One question young, ambitious lawyers often ask me is, “how do you effectively cross-examine forensic experts?” Cross-examining the prosecution’s experts is one of the most important stages in a DUI case because if that “expert” testimony is left unchallenged, the blood alcohol reading or the drug concentration result will be accepted and most certainly will lead to a conviction.
It takes a great deal of preparation and knowledge to cross-examine a forensic expert in a DUI case.
Preparing a successful cross-examination takes a lot of planning and requires a lot of knowledge about the forensic science in question. I have seen many very good criminal defense attorneys in Pennsylvania, who don’t specialize in DUI get totally bogged down while trying to cross-examine a forensic expert in a DUI case. You cannot “wing it.” It cannot be faked. This is why it takes a true DUI expert attorney to defend DUI cases and challenge the experts the prosecution brings to court. Here are some important things to remember when cross-examining a forensic expert:
Need to have a plan
When you are cross-examining an expert in pharmacology, toxicology or analytical chemistry, a successful DUI attorney will always go in with a detailed plan of attack. The expert is not going to just fumble away information about how they may have messed up. It takes detailed questioning and establishing the facts and the truth to be able to expose the mistakes of a forensic witness.
Scientific Knowledge
In Pennsylvania, the threshold for being an expert is very low. By definition, an expert is someone who possesses knowledge “beyond the ken of a layperson” meaning someone can literally read a few articles and be considered an expert in Pennsylvania. Just because someone is called an expert, doesn’t mean their opinion is authoritative or even reliable. This is why it is important to have an organized plan, in order to show the court and the Jury that the expert in question is really limited in his or her knowledge and that their opinion is not reliable.
Many times these pseudo-experts offer testimony far beyond their domain of expertise. Most of the prosecution experts are not really scientists, they are lab technicians or button pushers who are experts in performing a particular procedure, but don’t understand the science or the theory of what they are doing. Most of them do not have the training or education in hard sciences and thus do not fully understand “why” they are doing what they are doing.
This is why it is important to show the limitations of their knowledge and refute their opinions with scholarly papers are real experts in the field. To do this, a DUI attorney must have proper scientific training and be able to speak from a position of knowledge and power. You also need to have a strong network of experts to call upon to testify if needed.
Need to Know the Law
Recently, The Supreme Court of the United States ruling in the case of Bullcoming vs. New Mexico established the “Particular Witness Rule.” This means that the actual analyst who performed the procedure or test, must be called on to testify to enter the report as evidence. A supervisor or another analyst from that lab does not satisfy what the law requires. This is why a good defense attorney needs to be on top of the law and know who they are cross-examining and if the prosecution is satisfying what the law requires of them.
Being able to challenge DUI blood evidence effectively is one of the ways The McShane Firm separates itself from the rest of the crowd in Pennsylvania. Our attorneys are expert at exposing the weaknesses in the government’s case and challenging its evidence. DUI blood testing inherently has a number of sources of error that can be found upon careful investigation by a qualified legal expert.
Sources of Error in DUI Blood Testing
- Bad Labs- Under-trained, overworked staff who’s focus is on getting any ” result” rather than getting the correct result. These types of technicians can sometimes skew the results of a toxicology test to support the prosecution when, in reality, the result is not there. This coupled with a lack of oversight and corrective action is a recipe for disaster in a forensics laboratory. There are many examples of this in the news such as the horrible criminal labs in Indiana.
- Contamination- Blood tubes are very sensitive and need to be handled in a very specific way. If there is deviation from these authorized handling procedures, the results become doubtful and any result gathered loses its scientific value. Some common examples of mishandling of blood tubes are:
- No clear chain of custody
- Procedures not documented
- Tubes transported by normal carriers like FedEx
- Blood Tubes stored in non-ideal conditions
- Lack of proper refrigeration
- Shaking of the tubes
- Contamination of the tubes and the blood inside
- Switching of the tubes while in transport
Any of the above can lead to contamination and raise doubts about the validity of the test results.
- Calibration- In a scientific laboratory, the machines and instruments need to be properly maintained and set to ensure they are working properly. Just think about the common bathroom weight scale. There is a small dial on it to calibrate it to zero and if this is not done periodically, it will over or under report your weight. The same is true for high tech scientific instruments. They need to be calibrated properly and because they are dealing with very small amounts, any variance can make a big difference in the end result. This is a very common source of error.
- Mixing up the samples- When the correct procedures are not followed, blunders happen. It is not at all uncommon to see that the crime lab test someone else’s blood sample. This is why defense lawyers need to be very diligent in making sure proper handling and documentation procedures were followed.
- Documentation- Even if the testing was done up to standard, it has no scientific backing without the proper documentation. We call this verification. Without documentation, the results are based on an “act of trust” which is not allowed in court and is against the scientific method.
These are some of the common sources of error that are found in DUI blood tests. These problems are rampant all over the country and even here locally in Pennsylvania DUI cases. If you have doubts about your Pennsylvania DUI blood test then call the PA DUI attorneys at The McShane Firm at 1-866-MCSHANE.
In Pennsylvania DUI cases, blood testing evidence holds a place of great importance because its results are normally seen as accurate and scientific. Prosecutors think that blood evidence is without flaw. This is far from true. In this series, Challenging DUI Blood Evidence, we offer a simple yet comprehensive look at blood testing in DUI cases and how they can be challenged in court. Today we look at Drug Testing.
In DUI cases in PA, blood tests are used to identify controlled substances and prescription drugs.
In all states, you can be charged with a DUI-Drugs while being under the influence of illicit drugs like marijuana and cocaine, as well as common prescription drugs such as Ambien and Xanax. With the list of illicit and prescription drugs continually being added to this list, you can see how testing for drugs is much more complex than for alcohol. Another thing to note is that it is possible for a valid prescription holder taking the correct dosage to be charged with DUID based upon the prosecution’s basic and fundamental misunderstand of these types of cases. This is because under Pennsylvania law, the predetermined limits of what they believe is the correct dosage (misnamed as “the therapeutic range”) is wholly arbitrary without any scientific or medical backing. Testing for drugs requires the utilization of different methods which requires much more expertise than just testing for alcohol.
Normally crime labs first conduct some sort of screening test which is a quick yes/no type test. Screening tests create a high number of false positives and are not meant to used as evidence. Yet, prosecutors try to use it as evidence from time to time. The screening test’s sole purpose is to see if more testing is recommended. Again, in some cases, prosecutors may try to pass these screening tests on as if they were confirmatory tests. This can be challenged by an attorney who knows the details of the different types of testing and can hold the prosecution accountable.
If the screening test yields a positive result, then the sample is most typically tested by Gas Chromatography Mass Spectrometry (GC-MS) or alternatively by Liquid Chromatography Mass Spectrometry (LC-MS). These are both advanced testing methods which require a high level of understanding to properly interpret the instrumentation results. Unfortunately, most crime lab technicians do not hold the requisite qualifications in laboratory sciences or analytic chemistry to do so. Instead, they are hired and minimally trained to be “button pushers” and then placed in positions that require a great deal of knowledge and expertise. They cannot cope. Bad results.
DUI drugs cases are very complex and should be handled by only the most trained and qualified defense attorneys. All of the attorneys at The McShane Firm have gone through extensive training on how to defend DUI drugs cases and Attorney McShane has lectured on the topic extensively. Please call 1-866-MCSHANE if you have any questions on a Pennsylvania DUI drugs case.
In our on-going series on DUI blood testing, we aim to educate our readers to help them understand the evidence collected against them. Today we examine How Blood is Tested for DUI Cases.
PA DUI Attorney Justin McShane is an expert in Gas Chromatography and has lectured on the subject in seminars across the country.
When it comes to blood testing for DUI cases they come in two types and then sub-types. The first category depends upon what the police are looking for. They have to make a choice. Are they looking for ethanol (drinking alcohol) alone or are they looking for drugs (illicit or prescribed) or both? How they make that decision makes the determination of what machine they use and configuration of that machine that they use to come to a result because these machines have specific settings for each chemical that is being tested for.
For alcohol, there are three types of test. The first one is technically called an enzymatic assay. This is a non-specific indirect measure of testing (see the post about Hospital Blood and how WellSpan should be congratulated). This method is fast and cheap and primarily used in hospitals when they need a quick answer, but not necessarily the perfect answer. This is why it is referred to as hospital blood. Enzymatic assay testing is an indirect measure for alcohol meaning it does not isolate ethanol. In reality, there are many substances that have similar properties to thanol and thus the machine confuses them and produces a false positive reading. Common substances like lactate and common drugs such as Tylenol can be falsely identified as alcohol through this method.
The second category is the forensic tests for alcohol through gas chromatography (GC). Gas chromatography seeks to identify and separate the alcohol and then measure it. There are two types of GC, Gas Chromatography with Flame Ionization Detector (GC-FID) and Gas Chromatography with Mass Spectrometry (GC-MS).
GC-FID is a very good technique and far better than enzymatic assay, but has it’s inherit shortcomings. One of the major problems with this method is its reliance on the lab technicians to teach it what is and isn’t ethanol. This is quite complex as there are over 65 million registered chemical compounds according to CAS and if the machine is not trained properly, meaning how to pick out ethanol and ethanol alone to the exclusion of every other compound in the universe, then you will get the wrong result. In essence, the machine is a fancy bean counter, but you have to show it what to count and what not to count in order for the result to be right.
GC-MS is another technique and is by far the most specific of all of these tests, but it too has weaknesses. GC-MS also has to be taught what ethanol is and what it isn’t. But when it comes to ethanol, it can prove the identity of ethanol to the exclusion of everything else unlike GC-FID. Because it can more readily and repeatedly pick out ethanol than GC-FID, it therefore is more accurate and precise as to its weighing and reporting of ethanol potentially. It is a great technique but requires specialized training to operate and should be reserved to true scientists who understand the underlying science or the potential for well-intentioned people making errors in reporting can occur. Although this is the best forensic technique by far if properly conducted, no crime laboratories in the United States (except Oklahoma) use it.
The PA DUI Attorneys at The McShane Firm are experts in DUI blood testing.
In my years as a PA DUI Attorney, I have learned that the ability to challenge DUI blood evidence is a vital skill that can help win many cases. This is because there is a common myth that DUI blood testing is accurate and precise. Prosecutors treat it as if it is the “Holy Grail of DUI evidence” the venerable results of which cannot be challenged. I have personally encountered prosecutors who challenged me by saying, “It’s a blood test. How can you possibly question the results?” only to watch as their case was dismissed or the Jury or Judge returned a not guilty.
In truth, DUI blood tests can be challenged successfully. We do it here at the McShane Firm every day. A well-educated and gutsy professional DUI lawyer should have in depth knowledge of the procedures used in DUI blood tests, the potential sources of error, understand how to cross-examine the analysts who performed the test, and be able to relate it to a judge or a jury in a way that makes sense to them, and is immediately actionable. As part of PA DUI Attorney Challenge, we have put together a series of posts devoted to DUI blood testing for the benefit of the citizen accused of a DUI. We hope that this information will help you by clarifying some common misconceptions and arming you with knowledge which can be vital to your case. Knowing the basics about DUI blood testing will also help you to determine which DUI lawyer is best for you.
If you are looking for a Pennsylvania DUI lawyer who is an expert in DUI blood testing, please call 1-866-MCSHANE for a free consultation.
The Supreme Court Announces its Decision in Bullcoming v. New Mexico in Favor of the Petitioner
The Supreme Court of the United States has reversed the decision in the case of Bullcoming v. New Mexico siding with the argument that the prosecution using a surrogate forensic analyst who was not involved in the actual testing is in violation of The Confrontation Clause.
PA DUI Attorney Justin McShane worked on the amicus brief in the landmark case of Bullcoming v. New Mexico before the U.S. Supreme Court
As a foremost expert in gas chromatography, PA DUI Attorney Justin McShane was one of the lawyer-experts who co-authored the amicus brief in this case and The Court favored amici arguments in its opinion. The credit goes to Professor Jeffrey Fisher who framed, wrote and argued successfully not only this case but all of the other Confrontation Clause wins. The influence of the amicus brief that McShane co-authored with Lenny Stamm, Ron Moore, Barbara Bergman, Molly Schmidt-Nowara and Alexandra Freedman Smith could clearly be seen throughout and in particular here:
Gas chromatography is a widely used scientific method of quantitatively analyzing the constituents of a mixture. See generally H.McNair & J. Miller, Basic Gas Chromatography (2d ed. 2009) (hereinafter McNair). Under SLD’s standard testing protocol, the analyst extracts two blood samples and inserts them into vials containing an “internal standard”—a chemical additive. App. 53. See McNair 141–142. The analyst then “cap[s] the [two] sample[s],” “crimp[s] them with an aluminum top,” and places the vials into the gas chromatograph machine. App. 53–54. Within a few hours, this device produces a printed graph—a chromatogram—along with calculations representing a software-generated interpretation of the data. See Brief for State of New Mexico Dept. of Health, SLD as Amicus Curiae 16–17.
Although the State presented testimony that obtaining an accurate BAC measurement merely entails “look[ing] at the [gas chromatograph]machine and record[ing] the results,” App. 54, authoritative sources reveal that the matter is not so simple or certain. “In order to perform quantitative analyses satisfactorily and . . . support the results under rigorous examination in court, the analyst must be aware of, and adhere to, good analytical practices and understand what is being done and why.” Stafford, Chromatography, in Principles of Forensic Toxicology 92, 114 (B. Levine 2d ed. 2006). See also McNair 137 (“Errors thatoccur in any step can invalidate the best chromatographic analysis, so attention must be paid to all steps.”); D. Bartell, M. McMurray, & A. ImObersteg, Attacking and Defending Drunk Driving Tests §16:80 (2d revision 2010) (stating that 93% of errors in laboratory tests for BAC levels are human errors that occur either before or after machines analyze samples). Even after the machine has produced its printed result, a review of the chromatogram may indicate that the test was not valid. See McNair 207–214.Nor is the risk of human error so remote as to be negligible. Amici inform us, for example, that in neighboring Colorado, a single forensic laboratory produced at least 206 flawed blood-alcohol readings over a three-year span, prompting the dismissal of several criminal prosecutions. See Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 32–33. An analyst had used improper amounts of the internal standard, causing the chromatograph machine systematically to inflate BAC measurements. The analyst’s error, a supervisor said, was “fairly complex.” Ensslin, Final Tally on Flawed DUI: 206 Errors, 9 Tossed or Reduced, Colorado Springs Gazette, Apr. 19,2010, p. 1 (internal quotation marks omitted), available at http://www.gazette.com/articles/report-97354-police-discuss.html . (All Internet materials as visited June 21, 2011, and included in Clerk of Court’s case file).
This is yet another milestone in Attorney McShane’s illustrious career as a DUI expert attorney and speaks volumes about his experience and knowledge. While most lawyers in Pennsylvania have never taken a DUI case to trial, Attorney McShane has helped fight and win DUI cases and provided input in The Supreme Court of the United States that has now had a global impact on all DUI prosecutions throughout the United States.
If you are looking for an experienced Pennsylvania DUI Attorney to handle your case, choose the best- choose The McShane Firm at 1-866-MCSHANE.
As a respected DUI expert attorney, I have been invited to many DUI training seminars to share my expertise, particularly in the area of DUI blood testing. Gas Chromatography is the process used to measure blood alcohol content (BAC) and is considered by many prosecutors to be “invincible” and an “automatic conviction.” That is because most DUI attorneys do not have the expertise to be able to challenge this evidence properly. I have been able to use my scientific knowledge of this process in courtrooms across Pennsylvania and have been successful in defending my clients in the face of blood test evidence.
PA DUI Attorney Lectures on Gas Chromatography
Over the past few weeks I have presented at lectures about DUI blood testing at four major DUI training seminars across the country.
1. American Chemical Society course by Dr. Lee Polite, BA, MBA, PhD and Harold McNair, PhD “Forensic Applications of Chromatography (GC/HPLC) and Mass Spectrometry: Headspace Gas Chromatography with Flame Ionization Detector and Mass Spectrometry and High Pressure Liquid Chromatography (a lecture laboratory course)”
The American Chemical Society is comprised mostly of scientists not lawyers. This is why this course is very important because it validates Attorney McShane’s scientific credentials in the field of analytic chemistry. This small group, week-long, hands-on laboratory course is Attorney McShane’s brainchild and legacy. The course is not only made up of instruction in the theory of Headspace Gas Chromatography with Flame Ionization Detector but also other forms of forensic chromatography and detectors such as Mass Spectrometry and diode array UV/Vis. The participants spend a full five days of actually preparing and operating the instrumentation. This is the third full course offered with two more full classes scheduled by the end of the year.
2. Texas Criminal Defense Lawyer’s Association “DWI Defense Project-DWI Science: What You Must Know to Win!”
At this one day seminar, Attorney McShane taught the attorneys present how to spot issues in DUI blood testing by teaching the basic principles of Headspace Gas Chromatography with Flame Ionization Detector that is used in determining Blood Alcohol Content. He was rated as the top-rated speaker yet again for his entertaining and informative presentation.
3. Maryland Criminal Defense Attorney’s Association seminar “7th Annual Advanced DUI Seminar”
At this day-long seminar, Attorney McShane was once again called upon to teach Headspace Gas Chromatography in a long format. Attorney McShane not only taught the basic scientific principles as he has done before, but also detailed advanced issues including resolution, sensitivity, selectivity and method validation issues.
4. The California Public Defenders Association “Third Annual Two-Day DUI Defense Practice Institute”
At this conference, Attorney McShane not only taught the attendees about Headspace Gas Chromatography with Flame Ionization Detector that is used in determining Blood Alcohol Content, but also took part in a panel discussion on best practices in defending all manners of DUI accusations.
If you are looking for a PA DUI expert, then call The McShane Firm. We challenge you to ask the hard questions and find the very best DUI attorney in PA to handle your case. When you meet with an attorney ask them about Gas Chromatography and when was the last time they lectured about the subject at a DUI seminar. Ask the tough questions and make the selfish decision to choose the very best lawyer to protect your freedom.
PA DUI Attorney Justin McShane to Lecture at the 18th Annual Mastering Scientific Evidence in DWI/DUI Cases
I have worked extremely hard to become the best DUI Attorney I can be and have been recognized for this by DUI lawyers all over the country. One of the highest forms of recognition is being asked to lecture in advanced DUI seminars and teach other lawyers about how to better defend DUI cases. No DUI lawyer in PA has the speaking resume I do.
PA DUI Attorney Justin McShane is an expert in Gas Chromatography and will lecture on the subject in an upcoming DUI seminar
About the 18th Annual Mastering Scientific Evidence in DWI/DUI Cases Seminar
The 18th Annual Mastering Scientific Evidence in DWI/DUI Cases includes many of the top DWI/DUI experts and lawyers in the country. The seminar was founded by William C. “Bubba” Head, one of the deans of DWI defense law, in Atlanta, Georgia, in 1994. The Texas Criminal Defense Lawyers Association and the National College for DUI Defense (NCDD) have continued the tradition of excellence for which this seminar has become known. It has been, and remains, the premier DWI/DUI Scientific Evidence seminar in the country.
I have been invited to present the lead lecture entitled Fundamentals of Gas Chromatography: You Cannot Defend Against It Until You Understand It.
Gas Chromatography (GC) is one of the most popular methods used for DUI blood testing. However, contrary to popular belief, GC is fraught with potential errors which can produce artificially high BAC results. The only way to find out about these errors is through aggressive and extensive cross-examination and the only way to cross-examine a GC expert is to understand how GC works. I have done extensive research work on GC and have lectured and written about GC numerous times while most DUI Lawyers in PA have never even seen a GC live.
DUI is a serious crime in PA. If you want to defend your rights you need a DUI expert. Please call 1-866-MCSHANE to have a renowned expert review your case.
PA DUI Attorney Hosts Webinar on Analytical Chemistry
Understanding analytical chemistry is a big part of challenging DUI blood tests. That is why I have invested time and effort into becoming an expert in DUI Science. I also believe in helping other lawyers to become better at DUI defense and that is why I recently hosted a Webinar entitled:
“The Scientific Truth About HS-GC-FID and the Pharmacology of ETOH, Marijuana and Benzodiazepines”.
PA DUI Attorney Justin McShane Presents a Webinar on DUI Science
Renowned retired professor of pharmacology and analytical chemistry Dr. Jimmie Valentine, PhD and I instructed at the day-long seminar. The webinar was attended by more than 50 DUI attorneys, experts and consultants from across the country and covered topics like:
- What is HS-GC-FID? Theory and instrumentation Introduction (Method of Sample Introduction, Injection Conditions, Column Selection, Oven Conditions, The Detector)
- Ethanol Pharmacokinetics/Pharmacodynamics – concepts of absorption, distribution, metabolism and excretion
- How to read a chromatogram and issue spot (Elucidation)
- Marijuana Pharmacokinetics/ Pharmacodynamics – concepts of absorption, distribution, metabolism and excretion
- Defenses that work in GC-FID cases
- Benzodiazepines Pharmacokinetics/Pharmacodynamics – concepts of absorption, distribution, metabolism and excretion
The feedback we have received from this webinar has been tremendous and there have been an overwhelming number of requests for more DUI webinars in the future. Thanks to all of those who attended and we hope to offer more DUI webinars in the future.
If you missed this webinar and wish to join us in the future, please contact us.
Recently the American Chemical Society (ACS) held a five day intensive course on Gas Chromatography (GC). Gas Chromatography is used for DUI blood testing right here in Pennsylvania and around the country. Any DUI lawyer worth his/her salt should be well versed in how Gas Chromatography works and how it can yield erroneously high blood alcohol rates. Unfortunately, most lawyers defending DUI cases in PA don’t know the basics of GC and therefore, cannot confidently challenge its results. I am an expert in Gas Chromatography and written a number posts about GC and its effects in the DUI and forensic arenas.
The American Chemical Society is a scientific society. This training was a laboratory-based, hands-on, 40-hour course. I was able to take away from it a lot of knowledge that I will be able to use in the courtroom while defending DUI cases for the citizen of PA.
If you find yourself in the unfortunate situation of searching for a DUI lawyer, be sure to ask the candidates about Gas Chromatography and how many training courses they have attended on the subject.
-Justin J. McShane, Esquire, Pennsylvania DUI Attorney
I am the highest rated DUI Attorney in PA as Rated by Avvo.com
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