. the only reason we know it was is 'cause there was --
happen to be another machine used, correct?
Correct.
And it's because of that you thought that no case should go
forward unless there was another machine to assure the
veracity of the results, is that, is that a fair statement?
In my original statement I believe I said to, to the
meeting that urn, that it could not rely on uh, if an Alco-
Sensor Valone was used. They couldn I t rely on those
numbers alone.
Okay. And it I S because
test?
Correct.
For all you know that test could have been
the whole time, correct?
Could you
That machine could have been giving results within the .02
variances the entire it's used, correct?
Possible.
And it's absolutely possible that those results would also
be wrong, correct?
Urn, possible. Again, from the manufacturing issue we know
that that it's more likely to happen under specific
circumstances. But could I urn, completely -- err, can I say
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that it didn't happen on other times, no. But we know that
from the manufacturers look at they -- there are specific
circumstances that are more likely tb cause the issue.
Would it be fair to say you didn't know what would cause
the issue at that time, correct?
At the time of this?
Yes.
At the time of this uh, no they were still looking at the
uh, the manufacturer was still evaluating.
Would it be fair to say there was --
I, I don't wanna arbitrarily interrupt you, but this where
I normally take a recess --
That's fine.
-- if you have a line of questioning you wanna finish, I'll
give you that.
We can get it after the recess.
All right. We'll take our morning recess ladies and
gentlemen. Fifteen minutes. Don't uh, discuss the case with
anyone -- including yourselves -- until it's admitted to
. you. Fifteen minutes. You can. step down Miss Craver.
Counsel to remain. (UNTNTELLIGIBLE) Mr. Harnett?
I do Your Honor. I should mark the ones I anticipate
Well give them to the clerk and she'll
(UNINTELLIGIBLE) That would help.
Well.
I (UNINTELLIGIBLE)
Show them to, show them to Mr. Arzu and get them to the
clerk. Because you see the problem. Everything stops while
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she puts -- fills out the evidence tag and puts it on and
so forth. Urn --
I got this one right here for you.
Mr., Mr. Harnett, this testament, how much more do you have
with the witness?
How much more? Awhile more. We're gonna go past lunch.
Urn, you have any other witnesses Mr. Arzu?
No Your Honor. And I --
Supervising Forensics Lab.
I have an appointment at four o'clock.
Okay urn, how long are you gonna be on your, your uh,
opening argu --
This should (UNINTELLIGIBLE)
-- opening argument?
Uh, could be -- probably 35 minutes maybe at the most.
Yours, if you have an idea?
I don't -- Your Honor. Possibly 45. a lot of info
in this case.
I mean, we make it, Where, where is your appointment?
Uh, the Normandy (UNINTELLIGIBLE)
Across the street?
Yes.
Okay.
No, no. Yes, it is. Across the street.
Urn --
Can we be off the record for a second?
Yeah, we'll shut that off. That was probably premature for
me to say urn, so urn, uh, we're probably gonna go into the
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afternoon with her. Um, as you may have sensed this whole
business about the machine is a urn, is a contested issue
between the prosecution and the defense. And Mr. Harnett is
entitled to go into that. Mr. Harnett, go ahead.
Thank you Your Honor. Now just to reorient us, we 're
talking about machine. number 5161. And I've showed you an
exhibit and that was the machine with the .04, .04, is that
correct?
Correct.
On the 28th?
Correct.
And that was within the Title 17 variance, correct?
Yes it was.
And there was no error message on that machine?
No there was not.
Okay. And -- give us a D. (UNINTELLIGIBLE) a D. Oh, here we
go. Miss Craver, do you recognize that document?
Yes I do.
It's --
Which one, which one is it?
Uh, Exhibit D.
D? All right.
Do you see on that document a uh, heading for Alco-Sensor V
serial number 005161 accuracy checks?
Uh, yes.
It I S essentially identical to the accuracy check we just
discussed earlier, is that correct?
Urn, uh, yes. This one actually has some more tests. This is
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urn, when we were actually uh, doing both wet and dry --
just looking at both results. Since they were newer
instruments. So this --
Oh
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Yes.
The next test is a wet test. Target at .111. Result is
.113. Is that an accurate and calibrated machine?
Yes.
Fifth test. It shows Admin and High Blank status. That
would not be a completed test, would that be fair to say?
Correct.
There was another test following that one. A wet test.
Target was .111. Result was .113. Is that an accurate and
calibrated machine?
Yes.
Okay. I wanna give a hypothetical. Let's pretend that this
trial involves the breathalyzer of 5161. Let's assume that
breathalyzer admitted into evidence in this case was the
February 28th breathalyzer at .04, .04. And that we also
admitted into evidence calibration accuracy checks of that
device taken. on February 1st. Your opinion knowing
nothing else -- would that be an accurate machine?
Knowing nothing else? Yes it would.
And you testify in court to the accuracy of that result,
wouldn't you?
Yes I would.
But we now know now that that result was inaccurate, is
that correct?
Correct.
And there was no way for you to tell other than the fact
that you had another machine?
Correct.
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0.:;'
So using the same tools you used here - - to say that this
machine was working - - it didn't apply to every machine
that we know wasn't working, correct?
I'm sorry, repeat that?
I'll repeat it. 5161 is a not a malfunctioning
nonworking Alco-Sensor V breathalyzer, right?
During that test. Yes.
It was inaccurate?
Correct.
It was within Title 17 requirements?
Yes it was.
It was used properly?
Yes it was.
It was properly calibrated?
Yes.
It was certified as calibrate and accurate for the time of
that test?
Correct.
So under the tools of Title 17 and examining those
documents that test was okay?
Uh, based on Title 17 without any other information, yes.
But we know that that test was, again, inaccurate?
Yes we do.
Okay. So would it fair well, let's just say it. The
calibration logs do not necessarily tell you if a machine
is working, correct?
In the situation of uh, this type of issue when there's
something going on with the manufacturing? Uh, yes. In my
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history with instruments in the past urn,. in my opinion uh,
yes it was a good indication that they were working uh,
accurately and properly. In this situation knowing about
that .04 urn, much more difficult to .say so. Yes.
Okay. So before the calibration logs had always been a way
to tell you if a machine was working properly?
In ~ y opinion, yes.
Okay. But with the Alco-Sensor V those couldn't tell you if
a machine was working properly or improperly, could they?
Yeah. I would just be able to say that they were working
properly at the time of the accuracy check. And based on
that it, it appeared to be working properly at the time of
the, of the subject test. But I could not say that urn,
completely.
And, anQbefore the Aleo-Sensor V if you would have seen a
.04, .04, any two results within variance, you would have
said that is an accurate working machine and a valid
result, correct?
Yes I would have.
And after the Alco-Sensor V you couldn't confidently say
that, could you?
With if -- it -- uh, with this situation with ASV, no.
Okay. And that's why the ASV was pulled, correct?
Uh, it was pulled because of the, the possibility of
inaccurate results, yes.
Yeah. It was pulled because this defect in the machine
affected all of the machines, correct?
Again, that -- the potential there for it to affect tests,
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yes. And the manufacturing issue was in all of the te- -,
instrumentation.
Okay. And it was pulled because the tools you normally use
to figure out what mQ.chine is working or not working --
those tools were not accurately reflecting which ones were
working and not working, correct?
Urn, it originally 1. wasn't looking at that. I was
looking at the actual issues that I saw. Urn, I wasn't -- I
have to be honest -- wasn't looking at that big picture at
that moment.
Okay.
I took them out of service because I saw the issues at that
moment.
Okay. Prior to the Alco-Sensor V, those calibration logs
and that congruent result within .02, .02, served you well?
Fair to say?
Yes.
Objection. Served you well, vague. Lacks foundation.
It guided your opinion in court? Would that be fair to say?
Yes.
You could be confident when you said that this result is
this result?
Uh, yes.
And then after the Alco-Sensor V, just off those two pieces
of information, as applied to the Alco-Sensor V you
couldn't be as confident in that result, could you?
Uh, with this uh, version of that instrument and wh--, and
what I've seen since then with this? No. It would be much
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harder.
And as the supervisor of forensics you wanna have a machine
that you could testify to confidently to in court, correct?
Correct.
You would never have a machine out in the field that you
couldn't testify to, would you?
Urn, hopefully not.
If you knew about the machine you wouldn't allow it out in
the field?
Correct.
If that machine -- if you lacked confidence in that machine
you would pull it from officers'. hands, correct?
Correct.
And that machine also included 5025 used in this case,
correct?
Correct.
You pulled 5025 from the field?
Yes. Along with all the rest of them at that time.
And you learned on April 5th after - - well, let's start
with this. You made the decision to pull all the machines
from the field on March 30th?
Correct.
Had you learned on April 5th that machine 5025 was still in
the field would you have taken steps to remove it from the
field?
Yes I would have.
And has machine 5025 ever returned to the field?
Uh, not yet.
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And will it ever return the way it existed at the time this
breathalyzer was given on March 19th?
Uh, it that, that -- the way it was in back on March 19th? '
No.
January and March of 2011 no longer exists, correct?
Correct.
And the new model just underwent testing at NHTSA, is that
correct?
Correct.
And NHTSA treated it as though it was a new device, didn't
they?
I assume so. I can't --
Objection. Lacks foundation.
Sustained.
You corresponded with NHTSA concerning Alco-Sensor V
concerns?
Objection. Relevance.
Overruled.
Uh, yes. But we didn't speak to them specifically on their
testing. We just received a report once the testing was
done.
Okay. You would not use a new Alco-Sensor V until NHTSA had
completed its examination? Would that be fair to say?
That would be fair to say.
So you were, in effect, waiting for NHTSA to give you the
green light to use these new Alco-Sensor V machines?
Asked and answered.
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Sustained. Uh, she said that a couple of times.
Thank you.
Did the new machine pass NHTSA testing?
Yes it did.
Okay. But you're still not sure about putting it in the
field, . correct?
No. Urn, anytime uh, any type of instrumentatio
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into the laboratory whether it's a brand new Gas
chromatograph or a brand new FTIR we always do an in-house
validation of that instrument. And since it was
remanufactured and there are new part. Urn, we are
undergoing a revalidation of them because that's just urn,
what you do with new instrumentation. Our original
validation took us about two and a half to three months.
Um, we know a little bit more on what we did the first. time
so now we're hopefully it'll take us a little less time
than that to do the revalidation. But we um, always do that
when a new instrument comes in. Whether it's an ASV and
ASIV or a Gas chromatograph.
You've heard the argument before that the problem with the
Alco-Sensor V machines is confined to seven specific serial
num--, or, eight specific serial numbers, correct? You've
heard that argument?
Objection. Lack foundation.
No. It's, it's a standalone question. Have you heard that
argument?
Uh, no. Um, I haven't heard that argument. I stated that
those were the, there were seven that were originally taken
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out of service. One was taken out of service for a
different issue. Um, I wouldn't necessarily say that those
are the only five. I would err , t h , ~ only seven.' I
haven't heard that argument from someone. I would -- those
are the only ones that we' originally knew of. I would have
to look at each individual one as we go along. Since there
are 125 to see if there are other any other issues. But
I haven't heard that specific argument.
I'll be a little bit more specific. Have you heard the
assertion that while it appears that the problem is limited
to the eight instruments mentioned above, have you heard
that asserted?
Calls for hearsay.
Sustained.
It's the affect on the (UNINTELLIGIBLE) Your Honor.
Well you can ask her about her beliefs. But when you say,
it's been asserted. I mean, anybody could have said it.
You read a letter that asserted, while it appears that the
problem is limited to eight instruments mentioned above.
Didn't you?
Calls for - - lacks foundation. (UNINTELLIGIBLE)
Fact on the (UNINTELLIGIBLE) Your Honor.
Well you, you need to be more specific Mr. Uh, Hartnett.
Okay. I will be. On April 14th, 2011 the District
Attorney's Office mailed a letter to all criminal
defendants with a breathalyzer machine, is that correct?
Objection. Lacks foundation. Speculation.
Well do you know that one way or the other?
-56-
Okay.
Urn, but you kept trying to get the contents of the letter
into evidence and that's what he'S objecting to and I think
that's well founded.
(UNINTELLIGIBLE) opinion. later and (UNINTELLIGIBLE)
report's true.
Well ask her if it -- if in reading her letter influenced
her opinion. You can do that.
I know that there was a letter that was sent out. I don't
know the date or anything of it. I don't recall that.
If I showed you the letter would it -reflect your, reflect
your recollection as to having reading it, reading it
before?
Yes it would.
Okay. Your Honor may I approach? I have Exhibit F.
Wish I could remember everything but I can't. Uh, yes. I do
recall reading this.
Okay. And you read, again we'll do the statement, While it
appears that the problem is limited to the eight
instruments above...
Obj ection Your Honor. Counsel is reading into the
(UNINTELLIGIBLE) incident. I (UNINTELLIGIBLE) only be used
to refresh the recollection (UNINTELLIGIBLE)
Sustained.
You've heard that statement before?
Heard? Calls for hearsay.
Sustained.
It I S a fact on this (UNINTELLIGIBLE) Your Honor. It I S a
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Did reading that letter elicit an opinion from you towards
the District Attorney's Office?
I'm trying to recall.
If you will just flip the page and refl- -, refresh your
recollection.
That's what I was thinking. That it would ha- - and I
couldn't remember if it was before or after this. Yes, I
actually responded to some inconsistencies within this
letter.
It concerned you that there were -- well, it concerned you
that the letter stated that the problem appears to be
limited to eight instruments mentioned above, correct?
Objection Your Honor. (UNINTELLIGIBLE)
She could say yes or no.
Sustained.
Move to strike.
Stricken.
You were concerned about the assertion that the problem was
limited only to eight Alco-Sensor V machines, isn't that
correct?
Yes.
You were concerns because during meetings you had discussed
tests on other machines not listed in the eight serial
numbers, is that correct?
Calls for hearsay. Lacks foundation.
Overruled. Overruled.
Uh, yes. Based on my email. Yes. I don't recall what that -
- those specific ones were but urn, yes.
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So there were other machines not listed in the eight we
discussed today that were of concern, correct?
Correct.
But we don't know which machines those are, do we?
Uh, no. I would have to go back and look at all the data to
make a list those.
So there were, in fact, more machines that had been brought
to your attention as early as April 19th, 2011, that were
not listed in the original eight, correct?
Uh, correct.
And in your view the problem applied to all the models of
the Alco-Sensor v, correct?
Could you repeat that question?
In your view the problems with the Alco-Sensor V applied to
all the machines, correct?
Yeah, the manu --
(UNINTELLIGIBLE) time. Objection, Your Honor.
On--
We'll put a time on it. That's easily enough done.
Okay. Time. (UNINTELLIGIBLE) April 18th, 2011 you were of
the opinion that the problems inherit with the Alco-Sensor
V machine applied to the model, not necessarily just eight
serial numbers, is that true?
Correct. They were all manufactured the same so th.e, the
potential was there on all of them.
And you knew of specific models but you couldn't list their
serial number at the time, correct?
I'm not sure again what you're asking?
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enforcement umbrella.
law enforcement. .80 I
lab is under the law
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Do you consider yourself a member of law enforcement then?
Objection. Relevance. (UNINTELLIGIBLE)
Overruled. Overruled.
Uh, I work for an entity that is
would consider that the crime
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enforcement are you?
Our entity as urn, our billing and uh, things like that are,
yes, definitely under uh, law enforcement. Urn, the fact
that we are -- in my opinion -- scientists urn, we look at
the science and information. We aren't uh, pressured
necessarily by, you know, law enforcement. So you have to
say something this way no matter what the science says.
We're, we're scientist in the laboratory but we are in the
-- under the umbrella of the Sheriff's Department.
Two things I heard there. So you are under the umbrella of
the Sheriff's ap--, Department, correct?
Yes.
And typically you don't receive pressure from the Sheriff's
Department to do something one way or the other? Is that
correct?
Correct.
Have you received pressure from other departments to do one
thing or the other?
Objection. Vague as to one thing or another.
Sustained.
(UNINTELLIGIBLE)
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It was mailed to non-law enforcement entities?
It's --
Lacks foundation.
I assume so. I don't know that for sure.
All right. The, the objeCtions overruled. Do you know who
you mailed it to?
Urn, no. The lab didn I t. mail them. They were mailed - - as
far as I know by the District Attorney's. I have no idea
who they were mailed to.
Okay. Go from there.
So you knew that the letters had, in fact, been mailed?
-62-
'.
That
That was
the Alco-
letter. a
2011.
removed all
14th,
There was
approximately two weeks after you
Sensor V's.from the field, correct?
Correct.
You read that letter?
Correct.
You understood that letter to have been sent out to the
public? And by public I mean non-law enforcement entities?
Correct?
Calls for speculation.
Well --
(UNINTELLIGIBLE)
All right. All right. That obje--, yeah, that objection is
sustained. You need you can ask that if she knew. I
mean, let's do -- establish your foundation. But If I think
youwanna get to the email, .don't you?
We're gonna -- I'm just slowing it down Your Honor.
Okay.
My understanding is that they were -- either had been or
would be mailed.
Calls for hearsay. C ~ l l s for hearsay..
All right. It just - - asking for an understanding. But I
need you to distinguish, M r ~ Harnett, we started out with
email and now we I re on some other letter and I've lost
track
I understand.
-- so I need you to be clear.
We'll start at the beginning.
letter was dated April of
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I got
for
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Urn, I don't recall if it came back. I do believe urn,
a call concerning it. To see if there was -- to need
some discussion over it.
All right. (UNINTELLIGIBLE) is it was received?
Yes.
Go ahead Mr. Harnett.
We'll, we'll get even closest. You sent the email at 4:29
pm in the afternoon of 4-19-2011, correct?
Oh, actually you're correct. The actually there is
when I look at this again there is a response back from uh,
someone from the DA's Office on this same email.
Okay, let's just walk
You're correct.
-- through the subject line 'cause I wanna be detailed. You
sent that email to Kevin Drescher?
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Correct.
Who is Kevin Drescher?
Urn, . he is - - at that time I believe, believe he was the
Felony Supervisor for DAis Office.
Okay.
Objection. May we approach Your Honor?
Yes. Okay. We're back. Go ahead uh, Mr. Harnett.
Following the sending of your email, you arranged a
meeting, is .that fair to say?
Objection. Irrelevance Your Honor.
No. I, I assume.itls preliminary.
It's preliminary. I'm trying --
All right.
-- to build the foundation over a meeting taking place.
Overruled. Go ahead.
You had.a meeting?
Yes.
And you took notes at that meeting?
Yes I did.
And you took these notes to remember what was said at the
meeting?
Correct.
Okay. Exhibit E. Do you recognize that document?
Yes I do.
Is that your handwriting?
Yes it is.
Are these the -- your notes that you took at the meeting of
April 20th, 2011?
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Yes it is.
And who attended that meeting?
Objection. Irrelevance .
Sustained.
I assume you need your recollection refreshed concerning
the content of that meeting? Would that be fair to say?
Would you like some time to read your, your notes?
Yes.
Well read your riotes and when you I re finished look up at
me. Has your memory been refreshed?
Yes.
At the meeting you discussed the concerns you mentioned in
your email, is that correct?
Correct.
And you asked if a new letter would be drafted, correct?
Correct.
To correct what you saw as inaccuracies?
Correct.
And a decision was made not to draft a new letter, correct?
Objection. Irrelevance. May we approach again, Your Honor?
Uh, the objection's overruled. Uh, stay where you are. I've
tried to be clear in where I want you to go in this urn,
examination Mr. Harnett so please get there.
You once again voiced your concerns over the assertion that
the problem was confined only two a certain set of serial
numbers of the breathalyzer, correct?
Correct.
And the letter also asserted that all the breathalyzers had
-66-
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erratic results, correct?
No.
No? You take issues with the fact that only some
breathalyzers had erratic results and other ones only had
message errors?
Could you repeat the question?
There is a letter that you wrote an email to. In that
letter an assertion was made that the problem was confined
only to these eight serial numbers because of erratic
resul ts. You wrote an email of which where there was a
meeting where you discussed that letter?
12 CC: Correct.
13 TH: At the meeting you clarified that only two of the machines
14 had erratic results, correct?
15 CC: Correct.
16 TH: And you gave the serial numbers?
17 CC: Correct.
18 TH: And 5161 was one of those serial numbers?
19 CC: Correct.
20 TH: And then you also clarified that the problem applied to all
21 machines, correct?
22 CC: Yes.
23 TH: And then you aske<;l that a new letter be drafted, didn't
24 you?
25 CC: Correct.
26 TH: And they said a new letter would not be drafted?
27 AA: Whose they? Vague as to they and relevance.
28 TH: Okay.
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Ho-hold -- wait, wait. It's not a group discussion. If you
get an objection give me grounds.
Vague uh, relevance to this case Your Honor.
All right. Overruled.
I'm sorry, could you repeat the question?
Mike Frawley from the District Attorney's Office didn't
want to send a new letter, did he?
Correct.
Who is Mike Frawley?
Objection. Irrelevance.
Sustained.
And to your knowledge a new letter was never sent, was it?
Not to my knowledge.
I'm gonna switch gears. I'm sure it will relieve everybody.
We've been talking about BAC. But blood alcohol content may
be the only means, to determine whether or not someone is
under the influence of alcohol, would that be fair to say?
I'm sorry, could you repeat the question?
Is blood alcohol content the exclusive means in determining
if someone is under the influence of alcohol?
Um, no. When I look at a case I look at the totality of all
the information.
You look at the driving pattern?
Driving pattern, field sobriety tests, objective signs, uh,
chemical concentrations if we have them. I look at the
entire information for my opinion.
Okay. And the driving pattern is very important, would you
agree?
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It can be but I've had cases where there's uh, very little
or no driving pattern and there's enough other information
to give me to allow me to make the opinion they are
impaired. But a driving pattern -- if it exists -- can be
helpful, yes.
Okay. And NHTSA actually has a standardized series of cues
you can look for to see if someone mayor may not be under
the influence of alcohol, correct?
I haven't seen a standard list from NHTSA. I've seen one
from, I believe it's uh, one of the other police agency
that has a, a list of driving cues that you can see. Such
as, weaving within the lane. It just gives a whole series
of them.
Do you --
And I think some of the those actually have percentages
to them but I don't recall what those are.
Is it possible that that was cut and pasted from NHTSA' s
Devisal Detection of DWI Motorists?
Possible. I, I don't know.
Okay. Would it' refresh your - - you" re an expert in alcohol
intoxication, yes?
Yes.
So you obviously study the signs and symptoms of alcohol
intoxication?
Yes.
One of those is the National Standard?
I've looked at some of those but there are lots of
different articles out there so I may not have looked at
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everything. It's possible.
Would you con- -, would you consider NHTSA a, a reliable
source?
Yes I would.
You, in fact, corresponded' wi th NHTSA even 'concerning now
the breathalyzer in this case, correct?
Correct.
Okay. Would it reflect your recollection in your reading if
I showed you this as to whether or not NHTSA has driving
cues? When you finish reading --
Wow. Urn, this one's (UNINTELLIGIBLE) I do actually uh,
remember seeing some of the information in this. I don I t
remem- -, recall if it was this exact version or, or not
though.
Okay.
This is -- the -- some of the information here looks very
familiar to me.
Okay.
But it I d been awhile since I I ve looked at it so I don 't
recall if this 1s the exact document that I've seen before.
Okay. And that version essentially gives guidance to patrol
officers to determine whether or not someone may be
operating their vehicle under the influence of alcohol?
Objection. Move to strike. Lacks foundation.
Overruled. If you know you're asking if that's given to
officers in the field?
Those are standards made for the purposes of giving to
officers in the field.
-70-
that urn, uh, I would
someone possibly being
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I don't know that for sure. I, I would assume so based on
the way it's written.
Objection Your Honor. Lacks Foundation.
I'll (UNINTELLIGIBLE)
Well she said she's, . she's answered the question. Let's
have another question.
Those were reliable indicators to determine if someone is
under the influence of alcohol for the purposes of driving
an automobile?
Uh, yes there are things in here
actually look at as indicators if
under the influence of alcohol, yes.
Okay. Is speeding on that list?
I don't think speeding is. No. Varying speed I see and slow
speed. I do not see speeding directly on here.
Okay. And there are 24 items on that list?
Urn, I'm not sure. Do you want me to count them?
I guess you don't need to count them.
Okay.
I don't know wanna waste everyone I s time. Would you be
surprised to learn the NHTSA has 24 cues of driving while
under the influence of alcohol?
I would not be surprised. No.
Okay. And would it surprise you that they use the
Nomenclature Cues to describe those incidences of
No, that wouldn't surprise me since they use the term fuse
for field sobriety tests. That wouldn't surprise.
Okay. So this is a type of test to see if someone is under
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the influence of alcohol based on their driving pattern?
It appears to be so. Yes.
And it is NHTSA's test?
Urn, it's uh, under uh, uh, NHTSA -- looks like the authored
it. Yes.
Okay. I'd like to give you hypothetical. A male, 5'11, 180
seen driving his car. He's seen speeding. No fluctuation of
speed. No weaving. No swerving. No jerking. Just speeding.
This hypothetical 5'11, 180 male will aiso admit to having
had some drinks. Based on that standard, is that person
under the influence of alcohol?
With just that limited information I wouldn't be able to
make and an opinion.
Okay. How many cues have been established?
Um, based on this alone, none.
So zero of 24? In my hypothetical?
Uh, if there are 24. Uh, yes, based on that hypothetical,
zero of 24.
And you couldn't make a determination just off, I drank and
drove this way. Of whether or not they were under "the
influence of alcohol?
On that alone, no.
Okay. Let's talk about field sobriety tests. We've talked a
lot about studies and field sobriety tests and how they
relate to blood alcohol content, haven't we?
How they relate to impairment, yes?
Um-hm. And you cited a study from 1982?
Uh, if we're talking about the one earlier?
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Um-hm.
Urn, the Burnsmart, that's '81.
'81? Okay. '81. Are you familiar with uh, a publication by
Spurge and Cole and Robert F. -- uh, H. Noizach? Concern
field sobriety testing --
Not --
-- done in 1994?
I'm not familiar with that article.
Failure?
No. Not familiar with that article.
You don't keep up on the literature concerning field
sobriety tests?
I try to keep up on literature. But just in our laboratory
alone we have over 500 articles on alcohol related
subjects. And we only have -- we don't have all of them
that are out there so I can't keep abreast of everyone. I
try to read when I can. But, no, I don't recall every
article that's out there.
Okay. Do you have a PHD?
Objection. Relevance?
Do you have a --
PHD.
Do you have -- I -- go ahead .
No, I do not.
Do you have an MD?
No, I do not.
Do you have an MS?
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Titled, Field Sobriety Tests, Are They Designed for
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Uh, no I db not.
Have you ever published anything on the field of blood
alcohol or field 'sobriety tests?
No, I have not.
Your training and experience is through the reading of
articles?
My urn, majority 'of my training and experience has been with
uh, other forensic scientists in the field. The courses
Supervisor's course. Uh, the Borkenstein Course for Alcohol
and Legal Aspects. And urn, uh, some reading that I've done
,as well. Uh, the NHTSA Field Sobriety Tests uh, class. And
urn, workshops that I've been to for the California
Association of Criminalists. So it's been kind of a
totality of different things. Some reading, some class
work.
And they're one week classes?
Uh, the one from the California Criminalists Institute is a
one week class. The Borkenstein class is a one week class.
And you're paid to go to these classes?
Yes I am.
By the Sheriff's Department?
Uh, either that or by a grant. Depending on where the'
money's coming from. Yes.
In any of these classes have they ever taught studies
analyzing whether or not FSTs are v ~ l i d ? Or -- let me --
I'll rephrase it. During these classes, have there ever
been any seminars pertaining to whether or not FSTs are
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that I've taken, such as, the urn, Forensic Alcohol
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designed for failure?
Not that I recall.
Did you ever recall a study with 14 police officers on 22
people with .00 blood alcohol levels?
Seems not familiar.
And 80% of the officers said they were under the influence?
Objection.
Sustained.
Objection Your Honor.
Sustained.
Move to strike.
If you wanna testify we can swear you Mr. Harnett.
Are you given any literature at these seminars that are
critical of that test (UNINTELLIGIBLE)
Urn, not that I recall. I have uh, seen some titles. I don't
recall if I've r e ~ - , uh, read some of them. But I have seen
some where there, there is some uh, look at them. But I
don't recall, recall what those ars--, articles are. I
would have to go back and look.
Would it be fair to say that most of these seminars teach
how to use FSTs to show blood alcohol content?
Urn, the -- definitely the three day Field Sobriety Testing
workshop is on how to administer the, the field sobriety
tests and how to evaluate the cues and the urn, information.
And urn, during for instance the urn, California
Criminalists Institute uh, class. Uh, the individuals that
urn, uh, teaches that portion of the class uh, was urn,.
Marceline Verns is one of the individuals that did most of
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the original studies like the 1981 study. One of the ladies
that did that was Marceline Verns. She gave uh, did the
speaking on that. So all of hers was pretty much - - was
. more to urn, how they work and how they were validated to
perform.
So at these seminars you never heard of the 1994 study from
Cole?
By Cole?
Um-hm.
Not that I recall. I can go see if I can find it if you
would like me to.
That's fine. What about at these courses the article in
2007 by Ruebinzer.
That name's not familiar at all. Ruebinzer.
When was the last time you've gone to one of these
seminars?
Uh, gosh urn, Borkenstein was - - I don't recall. 2006 or
2007. I don't recall. Let's see here, pardon me as I refer
to my own resume.
That's fine.
My field sobriety training was in 2007. The Borkenstein
course was in 2009. So that would have been the last one
that I attended.
Okay. Have you read any articles between your class in 2009
and today? On your own?
Uh, yes. Urn, on most of those have been uh, going back and
looking at the articles that urn, I wanted to reread. Such
as uh, urn, articles by uh, Dr. Jones and Curt Dubowski.
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I
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I
ITH: Okay. But nothing new?
2 CC: Urn, I've read some new but I wouldn't -- I don't keep track
3 of all the names.
4 TH: Okay. Let's transition to Horizontal Gaze Nystagmus.
5 CC: Okay:
6 TH: And you mentioned earlier that there are six cues. Three
7 for each eye?
8 CC: Correct.
9 TH: Okay. And critical to properly conducting that test is the
10 so called angle of onset, is that correct?
11 CC: Yeah, for the third cue. Yes.
12 TH: Okay. And, more specifically, the angle of onset measures
13 at what angle the eye starts shaking, is the correct?
14 CC: Starts bouncing. Yes.
15 TH: Starts bouncing. And a difference of 5 or 10 degrees can be
16
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the difference between intoxication and no intoxication,
correct?
18 CC: Uh, well not necessarily because urn,. it's four out of six
19
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cues and if uh, usually you're gonna see the lack of smooth
pursuit and then nystagmus of the extremes uh, first. So
21 the more and more likely you're already gonna have the
22 four ou--, four out of the six which is what's required.
23 TH: Um-hm.
24 CC: Urn, usually that last one is - - the last of the six one
25 usually -- you've already had four by that point. So --
26 TH: Lack of smooth pursuit or nystagmus can occur naturally in
27 a person, correct?
28 CC: Urn, about 3% of the population has natural nystagmus, yes.
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And that nystagmus also reflects itself at the extremes' if
it's naturally oC,curring, correct?
CO:J:'rect.
But with the angle of onset the eye begins smooth and then
begins jerking, correct?
Correct.
That's not a natural occurrence?
No.
So that's the only that can truly show if alcohol is at
play and not a natural external factor? Or, a natural
genetic factor, correct?
Uh, correct. But usually the extremes if someone has
natural nystagmus I don't think the -- my understanding is
the bouncing won't be as distinct. But there is 3% of the
population that does have natural nystagmus.
for the purposes of angle of onset, it's -- a
difference between 5 or 10 degrees makes an enormous
difference, correct?
Urn, on whether that cue is called or not, yes.
Okay. And the standards -- the NHTSA standards concerning
(UNINTELLIGIBLE) and recommend the 'use of a protractor to
measure the degrees?
Urn, I know that they did that during their initial uh,
studies. That they actually had someone use a protractor.
But I think in later training of officers they don't
actually have them use a protractor to -- in the field.
So NHSTA requires the use of a protractor or recommends a
\ protractor?
-78-
officers.
CC: Correct.
too soon not intoxicated? Based on that cue, correct?
and I don't believe in the later studies there was a
a intoxication use indicator of alcohol
but I've never seen an officer use a protractor at my
a reliable
You're right at 45. Correct.
So uh, but they don't have something that actually 'says,
between the ear and the nose kind of estimating 45 degrees .
studies. I don't recall if that's urn, mentioned in the
onset. But I'd have to go back in the uh, look to be sure.
. ~ , . "
mention of using a protractor to urn, estimate that angle of
NHTSA I S version of the actual training manual for the
used in later studies.
protractor to validate the angle of onset cue, would that
be fair to say?
point is variations of 5 degrees either way will be the,
CC: It -- well yeah. They're kind of looking for that half way
TH: Right. So they're kind of guessing where 45 degrees is?
TH: Officers typically -- pardon the pun -- eyeball it?
CC: I think you just did it the opposite.
TH: And if they guess too late then intoxicated. If they guess
TH: I think I did just do it the opposite. I guess my grander
CC: AS far as I know they're not. I'd have to go back and look
TH: And, and now protractors aren't used?
CC: In, in the first studies, yes. I don't recall if it was
TH: Okay. So the study valida.ting Horizontal Gaze Nystagmus as
cc: Uh, what I'm saying is that was done in the original uh, 1
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the, the difference between that cue?
Between those two cues. Yes.
That may explain why they used a protractor in the original
studies validating that cue?
AA: Objection. Lacks foundation.
HW: Well--
( (Crosstalk) )
HW:- Well I think he's asking a question.
CC: Could you repeat the question?
TH: Would you agree with the idea that the fact that 5 degrees
either which way in validating the cue may perhaps be the
reason the -initial studies used a protractor for the
purposes of precision?
CC: Possibly. Yes.
TH: I wanna talk about the hypothetical -- Your Honor this may
take some time. It may take longer than five minutes to be
on (UNINTELLIGIBLE)
HW: Okay. Why i why don't you pose your hypothetical and then
weill break and leave her to ruminate ov- over the lunch
hour on it so.
M: All right.
TH: Okay. It's -- I don't know if you remember the hypothetical
from the District Attorney earlier? It was the long one?
CC: Yes.
TH: The drinking? I wanna keep everything the same but the
start of drinking is to be shifted to 10:30 am.
HW: All right. And you have a series of questions based on that
urn, urn, urn, assumed fact?
-80-
..... ;.
is my I believe, I think that record was hearsay,
recollection.
Well I, I --
(UNINTELLIGIBLE) as well.
I thought" also that you were, you were trying to urn, urn,
establish the charging policy of the DA I s office to set
them up as being the arch fiend. I thought urn, that their
charging policy isn I t really re,levant as to what Frawley
said or anything else like that. I was trying to confine
you to anything she may have said or written down that was
contrary to her testimony regarding the number of machines
that were potentially affected.
And I would
Yes Your Honor.
All right. We'll pick it up at 1:30 then. Be in recess
until 1:30 ladies and gentlemen. Don't discuss the case
with anybody until it's submitted to you. One of the
rulings that, at the very least you disagreed with so if
you wanna a record on anything go ahead.
All right.
We were not recording the record on the (UNINTELLIGIBLE)
issue earlier? Was that off the record?
No that wason the record. I'm, I'm just talking about this
whole discussion we had regarding some of the documents and
the leading --
Oh.
-- and what not. Uh, I'll tell you what I was urn, I don't
know --
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Uh, so there.
And I would agree that if the sole purpose was the target
authori ty that would not have been relevant. However, she
hasn't expressed -- she has expressed prior opinions. And
those opinions are in response to certain stimuli. Certain
arguments and expert opinions can change and they possibly
do change. And what I was trying elicit was the opinion
earlier concerning the ethnicity of the machines. And
particularly whether or not the problems with these
machines could be fairly confined to urn, a numerated amount
of serial numbers was not true. Her opinion was that this
was a broader problem. And I tested the scope of that
opinion by inserting known instances where she defended her
opinion. Where she was presented with the idea that it's --
(UNINTELLIGIBLE) it r s actually it's more. It's a couple
more, I don't remember. And that she kept pushing so the --
that shows the weight of how strongly she felt about the
opinion at the time. And that's for --
All, all --
-- for the jury to determine.
All right. All of that I think you were entitled to do. But
you kept interweaving into it. Urn, to who else was at the
meeting and what was said. And I thought that's part that I
urn, uh, didn't think you were entitled to go into it
because I thought it was irreverent. All right. Having done
all of that how much more do think you have with this
witness?
Maybe 15 minutes.
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Okay. Urn, are you ready to go with your argument?
I am.
All right. Urn, which, which of your defense exhibits uh,
are you gonna be urn, moving into evidence?
Urn --
'Cause I need to look at them. I haven't seen any of these
things. Except for a quick glance. And urn, my, my, my, my
initial thought was the, the notes of the meeting she
attended probably cover matters that were urn, extraneous to
the testimony here. That can be solved by urn, uh,
redactions. But I need to.. know where we start?
I was using them specifically for impeachment. And that her
adoptions of the statements on the stand -- that's her own.
I think we're (UNINTELLIGIBLE) for the truth. Urn --
I still need to look at it so I --
Okay. Sure.
I think I lost track in the melee up here Your Honor.
A was a list of some sort. Bwas an email with attached
scans. Urn, C I lost track of. And D is
C was a letter Your Honor.
Okay.
D uh, was a -- I can't remember. A (UNINTELLIGIBLE)
D is
Yes, it was a uh, (UNINTELLIGIBLE)
D is the 5161 accuracy checks. And I would move to admit
those.
All right. And then E is urn --
The meeting notes.
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1 HW: Yeah. Where the
2 AA.: (UNINTELLIGIBLE) those Your Honor.
3 HW: My note. is, Problem applied to all machines. And I'll have
4 to see what .the, what the exhibit says in here.
5 AA.: Uh, (UNINTELLIGIBLE) calls to hearsay Your Honor. It's a
6
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recollection recording.
EW: Well, I mean, if she' said it urn, then that would
if
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somebody else said it I agree with you. But I didn't -- uh,
the, the
10 AA.: It was not a recorded statement. (UNINTELLIGIBLE) tells the
11 truth.
12 HW: Well it's, it's also an inconsistent statement if urn
13 AA.: That part of it - - that would be, would be allowed in but
14 not the other (UNINTELLIGIBLE)
15 HW: Well -- and, and I thought I covered that.
16 AA.: Right.
17 HW: I needed to look at this to see what uh, what's urn, uh,
18 relevant and what's uh, extraneous and irrelevant.
19 TH: But with Exhibit C in particular -- I think it's the bottom
20
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paragraph, I mentioned that I believe that the majority --
many of the resul ts and probably fine. I would hard time
saying that I have complete confidence in them. Next page.
Should not rely on any tests where an Alco-Sensor Valone
was used.
25 HW: Well that's consistent with. the testimony. But all right,
26 leave, leave them so that I can look through them.
27 TH: Okay. That's C. Uh, A was
28 HW: Was - - as I say - - was a list of some sort. That I s my note
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to myself. That's gotta be the Alco-Sensors. I don't know
whether it's by number or --
(UNINTELLIGIBLE) it's (UNINTELLIGIBLE) on the stand?
Nope. I know that's (UNINTELLIGIBLE)
That's E.
And this one's D.
And A, Your Honor, was the two listing of the, the Alco-
Sensor V -- the .11, .14--, .04, excuse me.
Yeah. That's correct.
All right. Then let's, let's try the easy stuff first. Is
there any of this, this material Mr. urn, Arzu that you
don't object to?
Uh, the A.
Okay. A is received.
Uh, and the accuracy checks for A, which is D. Everything
else I object to.
All right. D is received. I'll look at the others.
All right Sir.
The A and the C?
A and D.
The A and D.
Right here. I'll make sure I (UNINTELLIGIBLE) with this
I don't know what you're ki - -, what your talks with the
Norman have progressed but urn, I think they have a good
reputation and urn --
Thank you Sir.
If you're pursuing that uh, you're, you're -- you've chosen
well.
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Yeah. Thank you Sir.
All right, Based on what" we've" heard this morning I think
318 which is prior statements -- that probably gets you
t h o s e ~
I just wanna dump all the exhibit though. I don't remember
if they're (UNINTELLIGIBLE). The A, B, C. C. F -- F was the
last one?
Thank you Your Honor. 1:30?
Um-hm.
Thank you.
On people versus Morales -- uh, before we get the jury back
counsel urn, exhibits -- prosecution two, three and four are
received. Urn, defense A has been received. Defense B is
recei ved. And defense C I have redacted such that on the
bottom of page one urn, paragraph beginning, I mentioned. Is
urn, received. And on page two at the top, the sentence,
Should not rely on any test where an ASV alone was used.
And I -- we're gonna keep C in its present form. I'm gonna
have the redacted portions marked as Cl"andthose have been
received. Urn, defense D has already been received. Defense
E I have likewise redacted such that the portion at the
bottom of page one, We went over the manufacturing issue
and that it can affect any of the Alco-Sensor V's. And that
will be received and that alone -- that will be marked as
El and received as such. Urn, let's see. Can"' t read my
writing. Urn, all right. On F the third page -- fourth page
urn, beginning, Hi Kevin. Will be received it's an entirety.
Urn, the rest of the exhibit will not be received. That
-86-
1 being received as marked as Pl. Anyone have any further
2 comments they wanna make and I'll assume I hope
3 assume 'I'm put on the record, Mr. Harnett, that you're
4 moving for the entirety of all. of the exhibits that you
5 offered. And object tbthe redactions that I made?
6 TH: Yes, Your Honor.
7 HW: Okay.
8 UP: And did you (UNINTELLIGIBLE) actually back them or --
9 HW: Yeah. I did I covered.um
10 UP: (UNINTELLIGIBLE) Kriow.
11 TH: Okay.
12 UP: I was like -- okay.
13 TH: (UNINTELLIGIBLE)
14 CC: Okay. If you're laugh -- smiling at yourself.
15 TH: Huh?
16 CC: You're smiling. What's going on?
17 TH: Almost done.
18 CC: Yeah. I wanna be happy to go make sawdust tonight. It's my
19 hobby making sawdust.
20 HW: Okay. We have all jurors present. Uh, further examination
21 by Mr. Harnett. When we left, Mr. Harnett, you had urn,
22 posited a urn, hypothetical to the witness. Uh, assuming
23 that the drinking started at 10:30 in the morning.
24 TH: Yes. Welcome back.
25 CC: Good afternoon.
26 TH: Remember my hypo?
27 CC: Urn, so far all I had is that - - approximately everything
28 else was the same. But we started drinking at 10:30 in the
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morning. Were we going to have anything else?
That I s it. In your opinion, based on that, is the
person intoxicated? Or under the influence of alcohol to be
more precise.
At 2:30 the next morning or?
Yes.
Any time?
But he continued drinking throughout the day and was still
drinking at 12:00
For the quantity of the drinks discussed in the early. hypo
from 10:30 am to the time of -- 2:30 I believe was the rest
am?
So the individual consumed one to three beers between 10:30
in the morning and 12:00 am?
Um-hm.
Urn, in my opinion there is con-continuous elimination that
in that situation the majority of the alcohol would
probably eliminated and no they wouldn't be impaired.
There would be a -- would there be a blood alcohol level at
all?
Urn, it if, if they were consistent during that whole
time and the last, you know, last one was a couple hours
before 12 o'clock, probablyuh, close to zero.
Okay.
Or zero.
So you can't reconcile that result with the blood alcohol
test taken by the Alco-Sensor V in this case?
Uh, if we started drinking at ten 0 I clock in the morning
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and we urn, only look at the fact - - if we. I re saying the
person only drank one to three standard beers? No. If we
look at that alone urn, if we looked at that alone and we
said someone drank three standard beers, with their
contribution per drink?
Um-hm.
A person with a contribution per drink of .021 if they
dr--, consumed three standard beers, could never get higher
than a .063.
Okay. Thank you. Nothing further.
Mr. uh, Arzu?
Yes. Miss Craver, uh, wanna touch on a few points the
defense counsel mentioned. Uh, first and foremost uh, have
you taken since -- step back. Now since you had the Alco-
Sen.sor V taken out of the field, urn, have you been in
consistent uh, correspondence with Intoximeters?
Uh --
About the Alco V?
Yes.
Okay. And isn I t true that you actually have taken classes
from that, -that have been given by Intoximeters uh,
regarding the Alco V?
Urn, originally took a course urn, that they came here to
teach before the instruments went in service the first
time. That was, I believe a three day class. Urn, on uh, the
accuracy and calibration of, of that instrument and minor
maintenance. They came back in July. Urn, I think, it was
July 18th and 19th of, of this year, after the instruments
-89-
1 uh, were uh, retrofitted, urn, and they were in the process
2 of, of getting them all sent back to us. Where they came
3 out to give us uh, another training as well as the urn, uh,
4 the uh, Presi<;lent I believe he's considered the
5 President, the President of the company came out to give us
6 a presentation on uh, what the actual issues where. How
7 their fix was. Gave us actually some uh, video of the uh,
8 presented some video of the actually the original urn,
9 way that the sample uh, nipple was pre--, uh, was
10 manufactured in the new' way and then discussed uh, urn, the
11 issues at times when they thought that the issue could
12 arise.
13 AA: Now explain urn, what you learned about when the Alco-Sensor
14 V would not be functioning properly.
15 CC: Um, they found that the um, the main times that, that it
16 would find t h ~ t it would not could possibly not
17 function, were a couple. The issue was condensation
18 possibly getting into the sample chamber. And they uh,
19 through their experiments back at their laboratory they
20 found that the times that that was most likely to occur,
21 were when it was cold and the instrument was cold and
22 having someone I s warm breathe urn, and blowing into that
23 could possibly cause condensation. Kind of like having urn,
24 a warm glass and a cold drink. You start to get that
25 condensation on the outside of the glass. So that was one
26 of the issues that they found could cause urn, the erroneous
27 results. The other was multiple blows. When urn, there are -
28 someone' s given a chance to blow into one of these
-90-
evidential test we I re gonna enter a bunch of information
into the uh, computer portion of the instrument. Uh, and --
so it captures the uh
Um-hm.
officer's name. It I S gonna capture uh, the person's
name. What the, the charge is gonna be. There's gonna be
some information about uh, the 15 minute observation
period. When it's got all that information or on a
screening test when it's just first turned on, the first
thing it's gonna do is perform an air blank. So what it
does is it captures a portion of air around the area of
the, of the sample chamber and looks to see if there's any
alcohol present. And what they were finding is that when
when - - let me step
an analysts the first
on. Urn, if it's an
occur uh,
performs
turn it thing it does is we
instruments. They're given a chance to blow three times per
mouthpiece before the mouthpiece has to be changed. Urn, the
instrument's looking for a certain amount of volume and
flow urn, before it captures as sample. So they're given
three chances with that. same molithpiece. So they found that
one of the other issues was urn, multiple blows. So there
was more uh, blow and mo:r::e possible condensation getting
into the instrument. And the other thing that they saw in
their stu- -, their looking at is that if one of those
things were to occur they were more likely to see high
blank after urn, one of those two occurrences.
Explain a high blank.
Urn, a high blank urn, can
back. when an instrument
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occur. Cold temperature, warm breath, the instruments
when they do do a test they record the temperature of the
this kind of occurrence happened it was more likely that
they would a see high blank. Either from residual alcohol
or form liquid possibly getting into the chamber.
Okay. And, Miss. Craver., when you initially had the
.instrument pulled out of . service did you do that in an
abundance of caution?
Yes.
Okay. And what was your thinking when you decided that you
should pull them out?
Urn, my thinking was that we had some urn, results that we
know were incorrect. We were seeing some error messages urn,
that were also uh
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not expected. And since that -- all the
instruments are manufactured the same and we had an
indication at that time that it was a manufacturing issue I
felt that there was uh, because of that there was the
possibility that it could affect any of them. So urn, to
make sure we pulled all of them from service.
Okay. And now you're testifying months later uh, you're
testifying about an Alco-Sensor V and the readings. Urn,
what has changed?
Urn, urn, well one things is I've uh, spent a lot more time
with the data and all the different instruments. Compiled
all the accuracy checks. And compiled all of the subj ect
tests and was able to look at each ins-instrument and its
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history as it was out in
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urn, things were more likely to
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instrument at the time. They um
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record how many blows an
individual has done so the issue of multiple blows it has a
re-recording of those blows.' Urn, so I became much more
familiar with the -- when the possibility of this, issue
might arise. And uht looking at all the da-data from those
instruments.
So as a scientist you look at data, right?
Correct.
And,you make decision based on the data that you see?
Correct.
And at the time that you pulled the Alco-Sensor V out of
service you had a limited amount of data?
Urn, we had all data bu't hadn't been all looked at in, in
uh, a different critical eye because we knew of the issue.
All right. And, and now you have more data?
Urn --
From the information that's, that has been processed in
order for you to feel comfortable to testify in this case.
I'm sorrYt could you repeat that question?
You've gotten more data that you've been able to analyze
such that you feel more comfortable to testify --
Objection. (UNINTELLIGIBLE)
-- about it in this case?
Uh, once more Mr. Harnett.
Counsel is testifying. Leading.
Yes.
Okay.
That's sustained.
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Now, Miss Craver uh, is it safe to say you feel more
comfortable testifying about what the exact issues of the
V are now?
Yes.
Okay. And is that because -- well -- is that because you've
received more information from the manufacturer? From your
viewing of the data that came from our crime lab? Or your
crime lab?
That's a combination of getting more information from the
manufacturer and gettinguh, uh, having a little more uh,
information on when they saw the results and what uh, the
issues and what they tried in their laboratory to reproduce
the urn, the issues that we were seeing. As wells as looking
at all the data for urn, . the in- -, the instruments that we
did have in the field.
Um-hm.
It's a combination of those things.
Okay. Now, Miss Craver, I'm gonna show you as what's been
prev-previously marked as Defense, Defense B. What is that
a. copy of, Miss Craver?
Uh, it's a copy of the printouts that we discussed urn,
earlier from urn, instrument 5161 and instrument 5164 that
has to do with issue of the .04, .04 results that were
found in the field.
Now, Miss Craver, you -- both of the instruments are Alco-
Sensor V's, correct?
Correct.
And uh, based on what you were saying to defense counsel
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uh, earlier about this incident -- particular circumstances
with the use of an Alco-Sensor IV XL. And the use of the
Alco-Sensor V that you cau--, that you received two
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different readings from. Urn, based on your recollection,
was the initial breath sample -- pass samplefrom the ma--,
alcohol screening sample -- taken from an Alco-Sensor IV?
7 CC: It was an Alco-Sensor IV and not an Alco-Sensor IV XL.
8 AA: And that was a .11?
9 CC: It was a .11. It was somewhere between a .10 and a .11,
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.12, I don't recall the exact numbers. But it was right in
that area.
12 AA: And that uh, right after that an Alco-Sensor V breath Sam--
13 sample was taken on Alco-Sensor V?
14 CC: Correct.
15 AA: Okay. And the. reading on the Alco-Sensor V was a .04?
16 CC: Correct.
17 AA: Urn, based on what well what happened after these two
18 samples were taken? Based on your recollection?
19 CC: Urn, my understanding urn, what I was told through urn, my
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staff that discussed this with, .uh, with the officers. Or
the officer involved, was that they took the individ,ual
back to their uh, the CHP office where there was uh,
another Alco-Sensor V that was sitting in there at room
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temperature and performed a second evidential test on that
instrument.
26 AA: And what did that Alco-Sensor V uh, give as a reading?
27 CC: Urn, based on the record in front of me urn, a .11 and a .11.
28 AA.: So that Alco-Sensor V's reading was actually consistent
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with the Alco-Sensor IV XL that was taken In the field?
Correct ..
How do you explain that difference?
Urn, uh, one of the things I would look at is that since we
do know that urn, a cold test temperature was one of the urn,
things that manufacturer was saying could sa--, could cause
this. Urn, I look at the particular uh, results on the .04
results and the temperature urn, at that time was 8:3 degree
Centigrade. Which is pretty low temperature outside. Urn, so
I do believe that that was uh, would be a contributing
factor to that. Being a low result. Urn, based on what they
found the uh, possibility of condensation getting into the
instrtiment could be.
is that consistent with what you learned from
the uh, manufacturer?
16 CC: Yes.
17 AA: Now, Miss Craver uh, defense counsel made reference to the
18 hypothetical - - stating that an individual - - that a 180
19 male had consumed, I think, between one and a half and, ~ n d
20 three beers between the time of 10: 30 am and 12: 00 a-and
21 12:00.
22 CC: Yes.
23 AA: Urn, that would prob--, would be over 12 hours, correct?
24 CC: Yes.
25 AA: And you sp-spoke earlier about the elimination rate. Urn,
26 uh, well what is your opinion as to whether a individual
27 urn, who had consumed that amount of alcohol urn, from that
28 time period. What would you believe their blood alcohol
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level to be at 3:03 am?
If they have consumed urn, that one and a half, to three
standard beers between uh, 10:30 in the morning and 12:00
am uh, the next morning. Uh, they would h ~ v e uh, probably
been at, at about a zero. There shouldn't have been any
alcohol le.ft.
And, Miss Craver, when you give an opinion to the
hypothetical as presented by the people earlier uh, as to
an individual's -- this male's indiv--, uh, impairment due
to alcohol. Urn, what are you relying on?
Urn, when I gave my opinion earlier I relied on the totality
of the information. I relied on the objective signs of an',,
order of alcohol, slow thick speech urn, red bloodshot uh,
watery eyes. Urn, poor coordination. Six out of six on the
Horizontal Gaze Nystagmus. Urn, three out of eight on the
Walk and Turn. And three out of four on the One Leg Stand.
And uh, the screening and evidential tests of a .12, .13,
.14, and .13. And I looked at the information in totality.
You didn't look at just the driving and make that
determination?
No I did not.
Now, and you didn't look at just the red and watery eyes
and make that determination?
No I did not.
Uh, you didn't look at just the slurred speech?
No I did not.
You didn't look at the poor coordination?
Uh, alone? No.
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Okay. You didn't look at just one FST by itself?
No.
You looked at them all together?
Correct.
And isn't it true uh, that you have been taught through
your training and through uh, workshops that you've taken,
that the way to effectively analyze whether a person's
under the influence uh, would be to take all the data into
consideration?
Correct.
Consistently with what you've done when you've testified in
case?
Correct.
No further questions.
Last call Mr. Harnett.
Thank you Your Honor. Going back to that last hy--, last
hypothetical, let's change one fact. Let's make all the
breathalyzer data .00. . 00, .00, . 00, . 00. What's your
opinion?
If I had -- took away completely that there were a chemical
tests. That were they were all zero? In my opinion,
based on the FSTs and urn, some of the objective signs urn,
my opinion would be that there is an indication of
impairment but I wouldn I t know what it was from. With an
alcohol concentration of zero, I might think that it's from
other drug possibly on board.
Okay. Let's say --
Or it could be that urn, for the divided attention exercises
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that something else was going on. Like someone being
injured or something. But without having a concentration of
some sort or some. kind of uh, indication of a drug present,
I wouldn't be able to make an o p i ~ i o n on the person IS
impairment.
Let's say there is a urine test with no drugs present.
Then I .would uh, look at that again. Looking and seeing
that the HGN's a little odd concerning that it's usually --
that's something we'd see from alcohol. But in totality I
wouldn't be able to give an opinion.
Yeah. So you, you need the BAC or drug data to be able to
give an opinion?
Urn, as I said, If I had just the FSTs and uh, uh, some of
the objective signs, those would give me an indication that
there' some impairment. But I couldn't say what it was from
and give a clear indication of impairment without - - out
having some kind of chemical test of either drugs or
alcohol.
Okay. So you need a, a chemical test ~ o be able to offer an
opinion whether or not there is impairment? Would that be
safe to say?
Some kind of chemical test. If -- I mean, like there was a
possibility I could even have one ~ h a t was less than -- for
instance -- if you were talking about alcohol -- I mean, if
I had this type of FSTs and someone was like at an .07 or
.075. In my opinion they would still be impaired. But
without having any concentration to rely on to know that
there was some kind of drug even on. board, I would not be
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abie to make that opinion.
Thank you. Nothing further.
All right. Do you wanna step down, Miss Craver?
Your Honor, I got I do have one important
(UNINTELLIGIBLE) I know I'm pushing but, Your Honor.
He gets the last word.
Yeah.
Go ahead.
Now urn, Miss Craver, you stated that if you would actually
give an opinion that someone is impaired for the purposes
of driving at a .07 if they had the same field sobriety
exercises .- - performances you saw or you were told in
hypothetical?
If I looked at the totality of that information and I had
someone that had a concentration urn, between an .07 and an
.08 uh, yes. The American Medical Society's opinion is that
all individuals are impaired at a .05. Urn, so uh, yes in
that situation if I had poor FSTs and I had someone that
just below an .08, somewhere around an .07 or an -- to an
.08, yes I would still have the impa--, uh, have the
opinion that they were impaired.
And you draw that opinion from your training and experience
and your (UNINTELLIGIBLE) position?
Yes, in opinion such as from the National Highway Traffic
Safety Admin--, As -- sorry, the National Highway Traffic
Safety Administration, their opinion that's all individual
are impaired at .08. And the, as I said, the American
Medical Society's that opinion that individuals are
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impaired at an .05.
Okay. No further questions Your Honor.
Mr. Harnett?
Did your opinion include the zero to 24 cues by the
National Highway Traffic and Safety Administration?
No, there were driving cues that I was given in this case.
So there were no driving cues?
No.
Okay. And you didn't include that in your opinion earlier?
Correct.
Okay. Thank you. Nothing further.
Okay. You can step down Ma I am. Prosecution rests uh, Mr.
Arzu?
The People do rest. We have ~
All right.
-- to move ln all the P e o p l ~ l s uh, exhibits into evidence
and --
I think we've done that urn, earlier. All right when .Mr.
Arzu tells me that the uh, People rest, that means that he
has introduced uh, all of the testimony and all of the
evidence that he's going to present to you. Urn, Mr.
Harnett, do uh, uh, does Defense rest?
Defense does rest but I'd like to make a, a motion?
Okay. Approach. All right. Defense has rested as well.
You've heard it all. We'll go to the uh, argument phase of
the case now. We'll start uh, with uh, Mr. Arzu. He will be
followed by uh, Mr. Harnett. And because Mr. Arzu has the
uh, the burden proof he gets the last word where he may
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1 . reply to anything that Mr. Harnett has said but may not
2 introduce new material. Mr.
3 AA: Your Honor we've --
4 HW: Mr. Arzu, go ahead.
5 AA: (UNINTELLIGIBLE) just about 5 minutes I think. We I re all
6 set up we're just waiting (UNINTELLIGIBLE)
7 HW: You ready to go?
8 AA: Uh, not yet.
9 HW: Okay.
10 AA: I think we (UNINTELLIGIBLE)
11 TH: And--
12 AA: Three minutes -- three to five minutes.
13 TH: And can we approach as well?
14 HW: Okay.
15 TH: Before we begin summation?
16 (END OF TRANSCRIPT)
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