The State’s Weak Link: Simulator Solutions

April 1998

THE .10% SOLUTION
The State’s Weak Link: Simulator Solutions

By Leonard R. Stamm

Leonard R. Stamm is a sole practitioner in Greenbelt, MD. A member of the Board of Directors of the Maryland Criminal Defense Lawyers Association (MCDAA), his trial and appellate practice includes drunken driving, narcotics, forfeitures and white-collar crime.

In most drunken driving cases where there is evidence of testing of the defendant’s blood or breath alcohol, the test must be excluded for the defendant to have any hope of prevailing. All of the instruments currently in use in this country for blood and breath testing of alcohol rely on a standard alcohol-water solution1 for calibration of the instrument, periodic maintenance, and verification of test results. The solution is highly volatile, that is, the alcohol will evaporate at a faster rate than the water, resulting in a lower than required concentration of alcohol in the solution, and potentially, false high readings on defendants’ breath samples. Most jurisdictions have procedures in place to reasonably assure the reliability of these solutions, and in turn, the reliability of the test results. In many jurisdictions the .10 solution, also known as alcohol reference solution or simulator solution, is the weak link in the scientific portion of the state’s case.

In the typical blood or breath alcohol case, the operator will testify that prior to the defendant’s test, the machine ran a test of a “known” solution and the results were within .01 of the expected result of .10. If it is a known solution, to whom is it known? Or stated differently, who says the solution really is .10 or who is the hearsay declarant? What are the statutory, regulatory, and case law requirements for the simulator solution? Do the legal requirements meet scientific requirements? What procedures are followed by the state in either manufacturing or purchasing simulator solution? What tests are done? What records are kept? Do the records show adherence to generally accepted scientific standards? In other words, is the solution legally and scientifically valid? Answering these questions in each case may make it possible to successfully challenge the admissibility of a test result premised upon an invalid solution.

Brosnick and Casper – Setting Boundaries

In Commonwealth v. Brosnick,2 Pennsylvania had purchased simulator solution from a private company, Systems Innovation, Inc. According to the Pennsylvania Supreme Court, the state’s Auditor General found:

. . . at a surprise inspection of the manufacturer’s laboratory (located in the back room of a Radio Shack store in Hallstead, Pennsylvania) quality control standards were found to be below the state and national levels. The manufacturer was found to be preparing the simulator solution from alcohol purchased from a local liquor store which was then mixed with filtered city water, instead of using pure, absolute ethyl alcohol. There were no written instructions given to employees concerning the production of the solution, nor were there any notes for the employees concerning the contents of the solution.

It was also discovered that the state police receive shipments of the solution in bottles without expiration dates and without content certification certificates from independent testing laboratories. All of these deficiencies in the certification process led the investigators to conclude that the accuracy of certificates of simulator solution was unreliable.3

The Pennsylvania regulatory scheme was not extensive. It simply required “an aqueous standard ethanol solution,” designed to produce a .10 air-alcohol mixture4 with a certification of reliability from the manufacturer based on gas chromatographic analysis.5 However, the solution was considered to be so unreliable as to require the court to grant a motion for a new trial based upon newly discovered evidence. The Pennsylvania Supreme Court also found that since defense counsel could not be expected to conduct an investigation of the magnitude of the Auditor General study, that the failure to raise the issue at trial was not a waiver.6

On the other end of the spectrum is Casper v. State,7 where the defendant argued that the alcohol concentration of the simulator solution should not be admitted into evidence because it was hearsay. Only the person who mixed the solution had personal knowledge of its contents, and this so-called “non-testing technician” was not called by the state to testify.

The Maryland Court of Special Appeals noted that the state was required to establish that the statutory requirements for taking the test be satisfied: that the test be conducted within two hours of apprehension; that the person administering the test be properly certified; and that the equipment for administering the test be approved by the toxicologist. The court held that the evidence was admissible without the testimony of the individual who actually mixed the simulator solution, but the court did set forth additional standards concerning admissibility:

The state is required, upon a proper request, to produce the technician who performed the chemical breath test. Md. Cts. & Jud. Proc. Code Ann. § 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 technicians testimony, the results are inadmissible without the additional testimony. [Footnote omitted]. See Moon[v. State], 300 Md. [354] at 373, 478 A.2d 695 [cert. denied.,469 U.S. 1207](1985). If the state shows that the technician is unavailable to testify, the test results are admissible without his testimony if shown to be “otherwise trustworthy.” Id. at 369, 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.8

Casper articulates the general rule, followed in most jurisdictions, that if the state is able to demonstrate prima facie reliability of the equipment and procedures used by showing compliance with applicable statutes and regulations, the burden then shifts to the defendant to produce evidence of unreliability.9 Conversely, the failure to comply with applicable statutes and regulations usually requires suppression of test results.10

Casper also contemplates that in preparation for trial, defense counsel may investigate the reliability of the breath testing procedures. If the test results appear reliable, the defendant may seek to subpoena the non-testing technician. If the test results appear unreliable, the burden may shift to the state to produce relevant non-testing technicians. This search for unreliability, by its nature, requires defense counsel to go behind the standard certificates of analysis or of approval, which the state uses to show prima facie reliability of the simulator solution.

Brosnick and Casper serve as boundaries for a range of possible attacks on the simulator solution. In Brosnick a nine-month government investigation revealed irregularities in the simulator solution. In Casper, simply objecting to the solution proved fruitless, although the court set forth guidelines for determining when problems with the solution might lead to exclusion of the test results. It is possible to do more than simply object without conducting a major investigation. What follows are some guidelines for launching an attack on the simulator solution that can be a part of an arsenal of defenses in every breath test case.

Guidelines for Attacking the Solution

The tools for a successful attack on the simulator solution are the tools of every lawyer — telephone, letter, e-mail, discovery motions, and subpoenas ad testificandum and duces tecum. It may be necessary to consult with a forensic toxicologist to assist in drafting requests for information about the solution and in determining whether the procedures followed in particular jurisdiction meet scientific standards. But, the basic attack is simple, and in many cases can be done without an expert.

Step 1 – Legal Requirements

Determine the statutory, regulatory, and case law requirements for simulator solution in the jurisdiction. Government agencies are required to follow their own rules.11

Step 2 – Adherence To Legal Requirements

Determine whether all statutory, regulatory, and case law requirements have been met. In many jurisdictions, the state will not voluntarily provide any information beyond the printout of the test result, which also contains the simulator solution test result and perhaps a certificate indicating the solution was approved. Counsel should obtain the lot number for the solution used in the defendant’s test, in the calibration test, and in maintenance tests, and inquire by letter, discovery motion or subpoena of the procedures used and all records of testing on the solution by government agencies, manufacturers, and independent laboratories.

Step 3 – Getting Results

If counsel is unable to obtain all the information sought, it may be necessary to seek enforcement of the subpoena or file motions to compel discovery and/or for sanctions. If all the information sought is obtained, it should be reviewed by an expert.

Putting the Guidelines to Work

Below are just a few examples of results from the three simple steps.

In Maryland, the toxicologist under the Post-Mortem Examiner’s Commission is designated as the person who must “approve” all equipment used in breath and blood tests for alcohol.12 In 1989, the toxicologist had promulgated regulations governing the content and production of simulator solution which required: a) that the simulator solution be prepared using “only purified deionized water and USP ethyl alcohol;” b) that “[a]n appropriate scientific method of preparation shall be used;” c) that the manufacturer send three “randomly collected aliquots” or samples, “each taken from the top, middle, and bottom of each batch or lot prior to packaging . . .,” accompanied by a certificate of analysis, to be tested in triplicate by the toxicologist, and the manufacturer would then send three packaged samples to the toxicologist, accompanied by a certificate of analysis; and (d) “[a]ll records of the manufacturer and/or distributor must be available for audit review . . .” for at least five years.

The primary Maryland case on admissibility of breath tests is Casper which supports going behind the basic approval documents to determine whether an indicia of unreliability exists. Moreover, Casper provides a right to subpoena for cross-examination the non-testing technician who made the solution.

Who’s On First?

A letter was prepared for the toxicologist requesting information relevant to the regulatory requirements for simulator solution. The toxicologist routinely responded that the simulator solution was manufactured by Guth Laboratories, Inc. in Harrisburg, Pennsylvania, and that they should be contacted. Letters were then sent to Richard Guth, then-president of Guth Laboratories. He responded that the method of preparation was a “trade secret” and that the Maryland toxicologist should be contacted for more specific information.

Ultimately, under threat of deposition, Guth revealed that the simulator solution was a “vendor item” and was actually manufactured by August C. Stiefel Research Institute, Inc., (Stiefel) a laboratory located in Oak Hill, New York, and he claimed that the Maryland toxicologist was aware of that fact.

We Stand By Our Product

Stiefel produced a certificate of analysis that contained a small notice on the front that the certificate is subject to the conditions on the reverse of the certificate. The reverse was not initially provided. The reverse side contained a disclaimer as to the accuracy of the portion of the lot that was not actually tested (essentially the entire lot).

Trust Me, I’m the Toxicologist

Eventually, the toxicologist decided to base approvals on his own testing of the simulator solution. Simulator solution would be tested by the toxicologist on a gas chromatograph, prior to approval. The process produced 18 chromatograms, test records. However, the records were not kept because it was feared that fulfilling discovery and subpoena requests in drunken driving cases would overwhelm the toxicologist and his small staff. (These records are now kept for three years).

Trust Me, I’m Still the Toxicologist

Current regulations require that the simulator solution be tied to an NIST standard. Documents purportedly showing this are not kept. The method of production is still considered a trade secret.

Theories of Attack

These types of facts lend themselves to a number of legal issues, and the sanctions sought include dismissal, suppression of the test, compelling discovery, finding that the defendant has raised a significant indicia of unreliability, or applying a negative inference against the state.

Brady — Bad Faith Destruction Of Evidence

Federal Due Process

In California v. Trombetta ,13 the United States Supreme Court held that due process did not require the state to maintain breath samples for testing by the defendant, where the defendant had alternative means to demonstrate his innocence. Trombetta involved a due process challenge, founded on Brady v. Maryland 14 and its progeny, to drunken driving convictions based on the failure of California to require preservation of the breath samples of the defendants which were tested for alcohol concentration by an Intoxilyzer instrument, the results of which tests were introduced at trial to support the convictions. The Supreme Court rejected the defendants’ argu ment 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 Intoxilyzer test rendered the results reliable, and therefore inculpatory.15

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

The materiality of breath samples is directly related to the reliability of the Intoxilyzer. The degree to which preserved samples are material depends on how reliable the Intoxilyzer 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 Intoxilyzer were truly prone to erroneous readings, then the Intoxilyzer results without more might be insufficient to establish guilt beyond a reasonable doubt. Jackson v. Virginia , [443 U.S. 307 (1979)].16

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.17

A more recent Supreme Court case to address the appropriate sanction for the destruction of potentially exculpatory evidence is Arizona v. Youngblood.18 In Youngblood, the Supreme Court reinstated Youngblood’s conviction for sex offenses where the police failed to preserve properly semen samples that could potentially have exonerated the defendant. The Court held:

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.19

Here a strong argument can be made that there is bad faith. The intentional destruction of evidence made by the state for the express purpose of denying access to defense counsel here quite clearly constitutes bad faith which constitutes a denial of due process of law. The defendant in these cases was trying to do precisely what the Supreme Court suggested in Trombetta: attempting to inquire into the reliability and accuracy of the test results by reviewing records of testing during the initial certification of the Intoximeter. The defendant’s motion for discovery inquired quite specifically regarding the results of test which the toxicologist claims he performs, as required by United States v. Bagley .20 This information was necessary to permit counsel to determine whether the breath instrument was calibrated properly, thereby giving an accurate reading. Since the results of this investigation could certainly serve a grounds for either excluding the breath test results, impeaching their weight, or demonstrating the defendant’s innocence, under Trombetta this information was material to guilt. The state was therefore obligated to disclose the information.21 Obviously, the duty to disclose evidence under Brady includes the obligation not to destroy evidence to intentionally subvert the defense.22

State Due Process

A number of state courts have gone a step further than Youngblood in resolving the due process issue under their state constitutional due process provisions. These cases have quoted Justice Stevens’ concurring opinion in Youngblood for the proposition that:

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.23

The Stevens rationale has generated a line of cases based upon state constitutional grounds that recognize a higher due process standard than the Arizona v. Youngblood bad faith test.24

Obstruction of Defense Investigation

The concept of fundamental fairness which underlies due process protections includes the right to make a full investigation of the facts and law applicable to the case.25

In Gregory , the District of Columbia Circuit Court of Appeals accepted the version of facts related by the prosecutor:

I instructed all the witnesses that they were free to speak to anyone they like. However, it was my advice that they not speak to anyone about the case unless I was present.26

The trial court had denied repeated defense requests to have the court order the government to allow interviews with the witnesses. The appeals court reversed Gregory’s convictions for murder and other charges, reasoning that the government’s interference with the preparation of the defense violated a statute requiring the government to furnish defense counsel with a list of witnesses in a capital case, 18 U.S.C. Section 3432, “elemental fairness . . . due process,” as well as Canon 39 of the (former) Canons of Professional Ethics.

The court wrote:

A criminal trial, likes its civil counterpart, is a quest for truth. That quest will more often be successful if both sides have an equal opportunity to interview the persons who have the information from which the truth may be determined. The current tendency in the criminal law is in the direction of discovery of the facts before trial and elimination of surprise at trial. A related development in the criminal law is the requirement that the prosecution not frustrate the defense in the preparation of its case. Information favorable to the defense must be made available to the defense. Reversals of convictions for suppression of such evidence, and even for mere failure to disclose, have become commonplace. It is not suggested here that there was any direct suppression of evidence. But there was unquestionably a suppression of the means by which the defense could obtain evidence. The defense could not know what the eye witnesses to the events in the suit were to testify to or how firm they were in their testimony unless defense counsel was provided a fair opportunity for interview. In our judgment the prosecutor’s advice to these eye witnesses frustrated that effort and denied appellant a fair trial.27

In Gregory , the prosecution simply advised its witnesses not to speak to defense counsel unless the attorney for the government was present. That was enough in the appellate court’s eyes to warrant a reversal. Here, the state intentionally and purposefully either destroyed evidence or mislead counsel for the express purpose of denying the defendant’s counsel access to the evidence. This action was not just an attempt to limit access to a witness, but to deny access entirely. This theory also calls for a severe sanction.28

Shifting the Burden of Proof

The Casper opinion also states:

[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.29

The probative value of the breath test result, as well as its admissibility in evidence, depends upon the accuracy and reliability of the instrument.30 Recent reported cases from other jurisdictions, such as Commonwealth v. Brosnick31 have revealed irregularities in the procedures used by other labs which severely undermined the reliability of the test results and have resulted in reversals of drunken driving convictions. The defendant here is attacking the test result sought to be admitted against him, as a result of the state’s substandard procedures with respect to the testing, record keeping and certification of the calibration, maintenance, and verification solutions. Clearly, the failure to maintain records of the testing required for approval of the simulator solution, not to mention the intentional destruction of the same, is an “indicia of unreliability” under Casper. This “indicia of unreliability” shifts the burden of proof to the state. In the absence of an explanation sufficient to meet its burden of proving the reliability of the state’s procedures, Casper requires the suppression of the test result.

A Negative Inference

Even in Youngblood, where the Supreme Court reversed the dismissal of a criminal case as a result of the state’s negligent destruction of a clothing sample which could have exonerated the defendant, the trial court gave a negative inference instruction:

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.32

At the very least the defendant is entitled to an inference that the State, having failed to comply with a legal duty 33 to keep the simulator solution testing records, either failed to perform the required tests or performed the tests improperly.34

As a result, the test results should be excluded from evidence.

Defenses Just Waiting . . .

Due process gives the defendant a right to craft a defense and prepare the case for trial. These “prevailing notions of fundamental fairness” prohibit the state from interfering with the defendant’s right to “a meaningful opportunity to present a complete defense.”35 The simulator solution is the very foundation upon which the entire breath and blood testing system rests. If defense counsel insists on obtaining every document used in the preparation and testing of these solutions for submission to a defense expert for review, they may find, as in Brosnick, there are defenses just waiting to be raised lurking behind certificates of analysis or approval.

Notes

1. Most instruments are programmed to accept a .10 solution. The measurement, .10, is a weight per volume, .10 grams per deciliter. The .10 solution refers to the amount of alcohol that should be in the air. The level of alcohol in the solution itself is expected to be .121.

2. 607 A.2d 725 (Pa. 1992).

3. Id. at 728.

4. 67 Pa.Code § 77.3.

5. 67 Pa. Code, § 77.24 (d).

6. Brosnick is not the only instance of poorly prepared simulator solution in the case law. Cases in Ohio, Florida, and Illinois have also found irregularities in the production of simulator solution which required exclusion of breath test results. See, State v. Workman, 670 N.E.2d 315 (Ohio Mun. 1996); Florida Court Excludes Breath Test Evidence Because of State-Wide Problems With Simulator Solution, 14:19 Drinking/Driving Law Letter (Sept. 1995); Ramsell, Impeaching 10,000 Breath Alcohol Tests: The Solution is the Solution, 4 DWI JOURNAL: LAW & SCIENCE 2 (Feb. 1989)(Illinois). These cases represent the situation where there is something demonstrably wrong with the simulator solution.

7. 521 A.2d 1281 (Md. App. 1987).

8. Casper v. State, 521 A.2d at 1288 (Md. App. 1987).

9. E.g, Lowrey v. State, 476 N.W.2d 540 (Neb. 1991); Commonwealth v. Kelley, 657 N.E.2d 1274 (Mass.App. 1995); State v. Friedrich, 681 So.2d 1157 (Fla. App. 5 Dist. 1996); State v. Benas, 657 A.2d 445 (N.J .Super. 1995); State v. Asbridge, 555 N.W.2d 571 (N.D. 1996).

10. E.g., Commonwealth v. Thill, 612 A.2d 1043 (Pa. Super. 1992); State v. Hominsky, 669 N.E.2d 523 (Ohio App. 11 Dist. 1995); People v. Boughner, 531 N.W.2d 746 (Mich. Ct. App. 1995); State v. Crouch, 638 N.E.2d 861 (Ind. Ct. App. 1994); State v. Zell, 491 N.W.2d 196 (Iowa Ct. App. 1992); People v. Kilpatrick, 576 N.E.2d 546 (Ill. App. Ct. 1991); State v. Grade, 477 N.W.2d 315 (Wis. Ct. App. 1991); see also, State v. Souza, 732 P.2d 253 (Haw. App. 1987); State v. Fairleigh, 490 So. 2d 490 (La. Ct. App. 1986)(strict compliance required); but see, Thomas v. People, 895 P.2d 1040 (Colo. 1995)(once state shows prima facie evidence of substantial compliance, other defects go to weight rather than admissibility); see generally, 96 A.L.R.3d 745 (1980), Necessity and Sufficiency of Proof that Tests of Blood Alcohol Concentration Were Performed in Conformance with Prescribed Methods .

11. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954); Hopkins v. Maryland Inmate Griev. Comm’n., 40 Md. App. 329, 391 A.2d 1213 (1978); United States v. Heffron, 420 F.2d 809 (4th Cir. 1970).

12. Md. Code Ann., Cts. & Jud. Proc. Art., § 10-304 (b).

13. 467 U.S. 479, 485 (1984).

14. 373 U.S. 83 (1963),

15. 467 U.S. at 489.

16. California v. Trombetta, 467 U.S. at 489 n. 10.

17. Id. at 490.

18. 488 U.S. 51 (1988).

19. Id. at 58.

20. 473 U.S. 667, 681-82 (1985).

21. Brady v. Maryland, 373 U.S. at 87.

22. See, People v. Newberry, 652 N.E.2d 288 (Ill. 1995)(non bad faith destruction of alleged CDS after discovery request required dismissal).

23. Arizona v. Youngblood, 488 U.S. at 61 (1988)(Stevens, J., concurring).

24. See, e.g., Ex Parte Gingo, 605 So.2d 1237 (Ala. 1992); Thorne v. Department of Public Safety, 774 P.2d 1326 (Alaska 1989); Hammond v. State, 569 A.2d 81 (Del. 1989); State v. Matafeo, 787 P.2d 671 (Haw. 1990); Commonwealth v. Henderson, 582 N.E.2d 496 (Mass. 1991); State v. Delisle, 648 A.2d 632 (Vt. 1994); but see, State v. Wittenbarger, 880 P.2d 517 (Wash. 1994).

25. U.S. Const., Amendments VI, XIV; see, State v. Burri, 550 P.2d 507 (Wash. 1976)(en banc). This includes the right to an opportunity to interview witnesses without interference by the prosecution. Gregory v. United States, 369 F.2d 185 (D.C. Cir. 1966); see also, Bobo v. Commonwealth, 48 S.E.2d 213 (Va. 1948).

26. Id. at 187.

27. Id. at 189-90. (citation omitted).

28. See also, Commonwealth v. Balliro, 209 N.E.2d 308 (Mass. 1965)

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

30. See Casper.

31. 607 A.2d 725 (Pa. 1992).

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

33. Most jurisdictions have statutory or regulatory provisions denominating such records as “public records” and require that they be kept, in the absence of express statutory authority allowing their destruction. See , generally, 76 C.J.S. Records § 34 (1952); 66 Am. Jur. 2d, Records and Recording Laws, § 10 (1973); Md. Code Ann., Article 27, § 45A.

34. E.g., State v. Werkheiser, 299 Md. 529, 474 A.2d 898 (1984)(failure to obtain blood sample from unconscious defendant results in inference of favorable test result); Shpak v. Schertle, 97 Md. App. 207, 629 A.2d 763 (1993)(spoliation of evidence); Sweet v. Sisters of Providence, 881 P.2d 304 (Ak. 1994)(spoliation).

35. Trombetta, 467 U.S. at 485.