ESSENTIAL CASES TO KNOW
IN HANDLING CHALLENGES TO
SCIENTIFIC EVIDENCE

Leonard R. Stamm Goldstein & Stamm, P.A.
6301 Ivy Lane, Suite 504
Greenbelt, MD 20770
301-345-0122
(Fax) 301-441-4652
www.lstamm.comlstamm@lstamm.com

National College for DUI Defense
July 23, 2003
Cambridge, Massachusetts

Table of Contents

I. Overview....1

II. The Top Ten Classes of Cases....3

1. Validity of scientific evidence....3

a. Legislative approval....8
b. Expert qualifications....8
d. HGN cases....12
e. DRE cases....14
f. Speed measurement....15
g. Preliminary breath test....16

2. Privacy....17

a. Federal regulations....17
b. State privileges....19

3. Common law foundational requirements....20
4. Due process and other similar constitutional, statutory or regulatory provisions....20

a. Right to counsel....20
b. Right to an independent test....22

i. Failure to advise....23
ii. Denial of independent test....23
iii. Denial of bail, unreasonably lengthy detention, failure of prompt presentment....24

c. Incorrect or misleading advice of administrative sanctions or evidentiary effect of submitting to or refusing test....25
d. Fifth Amendment....26
e. Right to a court-appointed expert....27

5. Fourth Amendment....28

a. "Illegal" lane changes....28
b. The second stop....30
c. Probable cause to arrest....33
d. Blood tests....34

6. Statutory and regulatory requirements for the test....36

a. Failure to properly promulgate regulations....38
b. Deprivation period....39
c. Modification of approved equipment....40
d. Timing of the test....41
e. Margin of error....41
f. Other cases....42

7. Rules of evidence, other than Rule 702....42

a. Relevance and unfair prejudice....43
b. Authentication....44

i. Chain of custody....44
ii. Documents....45

c. Hearsay....46

8. Confrontation....48
9. Compulsory process....54
10. Discovery....55

a. Exculpatory evidence....55
b. Destruction of evidence....55

i. Known exculpatory value and no alternative means....55
ii. Potentially exculpatory and bad faith....57
iii. Obstruction/interference....60
iv. Spoliation - civil cases....60

c. Rule discovery....61
d. Jencks v. United States....63

III. Conclusion.....63

I. Overview

Defenders of persons accused of drunk driving today must not only be counselors, consolers, legal advisors, litigators, legal researchers, writers, investigators, and strategists, they must also be prepared to confront an ever widening array of scientific procedures and tests offered against defendants in court and at driver licensing hearings which are designed to prove their client's guilt. Attorneys must understand scientific techniques and how to question reliability, accuracy, and validity, and at the same time must understand the laws and be able to navigate through a maze of contradictory and confusing cases, to see the client through to an acquittal. This article attempts to traverse the labyrinth of cases that can be used by a skilled lawyer to obtain an acquittal or at least suppression or limitation of the state's scientific evidence.

A review of the numerous cases relating to challenges to scientific evidence leads to a number of observations. First, many of the cases that can be used to exclude or limit the effect of scientific evidence in a drunk driving case actually have very little to do with science and do not require extensive scientific knowledge on the part of the litigator. These cases deal with rights of the defendant and responsibilities of the police, prosecutors, and judges, and are designed to assure the integrity of the process by which drunk driving is investigated and prosecuted.

A second observation, is that many of the cases which appear on their face to be cases that favor the state, contain language enabling future defendants to raise defenses and support requests for discovery and subpoenas that would not have been possible previously. Many of the decisions contain terms such as "prima facie", "presumption," "reliability," "accuracy," and "harmless error." These decisions, although decided in favor of the state, disclose analyses by which a defendant may argue for a different result, under different facts and circumstances, by making it clear that the government's showing of reliability and accuracy may be rebutted by the defendant.

A third observation is that there is quite a bit of overlap between different theories of exclusion. If a pending case is in a jurisdiction where one line of reasoning has been shut down by the courts or the legislature, the attorney may be able to graft the reasoning from another state's decision on a different legal analysis to create a rationale for exclusion that has not yet been foreclosed by the courts or legislature. Most states have a case that states the foundation for the admission of a breath test. In one state, it may be a case that focuses on statutory requirements while in another it might be a Confrontation Clause case. In a state where the court has ruled that a certain test result is automatically admissible as valid scientific evidence as a result of legislative fiat, counsel may be able to borrow from another state's Confrontation Clause decisions, for example, to argue for exclusion. In those states where "reliability" is a condition precedent to admissibility, it does not matter whether the requirement of reliability has as its source an evidentiary rule, statute, regulation, or a constitutional guarantee. Defense counsel is still empowered to engage in an investigation, fueled by the need and duty to attempt to rebut the presumption of reliability, to discover the weak link in the state's scientific evidence; and having found the weak link, to argue for exclusion of the evidence in court or at an administrative proceeding.

This article will examine ten different classes of cases that are essential to comprehensively analyzing and effectively challenging scientific evidence in drunk driving cases. The classes are validity of the scientific technique, privacy, common law foundational requirements, Fourth Amendment, due process and other similar constitutional and statutory or regulatory protections, statutory and regulatory requirements, rules of evidence, confrontation, compulsory process and discovery.

A few caveats are in order. This article is limited to drunk driving cases where the defendant is challenging the government's scientific evidence. Additionally, whenever a federal constitutional provision is held to deny relief on a particular issue, counsel should consider mounting a challenge under a state constitutional provision that may be interpreted more broadly than its federal counterpart. Finally, this article does not aim to be as comprehensive as treatises such as Scientific Evidence, Third Edition, by Paul C. Gianelli and Edward J. Immwinkelreid (Lexis Law Publishing), Drunk Driving Defense, Fifth Edition, by Lawrence Taylor (Aspen Law & Business), Drinking/Driving Litigation Criminal and Civil, Second Edition, by Don Nichols and Flem Whited (West Group), Defending Drinking Drivers, by John Tarantino (James Publishing Co.) and Defense of Drunk Driving Cases, Criminal and Civil, Second Edition, by Richard Erwin (Matthew Bender). All of these excellent resources aided in compiling citations for this article. It is not the intent of this article to cite every case relevant to scientific evidence in drunk driving cases or to analyze the cases that are cited in great depth. Rather its purpose is to provide a framework for analyzing potential challenges to scientific evidence. It will likely be necessary to do further investigation and research in individual cases and jurisdictions to determine whether a specific attack on the state's scientific evidence will be well grounded in fact, law, and/or science.

II. The Top Ten Classes of Cases

1. Validity of scientific evidence

The logical place to begin a discussion of cases relevant to challenging scientific evidence is Frye v. United States, 293 F. 1013 (D.C. 1923) and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). These cases articulate the standards used by most courts to determine whether a scientific technique, test, theory, process or expert opinion is sufficiently valid to be considered by the fact finder at all. They represent the threshold that the proponent of the evidence must pass in order to have the evidence admitted. Most jurisdictions follow one of these cases.

In Frye v. United States, 293 F. 1013 (D.C. 1923), the court entertained the appeal of a murder defendant whose expert had been prevented from testifying about the favorable result of a systolic blood pressure deception test, an early form of polygraph. The court stated:

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well‑recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

Frye, 293 F. at 1014. Finding Frye's test not to have gained general acceptance among "physiological and psychological authorities," his conviction was affirmed.

In Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), the Supreme Court considered a claim that birth defects had been caused by Benedictin. Summary judgment had been granted against the plaintiffs because the trial court had ruled inadmissible the plaintiffs' scientific evidence showing a causal connection. The evidence consisted of tests on animals and in vitro tests, but there was no direct evidence that Benedictin caused birth defects in humans.

The Court took the opportunity to review Federal Rules of Evidence, Rule 702, which provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

The Court held that Frye had been displaced by the adoption of the Federal Rules of Evidence and suggested a number of factors a court could consider to determine the admissibility of scientific evidence under Rule 104(a)(relating to preliminary questions of admissibility) while also stating that, "we do not presume to set out a definitive checklist or test." 509 U.S. at 593. Included in a court's analysis should be a consideration of whether the theory or technique can be or has been tested, has been subjected to peer review or publication, has a known rate of error and standards governing the technique's operation, and could also include a consideration of whether the theory or technique has gained general acceptance in the relevant scientific field. The Court stressed that its test was a "flexible" one, focused on the methodology of the technique or theory to allow courts to determine whether the evidence is sufficiently reliable to satisfy Rule 702. The Court noted that the evidence must still pass muster under other rules of evidence, including Rules 703, 706, and 403. Having announced a new rule in Daubert, the Supreme Court remanded the case.

Daubert was followed by General Electric v. Joiner, 522 U.S. 136 (1997), holding the standard of appellate review of the trial court's rulings on admissibility of expert testimony to be abuse of discretion. In Kumho Tire, Ltd. v. Charmichael, 526 U.S. 137 (1999), the Supreme Court held that the Daubert analysis, requiring the trial judge to serve as the "gatekeeper" of scientific evidence and evaluate its relevance and reliability, applied to all expert testimony. Daubert does not just apply to scientific evidence, but also applies to "technical, or other specialized knowledge" listed in Rule 702.

Some jurisdictions do not follow Daubert or Frye, instead fashioning their own test to determine whether novel scientific evidence will be admitted. E.g., Harper v. State, 292 S.E.2d 389 (Ga. 1982)("whether the procedure or technique has reached a scientific stage of verifiable certainty, or ... whether the procedure rests on the laws of nature"); State v. Fukusaku, 946 P.2d 32 (Ha.1997)(evidence must be relevant and reliable); Leaf. v. Goodyear Tire & Rubber Co., 590 N.W.2d 525 (Iowa 1999)(evidence must be relevant and reliable); State v. Council, 515 S.E.2d 508 (S.C. 1999)(court considers "(1) the publications and peer review of the technique; (2) prior application of the method to the type of evidence involved in the case; (3) the quality control procedures used to ensure reliability; and (4) the consistency of the method with recognized scientific laws and procedures"); E.I. du Pont de Nemours and Co. v. Robinson, 923 S.W.2d 549 (Tex.1995)(the court should consider "(1) the extent to which the theory has been or can be tested; (2) the extent to which the technique relies upon the subjective interpretation of the expert; (3) whether the theory has been subjected to peer review and/or publication; (4) the technique's potential rate of error; (5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and (6) the non‑judicial uses which have been made of the theory or technique"); State v. Crosby, 927 P.2d 638 (Utah 1996)(court determines if process is "inherently reliable," "a determination that the scientific principles or techniques at issue have been properly applied to the facts of the particular case by sufficiently qualified experts" and whether probative value outweighs unfairly prejudicial effect).

In the following cases, the courts have announced that their jurisdiction follows Daubert or its principles. State v. Coon, 974 P.2d 386 (Ak.1999); Ex parte Turner, 733 So.2d 497 (Ala. 1998)(by statute for DNA only); Farm Bureau Mut. Ins. Co. of Arkansas, Inc. v. Foote, 14 S.W.3d 512 (Ark. 2000); People v. Shreck, 22 P.2d 68 (Colo. 2001); State v. Russo, 773 A.2d 965 (Conn. 2001); M.G. Bancorporation, Inc. v. Le Beau, 737 A.2d 513 (Del.1999); State v. Merwin, 962 P.2d 1026 (Ida. 1998)(following an approach similar to Daubert); Steward v. State, 652 N.E.2d 490 (Ind. 1995); Johnson v. Commonwealth, 12 S.W.3d 258 (Ky. 1999); State v. MacDonald, 718 A.2d 195 (Me.1998)(strongly supportive of Daubert); State v. Foret, 628 So.2d 1116 (La.1993); State v. Cline, 909 P.2d 1171 (Mont. 1996); State v. Dahood, 814 A.2d 159 (N.H.2002)(horizontal gaze nystagmus (HGN) admissible under Daubert for limited purpose of providing circumstantial evidence of intoxication); State v. Alberico, 861 P.2d 192 (N.M. 1993); State v. Goode, 461 S.E.2d 631 (N.C. 1995)(state approach consistent with Daubert); State v. Nemeth, 694 P.2d 1332 (Oh. 1998); State v. O'Key, 899 P.2d 663(Or. 1995)(HGN admissible to show defendant under the influence but not a specific BAC level under Daubert type analysis); Commonwealth v. Senior, 744 N.E.2d 614 (Mass. 2001)(retrograde extrapolation satisfies Daubert); Schafersman v. Agland Coop., 631 N.W.2d 862 (Neb. 2001); Taylor v. State, 889 P.2d 319 (Okla.Crim.App. 1995); DiPetrillo v. Dow Chemical Co., 729 A.2d 677 (R.I. 1999); State v. Schweitzer, 533 N.W.2d 156 (S.D. 1995); State v. Begley, 956 S.W.2d 471 (Tenn. 1997); State v. Lockhart, 562 S.E.2d 443 (W.Va. 2000); State v. Brooks, 643 A.2d 226, 229 (Vt. 1993)

The following cases adhere to Frye. Simmons v. State, 797 So.2d 1134 (Ala.Crim.App. 2000), cert. denied, 797 So.2d 1186 (Ala.), cert. denied, 122 S.Ct. 298 (2001); State v. Lehr, 38 P.2d 1172 (Az. 2002); People v. Soto, 981 P.2d 958 (Ca. 1999); Ramirez v. State, 810 So.2d 836 (Fla. 2001); People v. Davis, 710 N.E.2d 1251 (Ill. 1999); State v. Shively, 999 P.2d 952 (Kan. 2000); People v. Lee, 537 N.W.2d 233 (Mich.App. 1995); Goldstein v. State, 664 A.2d 375 (Md. 1995); Goeb v. Tharaldson, 615 N.W.2d 800 (Minn.2000); Young v. City of Brookhaven, 693 So.2d 1355 (Miss. 1997)(HGN does not satisfy Frye but may be used for probable cause); State v. Davis, 814 S.W.2d 593 (Mo. 1991); Dow Chemical Co. v. Mahlum, 970 P.2d 98 (Nev. 1998); State v. Fortin, 745 A.2d 509 (N.J. 2000); People v. Jason, 694 N.Y.S.2d 908 (N.Y. 1999); Commonwealth v. Crews, 640 A.2d 395 (Pa. 1994); State v. Baity, 21 P.2d 262 (Wash. 2001)(DRE "protocol meets the mandate of Frye").

1. Legislative approval

A number of courts have ruled that the legislature has determined admissibility under either the Frye or Daubert tests and that therefore the government does not need to introduce evidence to support that foundation. E.g., Williams v. Dist. of Columbia, 558 A.2d 344, 346 (D.C.1989) (Frye - breath testing); Armstead v. State, 673 A.2d 221 (Md. 1996)(Frye - DNA - no right to inverse Frye hearing);Regan v. State, 590 N.E.2d 640 (Ind.App. 1992)(Frye - blood alcohol testing). In State v. Vega, 465 N.E.2d 1303 (Oh.1984), the Ohio Supreme Court held that the defendant could not call an expert to testify to the general reliability of the intoxilyzer in light of the legislative approval of the device. The dissenting opinion argued that the ruling denied the defendant of his federal and state constitutional right to present a defense. The appellate court in Hawaii agreed with the dissent in Vega in State v. Lowther, 740 P.2d 1017 (Haw.App. 1987) and reversed a conviction where the defendant's expert was precluded from testifying that the Intoxilyzer does not accurately measure blood alcohol.

2. Expert qualifications

In State v. Lasworth, 42 P.3d 844 (N.M.App. 2001), the court held that although the state's expert witness, Margaret Burns, Ph.D., as a behavioral psychologist, was qualified to testify about the reliability of horizontal gaze nystagmus (HGN), that since she is not a medical doctor, she was not qualified to testify about the validity of HGN, both of which were required before HGN could be admitted in evidence under Daubert. This was a problem because the test was being offered in Lasworth to show the defendant was impaired and HGN had been validated according to Dr. Burns for a BAC level only. The court said:

Thus, in order to lay a foundation for the admission of the arresting officer's statement that Defendant was under the influence of alcohol or another central nervous system depressant, the State was required to establish two predicates: first, that the HGN FST is a scientifically valid means of discriminating between BACs below 0.08 percent and those at or above 0.08 percent; and, second, that a BAC at or above 0.08 percent correlates with diminishment of Defendant's mental or physical driving skills. Dr. Burns appears to have been called to testify as to the first predicate.

Lasworth, 42 P.2d at 848. Without specialized training and experience, officers may not be competent to offer an opinion that the defendant was under the influence of drugs. People v. Workman, 726 N.E.2d 759 (Ill.App. 2000). In Mata v. State, 46 S.W. 3d 902 (Tex.Ct.Crim.App. 2001), the court held that while retrograde extrapolation satisfied Daubert, the expert testimony in that case lacked a sufficient factual or scientific basis to be relevant.

3. Standardized field sobriety tests generally

A comprehensive analysis of Daubert and its progeny as applied to standardized field sobriety tests (SFSTs) appears in United States v. Horn, 185 F.Supp.2d 530 (D.Md. 2002), United States Magistrate Paul Grimm's magnum opus on the National Highway Traffic Safety Administration's (NHTSA) SFSTs, HGN, walk and turn and one leg stand. The defendant conceded that the SFSTs could be used to establish probable cause and the government conceded that the SFSTs could not be used to establish a specific BAC. Left to decide then was whether and to what extent the SFSTs could be used to provide circumstantial evidence of impairment.

The opinion noted that Daubert did not apply only to novel scientific evidence but that with the adoption of Daubert many courts would likely be required to reexamine many types of expert evidence that had previously found to satisfy Frye, in order to determine whether they satisfied the newer Daubert test. Horn, 185 F.Supp.2d at 554. The SFSTs were a case in point. Judge Grimm noted that many of the cases deciding the admissibility of SFSTs simply relied on the decisions of other courts, and did not have evidentiary hearings as extensive as the one the court had held in this case. Horn, 185 F.Supp.2d at 547. Many cases accepted NHTSA's claims of reliability and validity without critical analysis or based on judicial notice without a complete record.

The defendant called Spurgeon Cole, Ph.D., Professor of Psychology at Clemson University, Yale Caplan, Ph.D., former chief toxicologist for the Office of the Medical Examiner in Maryland, Joel Wiesen, Ph.D., an industrial psychologist, and Harold Brull, a licensed psychologist, who testified either in person or by affidavit, that the tests were unreliable to prove a person was impaired by alcohol. Some of the witnesses were extremely critical of the methods used by NHTSA to test and validate the SFSTs. For example, Dr. Cole noted the unacceptably high error rates of 47% in a 1977 study and 32% in a 1981 Final Report, and the unacceptably low average inter-rater reliability rate of 57%. The field studies conducted for NHTSA in the 1990s contained many flaws including lack of adequate controls, multiple variables affecting arrest decisions, and a high base level of impaired drivers. Dr. Cole's own study showed officers classified 46% of sober individuals as too impaired to drive. The studies which NHTSA relied on had not been subjected to peer review and published in the sense contemplated by Daubert.

Judge Grimm noted that under Rule 702 the proponent of the evidence must prove that the proposed expert testimony be both reliable and valid. In this context, reliability means the ability to duplicate the results and validity means it "has a logical nexus with the issue to be determined in a case." Horn, 185 F.Supp.2d at 539. Based on the evidence he heard that the studies NHTSA had relied upon in adopting the SFSTs were seriously flawed, had not been subjected to peer review, and had not gained acceptance in the relevant field, Judge Grimm found the SFSTs to be lacking in both reliability and validity and held that the SFSTs do not satisfy Daubert.

More specifically, he found the government had failed to satisfy Daubert's testing and error rate prongs. With respect to peer review and general acceptance, he found the government would likely fail as well.

The opinion stated:

However skilled law enforcement officials, highway safety specialists, prosecutors and criminologists may be in their fields, the record before me provides scant comfort that these communities have the expertise needed to evaluate the methods and procedures underlying human performance tests such as the SFSTs. . . . As to the conclusion of the state courts, more often than not expressed in passing and without analysis, that the SFSTs generally are accepted among psychologists like Dr. Burns, the evidence presented to me by the three psychologists called by Horn leads me, respectfully, to beg to differ.

Horn, 185 F.Supp.2d at 557.

He made specific rulings enabling the government to make limited use of the SFSTs.

Results of properly conducted SFSTs are admissible to show probable cause to arrest.
SFSTs cannot be used to establish a blood alcohol content.
HGN has been shown to be caused by alcohol consumption among other reasons.
That if the officer is properly trained and qualified to perform SFST's he may testify about his observations only, without referring to terms like "failed the test" or "exhibited" a number of "standardized clues."
If the officer testifies he performed and observed HGN, the defendant may bring out the other numerous causes of HGN through cross-examination or judicial notice.
The officer's lay opinion cannot include his technical or specialized knowledge concerning the SFSTs.

Horn, 185 F.Supp.2d at 132-34.

4. HGN cases

The cases on HGN have come to basically five different conclusions: HGN is inadmissible for any purpose; HGN is admissible to prove probable cause at a pretrial hearing; HGN is admissible to show consumption or presence of alcohol; HGN is admissible to show impairment; or HGN is fully admissible, even to establish a BAC level.

The following cases have ruled horizontal gaze nystagmus inadmissible before the fact finder. State v. Chastain, 960 P.2d 756 (Kan. 1998)(HGN does not satisfy Frye); State v. Witte, 836 P.2d 1110 (Kan.1992)(HGN must satisfy Frye to be admitted); Young v. City of Brookhaven, 693 So.2d 1355 (Miss. 1997)(HGN does not satisfy Frye but may be used for probable cause); State v. Doriguzzi, 760 A.2d 336 (N.J.Super.Ct.App.Div.2000)(HGN must meet Frye to be admissible); State v. Torres, P.2d 20 (N.M.1999)(state must first satisfy Daubert and show the validity and reliability of the test before HGN may be admitted); Com. v. Apollo, 603 A.2d 1023 (Pa.Super.Ct.1992)(affirmed trial court's exclusion of HGN for failure to meet Frye); State v. Murphy, 953 S.W.2d 200 (Tenn.1997)(must satisfy Daubert before can be admitted).

These cases have allowed HGN in evidence. State v. Dahood, 814 A.2d 159 (N.H.2002)(HGN admissible under Daubert for limited purpose of providing circumstantial evidence of intoxication); State v. O'Key, 899 P.2d 663(Or. 1995)(HGN admissible to show defendant under the influence but not a specific BAC level under Daubert type analysis); Schultz v. State, 664 A.2d 60 (Md.App. 1994)(HGN only admissible to show presence of alcohol if officer properly qualified and test properly administered); Malone v. City of Silverhill, 575 So.2d 101 (Ala.Crim.App. 1989) (admission of HGN without laying proper predicate was harmless error, officer must be qualified to give test and HGN reliability must be shown), rev. sub. nom, Ex parte Malone, 575 So.2d 106 (Ala. 1990)(was not harmless error); Ballard v. State, 955 P.2d 931 (Alaska Ct.App.1998)(HGN admissible to show consumption of alcohol); State v. City Court of City of Mesa, 799 P.2d 855 (Ariz.1990)(may be used to show probable cause to arrest and impairment as with any other field sobriety test, may not be used to show specific BAC); Whitson v. State, 863 S.W.2d 794 (Ark.1993)(admissible to show alcohol consumption); People v. Joehnk, 42 Cal.Rptr.2d 6 (Cal.Ct.App.4th 1995)(HGN admissible as basis for officer's opinion but not to quantify BAC or prove guilt standing alone); State v. Russo, 773 A.2d 965 (Conn.App. 2001)(HGN admissible if state satisfies Daubert); State v. Ruthardt, 680 A.2d 349 (Del.Super.Ct.1996)(if foundation laid, HGN admissible as circumstantial evidence of impairment and to corroborate test result but not to show BAC in absence of test); Bowen v. State, 745 So.2d 1108 (Fla.App. 1999)(must be a confirmatory BAC test before HGN may be admitted); Hawkins v. State, 476 S.E.2d 803 (Ga.App. 1996); State v. Ferrer, 23 P.3d 744 (Ha.App. 2001)(admissible for probable cause); State v. Garrett, 811 P.2d 488 (Idaho 1991)(HGN may be used as circumstantial evidence of intoxication); People v. Buening, 592 N.E.2d 1222 (Ill.App.Ct.1992)(HGN admissible if proper foundation laid, but not to establish specific BAC); Cooper v. State, 761 N.E.2d 900 (Ind.App. 2002)(HGN admissible to show impairment); State v. Murphy, 451 N.W.2d 154 (Iowa 1990)(HGN admissible); State v. Armstrong, 561 So.2d 883 (La.Ct.App.1990)(with proper foundation may be admitted as evidence of intoxication); State v. Taylor, 694 A.2d 907 (Me.1997)(test admissible but not to specify BAC); Com. v. Sands, 675 N.E.2d 370 (Mass.1997)(expert testimony necessary to admit); People v. Berger, 551 N.W.2d 421 (Mich.Ct.App.1996)(HGN meets Frye); State v. Klawitter, 518 N.W.2d 577 (Minn.1994)(HGN meets Frye); State v. Hill, 865 S.W.2d 702(Mo.Ct.App.1993)(HGN may be used to show intoxication, specific BAC with properly trained officer); Hulse v. State, 961 P.2d 75 (Mont.1998)(HGN admissible if proper training, administration of test and scientific basis for test); State v. Baue, 607 N.W.2d 191 (Neb.2000)(admissible to show impairment but not precise BAC); People v. Quinn, 580 N.Y.S.2d 818 (N.Y.Dist.Ct. 1991), rev. on other grounds, 607 N.Y.S.2d 534 (N.Y.Sup. 1993)(DRE protocol and HGN satisfy Frye); State v. Helms, 504 S.E.2d 293 (N.C.1998)(proper foundation must be laid before may be admitted); City of Fargo v. McLaughlin, 512 N.W.2d 700 (N.D.1994)(with proper qualifications and administration of test HGN admissible as circumstantial evidence of intoxication, not to quantify BAC); State v. Bresson, 554 N.E.2d 1330 (Ohio 1990)(HGN admissible but not to quantify BAC); Yell v. State, 856 P.2d 996 (Okla.Crim.App.1993)(HGN admissible but not to quantify BAC); State v. Sullivan, 426 S.E.2d 766 (S.C. 1993)(may be used to show lack of sobriety but not to quantify BAC); Emerson v. State, 880 S.W.2d 759 (Tex.Crim.App.1994)(if technique valid and applied correctly admissible but not to show BAC); Salt Lake City v. Garcia, 912 P.2d 997 (Utah Ct.App.1996)(HGN admissible, not scientific); State v. Cissne, 865 P.2d 564 (Wash.Ct.App.1994)(if meets Frye is admissible); State v. Barker, 366 S.E.2d 642 (W.Va. 1988)(HGN admissible but not to show BAC); State v. Zivcic, 598 N.W.2d 565 (Wis.Ct.App.1999)(HGN admissible if officer properly qualified); Smith v. State ex rel. Wyoming Dept. of Transp., 11 P.3d 931 (Wyo.2000)(HGN admissible at administrative hearing).

5. DRE cases

Only a few states have reported decisions addressing challenges to so-called "drug recognition experts" (DREs). See e.g., State v. Baity, 21 P.2d 262 (Wash. 2001)(DRE "protocol meets the mandate of Frye" - expert opinion allowed as to presence or absence of drugs if officer properly qualified and tests properly administered); State v. Sampson, 6 P.3d 543 (Or.App. 2000)(modified Daubert analysis - "we hold that the procedure and results of the DRE protocol are admissible in a DUII-CS proceeding to show that a defendant was under the influence of a controlled substance . . . the state must make a foundational showing 'that the officer who administered the test was properly qualified, the test was administered properly, and the test results were recorded accurately'"); Williams v. State, 710 So.2d 24, (Fla.App. 1998)(Frye inapplicable to portion of DRE protocol other than HGN because it is not scientific and inapplicable to HGN because it is not novel - DRE expert opinion permitted - HGN admissible to show impairment but not specific BAC); United States v. Everett, 972 F.Supp. 1313 (D.Nev. 1997)(if proper foundation is laid officer can testify as to probabilities but not as to established fact); State v. Klawitter, 518 N.W.2d 577 (Minn. 1994)(DRE satisfies Frye - opinion admissible if officer properly trained and tests properly administered, cannot refer to officer as "Expert"); People v. Quinn, 580 N.Y.S.2d 818 (N.Y.Dist.Ct. 1991)(DRE protocol and HGN satisfy Frye).

The majority rule, which has been to allow either expert or lay opinion testimony under either Frye or Daubert, is now subject to challenge under United States v. Horn, 185 F.Supp.2d 530 (D.Md. 2002).

6. Speed measurement

In Iter v. State, 511 S.E.2d 625 (Ga.App. 1999), the court held laser evidence did not meet Georgia's requirement of "scientific stage of verifiable certainty" or resting "on the laws of nature" but the legislature quickly enacted legislation allowing the evidence. Van Nort v. State, 550 S.E.2d 111 (Ga.App. 2001). See also, Goldstein v. State, 664 A.2d 375 (Md. 1995)(laser satisfies Frye).

Other courts have announced foundational requirements for radar devices used to determine the speed of a vehicle. For example, the court in Fitzwater v. State, 469 A.2d 909 (Md.App. 1984) said:

Although the statute does not set forth any requirements for proving the accuracy of the radar, the Court in Great Coastal Express, Inc. supra, relying on United States v. Dreos, 156 F.Supp. 200 (D.Md.1957) and Villegas v. Brysor, 494 P.2d 61, 16 Ariz.App. 456 (1972), set forth some guidelines stating at p. 715, 369 A.2d 118,

It is sufficient to show that the equipment has been properly tested and checked, that it was manned by a competent operator, that proper operative procedures were followed, and that proper records were kept.

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[There should be proof to indicate] the instrument relied upon was in good working order and accurate at the time the recording was made.

Fitzwater, 469 A.2d at 912.

7. Preliminary breath test

PBTs, also referred to as preliminary breath tests or portable breath tests, have been held inadmissible by some courts, admissible by others and others have allowed admission only to show probable cause. They are considered extremely unreliable. Some of the cases prohibiting admission are: Harmon v. State, 809 A.2d 696 (Md.App. 2002); People v. Rose 643 N.E.2d 865 (Ill.App. 1994)(inadmissible in state's case-in-chief - rebuttal reserved); Patrick v. State, 750 S.W.2d 391 (Ark. 1988)(only defendant can introduce PBT because they are unreliable); State v. Zell, 491 N.W.2d 196, 197 (Iowa Ct.App.1992) ("[t]he results of the preliminary screening test are inadmissible because the test is inherently unreliable and may register an inaccurate percentage of alcohol present in the breath, and may also be inaccurate as to the presence or absence of any alcohol at all"); People v. Keskinen, 441 N.W.2d 79 (1989); Justice v. Director of Revenue, 890 S.W.2d 728, 731 (Mo.Ct.App.1995) (by statute); Commonwealth v. Stanley, 629 A.2d 940 (Pa.Super. 1993)(stating that PBT results are inadmissible); Thompson v. State Dept. of Licensing, 91 Wash.App. 887, 960 P.2d 475, 477 (1998) (holding that "the results of a portable breath test are not admissible as evidence at trial or to establish probable cause for arrest"); State v. Beaver, 512 N.W.2d 254 (Wis. 1994) (PBT not admitted).

Some cases allowing the PBT include: People v. Williams, 121 Cal.Rptr.2d 854 (Ca. 2002)

People v. Bury, 58 Cal.Rptr.2d 682 (Cal.App. 1996). These cases allow the results if the state either demonstrates compliance with Title 17 of the California Code of Regulations or meets the three part foundation of "(1) properly functioning equipment, (2) a properly administered test, and (3) a qualified operator."

Cases allowing the PBT to establish probable cause only include: United States v. Iron Cloud, 171 F.3d 587 (8th Cir. 1999); State v. Anderson, 359 N.W.2d 887 (S.D. 1984)(PBT only admissible if probable cause contested); Attix v. Voshell, 579 A.2d 1125 (Del.Super.Ct.1989) (holding that the PBT can be admitted only for probable cause and not for substantial evidence because no court has established that it is reliable); State v. Strizich, 952 P.2d 1365 (Mont. 1997) (holding that the PBT is intended only for determining probable cause); State v. Klingelhoefer, 382 N.W.2d 366 (Neb. 1986) (probable cause); City of Fargo v. Ruether, 490 N.W.2d 481 (N.D.1992)(inadmissible if defendant admits probable cause); Jones v. Town of Marion, 508 S.E.2d 921 (Va.App. 1999)(only to be used in determining probable cause); State v. Johnson, 503 N.E.2d 431 (Ind.App. 1987).

2. Privacy

1. Federal regulations

Many medical facilities obtaining blood for alcohol screening from patients are subject to 42 Code of Federal Regulations (CFR) Ch. 1 (10-1-02 Edition) Public Health Service, HHS, Subchapter A, Part 2 Confidentiality of Alcohol and Drug Abuse Patient Records. This provision relies on the following statutory authority, 42 U.S.C. § 290dd2, the current version of which provides:

(a) Requirements
Records of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any program or activity relating to alcoholism or alcohol abuse education, training treatment, rehabilitation, or research, which is conducted, regulated, or directly or indirectly assisted by any department or agency of the United States, shall, except as provided in subsection (e) of this section, be confidential and be disclosed only for the purposes and under the circumstances expressly authorized under subsection (b) of this section.
* * *
(c) Use of record in criminal proceedings
Except as authorized by a court order granted under subsection (b)(2)(C) of this section, no record referred to in subsection (a) of this section may be used to initiate or substantiate any criminal charges against a patient or to conduct any investigation of a patient.
* * *
(f) Penalties
Any person who violates any provision of this section or any regulation issued pursuant to this section shall be fined in accordance with Title 18.

(Emphasis supplied).

Often in serious accidents, the defendant is transported to a hospital where he or she receives treatment for injuries received in an accident caused by alcohol or drug abuse, and also receives counseling for an possible abuse problem. The blood test conducted for treatment is sought by the state, usually in complete disregard of federal law prohibiting the disclosure of this information.

In United States v. Eide, 875 F2d 1429 (9th Cir. 1989), the court said:
The emergency room at the VAMC undoubtedly is a "person" which "in part" "holds itself out as providing, and provides, . . . drug abuse diagnosis, treatment, or referral for treatment." In fact, Eide received such services there. A hospital emergency room, while obviously also performing functions unrelated to drug abuse, serves as a vital first link in drug abuse diagnosis, treatment, and referral. Indeed, it is apparent that many drug abusers are first diagnosed as having a drug abuse problem, and are first given treatment or a referral for their drug abuse, at a hospital emergency room in conjunction with a suspected drug overdose.

Eide held that emergency room records were covered by the federal prohibition and suppressed the defendant's urinalysis result showing drug use.

2. State privileges

A number of states recognize a physician-patient privilege which precludes the state from obtaining records of medical treatment of an individual, including blood tests done in the course of medical treatment. E.g., People v. Walljasper, 422 N.E.2d 251 (Ill.App. 1981); Gozenbach v. Ruddy, 645 S.W.2d 27 (Mo. 1982); Ragsdale v. State, 432 S.W.2d 11, 13 (Ark. 1968); Kansas v. Pitchford, 697 P.2d 896 (Kan. 1985); New York v. Petro, 504 N.Y.S.2d 67 (N.Y. 1986). In some states, medical records protection acts provide greater protection than physician-patient privilege. E.g., Mosley v. State, 732 S.W.2d 861 (Ark.App. 1987).

In State v. King, 535 S.E.2d 492 (Ga. 2002), the Supreme Court held that although Georgia had no statutory or common law physician-patient privilege, the Georgia state constitution contained a right of privacy flowing from "natural law" that shielded the defendant's medical records containing a blood alcohol reading of .15 from a state issued subpoena. The court found that due process was violated by the state obtaining private medical records through a subpoena without notice to the patient. As a result the court reversed the defendant's drunk driving conviction. The victory for patients in Georgia was short-lived however, since the Georgia Supreme Court shortly thereafter distinguished the case of a different King, holding that a search warrant for medical records containing a blood alcohol reading did satisfy due process concerns sufficiently to overcome the defendant's right of privacy. King v. State, 577 S.E.2d 764 (Ga. 2003).

3. Common law foundational requirements

In some jurisdictions, the foundation for the admission of scientific evidence is established by caselaw. For example in State v. Sensing, 843 S.W.2d 412 (Tenn. 1992), the Tennessee Supreme Court announced the foundation for the admission of a breath test. It said:

We hold that the testing officer must be able to testify (1) that the tests were performed in accordance with the standards and operating procedure promulgated by the forensic services division of the Tennessee Bureau of Investigation, (2) that he was properly certified in accordance with those standards, (3) that the evidentiary breath testing instrument used was certified by the forensic services division, was tested regularly for accuracy and was working properly when the breath test was performed, (4) that the motorist was observed for the requisite 20 minutes prior to the test, and during this period, he did not have foreign matter in his mouth, did not consume any alcoholic beverage, smoke, or regurgitate, (5) evidence that he followed the prescribed operational procedure, (6) identify the printout record offered in evidence as the result of the test given to the person tested.

See also, Moore v. State, 442 So.2d 164, 167 (Ala.Cr.App.1983) (government must show that breath instrument was in good working order); State v. Geinzer, 406 N.W.2d 457 (Iowa Ct.App.1987)(reading of .01 during "air blank" step rather than .00 rendered test inadmissible because showing of accuracy and reliability required in addition to compliance with statute).

In California, the state must prove one of two possible foundations, either compliance with Title 17 of the California Code of Regulations or the three part foundation of "(1) properly functioning equipment, (2) a properly administered test, and (3) a qualified operator." People v. Williams, 121 Cal.Rptr.2d 854 (Ca. 2002); People v. Bury, 58 Cal.Rptr.2d 682 (Cal.App. 1996).

4. Due process and other similar constitutional, statutory or regulatory provisions

1. Right to counsel

In many states, courts have ruled, under a number of different provisions, that a person arrested for drunk driving has a right to consult with counsel, prior to deciding whether to take or refuse a chemical test E.g., Sites v. State, 481 A.2d 192 (Md. 1984)(Fourteenth Amendment due process); State v. Juarez, 775 P.2d 1140 (Ariz. 1989)(Arizona Rules of Criminal Procedure, Rule 6.1); State v. Carmody, 442 A.2d 1292 (Vt. 1982)(by statute - 23 V.S.A. §§ 1202(c); Kuntz v. State Highway Commissioner, 405 N.W.2d 285 (N.D. 1987)(by statute - N.D.C.C. § 29‑05‑20); Kuhn v. Commissioner of Public Safety, 488 N.W.2d 838 (Minn.App. 1992)(state constitution); State v. Rodenheffer, 580 N.E.2d 864 (Ohio Mun. 1991)(by statute); State v. Garvey, 595 A.2d 267 (Vt. 1991); but see, State v. Bristor, 691 P.2d 1 (Kan. 1984)(if read Miranda warnings, defendant must be told does not apply to election to take breath test). Those cases that recognize the right to counsel hold that it is a limited right and may not interfere with the reasonable efforts of the police to obtain a sample within relevant time requirements. Sites; Village of Lexington v. Reddington, 621 N.E.2d 758 (Ohio App. 1993)(not enough time given to consult with counsel). Some cases hold that police do not have to advise suspects of the right to counsel, but that it depends upon the request of the detained person. E.g., McAvoy v. State, 551 A.2d 875 (Md. 1989); but see, State v. Duff, 394 A.2d 1145 (Vt. 1978)(advice required by statute). The right to counsel has been held to include the right to a face to face consultation between counsel and the accused, as well as a private PBT, Brosan v. Cochran, 516 A.2d 970 (Md. 1986), as well as the right to a private consultation, out of earshot of the police. State v. Holland, 711 P.2d 592 (Az. 1985); State v. Durbin, 63 P.3d 576 (Or. 2003)(right to counsel in state constitution - privacy required whenever defendant requests counsel - request for privacy implied from request for counsel).

Other jurisdictions have held that there is no right to counsel before deciding whether to take or refuse a chemical test of blood or breath. E.g., State v. Taniguchi, 815 P.2d 24 (Haw. 1991)(defendant must be advised has no right to counsel if expresses confusion about right to counsel). Requesting counsel may constitute a refusal. Dikeman v. Charnes, 739 P.2d 870 (Colo.App. 1987). In those jurisdictions where the refusal to submit to a test is a separate crime, not only may there be a limitation on recognition of the right to counsel, but it may also be a crime to advise a person to refuse the test. See, e.g., 36 CFR § 4.23.

Where counsel successfully argues the defendant was denied access to counsel before deciding to take or refuse the test, the court or administrative agency may suppress the test result or the refusal. Sites.

2. Right to an independent test

A number of jurisdictions have recognized a right, under the relevant federal or state constitutional or statutory provisions for a drunk driving defendant to obtain an independent test in order to contest the state's alcohol test evidence. In re Koehne, 356 P.2d 179 (Cal. 1960); Commonwealth v. Alano, 448 N.E.2d 1122 (Mass.1983); State v. O'Donnell, 225 Ga.App. 502, 484 S.E.2d 313 (1997); State v. Snipes, 478 S.W.2d 299 (Mo.1972); Montano v. Superior Court In and For Pima County, 719 P.2d 271 (Ariz. 1986); State v. Dake, 529 N.W.2d 46 (Neb.1995); Schroeder v. State, 772 P.2d 1278 (Nev.1989); Snyder v. State, 930 P.2d 1274 (Alaska 1996) (due process right to independent test even if refuses state test - sanction for interference is to presume the test would have been favorable); but see, State v. Larivee, 56 N.W.2d 226 (Minn. 2003)(defendant only has right to independent test if submits to state test). The West Virginia Supreme Court has held that the state must provide for an independent test if the defendant cannot afford one, although the costs may be assessed on a guilty finding. Moczek v. Bechtold, 363 S.E.2d 238 (W.Va. 1987). In Arizona, the right to an independent test is not satisfied by the opportunity to test the sample drawn for the state. State v. Olcan, 61 P.3d 475, (Ariz.App. 2003)(charges dismissed for denial of opportunity to obtain independent sample).

1. Failure to advise

A number of the jurisdictions that recognize the right to an independent breath test also require the officer to advise the defendant of the option. Municipality of Anchorage v. Serrano, 649 P.2d 256 (Alaska App. 1982)(state must either preserve sample of breath or advise defendant of right to an independent test under due process clause of state constitution, Const.Art. 1, § 7); State v. McCard, 326 S.E.2d 856 (Ga. App. 1985); Mitchell v. City of North Little Rock, 692 S.W.2d 624 (Ark. 1985)(not advised of full range of tests available); but see, State v. Bloomer, 618 N.W.2d 550 (Iowa 2002)(advice not required). In the jurisdictions where the advise is required, the failure to comply with the advice requirement can lead to the suppression of the state's test evidence or dismissal. State v. Minkoff, 42 P.3d 223 (Mont.2002)(dismissal - overruling State v. Strand, 951 P.2d 552 (Mont. 1997), which held suppression of state's test was proper remedy for failure to advise).

At least one state requires advice of the right to an independent test only where the police utilize the implied consent procedure and obtain a state test. Grayson v. State, 783 S.W.2d 75 (Ark.App. 1990)(sanction for failure to advise is suppression of the state test); but see, Montano v. Superior Court, 719 P.2d 271 (Ariz. 1986)(advice required where state does not utilize implied consent procedure - sanction is dismissal).

2. Denial of independent test

In State v. Minkoff, 42 P.3d 223 (Mont.2002), the Montana Supreme Court held that where the officer discouraged the defendant from choosing an independent blood test by telling him the test would be higher than the state's test, the proper sanction was dismissal. The court overruled its prior decision in State v. Strand, 951 P.2d 552 (Mont. 1997), where it had held that where there is a state test the proper sanction for failure to advise of the right to an independent test is suppression.

In State v. Livesay, 941 S.W.2d 63 (Tenn.Cr.App. 1996)(denial after a request) the court ruled that dismissal was the appropriate remedy for preventing the defendant from obtaining an independent test. See also, People v. Underwood, 396 N.W.2d 443 (Mich. App. 1986)(officer persuaded defendant not to obtain independent test - conviction reversed and case dismissed); State v. McNichols, 884 P.2d 620 (Wash. App. 1994)(sanction for unreasonably delaying independent test was dismissal).

In State v. Braunecker, 566 S.E.2d 409 (Ga.App.2002), the court held the state's breath test should have been suppressed where the defendant was denied an opportunity to obtain an independent test. See also, State v. George, 754 P.2d 460 (Kan.App. 1988)(refusal to take defendant to hospital required suppression of state's test); State v. Pipkin, 364 S.E.2d 464 (S.C. 1988)(suppression of both state and independent tests where the officer seized the independent test sample and told the defendant to get another one); Lau v. State 896 P.2d 825 (Ak.App.1995)(discouraging defendant from taking independent test required suppression of state's test).

3. Denial of bail, unreasonably lengthy detention, failure of prompt presentment

A number of cases have recognized that where the defendant has a right to an independent test, that an unreasonable period of detention, which prevents the defendant from being able to obtain a relevant test, may violate due process. Com. v. Hampe, 646 N.E.2d 387 (Mass. 1995); Com. v. King, 706 N.E.2d 685, 688 (Mass. 1999). The sanction is dismissal unless there is overwhelming evidence of the defendant's intoxication. See also, State v. Greeley, 808 A.2d 108 (N.J.Super. 2002)(unreasonable release policy, which had effect of denying defendant independent test required suppression of state's test).

3. Incorrect or misleading advice of administrative sanctions or evidentiary effect of submitting to or refusing test

There are many cases holding that failure to give proper implied consent warnings, or giving inaccurate and misleading information in addition to or instead of the required implied consent warnings violates due process and requires the suppression of the test results obtained thereby. Kitchens v. State, 574 S.E.2d 451 (Ga.App. 2002); State v. Wilson, 987 P.2d 268 (Haw.1999); Cooper v. Dept. of Licensing, 810 P.2d 1385 (Wash. 1991); Smith v. State of Nebraska, Department of Motor Vehicles, 535 N.W.2d 694 (Neb. 1995); Graves v. Commonwealth, 535 A.2d 707 (Pa. 1988); Beem v. State, 805 P.2d 495 (Ida.App.1991); Buchanan v. Registrar, Ohio Bureau of Motor Vehicles, 619 N.E.2d 523 (Oh. 1993); Bennett v. Director of Revenue, 889 S.W.2d 166 (Mo.App.1994); State v. Sells, 798 S.W.2d 865 (Tex.App.1990); State v. Kozel, 505 A.2d 1221 (Vt. 1986); State v. Spencer, 750 P.2d 147 (Or. 1988); State v. Stade, 683 A.2d 164 (Me. 1996); Forman v. Motor Vehicle Admin., 630 A.2d 753 (Md. 1993); Hare v. Motor Vehicle Admin., 604 A.2d 914 (Md. 1992). In many jurisdictions, failure to comply with the requirements of the implied consent statute can result in exclusion of the test result in evidence. E.g., State v. Loscomb, 435 A.2d 764 (Md. 1981); State v. Coleman, 455 S.E.2d 604 (Ga.App. 1995); State v. Stade, 683 A.2d 164 (Me. 1996)(suppression of test result at trial affirmed where officer failed to read implied consent advisory and gave false and misleading advice).

Some courts have found that administering rights under Miranda v. Arizona, 384 U.S. 436 (1966), can cause confusion which can impair the validity of the implied consent advisement by misleading the defendant to believe there is a right to counsel or to silence. The officer is required to explain that the right to counsel and to remain silent does not apply to the requirement that the defendant submit to a test. E.g., Transportation v. O'Connell, 555 A.2d 873 (Pa. 1989); Dept. of Highways v. Beckey, 192 N.W.2d 441 (Minn. 1971); State v. Severino, 537 P.2d 1187 (Haw. 1975); Graham v. State, 633 P.2d 211 (Ak. 1981).

Courts have considered claims that a non-English speaking driver is entitled to receive the implied consent advisory in a language other than English. E.g., State v. Tosar, 180 Ga.App. 885, 350 S.E.2d 811 (1986) (Spanish-speaking defendant); Yokoyama v. Commissioner of Public Safety, 356 N.W.2d 830 (Minn.App.1984) (Japanese-speaking plaintiff). These cases have held that since a person who drives in the state gives implied consent to take a test, that a person who does not understand English should be treated the same as an unconscious person, where express consent is not a prerequisite to the test. These decisions are difficult to reconcile with the cases cited above, as well as with equal protection principles. E.g., Sandoval v. Hagan, 197 F.3d 484 (C.A. 11 Ala. 1999), rev’d on other grounds, Alexander v. Sandoval, 532 U.S. 275 (2001).

4. Fifth Amendment

The Fifth Amendment, and state constitutional provisions prohibiting compelled self-incrimination, have in many cases been tried and rejected as a basis for excluding physical scientific evidence. Schmerber v. California, 384 U.S. 757 (1966). However, to the extent the physical evidence is considered testimonial, the Fifth Amendment should be considered as a basis for challenging the evidence. Additionally, the physical evidence may have been obtained as the fruit of a Fifth Amendment violation. See, Wong Sun v. United States, 371 U.S. 471 (1963).

The Fifth Amendment prohibits compelled custodial interrogation. A court must determine whether the defendant was in "custody" and whether the responses of the defendant were "testimonial." In Berkemer v. McCarty, 468 U.S. 420 (1984), the Supreme Court ruled that "custody" for the purposes of the Fifth Amendment, occurs when "a reasonable person would no longer feel free to leave," the officer's presence. Although, in Berkemer, a drunk driving case, this occurred after field sobriety tests at the moment of the official arrest, the moment when the arrest occurs will not always be when "custody" begins.

In Pennsylvania v. Muniz, 496 U.S. 582 (1990) the Supreme Court ruled that the response to the question on a videotape, "Do you know what the date was of your sixth birthday?" was testimonial, because it involved the thought process of the defendant. Additionally, in Pennsylvania v. Bruder, 488 U.S. 9 (1988), the Supreme Court reserved the question of whether the recitation of the alphabet is testimonial.

State constitutional provisions may not be interpreted so narrowly. For example, in State v. Fish, 893 P.2d 1023 (Or. 1993), the Oregon Supreme Court held that refusal to perform standardized field sobriety tests violated the state constitutional prohibition against compelled self incrimination. See also, South Dakota v. Neville, 459 U.S. 553 (1983)(refusal to submit to breath test does not violate the Fifth Amendment). In Allred v. State, 622 So.2d 984 (Fla. 1993), the Florida Supreme Court held that the recitation of the alphabet was testimonial for purposes of the Florida Constitution prohibition against compelled self incrimination.

5. Right to a court-appointed expert

In Ake v. Oklahoma, 470 U.S. 68 (1985), the Supreme Court recognized a due process right to appointment of an expert to help contest sanity. The following cases have recognized a right to a court funded expert in a drunk driving case where the defendant cannot afford one. People v. Jacobsen, 532 N.W.2d 838 (Mich.1995)(by rule - insufficient showing under the facts of the case); State v. Ryan, 334 A.2d 402 (N.J. Super 1975)(right to counsel); City of Mount Vernon v. Cochran, 855 P.2d 1180 (Wash.App. 1993)(Sixth Amendment, rule); Fisher v. City of Eupora, 587 So.2d 878 (Miss.1991)(insufficient proffer); but see, Elmore v. State, 968 S.W.2d 462 (Tex.App.1998)(refusing to apply Ake in a drunk driving case).

5. Fourth Amendment

No discussion of cases that may be used to challenge scientific evidence would be complete without acknowledging challenges based on Fourth Amendment cases to the search and seizure of samples of breath, blood, urine, or of the defendant's person. At the same time, this area is the subject of treatises, numerous cases, and articles on a subject that is too broad to be adequately covered in this article. This article will mention just a few cases of interest here out of the hundreds of potentially relevant cases.

1. "Illegal" lane changes

There are cases all over the country addressing the legality of stops based on an officer's claim of having witnessed an illegal lane change. Many jurisdictions prohibit a person from changing lanes before determining that it is safe to do so. Many also require a driver to stay in a single lane "as nearly as practical." Often officers conduct stops for what appear to be petty, de minimus violations, for example touching a shoulder line or briefly crossing it by inches with one tire. These cases often turn on their facts. Edge line crossings are tolerated by the courts more than center line crossings. The time of day, weather conditions, and presence of other traffic on the roadway can also be relevant factors.

Cases holding stops illegal include: United States v. Colin, 314 F.3d 439 (9th Cir. 2002)(car drifted onto right fog line for 10 seconds, signaled, changed lanes to the left, drifted to double yellow line, signaled and changed back to right lane); State v. Tarvin, 972 S.W.2d 910 (Tex.App. 1998) (car "touch[ed] the right-hand white line"); Rowe v. State, 769 A.2d 879 (Md. 2001)(vehicle crossed edge line briefly and hit rumble strip, went back in lane and touched edge line again); State v. Williams, 619 N.E.2d 1141 (Oh.App. 1993) (crossing the lane dividing line by one tire width on two occasions over a two mile stretch of highway); State v. Caron, 534 A.2d 978 (Me.1987) (brief, one time straddling of the center line of an undivided highway); United States v. Gregory, 79 F.3d 973 (10th Cir.1996)(single occurrence of moving to the right shoulder of the roadway); Crooks v. State, 710 So.2d 1041 (Fla.App.1998)(car drifted over right line on three occasions, no information how far); State v. Lafferty, 967 P.2d 363 (Mont. 1998)(crossed fog line twice and drove on fog line once); State v. Cerny, 28 S.W.3d 796 (Tex.App.2000)(swerved over right hand edge line three or four times); Hernandez v. State, 983 S.W.2d 867 (Tex.App.1998)(a single instance of crossing a lane dividing line by 18 to 24 inches into a lane of traffic traveling the same direction, without any unsafe driving); Jordan v. State, 831 So.2d 1241 (Fla.App. 2002)(traffic crossed demarcating lines and swerved back into lane for no apparent reason - noone placed in danger); United States v. Gastellum, 927 F.Supp. 1386 (D.Colo. 1986)(single instance of weaving over line insufficient for stop); State v. Brite 698 N.E.2d 478 (Oh. 1997)(vehicle drove over the right-hand edge lines of the road on two occasions during the span of a mile); United States v. Smith, 799 F.2d 704 (11th Cir. 1986)(right side of the wheels crossed over the white painted edge line approximately six inches into the emergency lane, brought back into the center of the lane and drifted over to the white painted center line without touching it and weaved an additional two times). Cases upholding stops include: Commonwealth v. Howard, 762 A.2d 360 (Pa.Super.2000)(vehicle crossed, on two occasions, the edge line by one-fourth to one-half of the vehicle's width, being driven down the center of an unmarked highway and crossing the center line). United States v. Garcia, 205 F.3d 1182 (9th Cir.2000)(vehicle "swerving slightly within its lane, not breaking the lane lines," left side tires crossing into the number one lane and back again, and, as it passed a truck, swerving "over the center yellow line into the paved shoulder throwing dirt and debris up," before it "slightly jerked back" into its lane and continued to pass the truck); United States v. Cervine, 169 F.Supp.2d 1204 (D.Kan.2001)(defendant crossed the line separating the driving lane from the passing lane one time, for about two seconds); United States v. Barahona, 990 F.2d 412 (8th Cir.1993)(vehicle changed lanes without using a turn signal and went "partially" onto the shoulder); Zimmerman v. North Dakota Department of Transportation Director, 543 N.W.2d 479 (N.D.1996)(driving across the center line of the roadway on one occasion); United States v. Botero-Ospina, 71 F.3d 783 (10th Cir. 1995), cert. denied, 518 U.S. 1007 (1996)(the car swerved from the outside lane, straddled the center line, and swerved back to the outside lane); Edwards v. State, 792 A.2d 1197 (Md.App. 2002)(vehicle crosses center line a number of times); Dowdy v. State, 798 A.2d 1 (Md.App. 2002)(vehicle partially in left lane 2 times for 1/10 mile); and State v. Hodge, 771 N.E.2d 331(Oh.App. 2002)(minor violation of edge line is cause for stop).

2. The second stop

Often in drunk driving investigations, the officer stops a person for a minor traffic violation and then upon detecting the odor of an alcohol beverage requires the person to exit the car. Officers that are NHTSA trained are trained to conduct a mini-investigation prior to order a drunk driving suspect out of their car, in order to determine whether they are going to do so. Principles and Techniques of Training in Standardized Field Sobriety Testing, Student-Instructor Manual, U.S. Dept. of Transportation (2002), Session VI, Phase Two, Personal Contact Phase. The officer is specifically trained to ask divided attention questions to see how the person reacts, asks to see license and registration and how well the person provides them, and may offer some tests such as the alphabet or count backwards, while the person is still seated in their car.

The Supreme Court has made it clear that the detention of a person "must be temporary and last no longer than is necessary to effectuate the purpose of the stop." Florida v. Royer, 460 U.S. 491, 500 (1983). When a police officer stops a person for a minor traffic violation and then continues to detain the person to investigate a more serious crime, such as drunk driving, some cases hold there is a second stop which must be supported by independent articulable reasonable suspicion. E.g., Ferris v. State, 735 A.2d 491 (Md. 1999); Charity v. State, 753 A.2d 556 (Md.App. 2002), cert. denied, 759 A.2d 231 (Md. 2000); Pryor v. State, 716 A.2d 338 (Md.App. 1998); State v. Ballard, 617 N.W.2d 837 (S.D. 2000); Green v. State,802 A.2d 1130 (Md.App. 2002), cert. granted, 810 A.2d 961 (Md. 2002); Munafo v. State, 660 A.2d 1068 (Md.App. 2000); Snow v. State, 578 A.2d 816 (Md. App. 1990). In Ferris, as well as the other cases cited, the courts have agreed that a detention longer than is necessary to process the issuance of the citation for which the stop was initially made must be justified separately. In Ferris, the court expressly held that requesting the person to exit the car is a second seizure of the person, and distinguished the case of Pennsylvania v. Mimms, 434 U.S. 106 (1977), which held that a person can be required to exit a vehicle without any additional justification, in furtherance of officer safety. None of these cited cases are drunk driving cases.

One case that accepted that the removal of the person from the car for the purpose of performing standardized field sobriety tests was a second stop needing separate justification in the drunk driving context was People v. Rizzo, 622 N.W.2d 319 (Mich.App. 2000). The court rejected the prosecution argument that the police were authorized to have the person exit the car under Pennsylvania v. Mimms, 434 U.S. 106 (1977), since the officer never articulated a public safety reason, as is arguably required by Mimms, for the exit from the car. Nonetheless, the court held that the strong odor of intoxicants, standing alone, was sufficient objectively reasonable suspicion of driving impaired to justify requiring a person who had been pulled over for a broken tail light to exit her vehicle to perform field sobriety tests.

Rizzo appears to be distinguishable in the case where the officer on cross-examination admits that a strong odor of an alcohol beverage may be caused by recent imbibing and is not necessarily indicative of impairment and where the officer admits that proper investigative procedures designed to determine whether to order the person out of the car were neglected. In State v. Spillers, 2000 WL 299550 (Ohio App. 2000)(unreported), the court concluded that there was insufficient articulable reasonable suspicion to order the defendant out of his car to perform standardized field sobriety tests where the stop was for de minimus lane violations and the defendant admitted a few beers and had a slight odor of an alcohol beverage.

In City of Hutchinson v. Davenport, 54 P.3d 532 (Ka. 2002), the court held that the odor of alcohol beverage and bloodshot eyes combined with having lied to police did not constitute sufficient articulable reasonable suspicion to support a stop. The defendant was in the police station to pick up his daughter and an officer detected an odor of an alcohol beverage on his breath and observed bloodshot eyes. He did not have slurred speech or any other indicia of impairment. After an officer advised him not to drive, he indicated he would be walking home, to Wichita, quite some distance away. After waiting about five minutes by his vehicle, the defendant got in it and began to drive home. An officer followed him but did not see any erratic driving. The court said, "Alcohol on one's breath alone does not provide a reasonable suspicion to support a stop, nor does the statement by Davenport that he was walking." Id. at 535.

In Bramble v. State, Dept. of Justice, Motor Vehicle Div., 982 P.2d 464 (Mont. 1999), the court found insufficient reasonable articulable suspicion to conduct field sobriety tests where the officer responded to a report of a suspected drunk driver, the defendant had crossed the center of the highway briefly, and was traveling at 65 miles an hour in a 35 mile an hour zone. The driver denied drinking and the officer detected no odor. The court relied on Hulse v. State, Dept. of Justice, Motor Vehicle Div., 961 P.2d 75 (Mont.1998) which had held that field sobriety tests are a search requiring reasonable articulable suspicion.

On the other end of the analytical spectrum are State v. Nagel, 880 P.2d 451 (Or. 1994) and People v. Carlson, 677 P.2d 310 (Colo.1984), which require the officer to have probable cause before administering standardized field sobriety tests.

3. Probable cause to arrest for odor alone

The following cases have held the evidence was insufficient to justify an arrest for drunk driving where the only objective evidence of impairment was the odor of an alcohol beverage. Saucier v. State, 869 P.2d 483 (Ak.App. 1994)(slight weaving across line, "normal" odor of alcohol beverage, admission of couple drinks, and refusal of field tests); Keehn v. Town of Torrington, 834 P.2d 112 (Wyo. 1992)(summary judgment affirmed in suit against officer for releasing defendant who subsequently killed two people); State v. Kliphouse, 771 So.2d 16 (Fla.App. 1999)(unconscious motorcyclist who did not cause accident had odor of alcohol beverage); State v. Taylor, 444 N.E.2d 481 (Oh.App. 1981)(speeding and odor of alcohol beverage). The court in Taylor said:

The mere odor of alcohol about a driver's person, not even characterized by such customary adjectives as "pervasive" or "strong," may be indicia of alcohol ingestion, but is no more a probable indication of intoxication than eating a meal is of gluttony. For better or worse, the law prohibits drunken driving, not driving after a drink.

444 N.E2d at 482.

In People v. Boomer, 757 N.E.2d 960 (Ill.App. 2001), rev. denied, 766 N.E.2d 241 (Ill. 2002), the court ruled that the strong odor of alcohol on the breath of a person who had been involved in a motorcycle accident, did not constitute probable cause to believe the person was under the influence. A similar conclusion was reached by the Colorado Supreme Court in People v. Roybal, 655 P.2d 410 (Colo. 1982).

4. Blood tests

In Schmerber v. California, 384 U.S. 757 (1966), the Supreme Court approved the forcible extraction of blood without a warrant where the state had probable cause to seize the Defendant's blood for an alcohol test and established that due to the dissipating nature of blood alcohol there was no time to obtain a search warrant. The police acted within the Fourth Amendment requirement of reasonableness when they took the defendant to a medical facility, where the risk of infection was minimized, to have blood drawn, even though they did not obtain a warrant which would normally be required for this type of search. The Court was careful to limit its holding to the facts of the case before it, stating:

It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual's person is a cherished value of our society. That we today told that the Constitution does not forbid the States minor intrusions into an individual's body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.

Schmerber, 384 U.S. at 772.

Police have attempted to rely on Schmerber to justify obtaining a blood sample to obtain evidence of drug and controlled dangerous substance use, where the evidence dissipates more slowly than blood alcohol, and where there may be an opportunity for police to obtain a warrant. A number of the courts that have considered this issue appear to be in agreement that to extract blood for drug testing, as opposed to alcohol testing, a warrant is required. State v. Jones, 895 P.2d 643 (Nev.1995); United States v. Pond, 36 M.J. 1050 (U.S. Air Force Ct. of Military Rev.1993)(obtaining urine sample without advising defendant under California implied consent law or obtaining warrant violated Fourth Amendment - excellent discussion of implied consent and Scmerber); State v. Moylett, 836 P.2d 1329 (Or. 1992)(three blood samples obtained after defendant refused alcohol test - two samples taken pursuant to warrant allowed in non-duii prosecution; no samples allowed on duii count); State v. Flannigan, 978 P.2d 127 (Ariz. App. 1999)(where there was no evidence defendant consented to blood draw for drugs, state failed to show exigent circumstances justified warrantless search).

Some jurisdictions allow the defendant to choose the type of alcohol test to be administered, blood, breath or urine. In California, requiring a blood test of drunk driving suspects who consented to take either breath or urine, a choice permitted by statute, was held to violate the Fourth Amendment. Nelson et al. v. City of Irvine, 143 F.3d 1196 (9th Cir. 1998). The court said:

When an arrestee has agreed to submit to a breath or urine test which is available and of similar evidentiary value, the government's need for a blood test disappears. Under such circumstances, it is unreasonable to require a blood test and the Fourth Amendment is violated. Further, when a DUI suspect agrees to take an available alternative test of equal evidentiary value, the risk that evidence will be lost disappears and the exigent circumstance that excused the police from obtaining a warrant likewise disappears, rendering a warrantless nonconsensual blood test in such circumstances unconstitutional.

Nelson, 143 F.2d at 1207.

6. Statutory and regulatory requirements for the test

Many states have statutory or regulatory requirements that must be satisfied before a breath or blood test for alcohol may be admitted in evidence. The "Accardi doctrine" is widely followed. Derived from the case of United States ex Rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954), it simply stands for the rule that administrative agencies must follow their own regulations. Courts will also generally defer to an agency's interpretation of its own rules. Bowles v. Seminole Rock, 325 U.S. 410 (1945).

In many states, the foundation for the admission of a breath test is carefully prescribed by applicable statutes and/or regulations and the failure to comply can result in exclusion of the test result. State v. Deimeke, 500 S.W.2d 257 (Mo.App. 1973)(statutes and regulations required strict adherence to manufacturer's operating instructions, instrument repaired after defendant's test, not able to show if functioning properly on date of test); State v. Rolison, 733 P.2d 326, 329 (Haw.Ct.App.1987) (state must lay foundation showing instrument was in proper working order); State v. Fairleigh, 490 So.2d 490 (La.Ct.App.1986)("this record is devoid of any evidence concerning the proper chain of evidence, the qualifications of the person conducting the test, the type of test utilized and whether the method of testing adhered to the acceptable methods or procedure promulgated by the Department of Public Safety"); Moser v. State, 369 N.W.2d 650 (N.D.1985) (police officer's failure to start breathalyzer device at zero violated required procedures); State v. Hall, 315 N.E.2d 504 (Oh. 1973) (breathalyzer equipment not shown to be in proper working order where simulator solution was more than three months old at time of test in violation of regulations); State v. Schwalk, 430 N.W.2d 317 (N.D.1988)(failure to show compliance with regulations regarding blood collection, specifically to show blood sample properly inverted to mix preservatives and anti-coagulants); State v. Rains, 735 N.E.2d 1 (Ohio App. 1999)(substantial compliance with regulations required for admission of test in "per se" prosecution); Com. v. Barbeau, 585 N.E.2d 1392 (Mass. 1992)(state required to show periodic testing program as required by statute and regulation before test is admitted); People v. Hanna, 773 N.E.2d 178 (Ill.App. 2002)(failure to comply with regulatory requirement to test breath test instruments required suppression of tests even though similar tests had been run by NHTSA); State v. Busch, 576 N.W.2d 904 (Wis. 1998)(compliance with regulations leads to presumption of accuracy and reliability - since state had tested Intoxilyzer 5000 Model Series 6400 it did not have to test Intoxilyzer 5000 Model Series 6600 which was analytically similar); State v. Bird, 2002 WL 31525669 (Iowa App. 2002)(unreported)(failure to follow regulations regarding PBT required suppression of both PBT and intoxilyzer results which flowed from them); State v. Baue, 607 N.W.2d 191 (Neb.2000)(failure to comply with statutory predicate was reversible error).

Some states require strict compliance with statutory and/or regulatory requirements. State v. Matsuda, 836 P.2d 506 (Haw.App.1992); Ringsaker v. Director, North Dakota Dept. of Transp., 596 N.W.2d 328 (N.D. 1999)(requiring either strict compliance with regulations, or expert testimony). Other states allow for "substantial," as opposed to "strict" compliance with applicable regulations. Dougherty v. State, 578 S.E.2d 256 (Ga.App. 2003); State v. Lake, 784 N.E.2d 162 (Ohio App. 2003)(substantial compliance not shown where calibration solution certificate did not comply with Ohio rule of Evidence, Rule 1005, and was therefore inadmissible); Potts v. State, 22 S.W.3d 226 (Mo.App. 2000); State v. Garcia, 965 P.2d 508 (Utah App. 1998). In some cases, the state was required to comply with regulations beyond a reasonable doubt. People v. Sesman, 521 N.Y.S.2d 626 (1987); Atkinson v. State, 871 S.W.2d 252 (Tex.Ct.App. 1994).

In some states, if the state is unable to demonstrate compliance with applicable regulations they can attempt to use common law principles to admit the test results. People v. Williams, 121 Cal.Rptr.2d 854 (Ca. 2002)(allowing alternative foundation of "(1) properly functioning equipment, (2) a properly administered test, and (3) a qualified operator" if regulations not followed); Robertson v. State, 604 So.2d 783 (Fla. 1992)(if the state's blood test fails to comply with regulations regarding blood testing the court may still admit the evidence if the state shows "(1) the test was reliable, (2) the test was performed by a qualified operator with the proper equipment and (3) expert testimony was presented concerning the meaning of the test.").

1. Failure to properly promulgate regulations

In Ex parte Mayo, 652 So.2d 201 (Ala. 1994) the court said: "We hold the rules found in the Alabama Administrative Code at Rule 420‑1‑1‑.01 of the Rules of the Alabama State Board of Health/the Alabama Department of Public Health do not meet the requirement of § 32‑5A‑194(a)(1) that chemical analyses 'shall have been performed according to methods approved by the department of forensic sciences.'"

The court went on to say:
To establish a predicate for admitting the test results, without reliance on the statute [§§ 32-5A-194, Ala.Code 1975], there should be evidence that: "(1) the theory underlying the photoelectric intoximeter test is valid and generally accepted as such; "(2) the intoximeter is a reliable instrument and is generally accepted as such; "(3) the intoximeter test was administered by a qualified individual who could properly conduct the test and interpret the results, and "(4) the instrument used in conducting the test was in good working condition and the test was conducted in such a manner as to secure accurate results."

See also, State v. Ripple, 637 N.E.2d 304 (Oh. 1994)(drug test results inadmissible in prosecution for driving under the influence of drugs where the director of health failed to promulgate regulations as required by statute).

In State v. Tanner, 457 So.2d 1172 (La. 1984), the Department of Public Safety had promulgated regulations, but the court found the regulations deficient. The regulations required the use of a "known alcohol standard" in recalibration of the breath test instrument but failed to provide for any means for this to be determined.

2. Deprivation period

Many jurisdictions, by statute or regulation, require that the person conducting a breath test for alcohol observe the person being tested for fifteen or twenty minutes prior to conducting the test to ensure that the person has not had anything to smoke, eat, or drink, or that the person has regurgitated, vomited, belched or placed any foreign substance in their mouth that could interfere with the test. In some states, where the statutes or regulations do not mention an observation period, it is court mandated. E.g. State v. Sensing, 843 S.W.2d 412 (Tenn. 1992).

The failure to properly observe the person has led to suppression of breath results in a number of cases. E.g., State v. Martin, 2003 WL 57311 (Tenn.Crim.App. 2003)(unreported)(defendant performing walk and turn test at beginning of twenty minute observation period); State v. Korsakov, 34 S.W.3d 534, 541 (Tenn.Crim.App.2000)(officer was doing paperwork); State v. Meredith, 833 So.2d 1125 (La.App. 2 Cir. 2002)(failure to strictly comply with fifteen minute observation requirement); People v. Haney, 507 N.E.2d 230 (Ill.App. 1987); State v. McCaslin, 894 S.W.2d 310, 311-12 (Tenn.Crim.App.1994)(defendant in back seat of patrol car); State v. Baker, 355 P.2d 806 (Wash. 1960)(observation was for fourteen minutes, test suppressed); State v. Kirn, 767 P.2d 1238 (Haw. 1989); People v. Bertsch, 538 N.E.2d 1306 (Ill.App. 1989); State v. Gardner, 967 P.2d 465 (N.M.App. 1998); Department of Highway Safety & Motor Vehicles v. Farley, 633 So.2d 69 (Fla.Dist.Ct.App.1994)(failure to show substantial compliance in license hearing); People v. Boughner, 531 N.W.2d 746 (Mich.App.1995)(operator must observe for fifteen minutes, only observed for eight minutes); State v. Cash, 526 N.W.2d 447 (Neb.App. 1995)(officer searching car during required fifteen minute observation period); State v. Carson, 988 P.2d 225 (Id.App. 1999)(failure to properly observe for fifteen minutes required suppression); State v. Deloit, 964 S.W.2d 909 (Tenn.Crim.App. 1997)(defendant was in back seat while officer filled out paperwork in the front seat, twenty minute observation unsatisfied); but see, State v. Reed, 888 S.W.2d 117 (Tex.App. 1994)(regulation amended to require "presence" as opposed to "observation"); Manriquez v. Gourley, 130 Cal.Rptr.2d 209 (Cal.App. 2003)(officer's testimony that he observed defendant while driving his car was not rebutted).

3. Modification of approved equipment

Many jurisdictions require equipment used in breath testing to be approved by a person appointed by statute or regulation. Where the equipment is modified or changed in some way after the approval, some courts have held the test results on the modified equipment inadmissible. Commonwealth v. McGinnis, 515 A.2d 847 (Pa. 1986); State v. Polak, 598 So.2d 150 (Fla.App. 1992).

In the following cases, the failure to follow regulations relating to blood withdrawal required suppression of the results. Turner v. State, 734 S.W.2d 186 (Tex.App. 1987); Greaves v. North Dakota State Highway Commissioner, 432 N.W.2d 879 (N.D. 1988); Gulley v. State, 501 So.2d 1388 (Fla.App. 1987). In State v. Garrett, 910 P.2d 552 (Wash.App. 1996), failure to comply with a regulation requiring that the blood sample be preserved with an anticoagulant required exclusion of the blood test result.

4. Timing of the test

In many jurisdictions, an alcohol test must be performed within either two or three hours of the person's apprehension by police. In some jurisdictions the test is excluded if administered out of time. Some jurisdictions allow the test in evidence, People v. Wager, 594 N.W.2d 487 (Mich. 1999), while others allow it but deny the state the benefit of statutory presumptions and require the state to call an expert to explain the meaning of the test result. E.g., City of Newark v. Lucas, 532 N.E.2d 130 (Oh. 1988); Hasselhoff v. State, 508 A.2d 1030 (Md.App. 1986). Others allow the test in evidence if it can be extrapolated back to within three hours of the time of driving. State v. Allen, 570 S.E.2d 34 (Ga.App. 2002); Com. v. Senior, 744 N.E.2d 614 (Mass. 2001)(finding retrograde extrapolation reliable). Others require extrapolation back to the time of driving or the test result cannot be admitted at all. Stewart v. State, 2003 WL 57308 (Tex.App. 2003)(test result is irrelevant if not extrapolated back to time of driving under Texas statute).

In Pennsylvania, a statute that conclusively presumed guilt based on a test conducted after driving and did not allow the defendant to do a retrograde extrapolation to prove a possible BAC under the statutory limit at the time of driving was held to violate due process in Commonwealth v. Barud, 681 A.2d 162 (Pa. 1996).

5. Margin of error

Many states by regulation or otherwise recognize a tolerance or margin of error for test results. If the state's statute criminalizes a test reading, as opposed to a BAC level, the legislature is deemed to have considered the margin of error, and found it reasonably tolerant. If the state's statute criminalizes an actual level of BAC, then the fact finder should consider the margin of error in the defendant's favor. Haynes v. Dept. of Public Safety, 865 P.2d 753 (Alaska 1993).

6. Other cases

In the following cases, the failure to follow pertinent statutes or regulations required exclusion of test results. State Department of Licensing v. Cannon, 50 P.3d 627 (Wash. 2002)(failure to certify thermometer as required by regulations), compare with, City of Seattle v. Allison, 59 P.3d 85 (Wash. 2002)(opposite result); State v. Setter, 763 S.W.2d 228 (Mo.App. 1989)(failure to sterilize needle as required by regulations); People v. Keith, 564 N.E.2d 901 (Ill.App. 1990)(expiration of operator's license); State v. Ofa, 828 P.2d 813 (Haw. App. 1992)(no showing of temperature of solution as required by the statute); McManus v. Oklahoma, 695 P.2d 884 (Okla. 1985)(no records indicating compliance with maintenance requirements); Donaldson v. State, 561 So.2d 648 (Fla.App. 1990), affirmed, State v. Donaldson, 579 So.2d 728 (Fla. 1991)(record silent on maintenance); State v. Wolfe, 369 N.W.2d 458 (Iowa App. 1985); State v. Rowell, 517 So.2d 799 (La. 1988)(strict compliance with procedures followed); State v. St. Amant, 504 So.2d 1094 (La.App. 1987)(no proof presented of procedures or use of new mouthpiece).

7. Rules of evidence, other than Rule 702

All jurisdictions, as a result of legislation, rule making, or caselaw, have rules regarding the admission of evidence in addition to or in conjunction with statutory or regulatory requirements for the admission of the scientific evidence that should be considered when challenging scientific evidence. Many of the jurisdictions that have codified their rules of evidence closely track the Federal Rules of Evidence. For this reason the following discussion will primarily cite the Federal Rules of Evidence other than Rule 702 (discussed above in connection with Daubert).

1. Relevance and unfair prejudice

The Federal Rules of Evidence, common law rules of evidence, and most state rules, require that for evidence to be admitted it must be relevant, i.e., "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Federal Rules of Evidence, Rule 401; Acklin v. State, 722 So.2d 1264 (Miss.App. 1998)(breath test administered after statutory two hour limit is admissible in the absence of evidence showing it is unreliable). For example, in Jayne v. State, 24 P.3d 920 (Or.App. 2001), the Oregon Court of Appeals applied the Oregon version of Rule 401 to hold that a urine test showing the presence of alcohol and drugs was properly excluded because the state was unable to correlate the test to relate to impairment at the time of driving to sustain an impaired driving charge. In State v. Homan, 732 N.E.2d 952 (Oh. 2000), the Supreme Court of Ohio held that unless the standardized field sobriety tests are performed in strict compliance with NHTSA guidelines, the tests are too unreliable to be considered by the court in deciding whether the officer had probable cause to arrest. See also, People v. Ward, 178 N.Y.S.2d 708 (N.Y.Co.Ct. 1958)(blood test excluded because alcohol swab used).

A number of decisions have addressed the relevance of partition ratios. In Guthrie v. Jones, 43 P.3d 601 (Ariz.App. 2000), the court held partition ratio was irrelevant to the per se offense but relevant to the non per se offense. See also, People v. Bransford, 884 P.2d 70(Ca. 1994)(partition ratio irrelevant in light of statute criminalizing amount of alcohol in the breath); State v. Hanks, 772 A.2d 1087 (Vt. 2001)(partition ratio relevant to non per se offense); State v. Allen, 802 P.2d 690 (Or.App. 1990)(state not required to present evidence of partition ratio but defendant may present rebuttal evidence relating to partition ratio).

Federal Rules of Evidence, Rule 403 also provides:
Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

In Jaynes, the court also agreed with the trial court; that although the urine test evidence was marginally relevant with respect to a manslaughter and careless driving charge, that the probative value of the test result was outweighed by the danger of unfair prejudice. In State v. McClain, 525 So.2d 420 (Fla. 1988), the Florida Supreme Court agreed with the trial court that the probative value of a trace of cocaine in the blood of a person with a .14 BAC was substantially outweighed by the danger of unfair prejudice, and upheld the exclusion of the evidence.

2. Authentication

Federal Rules of Evidence, Rule 901 states: "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims."

1. Chain of custody

Where the proponent is offering physical evidence that has been tested in a laboratory or the laboratory results, many jurisdictions require a showing that the item seized by the police is the same item that was analyzed. Some jurisdictions have held evidence inadmissible where the state fails to sufficiently tie the evidence that was seized to the evidence that was analyzed. State v. McDonald, 697 P.2d 1328 (Mont. 1985); State v. Nygaard, 426 N.W.2d 547 (N.D. 1988); State v. Williams, 392 S.E.2d 181, 182 (S.C. 1990); People v. Sansalone, 146 N.Y.S.2d 359 (1955); People v. Pfendler, 212 N.Y.S.2d 927 (1961); Bauer v. Veith, 130 N.W.2d 897 (Mich. 1967); Joiner v. Utterback,195 N.W. 594 (Iowa 1923); State v. Foster, 422 P.2d 964 (Kansas 1967).

2. Documents

Federal Rules of Evidence, Rule 902 contains methods for a proponent to authenticate business records. It closely tracks rule 803(6) and 803(8), the business and public records exception to the hearsay rule. Rule 902(a)(11) provides:

(11) Certified Domestic Records of Regularly Conducted Activity.--The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration of its custodian or other qualified person, in a manner complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority, certifying that the record--(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;(B) was kept in the course of the regularly conducted activity; and(C) was made by the regularly conducted activity as a regular practice.A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.

The state failed to comply with the Maryland version of this provision in State v. Bryant, 761 A.2d 925 (Md. 2000). In Bryant, the certification attached to a toxicology report containing the defendant's blood alcohol level was not under oath and the custodian did not certify "that the report was made at or near the time of the occurrence of the matters that it sets forth by a person with knowledge of those matters or that it was made and kept by the regularly conducted business activity as a regular practice." Bryant, 761 A.2d at 929. Additionally, the state's toxicologist could have supplied extrinsic testimony to satisfy the foundational requirements, but he could not state, "that the report was made at or near the time of the tests or that it was made by a person with knowledge." Bryant, 761 A.2d at 930. As a result, it was error to admit the report and the conviction for homicide was reversed. The court did not find it necessary to address the issue of whether the report was "pathologically germane" to treatment where it was prepared after the defendant was discharged from the hospital and only after the State's Attorney subpoenaed the records.

In State v. Lake, 2003 WL 169965 (Ohio App. 2003) the required substantial compliance to admit the breath test result was not shown where the calibration solution certificate was inadmissible for failure to comply with Ohio Rules of Evidence, Rule 1005. The federal version of this rule provides:

Rule 1005. Public Records The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with rule 902 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given.

3. Hearsay

Often the government will seek to introduce blood and breath tests, medical records, and laboratory reports, by introducing the report without producing the chemist or analyst who made the report. In order to survive a hearsay objection, the government offers the evidence under either Federal Rules of Evidence, Rule 803(6), the business record exception, or Rule 803(8), the government records exception, or the comparable state provision. Those provisions state:

803(6) Records of Regularly Conducted Activity.--A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
803(8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

In United States v. Oates, 560 F.2d 45 (2nd Cir. 1977), the court held a law enforcement chemist's report to be hearsay, not subject to an exception under Federal Rules of Evidence, Rule 803(8) and therefore inadmissible without the chemist. The court significantly held that the prohibition of Rule 803(8) against admitting hearsay reports prepared by law enforcement personnel in criminal cases carried over to Rule 803(6). Thus the government cannot use the business records exception to introduce reports that would violate Rule 803(8). Oates has been criticized by a number of courts. See, Cole v. State, 839 S.W.2d 798 (Tex.App. 1990)(following Oates and discussing the controversy); Steiner v. State, 706 So.2d 1308 (Ala.Crim.App. 1997)(Rule 803(8) exception relating to reports prepared for purpose of prosecution did not apply to certificates for lab).

In Mullinax v. State, 499 S.E.2d 903 (Ga.App. 1998) and Hamilton v. State, 491 S.E.2d 485 (Ga.App. 1997) courts reversed convictions where the courts admitted breath test results that did not comply with the business records exception. In Mullinax the witnesses could not testify the records were made contemporaneously with the tests. In Hamilton, the state laid no business records foundation for inspection certificates other than to show they were "maintained in the log book for the [Intoxilyzer 5000]." In Wray v. State, 751 N.E.2d 679 (Ind.App. 2001), the court erroneously admitted the certification of a breath test operator who testified he had not taken the required training, and therefore the certificate lacked "trustworthiness" under the Indiana version of Rule 803(8).

When the state offers medical records containing test results in evidence, some courts have required that in addition to satisfying the business records exception, there must also be testimony that the test was "pathologically germane" to treatment. State v. Garlick, 545 A.2d 27 (Md.1988); Scannella v. Salerno Importing Co., 275 A.2d 907, 909 (Pa.Comm. 1971); see also, Tims v. State, 711 So.2d 1118 (Ala.Crim.App. 1997)(hospital records were admissible under general evidence principles where the emergency room physician, phlebotomist and laboratory technician all testified to the reasons for the test, the procedures followed, and the reliability of the procedures).

Additionally, since medical records containing a blood alcohol reading are not conducted under the breath and blood testing statute, the statutory inferences may not apply and in some jurisdictions the state may be required to produce an expert to explain the meaning of the result. E.g., Briscoe v. State, 479 A.2d 1385 (Md.App. 1984).

8. Confrontation

Although the rule against hearsay and the Confrontation Clause have similar roots, they are not co-extensive. The Supreme Court has held that hearsay will generally not violate the Confrontation Clause if it comes in under an exception to the rule against hearsay that is "firmly rooted" or if the hearsay contains other particularized guarantees of trustworthiness. In the case of Ohio v. Roberts, 448 U.S. 56 (1980), the Supreme Court formulated a test for determining whether the admission of hearsay evidence violates the Confrontation Clause. In a trial for forgery and possession of stolen credit cards, the defendant, Roberts, testified that the alleged victim's daughter had given him checks and credit cards and had not told him she did not have permission to use them. The State introduced as rebuttal evidence, the preliminary hearing transcript of the daughter, who could not be located. She had been called by Roberts at that hearing but denied his claim.

The Court's opinion stated:
In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate "indicia of reliability." Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.

Id. at 66. Under this analysis, the Court concluded that the preliminary hearing testimony bore sufficient indicia of reliability since Roberts' counsel had essentially cross-examined the witness at the preliminary hearing by asking numerous leading questions that were roughly equivalent to cross-examination. Id. at 70-73.

Although the Roberts test has been refined somewhat since the case was decided in 1980, it retains its authority as the means of determining whether the admission of hearsay violates the Confrontation Clause. For example, in United States v. Inadi, 475 U.S. 387 (1986), without deciding the issue of reliability, the Supreme Court held that the showing of unavailability required by Roberts does not extend to coconspirator declarations. The next year, in Bourjaily v. United States, 483 U.S. 171 (1987), the Supreme Court concluded that the coconspirator exception to the hearsay rule was sufficiently firmly rooted that there was no need to further inquire into the reliability of those statements to satisfy Roberts. The unavailability requirement of Roberts is of limited applicability today.

In a number of states, courts have upheld admission of test results that either are or contain hearsay, holding that the document's admission does not violate the Confrontation Clause. E.g., United States v. Wilmer, 799 F.2d 495, 501-02 (9th Cir.1986), cert. denied, 481 U.S. 1004 (1987); State v. Huggins, 659 P.2d 613, 616 (Alaska Ct.App.1982); Brown v. State, 485 S.E.2d 486 (Ga. 1997)(inspection certificate); State v. Jensen, 351 N.W.2d 29, 32-33 (Minn.Ct.App.1984); State v. Conway, 690 P.2d 1128, 1129 (Or.App. 1984), review denied, 695 P.2d 1371 (Or. 1985); cf. State v. King, 445 A.2d 901, 909-12 (Ct. 1982) (toxicology tests); State v. Van Sickle, 813 P.2d 910, 913-14 (Id. 1991) (breathalyzer printout); State v. Smith, 323 S.E.2d 316 (N.C. 1984); State v. Garlick, 545 A.2d 27 (Md.1988)(hospital test was pathologically germane to treatment); Baber v. State, 775 So.2d 258 (Fla. 2000)(citing Garlick and holding medical blood test admissible but "emphasiz[ing], however, that defendants must be given a full and fair opportunity to contest the trustworthiness of such records before they are submitted into evidence"); but see, Kettle v. State, 641 So.2d 746 (Miss. 1994)(admission of laboratory report of drug analysis as a business record in absence of technician violated defendant's confrontation rights); State v. Miller, 472 S.E.2d 74 (Ga. 1996)(holding Georgia drug statute that required defendant to proffer basis for subpoena for chemist violated the state constitution's Confrontation Clause).

Two cases in Maryland took the Confrontation Clause analysis further. In Moon v. State, 478 A.2d 695 (Md. 1984), cert. denied, 469 U.S. 1207 (1985), the Court of Appeals reviewed a hospital blood alcohol test record that did not bear the defendant's name, contained no information indicating what type of test was performed, and was dated three days after the sample was drawn, and after the defendant had been released from the hospital. The court held that which party bore the burden of producing the lab technician who performed a blood test depended upon whether the test results contained "substantial indicia of reliability." Moon relied on Supreme Court cases which suggested that unavailability of a reliable witness might not be necessary to overcome a confrontation objection to hearsay testimony where the "utility of trial confrontation is extremely remote." E.g., Dutton v. Evans, 400 U.S. 74 (1970); United States v. Inadi, 475 U.S. 387 (1986)(raising Dutton's suggestion to a holding). The court stated:

Here, the witness was present in the courtroom when Moon objected, pointing to a number of discrepancies on the face of the report which raised a doubt as to its reliability. Moon claimed that the hospital records were silent as to the kind of blood alcohol test performed. Dr. Caplan had indicated that while he was generally familiar with the tests employed at University Hospital, he did not know which specific procedure of the many tests used in the hospital was followed. As a matter of fact, when defense counsel sought to have the Doctor explain how a blood test was performed, the trial court cut off the cross-examination in response to the State's objection. It is obvious to us that, under these circumstances, defense counsel had a sound basis for inquiring what test was used and if the technician was qualified to conduct the test. Furthermore, the report indicated that it was completed on February 21, and the blood was drawn from the patient on February 18. These facts raise several potentially serious questions counsel may have addressed on cross- examination. Defense counsel in argument had told the trial court that the test was performed on the 21st and the blood drawn on the 18th. He did not know what happened to the blood sample in the interim, that is, how or if it was properly preserved. Cross-examination on whether chemical agents were added to the blood to maintain its stability, if the blood was deposited in a container to avoid evaporation, and if the blood was properly refrigerated to prevent putrefaction was germane to a determination of reliability. See generally American Medical Association, Committee on Medicolegal Problems, Alcohol and the Impaired Driver, A Manual on the Medicolegal Aspects of Chemical Tests for Intoxication (1968). A most important question was whether the blood test was performed on the 21st as part of Moon's treatment. Moon had been in the hospital three days, been operated on and placed in casts for his injuries prior to February 21st. It would be logical for counsel to inquire how blood drawn on the 18th and tested on the 21st had any diagnostic value for treatment already received. If counsel elicited from the technician that the test was conducted on the 21st in response to a police request, the trial judge may have concluded that the test was not performed in connection with Moon's treatment and, therefore, was not pathologically germane to the reason Moon was in the hospital. See Yellow Cab Co. v. Hicks, 224 Md. 563, 168 A.2d 501 (1961); Shirks Motor Express v. Oxenham, 204 Md. 626, 106 A.2d 46 (1954); Lee v. Housing Authority of Baltimore, 203 Md. 453, 101 A.2d 832 (1954); Globe Indemnity Co. v. Reinhart, 152 Md. 439, 137 A. 43 (1927). Counsel may even have inquired as to how the test, even if performed on the 18th, was pathologically germane to Moon's treatment if it were not transmitted to the doctors until the 21st. Under these circumstances, the trial court may have been persuaded that the test was inadmissible. Moon also complained that the report did not bear his name but rather a number. We do not speculate as to what Moon's counsel would seek to prove by cross-examining the witness on this point. We do take note that trial counsel is often resourceful and ingenious in making use of the right of cross- examination. Suffice it to say here that the areas we single out are important enough to indicate that cross-examination would not have been frivolous or pointless.

Moon, 478 A.2d at 703-04. As a result, because the blood test results offered by the prosecution were unreliable on their face, the court held that the utility of cross‑examination was not remote, and the State was required to produce the lab technician for cross‑examination. The court further held that if the state did not produce the lab technician, in view of the facial irregularities in the test, it was inadmissible.

Although Moon was a case that dealt with a medical blood test for alcohol, in Casper v. State, 521 A.2d 1281 (Md.App. 1987), the Maryland Court of Special Appeals took the Confrontation Clause analysis one step further in a case where the test was a breath test for purposes of prosecution. Relying on federal Confrontation Clause cases cited above, the Maryland Court of Special Appeals held in its second holding that the government was not required to produce the "non‑testing" technician who mixed the simulator solution before offering the test results in evidence, where the test results were facially reliable.

The Casper court, in its discussion of the cross‑examination issue, reviewed a number of cases construing the Confrontation Clause of the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights and said:

The State is required, upon a proper request, to produce the technician who performed the chemical breath test. Md. Cts. & Jud. Proc. Code Ann. Section 10‑306(b) 1984. The admissibility of test results in the absence of testimony from other technicians is governed by the standards we now review. If test results contain substantial indicia of unreliability, and defendant demonstrates the utility of a non‑testing technician's testimony, the results are inadmissible without the additional testimony. See Moon, 300 Md. at 373, 478 A.2d 695. When, however, test results bear substantial indicia of reliability and the utility of testimony from a second technician would be remote, a defendant's confrontation right is not violated when the results are admitted without the benefit of that technician's testimony. In those circumstances, a defendant's right to subpoena the non‑testing technician satisfies the requirements of the Sixth Amendment.

(Footnotes omitted)(emphasis supplied).

The Casper court went on to summarize its holding.
Before results from a chemical breath test are admissible into evidence, the State must demonstrate that: (1) the test was administered within two hours of defendant's apprehension; (2) a qualified person administered the test; and (3) the State toxicologist approved the equipment (including ampules) used to determine defendant's blood alcohol content. Once these three points are proven, the State has demonstrated the prima facie reliability of the results and they may come into evidence subject to the caveats we now review.
Proof of the facts above notwithstanding, a defendant must be given an opportunity to offer competent evidence challenging the reliability of his test results. If this evidence so compromises the reliability of the results that to admit them would deprive the defendant of a fair trial or due process, the results must be excluded. Less compelling indicia of unreliability places the admissibility of chemical breath test results within the discretion of the trial judge. While much of this kind of proof goes to the weight to be given to the test results, at some point best discerned by trial courts, indicia of unreliability quickly create an issue of admissibility.

Casper, 521 A.2d at 1289 (emphasis supplied).

Under the standards set by Casper, a DWI defendant must be allowed to review any "test results" prior to trial. The term "test results" must logically include numerous records created and maintained by State agencies which record data relevant to chemical testing and which may raise questions of reliability. Adherence to the Casper holding requires that these forms be provided in Maryland courts in response to a defendant's discovery request to enable counsel to make a preliminary determination of reliability of test results. To the extent the determination of the proven accuracy and reliability of the test results rests on hearsay, Casper provides a useful analysis for determining admissibility of the test results.

Casper establishes that reliability is a prerequisite to admissibility, that once the State proves a prima facie case for admissibility the burden shifts to the defendant, and that if successfully rebutted the test may be excluded. It follows that defendants must be granted broad discovery and subpoena powers to give effect to Casper's holding, to provide defendants a meaningful opportunity to meet their burden of proof. Since the Maryland courts' analysis in Moon and Casper is based on the Supreme Court's Confrontation Clause cases, the same rule should apply in all jurisdictions.

9. Compulsory process

In Washington v. Texas, 388 U.S. 14 (1967), the Supreme Court held that a person was denied his right to compulsory process where the "State arbitrarily denied him the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense." Washington, 388 U.S. at 23. In Pennsylvania v. Ritchie, 480 U.S. 39 (1987), the Supreme Court held that child abuse files potentially relevant to cross-examination of the state witness, but confidential under state law would be reviewed by the trial judge in camera for a determination of whether they contained exculpatory information. In White v. State, 598 A.2d 1208 (Md.App.1991), the court held that a subpoena directed to the state toxicologist sought testimony that was not relevant and material to the defense, and to the extent that the toxicologist may have offered favorable testimony, the defendant could hire his own expert.

In United States v. Nixon, 418 U.S. 683 (1974), the Supreme Court recognized that even the President of the United States is not immune to a court issued subpoena.

10. Discovery

1. Exculpatory evidence

Brady v. Maryland, 373 U.S. 83 (1963) and its progeny require the government to disclose exculpatory evidence to the defendant. The Court stated:

We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

The concept of exculpatory evidence in Brady includes impeachment evidence. United States v. Bagley, 473 U.S. 667, 681-82 (1985); Giglio v. United States, 405 U.S. 150 (1972)(witness falsely denied testimony for non-prosecution agreement). The government must produce in discovery evidence which might impeach or cast doubt on the government's evidence. It is the prosecutor's responsibility to gather exculpatory evidence from the police. Kyles v. Whitley, 514 U.S. 419 (1995).

Evidence is material to the defense "if there is a reasonable probability that, had the evidence been [available] to the defense, the result of the proceeding would have been different." Bagley, 473 U.S. at 682. A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome" and is determined by looking at the totality of the evidence. Kyles.

2. Destruction of evidence

1. Known exculpatory value and no alternative means

California v. Trombetta, 467 U.S. 479, 485 (1984) involved a due process challenge founded on Brady and its progeny, to a drunken driving conviction where the state failed to preserve the defendant's breath sample. The Supreme Court rejected the defendant's argument that the samples must be preserved for testing by defense experts for possible use in impeaching the breath test results. The Court reasoned that the samples were unlikely to be exculpatory since the procedures followed in running the Intoximeter test rendered the results reliable, and therefore inculpatory. 467 U.S. at 489.

However, the Court indicated that its conclusion was premised on the reliability of the breath testing instrument. Justice Marshall explained that:

The materiality of breath samples is directly related to the reliability of the Intoximeter. The degree to which preserved samples are material depends on how reliable the Intoximeter is. This correlation suggests that a more direct constitutional attack might be made on the sufficiency of the evidence underlying the State's case. After all, if the Intoximeter were truly prone to erroneous readings, then the Intoximeter results without more might be insufficient to establish guilt beyond a reasonable doubt. Jackson v. Virginia [, 443 U.S. 307 (1979)].

Trombetta, 467 U.S. at 489 n. 10. The Court then briefly discussed alternative means of attacking the instrument's reliability which did not require preservation of the breath sample, including bringing out the possibility of faulty calibration. Id. at 490.

The Court said:
Even if one were to assume that the Intoximeter results in this case were inaccurate and that breath samples might therefore have been exculpatory, it does not follow that respondents were without alternative means of demonstrating their innocence.
* * *
To protect against faulty calibration, California gives drunken driving defendants the opportunity to inspect the machine used to test their breath as well as that machine's weekly calibration results and the breath samples used in the calibrations. See supra, at 2530. Respondents could have utilized these data to impeach the machine's reliability. As to improper measurements, the parties have identified only two sources capable of interfering with test results: radio waves and chemicals that appear in the blood of those who are dieting. For defendants whose test results might have been affected by either of these factors, it remains possible to introduce at trial evidence demonstrating that the defendant was dieting at the time of the test or that the test was conducted near a source of radio waves. Finally, as to operator error, the defendant retains the right to cross‑examine the law enforcement officer who administered the Intoxilyzer test, and to attempt to raise doubts in the mind of the factfinder whether the test was properly administered.

Id. at 490-91.

Trombetta holds that the government violates due process when it fails to preserve evidence containing a known exculpatory value and comparable evidence is not obtainable by reasonable means. See, State v. Blackwell, 537 S.E.2d 457 (Ga.App. 2000)(where field test of urine for drugs was negative and laboratory test positive, and defendant obtained a court order for an independent test of the urine, appropriate sanction for subsequent destruction of urine sample was dismissal); People v. Newberry, 652 N.E.2d 288 (Ill. 1995)(field test for cocaine negative and laboratory test positive - sample destroyed after discovery request filed - case dismissed and dismissal affirmed).

2. Potentially exculpatory and bad faith

In Arizona v. Youngblood, 488 U.S. 51 (1988), the police failed to properly preserve semen samples that could potentially have exonerated the defendant. The Supreme Court held in response to the argument that the lower court had properly dismissed the prosecution for the violation of due process:

that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.

Id. at 58. Although the Supreme Court did not agree that the case should have been dismissed, Youngblood did receive the benefit of a negative inference instruction against the police at trial. It read as follows:

If you find that the State has . . . allowed to be destroyed or lost any evidence whose content or quality are in issue, you may infer that the true fact is against the State's interest.

Youngblood, 488 U.S. 59-60 (Stevens, J., concurring).

In State v. Rains, 735 N.E.2d 1 (Ohio App. 1999), the court found such bad faith, where unlike Youngblood, the "normal practice" at laboratories throughout the state was not followed in the destruction of blood samples and calibration samples, where there was a failure to follow state regulations requiring: blood samples to be sealed and refrigerated; the laboratory to have a written protocol manual; the retention of blood samples for a year; the calibration of the machine on a regular schedule; independent analysis of calibration solution; and retention of calibration solution for subsequent verification. In State v. O'Dell, 46 P.3d 1074 (Ariz.App. 2002), the court ruled bad faith was not shown where the police in Pima County failed to connect the modem of the Intoxilyzer 5000 and therefore failed to transfer data to the Alcohol Data Acquisition Management System (ADAMS) before the data was routinely purged from the Intoxilyzer. This finding was despite the practice followed in many other jurisdictions of transferring and storing the data. Since "bad faith" was defined by reference to whether the evidence was exculpatory and the exculpatory value was not established at the time the evidence was destroyed, the court found no due process violation.

Some cases have held the government is required to preserve evidence, even where, as in Youngblood, the defendant cannot show bad faith of government officials or that the exculpatory value of the evidence was apparent when the government destroyed it. See, e.g., Ex Parte Gingo, 605 So.2d 1237 (Ala. 1992)("'there may well be cases in which the defendant is unable to prove that the State acted in bad faith but in which the loss or destruction of evidence is nonetheless so critical to the defense as to make a criminal trial fundamentally unfair' Youngblood, 488 U.S. at 61, 109 S.Ct. at 339 (Stevens, J., concurring in the result). We think that this is such a case."); Thorne v. Department of Public Safety, 774 P.2d 1326 (Alaska 1989)(Alaska's due process clause does not require a bad faith showing - remedy for destruction of videotape showing standardized field sobriety tests is for hearing officer to presume tape was favorable to the defendant); State v. Delisle, 648 A.2d 632 (Vt. 1994)(Vermont state constitution requires balancing of "(1) the degree of negligence or bad faith on the part of the government; (2) the importance of the evidence lost; and (3) other evidence of guilt adduced at trial"); State v. Burden, 17 P.3d 1211 (Wash.App. 2001)(State's failure to preserve materially exculpatory evidence violated due process rights of defendant, who could not obtain comparable evidence); State v. Benton, 737 N.E.2d 1046 (Ohio App. 2000)(failure to preserve after a request for discovery - videotapes of SFSTs evidence which could not be obtained by comparable means - conviction vacated - burden on state to show was not exculpatory); State v. Morales, 657 A.2d 585, 594 n.20 (Conn. 1995)(rejecting bad faith requirement to make out due process violation under Connecticut state constitution); Commonwealth v. White, 713 N.E.2d 987 (Mass.App. 1999)(bad faith is just one factor to be considered in deciding what sanction to impose); State v. Osakalumi, 461 S.E.2d 504 (W.Va. 1995)(same); State v. Matafeo, 787 P.2d 971 (Haw. 1990).

In State v. Ware, 881 P.2d 679 (1994), the New Mexico Supreme Court compared and contrasted the suppression, failure to preserve and failure to gather evidence material to the defense. The court noted that in some circumstances, the failure to gather evidence may be equivalent to the destruction of evidence. If the court finds the evidence is material to the defense, as defined in Bagley, then the court looks to the level of culpability of the police (good faith, bad faith, simple or gross negligence) in failing to gather the evidence to determine the appropriate sanction (no sanction, negative inference, suppression of evidence). See also, Daniels v. State, 956 P.2d 111 (Nev. 1998)(following Ware); Lolly v. State, 611 A.2d 956 (Del. 1992)(defendant entitled to instruction where police negligently fail to collect potentially exculpatory evidence); State v. Werkheiser, 474 A.2d 808 (Md. 1984)(failure to obtain blood sample where required by statute - defendant allowed to argue evidence would have been favorable to the defendant).

Some courts have defined "materiality" of the evidence, in assessing a due process claim, by examining whether the defendant made a specific request for the discovery. See, Morales; State v. Joyce, 705 A.2d 181 (Ct. 1997); Commonwealth v. White, 713 N.E.2d 987 (Mass.App. 1999). The presence or absence of a specific discovery request may be considered in balancing the relevant factors to decide whether to impose a sanction, where the state has not acted in bad faith.

3. Obstruction/interference

In Gregory v. United States, 369 F.2d 185 (D.C. Cir. 1966), a murder conviction was reversed where prospective witnesses were told by a prosecutor not to speak with defense counsel unless he was present. The court held the prosecutor's conduct deprived the defendant of a fair trial. See also, State v. Meza, 50 P.3d 407 (Ariz.App. 2002)(concealing failed calibration tests constituted bad faith requiring suppression).

4. Spoliation - civil cases

There is also a wealth of caselaw in civil cases dealing with spoliation, the destruction of evidence. For example in White v. Office of the Public Defender, 170 F.R.D. 138, 147-48 (D.Md.1997) the White court identified four elements generally regarded as being prerequisite to a court's imposition of spoliation sanctions: (1) an act of destruction, (2) discoverability of the evidence, (3) an intent to destroy the evidence, and (4) occurrence of the act at a time after suit has been filed, or, if before, at a time when the filing is fairly perceived as imminent. These cases may be cited in administrative hearings where the criminal constitutional protections may not strictly apply. See also, Sweet v. Sisters of Providence, 895 P.2d 484 (Ak. 1995)(burden of proof shifts to spoliator).

3. Rule discovery

Rule 16 governs discovery in federal court. Discovery related to scientific evidence sought in a drunk driving case falls within at least two provisions, the documents that are material to the preparation of the defense and records of scientific tests and results.

The Rule provides in pertinent part:
Rule 16. Discovery and Inspection
(a) Governmental Disclosure of Evidence.
(1) Information Subject to Disclosure.
(C) Documents and Tangible Objects. Upon request of the defendant the government shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the government, and which are material to the preparation of the defendant's defense or are intended for use by the government as evidence in chief at the trial, or were obtained from or belong to the defendant.
(D) Reports of Examinations and Tests. Upon request of a defendant the government shall permit the defendant to inspect and copy or photograph any results or reports of physical or mental examinations, and of scientific tests or experiments, or copies thereof, which are within the possession, custody, or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government, and which are material to the preparation of the defense or are intended for use by the government as evidence in chief at the trial.

There are numerous decisions under Rule 16 and the decisions, at least under Rule 16(a)(1)(D), go both ways. See, 110 ALR Fed. 313, Annotation, Reports of Tests, Experiments, or Analyses as Subject to Discovery by Defendant under Rule 16 of Federal Rules of Criminal Procedure. The better reasoned opinions hold that Rule 16 was amended to liberally allow discovery so the defendant can prepare for trial. E.g., United States v. Green, 144 F.R.D. 631 (D.C. W.D.N.Y. 1992); United States v. Barrett, 703 F.2d 1076 (9th Cir. 1983); United States v. Kelly, 420 F.2d 26 (1970); United States v. Inglesias, 881 F.2d 1519 (9th Cir. 1989)(Boochever, J. dissenting).

Rule 16 (a)(1)(D) extends to the records and tests conducted by the toxicologist and his staff as well as other persons who test, calibrate, maintain, and repair the Intoxilyzer machine. These are documents that are also material to the defense under Rule 16(a)(1)(C). See, United States v. Bel‑Mar Laboratories, Inc., 284 F.Supp. 875, 887 (E.D.N.Y.1968); Inglesias.

State cases relevant to a discussion of discovery rules include Patrick v. State, 617 A.2d 215 (Md. 1992), where the Maryland Court of Appeals construed the term "scientific tests" in the circuit court discovery rule, Maryland Rule 4-263(b)(4), to include polygraph examinations conducted on State witnesses, even though the actual polygraph results are inadmissible in Maryland, and even when the polygraph results are not exculpatory. State v. Hawkins, 604 A.2d 489 (Md. 1992). Despite the inadmissibility of polygraph examinations, the court noted that "the twin objectives of Maryland's criminal discovery rules are to assist the defendant in preparing his defense and to protect the accused from unfair surprise." Patrick, 617 A.2d at 218. In this regard the court did not require the defendant to make a showing or even proffer that the tests were exculpatory or that the state intended to use the tests in order for them to be discoverable. The court recognized the test results' utility as an investigative tool and left it to defense counsel to determine how to use them.

In the following cases, discovery was ordered. E.g., State v. Ford, 572 A.2d 640 (N.J.Sup. 1990)(approving review of logs for one year prior to defendant's test and access to operator's manual); Constantine v. Leto, 557 N.Y.S.2d 611 (App.Div. 1990)(records indicating machine not operating properly, state police rules and regulations, checklist and calibration records discoverable, operator training manual not discoverable).

Rule 16 allows the defendant to prepare a defense and requires the government to provide the documents it knows it has or "by the exercise of due diligence may become known" to it.

4. Jencks v. United States

In Jencks v. United States, 353 U.S. 657 (1957), the Supreme Court reversed a conviction for filing a false affidavit that the defendant was not a member of the Communist Party. The two key witnesses had prepared contemporaneous oral and written reports which the trial court did not require the government to disclose because the defendant had not shown the reports to be inconsistent with the testimony of the witnesses

The Supreme Court reversed the conviction, holding that the defendant did not have to lay a foundation of inconsistency which would be impossible to lay without the reports. Id. at 668. The defendant is entitled to inspect written statements of the government's witnesses that relate to their testimony, in order to determine whether they are relevant for cross-examination. The Court stated:

We hold that the criminal action must be dismissed when the Government, on the ground of privilege, elects not to comply with an order to produce, for the accused's inspection and for admission in evidence, relevant statements or reports in its possession of government witnesses touching the subject matter of their testimony at the trial.

Id. at 672; cf. United States v. Nobles, 422 U.S. 225 (1975)(exclusion of evidence may be imposed on the defendant for violation of a discovery order - reverse Jencks).

III. Conclusion

There are numerous legal theories that may be used to support challenges to scientific evidence. Each state has its own complex system of rules for determining whether scientific evidence will be admitted in evidence. All states share the same federal constitutional requirements, and many of the evidentiary, statutory and regulatory rules have a common source or purpose, making sure that the scientific evidence that is considered by the fact finder is reliable and relevant. With all of the differences, the states have a great deal in common. By researching the law of other jurisdictions, it is possible to find cases and theories that support arguments not yet tried in home jurisdictions and to effectively challenge scientific evidence.

BAC has been used to mean "blood alcohol concentration," "breath alcohol concentration," or "body alcohol concentration," sometimes interchangeably, depending upon the jurisdiction and type of test.

The court said, "As Dr. Burns has observed, ‘the objective of the test is to discriminate between drivers above and below the statutory BAC limit, not to measure driving impairment.' 1998 [California, J. Stuster and M. Burns, Validation of the Standardized Field Sobriety Test Battery at BACs Below 0.10 Percent,] Final Report[, submitted to U.S. Dept. of Transportation, NHTSA (1998)], supra, at 28 (emphasis added)." Lasworth, 42 P.2d at 848.

Horn's conclusion with respect to walk and turn and one leg stand was similar to the holding in State v. Meador, 674 So.2d 826 (Fla.App.), review denied, 686 So.2d 580 (Fla.1996). With respect to HGN, Meador's analysis under Frye concluded that on the record presented, the unfairly prejudicial effect of admitting HGN outweighed its probative value.

The statute held unconstitutional in Barud was subsequently amended to provide that a breath test within three hours of arrest was prima facie evidence of the defendant's BAC at the time of arrest. The new statute withstood constitutional attack in Commonwealth v. Murray, 749 A.2d 513 (Pa.Super. 2000), because the presumption that the defendant's breath test reflected the level at the time of driving was rebuttable.

Although the Alaska legislature has since made clear its intention to penalize the test result and therefore not have the fact-finder consider the margin of error, see, Bushnell v. State, 5 P.3d 889 (Alaska App. 2000), the case remains persuasive in many other jurisdictions.

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