DataMaster DMT:DataMaster DMT:Legal and Foundational Legal and Foundational

IssuesIssues

Kenneth Stecker and perry Curtis

August 2013

DATAMASTER DMT

WHY DO WE NEED A NEW EVIDENTIAL BREATH TESTER?

THE CURRENT BAC DATAMASTER IS EIGHTEEN YEARS OLD

TECHNOLOGY HAS CHANGED

NEW FEATURES OF DMT

PERFORMS AUTO ACCURACY TEST

KEEPS THE LAST ACCURACY TEST AND LAST SUBJECT TEST IN MEMORY

USES COMPUTR PRINTER

PRINTS START OF OBSERVATION TIME ON TEST RESULTS

DOES NOT REQUIRE OPERATOR TO SIGN TEST PRINT OUT

ACCURACY TEST

DMT HAS DRY GAS CANISTER ATTACHED

MONDAY MORNING AT 10:00 AM THE DMT WILL PERFORM A ACCURACY TEST

OPERATOR WILL ONLY BE REQUIRED TO RECORD TEST ON OD-33

OPERATOR CAN PERFORM A ACCURACY TEST

DataMaster DMT LogsDataMaster DMT Logs

Unit must be tested each calendar weekUnit must be tested each calendar weekThere can be up to 13 days between two There can be up to 13 days between two tests, tests, Results must be Within 5% of the Target Results must be Within 5% of the Target Value (Target Value Determined by the Value (Target Value Determined by the Barometer)Barometer)Custodian of logs needed for trial, unless Custodian of logs needed for trial, unless defense attorney stipulates to logsdefense attorney stipulates to logsEven if a stipulation, all officers subject to Even if a stipulation, all officers subject to cross examination of Datamaster logscross examination of Datamaster logs

STANDARD OUT OF RANGESTANDARD OUT OF RANGE

OUT OF SERVICEOUT OF SERVICE

WHEN SOMETHING GOES WRONG WHEN SOMETHING GOES WRONG WITH THE AUTO ACCURACY TEST THE WITH THE AUTO ACCURACY TEST THE INSTRUMENT WILL TAKE ITSELF OUT INSTRUMENT WILL TAKE ITSELF OUT OF SERVICEOF SERVICE

120 Day Inspection120 Day Inspection

Performed by the Service Performed by the Service Representative employed by NPAS and Representative employed by NPAS and

approved by the MSP Alcohol Unitapproved by the MSP Alcohol Unit

This is required per the Administrative This is required per the Administrative RulesRules

ALCOHOL CERTIFICATESALCOHOL CERTIFICATES

WET BATH AND DRY GAS WET BATH AND DRY GAS CERTIFICATESCERTIFICATES

BOTH TYPES OF ALCOHOL HAVE BOTH TYPES OF ALCOHOL HAVE

National Institute of Standards National Institute of Standards TraceabilityTraceability

MSP Admin Rule re: MSP Admin Rule re: ObservationObservation

SUBJECT TESTSUBJECT TEST

ERROR MESSAGES

OBSERVATION START TIME LESS THAN 15 MINUTES

SAMPLE INDICATORSAMPLE INDICATOR

REMOVE MOUTHPIECEREMOVE MOUTHPIECE

REFUSALREFUSAL

INVALID SAMPLEINVALID SAMPLE

INVALID MESSAGEINVALID MESSAGE

INTERFERRENCE DETECTEDINTERFERRENCE DETECTED

INTERFERRENCE MESSAGEINTERFERRENCE MESSAGE

RFIRFI

SAMPLE AGREEMENT

-A second sample shall be requested, but only one sample is required.-The second sample must comply with the table above. If Not, seek 3rd sample. If 3rd still out of variance, seek a blood sample.-Datamaster automatically eliminates the 3rd decimal point, which benefits the defendant.

MSP Admin Rule R325.6251MSP Admin Rule R325.6251-Evidential v. Preliminary Breath Alcohol-Equipment Accuracy

- Weekly verifications by Class II - IV- 120-Day certifications by mfg rep.

-Techniques & Procedures- Observation- Subsequent tests- Allowable variations

MSP Administrative Rule 325.2655 Techniques and Procedures

Smoked, Regurgitated, or Placed Anything in Mouth for 15 minutes

Preliminary Breath TestPreliminary Breath Test

Why PBTs are importantWhy PBTs are important

Allows arrest, without any additional PC, for Allows arrest, without any additional PC, for drunk driving. MCL 257.625a2adrunk driving. MCL 257.625a2a““To assist the court in determining a challenge To assist the court in determining a challenge to the validity of the arrest” MCL 257.625a2bito the validity of the arrest” MCL 257.625a2bi““As evidence of the defendant’s breath alcohol As evidence of the defendant’s breath alcohol content, if offered by the prosecution to rebut content, if offered by the prosecution to rebut testimony of a prosecution witness that the testimony of a prosecution witness that the defendant’s BAC was lower at the time of the defendant’s BAC was lower at the time of the charged offense than when a chemical test charged offense than when a chemical test was administered.” MCL 257.62512biiiwas administered.” MCL 257.62512biii

Refusal = Search WarrantRefusal = Search Warrant

MCL 257.625d If a person MCL 257.625d If a person refuses the request of a peace refuses the request of a peace officer to submit to a chemical officer to submit to a chemical test offered pursuant to test offered pursuant to section 625a(6), a test section 625a(6), a test shall shall not be givennot be given without a court without a court order, but the officer may seek order, but the officer may seek to obtain the court order.to obtain the court order.

Inspect MSP Tri-tech kit to ensure it hasn’t expiredInspect MSP Tri-tech kit to ensure it hasn’t expired

Foundation for Blood ResultsFoundation for Blood ResultsPeople v. Cords, Mich Ct Appeals 1975People v. Cords, Mich Ct Appeals 1975

Blood timely takenBlood timely taken

From a particular personFrom a particular person

Nurse, or blood tech, designated by MDNurse, or blood tech, designated by MD

Sterile instruments usedSterile instruments used

Sample properly preservedSample properly preserved

Sample properly labeledSample properly labeled

Proper procedures for shipping to MSP Proper procedures for shipping to MSP lablab

Officer should address MSP Tri-tech kit, Officer should address MSP Tri-tech kit, expiration date, nurse’s name, & expiration date, nurse’s name, & delegating physician in narrative reportdelegating physician in narrative report

Nurse/ER Tech’s name in ReportNurse/ER Tech’s name in ReportSupervising doctor’s name in ReportSupervising doctor’s name in ReportExpiration date of Tri-Tech kit in RptExpiration date of Tri-Tech kit in RptKit opened in front of DefendantKit opened in front of DefendantNon-alcoholic swab usedNon-alcoholic swab usedTime of blood draw (from left arm)Time of blood draw (from left arm)Kit sealed in presence of DefendantKit sealed in presence of Defendant

ACCURATE Chemical Test InstrumentsACCURATE Chemical Test Instruments

PBT InstrumentPBT InstrumentState-approved instrumentState-approved instrument

Verified for accuracy and Verified for accuracy and reliability once per reliability once per monthmonth– Conducted by qualified Conducted by qualified

operatoroperator– Tested with certified Tested with certified

solution; .076 - .084solution; .076 - .084

Logs of monthly testing Logs of monthly testing maintainedmaintained

Datamaster InstrumentDatamaster Instrument

State-approved instrumentState-approved instrument

Verified for Verified for accuracy/reliab. once per accuracy/reliab. once per calendar weekcalendar week– Conducted by qualified Conducted by qualified

operatoroperator– Tested with certified Tested with certified

solution; .076-.084solution; .076-.084

Inspected, verified, and Inspected, verified, and certified for accuracy once certified for accuracy once every 120 days by every 120 days by qualified operator or qualified operator or company rep.company rep.

Logs of weekly testing Logs of weekly testing maintainedmaintained

QUESTIONS