DataMaster DMT: Legal and Foundational Issues Kenneth Stecker and perry Curtis August 2013.
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Transcript of DataMaster DMT: Legal and Foundational Issues Kenneth Stecker and perry Curtis August 2013.
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