Pennsylvania DUI Blog : Pennsylvania DUI Lawyer & Attorney : Justin McShane Law Firm : Harrisburg DWI & Drunk Driving Defense

I try to learn everything that I can about analytical testing.  Not being a scientist and only being a lawyer, I am an outsider to this fascinating world.  I find that as I learn more, more questions present themselves.  As an outsider last year l learned something that really kind of surprised me. 

When Gas Chromatography is used and especially when an auto-sampler for Headspace Gas Chromatography (HSGC) is used, there is no universal standard operating procedure as to what headspace vial goes into what position and what minimum standards comprise a auto-sampler Headspace Gas Chromatography run.

(above video an auto-sampler)

But why does this matter?

As a nationally known DUI attorney and having received forensic expert training, I get weekly calls from colleagues from Georgia, Tennessee, New Hampshire, California, Arizona and elsewhere about Gas Chromatography.  I love it. I thank my colleagues for the trust in consulting with me.  It is amazing to me to see the variation.  The variation is not only from state to state, but also from labs within a state and yes, even from technicians within one lab.  Wow!

So if there is no uniformity, then there can be no consistency.  There are large issues that can emerge with this approach.  I have personally seen the following:

1. An entire run without a single blank (Pennsylvania)
2. An entire run without positive controls (New Hampshire)
3. An entire run without a separation matrix that would prove separation between methanol, ethanol, isopropanol or butanol at the very least (Georgia, Tennessee)
4.  No calibrators within the run (Texas)
5. A "historical calibration curve" used as a calibration curve where the columns were actually replaced between the columns that produced the "historical calibration curve" and the columns that were used to test this unknown (Pennsylvania)
6. A lack of blanks run between unknowns to prove lack of carry-over effect (everywhere) [Blogger’s note: a more comprehensive post on this will follow]

-Justin J. McShane, Esquire, Pennsylvania DUI Attorney

I am the highest rated DUI Attorney in PA as Rated by Avvo.com

You can follow me on Twitter, Facebook or Linkedin

Board Certified Criminal Trial Advocate
By the National Board of Trial Advocacy
A Pennsylvania Supreme Court Approved Agency

• Email This
• Print
• Comments (1)
• Trackbacks

Metrology is the body of science surrounding measurement or how we know for certain or for as near as certain as scientifically possible that some measurement is in fact that quantitative measure.

It is the very essence of measurement.  Because if we do not know that some measurement is accurate, precise and true, then we know nothing.  We have no frame of reference.  No basis for comparison.

This concept with analytical devices is achieved when known standards are used.  Stated differently, an instrument's bias, precision, and accuracy can be measured by calibration to a traceable standard..

What this really all involves is the concept of traceability.

But where do these standards come from?

In DUI prosecution, the concept of traceability is involved in any form of calibration, internal standards, positive controls, negative controls or reference solutions used in achieving a Blood Alcohol Content result.

There are two (2) basic ways that the concept of traceability can be legitimately achieved:

1. NIST standards
2. USP grade raw materials

NIST is an acronym that stands for the National Institute of Standards and Technology which is part of United States Department of Commerce.  They certify weights and measures.  Many state's have a like agency.

USP is an acronym that stands for United States Pharmacopeia which is a non-government entity that makes commercially available standards.  USP sets standards for the quality, purity, strength, and consistency of these products. They issue certificates to insure that a purchased product is in fact what it purports to be.  Certified Reference Materials (CRMs) represent the next generation of exceptional quality USP Reference Standards. CRMs have undergone additional metrologically based testing and statistical analysis to meet both USP's stringent criteria and guidelines established by the International Organization for Standardization (ISO).

Why is this important?

In analytical testing whether it is breath, blood or urine we have an unknown which is the amount of EOTH or drugs of abuse in the substrate (breath, blood and urine of the accused DUI suspect), we can only know how much it is if it is compared against a known amount from a standard.  It is this comparison between the known and the unknown that gives us the amount of the unknown to report.

So if calibrators, internal standards, positive controls, negative controls or reference solutions are not NIST traceable or comprised of USP grade raw materials, then there is no way to know, in a scientifically responsible way, what the unknown really is.

-Justin J. McShane, Esquire, Pennsylvania DUI Attorney

I am the highest rated DUI Attorney in PA as Rated by Avvo.com

You can follow me on Twitter, Facebook or Linkedin

Board Certified Criminal Trial Advocate
By the National Board of Trial Advocacy
A Pennsylvania Supreme Court Approved Agency

• Email This
• Print
• Comments
• Trackbacks

Catch this interview with national TV legal analyst Lisa Bloom and Justin McShane, a Harrisburg DUI Lawyer.  They discus the way that juries look at forensic science and crave it.

-Justin J. McShane, Esquire, Pennsylvania DUI Attorney

I am the highest rated DUI Attorney in PA as Rated by Avvo.com

You can follow me on Twitter, Facebook or Linkedin

Board Certified Criminal Trial Advocate
By the National Board of Trial Advocacy
A Pennsylvania Supreme Court Approved Agency

• Email This
• Print
• Comments
• Trackbacks

Back on December 1, 2009, I posted a first ever "The www.PADUIBlog.com Charity Giveaway" which I will make a yearly event.  it is a simple way to say thank you.  This year we asked you to vote on the winner of a five hundred dollar ($500.00) give away. 

The entrants were:  PAWS of Central PA, Merrick Fund Foundation and Best Friends Animal Sanctuary.  I had aimed to close all voting on January 1, 2010, but wanted to allow as many people as possible to vote.  However, I kept it open until January 12, 2010.

And the winner is....

ALL THREE!!!!!

The McShane Firm, LLC will make a five hundred dollar ($500.00) donation to all three organizations.

Technically, the results were as follows:

Thank you all for making a difference in an animal's life.  They deserve it.

-Justin J. McShane, Esquire, Pennsylvania DUI Attorney

I am the highest rated DUI Attorney in PA as Rated by Avvo.com

You can follow me on Twitter, Facebook or Linkedin

Board Certified Criminal Trial Advocate
By the National Board of Trial Advocacy
A Pennsylvania Supreme Court Approved Agency

• Email This
• Print
• Comments
• Trackbacks

I have written before, perhaps rhetorically:  Why if someone is allowed full due process of law are we also not entitled to due process of science?

It seems backward.  Law at the expense of science or science at the expense of law, doesn't it?

One would think rationally that we would be entitled to full scientific safeguards and best practices, but in the forensic environment generally and in the DUI testing for BAC analysis, it is sorely lacking.

It seems that as a society we are more concerned with the prospect of having a new pharmaceutical wrongly introduced into the market than we are in getting a conviction wrong.

As a proof of the above, just look at any pharmaceutical lab and the rigorous documentation and process application validity that goes into developing and testing a pharmaceutical before it is allowed into production and distribution.  In that industry it is called "Good Laboratory Practices" (GLP).  This is to be contrasted to the near opposite of that which is forensic testing.

In the clinical and research arena, the phrase Good Laboratory Practice or GLP generally refers to a system of management controls for laboratories and research organizations to ensure the consistency and reliability of results as outlined in the Organization for Economic Co-operation and Development (OECD) Principles of GLP and national regulations.

Good Laboratory Practice (GLP) embodies a set of principles that provides a framework within which laboratory studies are planned, performed, monitored, recorded, reported and archived.

There is no equivalent to this in forensic science generally and specifically in DUI forensic testing for BAC determinations.  Sadly there are no national or international standards.  Each state and sometimes each jurisdiction within a state is allowed to setup and use in whatever manner they see fit, for their DUI testing for BAC analysis.  Crazy, huh?

-Justin J. McShane, Esquire, Pennsylvania DUI Attorney

I am the highest rated DUI Attorney in PA as Rated by Avvo.com

You can follow me on Twitter, Facebook or Linkedin

Board Certified Criminal Trial Advocate
By the National Board of Trial Advocacy
A Pennsylvania Supreme Court Approved Agency

• Email This
• Print
• Comments
• Trackbacks

An axiom is a type of postulate or a proposition that is not proved or demonstrated but is considered to be so true as to be organically self-evident.  Therefore, its truth is taken for granted, and serves as a starting point for deducing and inferring other (theory dependent) truths that require proof.

As we discussed yesterday in the post, "Why it is right to be a modern day skeptic: The need to continue to challenge sacred cows: Paradigm", we identified the need to examine some sacred cows and challenge them.  I basically think that in a large part the paradigm for these sacred cows can be divided into what has traditionally been advanced as three axioms by those that advance them.

Axiom 1:  An opinion with no data is a guess.

Real world example:  The weather reports.  Even under the best of circumstances, it is too variable to be reliable, accurate or precise.

DUI context example:  A police officer's say so as to the conclusion of intoxication when evaluating a stranger.

The danger of accepting the axiom:  Obviously, you could get it wrong.  In a courtroom, it could lead to a false conviction.

Axiom 2:  A decision based not on facts or even in the opposition of facts is an act of faith.

Real world example:  Religion.  Typically one is asked to make a leap of faith as there is no empirical proof.

DUI context:  Accepting that the Blood Alcohol Content (BAC) results are infallible.

The danger of accepting the axiom:  While it is perfectly socially acceptable to have faith when it comes to religion, faith has no place in a courtroom.  Proof and only proof does.

Axiom 3:  Facts are ancillary devices for supporting beliefs.

Real world example:  What I mean by the last axiom is the human nature component that we settle on a belief (such as the United States is safer because we invaded Iraq) then we cherry pick selected facts and while ignoring contrary proof to support our original belief.

DUI context:  People accused of DUI are always guilty.

The danger of accepting the axiom:  It is a shortcut to thinking.  It lacks any sort of individual integrity to use such an axiom.  It strikes at the core of empiricism and rational thought.

In conclusion:

All three of these types of axioms are bad.  They should be examined and rejected in favor of Data Driven Decision Making (D3M).  Data Driven Decision Making (D3M) is defined as "Using contextually relevant and accurate data to assist in making informed decisions"

If you're not using data to make decisions, you're flying blind.

Imagine you're piloting a plane at night, in the middle of a storm. Without data from your navigation instruments, you'd be a goner. This is why we should not and must not make decisions in a courtroom based upon any one of the three types of axioms listed above.  Not guess.  Not faith.  Not Amen.  Data.  Facts.  Proof. 

-Justin J. McShane, Esquire, Pennsylvania DUI Attorney

I am the highest rated DUI Attorney in PA as Rated by Avvo.com

You can follow me on Twitter, Facebook or Linkedin

Board Certified Criminal Trial Advocate
By the National Board of Trial Advocacy
A Pennsylvania Supreme Court Approved Agency

• Email This
• Print
• Comments
• Trackbacks

(Pictured above:  A sacred cow)

A sacred cow is defined as "an object or practice which is considered immune from criticism, especially unreasonably so."

They exist all around us.  Some healthy.  Most are not.  It is vitally important for the evolution of man and science to identify, examine and challenge sacred cows. 

In short to be a scientist.

This begins with the idea of accepting only the null hypothesis as truth before you accept correlation or causation.  The null hypothesis typically proposes a general or default position, such as that there is no relationship between two quantities, or that there is no difference between a experimental group and the control group.  One then designs a series of statistically and scientifically valid tests to robustly challenge the null hypothesis not to adopt it, but rather with an eye towards disproving the null hypothesis.

For example, imagine flipping a coin three times for three heads and then forming the opinion that we have used a two-headed trick coin. Clearly this opinion is based on the premise that such a sequence is unlikely to have arisen using a normal coin. In fact, such sequences (three consecutive heads or three consecutive tails) occur a quarter of the time on average when using normal unbiased coins. Therefore, the opinion that this coin is two-headed has little support. Formally, the hypothesis to be tested in this example is "this is a two-headed coin." One tests it by assessing whether the data contradict the null hypothesis that "this is a normal, unbiased coin." Since the observed data arise reasonably often by chance under the null hypothesis, we cannot reject the null hypothesis as an explanation for the data, and we conclude that we cannot assert our hypothesis on the basis of the observed sequence.

So, it is healthy and natural to accept no proposition as proven until it has rigorously been examined as if under a microscope.  In the court of law, there should be no scared cows.

So, if we accept the proposition that there are no sacred cows and that we must identify, challenge, test or challenge these sacred cows of science in the Courtroom, what can be the consequence?

The consequence could be a paradigm shift.

One of my personal all time favorite books is Thomas Kuhn's The Structure of Scientific Revolution, it was published in 1962 and really codified the concept of "paradigm shift".  He postulated and observed that scientific advancement is not evolutionary, but rather is a "series of peaceful interludes punctuated by intellectually violent revolutions", and in those revolutions "one conceptual world view is replaced by another".  Driven by agents of change, a Paradigm Shift is a change from one way of thinking to another.  Sometimes even violently so in the face of institutional or systemic resistance.  It is a revolution, a transformation, a sort of metamorphosis.  It just does not happen, but rather it is forced typically over objection of the status quo.
 

As identified by Scientific American magazine (I added an additional 5 to their list), some of the "classical cases" of paradigm shifts are as follows:

In "hard sciences":

• The transition from a Ptolemaic cosmology to a Copernican one.
• The acceptance of the theory of biogenesis, that all life comes from life, as opposed to the theory of spontaneous generation, which began in the 17th century and was not complete until the 19th century with Pasteur.
• The transition between the Maxwellian Electromagnetic worldview and the Einsteinian Relativistic worldview.
• The transition between the worldview of Newtonian physics and the Einsteinian Relativistic worldview.
• The development of Quantum mechanics, which redefined Classical mechanics.
• The acceptance of Plate tectonics as the explanation for large-scale geologic changes.
• The development of absolute dating
• The acceptance of Lavoisier's theory of chemical reactions and combustion in place of phlogiston theory, known as the Chemical Revolution.
• The acceptance of Lamarck's theory of evolution to replace creationism
• The acceptance of Charles Darwin's theory of natural selection replaced Lamarckism as the mechanism for evolution.
• The acceptance of Mendelian inheritance, as opposed to pangenesis in the early 20th century.
• Moving from Newtonian physics to Relativity and Quantum Physics.

In other contexts:

• The transition from a hunter-gatherer lifestyle to an agricultural one.
• The widespread use of the printing press publishing works in the vernacular of the region as opposed to handwritten and copied texts published only in Latin.
   

As we continue to creep and settle into the second decade of the 21st century, some needed paradigm sifts in DUI jurisprudence are as follows:

• It is high time for all of us to insist upon modern 21 century be used in our Courts. Infrared breath test spectrometry that only detects at wave lengths that are non-specific to ETOH and have insufficient Mouth Alcohol Detectors that do not take into account that every person's physiology is different and rely instead on a incorrect assumption that everyone's partition ratio is the same needs to be banished to the relics area along with lead bullet analysis, forensic odentology and other psudeo or para forensic endeavors.
• Ending the acceptable reliance by the Court's upon the use of enzymatic assay testing to determine BAC based on colormetric/photospectrographic analytical devices as it is an indirect measure of the uptake of NAD to NADH and only singly measures this uptake at a single wavelength that is non-specific to ETOH (at the 340 wavelength) on the spectrum.
• The use and reliance on solely a police officer's opinion as to intoxication where no video tape exists to verify the claims of the officer.
• When Gas Chromatography results are used, the failure to assure that there is no carry-over effect by running a blank immediately before the suspect sample must become the standard and the norm.
• Forcing forensic science and its presentation out of the hands of law enforcement and into the hands of true credentialed and formally trained neutral scientists who exercise only within the scope of their formal training.
• The use of blinded proficiency based testing on all technologists that is monitored and refereed by independent third parties.
• The reporting of uncertainty in all results using accepted metrological principles.
• The monitoring of all state expert witnesses in terms of the truthfulness and the candor of their testimony by a panel of independent scientists in the respected fields of testimony.
• Demonstrated validity and robustness of all processes used in the field of breath testing and blood testing for achieving ETOH results prior to their continued introduction into Court.

Paradigm shifts are well within the natural order of things and can only occur if we reject the concept that sacred cows should exist.  It comes through agents of change and the use of skepticism and science.  It is high time, we take a look at these sacred cows in the Courtroom when it comes to DUI.  Don't you agree?

-Justin J. McShane, Esquire, Pennsylvania DUI Attorney

I am the highest rated DUI Attorney in PA as Rated by Avvo.com

You can follow me on Twitter, Facebook or Linkedin

Board Certified Criminal Trial Advocate
By the National Board of Trial Advocacy
A Pennsylvania Supreme Court Approved Agency

• Email This
• Print
• Comments
• Trackbacks

I just came back from a conference, specifically the NCDD Winter Session, where the nation's best and brightest DUI Lawyers assembled.  At these conferences, people learn as much if not more outside of the formal structured learning sessions as perhaps they do in them.

After one of the sessions, at dinner, several of us were lamenting on the changing face of DUI trial advocacy in that the prosecution is getting away with arguments both in pre-trial matters and in front of Judges and Juries that even five (5) years ago, they would have never gotten away with at all.

It comes in various forms:

• "Judge, the defense attorney hasn't shown us how the breath test was wrong."
• "Ladies and Gentlemen of the Jury, if he wasn't drunk all he had to do was give us his blood, but Noooooooo.  He refused.  It's called consciousness of guilt."
• "Judge, before you even think about giving them the discovery for the blood test result, they have to show that there was something wrong with the result."
• "Judge, the defense is going on a fishing expedition when they are requesting the source code of the breath test device be revealed because they haven't proven that there was anything wrong with the machine."

In a phrase, we speak of the concept of "burden shifting".

(Pictured above:  The DUI defense attorney as the modern day version of Sisyphus)

It is the constant cross of advocates who litigate on behalf of the citizen among us who has been accused of a crime to have to deal with these and other types of similar arguments.

It seems that my colleagues and I are being forced to a negative presentation logic error proof.
 

I always thought maybe foolishly that the government had to prove its evidence.  (Well, in fact it is that the Government does--I am just being facetious).  The Government makes an assertion, it is not given the benefit of faith. Faith does not belong in a courtroom. Science, facts, and truth does. In a word: proof.

The negative presentation error and logic proof fallacy is now better known as the X-files problem. Remember the X files TV show?

Scully says: “Your sister was abducted by aliens? Mulder, that's ridiculous!"
Mulder says: “Well, until you can prove it didn't happen, you'll just have to accept it as true.”

In claiming that his sister was abducted by aliens, Mulder carries a much greater burden of proof, because we normally consider alien-abduction stories as not proven; as a result, it is up to Mulder to produce proof of his claim. But in the dialogue above, he shifts that burden to Scully, creating the fallacious impression that, if Scully can't prove it false, Mulder's alien-abduction story must be true. On the contrary, since Mulder is making a claim, it is up to him to support it.
 

The logical fallacy occurs whenever someone shifts the burden of proof to avoid the difficulty of substantiating a claim which would be very difficult to support.
 

Suggesting that the defendant must prove the inaccuracy of the machine or any of the above examples is exactly this type of negative presentation logic error proof. The government cannot prove its assertions, but it tries to play a form a inappropriate Three Card Monte in doing this.  We must remain vigilant to spot these arguments and reject them.

-Justin J. McShane, Esquire, Pennsylvania DUI Attorney

I am the highest rated DUI Attorney in PA as Rated by Avvo.com

You can follow me on Twitter, Facebook or Linkedin

Board Certified Criminal Trial Advocate
By the National Board of Trial Advocacy
A Pennsylvania Supreme Court Approved Agency

• Email This
• Print
• Comments (1)
• Trackbacks

One of the great things that can be said about Americans and especially folks from Pennsylvania is that we enjoy our liberty.  We are a nation full of people who are free, in a large part, to do what we want free of government intrusion and government overreach into our private lives.

Canada, which is a fine country, and its motorists does not enjoy the same protection that we as Americans have against unwanted and baseless stops of motorists while about their way.

This leads me to write, at least in this one sense:  "For Liberty's sake:  At least we aren't Canadians:  Reduce Impaired Driving Everywhere"

(Pictured above:  actual R.I.D.E. enforcement)

In the effort to eradicate the dangers of dunk driving, which in itself is a laudable goal, the Canadians have settled the matter in favor of interrupting liberty of innocent motorists and allowing the government to totally intrude with no rational reason, basis or cause by stopping all vehicles for any or no reason whatsoever.

It is called the R.I.D.E program which stands for  "Reduce Impaired Driving Everywhere" program.

I have written twice before on roadblocks:

• Pennsylvania DUI Roadblocks
  
• Pennsylvania DUI Attorney talks about the DUI Statistics Game

The Canadian Approach:

The Canadian model is to stop nearly all cars with no level of suspicion of violation of the law, with no clues of impairment and even for no reason.  They set up trailers with Intoxilyzers, phones, etc.  Process, tow and release....

Reasonable suspicion of alcohol in the body results in a roadside demand. Refusal of the roadside demand is a criminal offense with the same penalty as over .08.

But is this a better and more effective method?

According to one newspaper coverage of the R.I.D.E. program (OPP Wraps up Festive R.I.D.E.):

[The] Ontario Provincial Police (OPP) officers were out in full force and checked over 1,174,224 vehicles on OPP patrolled roadways during this year’s Festive R.I.D.E. (Reduce Impaired Driving Everywhere) initiative.

This year’s initiative was conducted from November 27 through to January 4, 2010. In the process, OPP officers issued 432 administrative driver’s licence suspensions (ADLS) for criminal code related drinking and driving offences and a further 709 ADL suspensions for a Blood Alcohol Concentration (BAC) in the .05 and .08 range. OPP laid a total of 5,329 charges as a result of this year’s initiative, 298 of which were for impaired driving, over .08 BAC or for refusal to comply with a demand to provide a breath sample. The remaining 5,031 charges were for other Criminal Code, Highway Traffic Act, or Liquor Licence Act offences.

Comparatively, during the 2008 Festive R.I.D.E., OPP officers checked 884,729 vehicles, made 319 arrests for criminal code alcohol related offences and issued 1,137 ADL suspensions.

 So, let's delve into these numbers a little...

• The Base Rate to be derived from these statistics is calculated by dividing 298/1174224=.00025
• False Positive Rate=False Positive(stops of sober people)/Sober=1.00-Specificity=1173926/1174224=.9997
• Likelihood Ratio=1.0/.9997=1.0003
• Efficiency of this method=Actual BAC greater than .08/Total number stops=298/1174224=.00171

With an overall efficiency rate of less than two percent (2%), it seems the answer is clear that it is not.  This method results in 99.97 percent (99.97%) false positive rate.

-Justin J. McShane, Esquire, Pennsylvania DUI Attorney

I am the highest rated DUI Attorney in PA as Rated by Avvo.com

You can follow me on Twitter, Facebook or Linkedin

Board Certified Criminal Trial Advocate
By the National Board of Trial Advocacy
A Pennsylvania Supreme Court Approved Agency

• Email This
• Print
• Comments
• Trackbacks