Tuesday, June 9, 2009

"The longer you blow, the higher you go” Breath Volume issues in California / upcoming DUI seminar in Monterey

On June 12 and 13th, the California Public Defenders Association will
be holding a DUI Defense Practice seminar in Monterey, California. Speakers include Bruce Kapsack, Don Bartell, Charles Unger, Mary Prevost, Felipe Plascencia, Les McMillan, Manny Barber, Peter Thom, and Jose Varela.

Jurors and the public need to know about breath volume: The longer you blow, the higher you go.


IN THE SUPERIOR COURT FOR THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF EL DORADO
DEPARTMENT NO. 1 HON. JAMES R. WAGONER, JUDGE
---oOo---
THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff,
vs.
PHILLIP TYLER LANGLOIS-LINDSAY,
Defendant.
___ _ /
No. P08CRM1091
THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff,
vs.
ROBERT DAVID MARRS,
Defendant.
___ _ /
No. P08CRM1311
THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff,
vs.
ELLA DONNA MARTINEZ,
Defendant.
___ _ /
No. P08CRM0016
THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff,
vs.
JOE DAVID HILL,
Defendant.
___ _ /
No. P08CRM0702
THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff,
vs.
WILLIAM CHARLES MCCOY,
Defendant.
___ _ /
No. P08CRM0557
THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff,
vs.
ROBERT MICHAEL SHOOPMAN,
Defendant.
___ _ /
No. P08CRM0717
---oOo---
REPORTER'S TRANSCRIPT OF PROCEEDINGS
FRIDAY, SEPTEMBER 26, 2008, 1:30 P.M.
---oOo---
APPEARANCES
FOR THE PLAINTIFF: VERN P. PIERSON, District Attorney
El Dorado County
515 Main Street
Placerville, CA 95667
BY: AMY MCTAVISH, Deputy D.A.
BY: CHRISTY LORENTE, Deputy D.A.
FOR THE DEFENDANTS: RICK MEYER, Public Defender
El Dorado County
650 Main Street
Placerville, CA 95667
BY: TODD E. JONES, Deputy P.D.
BY: BRUCE KAPSACK, Associated Counsel
REPORTED BY: MARICELA P. JONES, CSR 13178
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EXAMINATION INDEX
Examination of MICHAEL P. HLASTALA Page
Direct examination by MR. JONES 10
Voir Dire examination by MS. MCTAVISH 12
Voir Dire examination by MR. JONES 18
Voir Dire examination by MR. KAPSACK 23
Continued Voir Dire by MS. MCTAVISH 27
Direct examination by MR. KAPSACK 30
Cross-examination by MS. MCTAVISH 39
Examination of JEFFREY LOUIS ZEHNDER
Direct examination by MR. JONES 42
Direct examination by MR. KAPSACK 44
Cross-examination by MS. MCTAVISH 47
Redirect examination by MR. JONES 48
Recross examination by MS. MCTAVISH 48
Redirect examination by MR. KAPSACK 49
Examination of JOSEPH PALECEK
Direct examination by MS. LORENTE 50
Cross-examination by MR. KAPSACK 60
Redirect examination by MS. LORENTE 67
Recross examination by MR. KAPSACK 69
--o0o--
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PLACERVILLE, CALIFORNIA
FRIDAY, SEPTEMBER 26, 2008, 1:30 P.M.
DEPARTMENT NO. 1 HON. JAMES R. WAGONER, JUDGE
---o0o---
THE COURT: The breath volume matters, I would propose
taking that up first, then we can get to the Trombetta issues
later. All right. See if I can sort these out. P08-CRM0191,
well, Langlois-Lindsay, is that a...
MS. LORENTE: That's the same issue, your Honor.
MR. JONES: That's that breath volume. I have a kind of a
breakdown of the cases by departments and Trombetta versus
breath volume.
THE COURT: Okay. As I understand it, Langlois-Lindsay is
a breath volume. P07-CRM1311, People versus Marrs is a breath
volume case.
MR. JONES: I believe, your Honor, that is a breath volume
and a Trombetta case.
THE COURT: I'm sorry.
MS. LORENTE: If I can just be heard. The cases that are
set in Department 1, we had rulings from the Court as far as the
Trombetta, as far as my understanding as far as what --
THE COURT: I'm dealing with breath volume. I just want
the breath volumes so I can get these witnesses in and out.
MS. LORENTE: Marrs, Langlois-Lindsay and Martinez are the
breath volume cases in Department 1.
MS. MCTAVISH: And, your Honor, the Shoopman, McCoy and
Hill are the cases in Department 2.
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THE COURT: All right.
MS. MCTAVISH: And today we were going to do the breath
volume matters together with Department 1 cases. And the
Trombetta, it was also a discovery issue.
THE COURT: I'll get to Trombetta later. I just want to
deal with the breath volume cases right now. All right. So
that's P08-CRM0702, People versus Hill. P08-CRM0191, People
versus Langlois-Lindsay. P07-CRM1311, People versus Marrs.
P08-CRM0016, People versus Martinez. P08-CRM0557, People versus
McCoy. And P08-CRM0717, People versus Shoopman and all of the
related cases.
MR. JONES: Todd Jones for all of the above, 977.
MR. KAPSACK: Bruce Kapsack associating in as co-counsel
for purposes of this hearing.
THE COURT: On which case?
MR. KAPSACK: All of them.
THE COURT: All of them?
MR. KAPSACK: On the breath volume discovery, yes.
THE COURT: All right. And not to put too fine a point on
it, but who are you? I don't know you.
MR. KAPSACK: I've appeared before you a few times, I
guess I didn't leave that good of an impression.
THE COURT: You were in and out still. All right. So
you're a local attorney from Sacramento, this area, or where?
MR. KAPSACK: The Bay Area.
THE COURT: Bay Area. Okay. So you're associating in
with the public defender's office on these matters?
MR. KAPSACK: That's correct. And we've run it through
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the public defender's chain of command.
THE COURT: Okay. All right.
MS. LORENTE: Christy Lorente for the People on the Marrs,
Langlois-Lindsay and Martinez cases.
MS. MCTAVISH: Amy McTavish for the People on the
Shoopman, Hill and McCoy matters.
THE COURT: Okay. So these are motions to compel
discovery, I guess would be the way to style them. So they're
defense motions, so Mr. Jones and company, you may proceed.
MR. JONES: Thank you, your Honor. If I may, I would like
to take just a brief moment just to give the Court a roadmap of
where we're going.
THE COURT: Okay. That would probably be helpful.
MR. JONES: Yes. What prompted these hearings originally
were the breath volume motions to compel in front of Judge York.
And this Court actually ruled on one breath volume case, the
Martinez case. Granted, it was -- the district attorney's
position was they were not going to turn this over in any other
case unless they were ordered to, so I found myself having to
make motions to compel. We lumped them all together and went in
front of Judge York last time, at which time she said before she
made a ruling, let's just have the DOJ come here and explain
their position, which she was going to use to help make her
decision. This Court already had ruled in that regard, but I
think it would be helpful possibly for future rulings and
possibly for issuing a standing order, I would leave that up to
the Court's discretion, and I guess as to how the Court wants to
use this. That's what led us here.
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From what I understand, Mr. Palecek from the Department of
Justice will be testifying on giving the People's position.
We have the good fortune through the efforts of
Mr. Kapsack of having Dr. Hlastala appear, who is a professor of
physiology, biophysics and medicine pulmonary, and critical
paramedicine at the University of Washington. He's a consultant
in the physiology of breath and blood alcohol testing, field
sobriety testing, impact of lung disease on breath alcohol tests
among many other things. Forty years experience. Lectured in
40 foreign counties around the U.S. Published 390 plus
articles, 155 full-length scientific articles.
What we're going to be getting into, your Honor, is
focusing on the relevancy of breath volume in DUI cases where
people give breath samples. That's what we're focusing on, and
we are confident that Dr. Hlastala will be able to explain to
the Court in terms that the Court can understand. That I'm
trying to graph that these results definitely are relevant.
They're relevant for testing the accuracy of the EPAS results in
various context.
And I apologize ahead of time, he can correct me if I
misstate anything, but breath volume touches on whether a result
can be falsely high by over blowing or by extended blows. They
can be relevant in determining whether or not strong or light
samples have been encouraged by the police officer giving the
test or law enforcement giving the test. They can be relevant,
and this is along with flow rate and flow time, which I will let
Dr. Hlastala expound on, that test results are not being
manipulated and that refusals are, in fact that, refusals.
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There's a lost of physiology involved, there's a lot of
technicality involved, but that's basically what it comes down
to. Breath volume is extremely relevant potentially exculpatory
in many, many breath cases.
We anticipate that the Department of Justice's position
is, and we know that part, that breath volume is not relevant,
and it's based upon the model that as one blows into the machine
after a very short one reaches the alveolar plateau of breath as
one is blowing and continues to blow one is approaching, if not
reaching, the true breath alcohol contents the law is focusing
on.
Dr. Hlastala will explain that there's different schools
of thought, there's a different model that the longer one blows,
there's actually a positive slope of this what was -- what is
formally known as the alveolar plateau. And so that it's
actually possible under certain circumstances to go -- to get a
reading above the true breath alcohol content. And if nothing
else, breath volume and related data will be relevant in
verifying the accuracy of these two schools of thought.
I think it's also important for the Court to understand
what originally led me to making these motions to compel, and I
believe the Court has seen at one point on the Martinez case the
logs that I received showing that on the same date and time as
my client, Ms. Martinez, two hours later on the same machine
with the same operator, the machine results on an unnamed
individual got a .06, .14, .12 reading. And that prompted me to
say how could this be if the machine is operating correctly.
Because then we either have a malfunctioning machine, we have an
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operator error, or we have a very strange human being going from
a .06 to a .14, .12 within seven minutes of each other. That's
what prompted me to make these inquiries and to reach out to
some of my associates and people that know more about it than I
do. And they said breath volume records -- I said I never knew
the machine reported breath volume, and someone sent me a log
that I attached to a motion saying they have breath volume. And
that's where we started. And I started asking, well, how is
this relevant? And I started finding out --
THE COURT: Mr. Jones, I don't mean to put too fine a
point on it, it's 2:35, and if we're going to get this wrapped
up this afternoon, we need to get to the testimony.
MR. JONES: I'll wrap up. The last thing I want to say,
your Honor, is that Jeff Zehnder, who will be testifying, he's
here in the courtroom, will be able to testify there's a
potential exit port issue that volume may or may not touch on,
that covering of the exit port may result in a false high. So
these are the issues that I want to present to the Court, have
the Court look for. And I want to invite the Court at any
stage, this is for the Court's benefit to ask questions, jump
in, whatever the Court wants to do.
THE COURT: All right.
MS. LORENTE: Your Honor, briefly, in regard to the
Ella Martinez matter, I don't believe that the Court -- the
Court made a ruling that the People were to provide those
records because I believe it was the Court's position that the
People did not at the time have a DOJ expert here to explain
that. We did provide those records as the Court ordered.
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And to just briefly touch on this, the focus of this
hearing is actually rather narrow. The focus of the hearing is
whether the Dräger 7410, which is the device the Department of
Justice is here to testify about. And the device that our
agencies use to capture breath samples. Whether the volume of
that particular -- volume of the breath sample in that
particular machine are relevant and the real question is whether
or not those results -- whether or not breath volume can ever be
exculpatory. If the defense gets those records, if they will
ever result in exculpatory information.
The Ella Martinez matter and the records that were
produced and that Mr. Jones is talking about proves the People's
point exactly. In that case, Ms. Martinez gave three samples
because, as Title 17 requires, the two samples have to be within
.02 of each other. She gave a low sample and then two results
that corroborated each other. So that proves the People's point
exactly. If anything, a low breath sample will result in
underestimating someone's blood alcohol level.
So as the People, that's our position that it will never
be exculpatory. So I just want to make sure that we don't --
the exit port issue was never presented to the Court as being in
front of the Court today. The People aren't really here to
address that matter. The Dräger 7410 and the way that machine
operates and captures the breath sample is really the narrow
issue that we're here on today. So I just want to make sure we
remain focused on that issue. And Mr. Jones is introducing a
matter to the Court that, if anything, their expert has a
particular paradigm that is really calling into question it's
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really a Kelly-Fry issue is what he's talking about. Because it
calls into question how these breath machines operate. And
that's been generally accepted as a way to capture breath
samples and how to. So I really think it's not really breath
volume issue, he's calling into question how all breath machines
work and how the body produces a breath sample. So I really
don't think that particular issue is relevant to what we're here
to discuss.
THE COURT: Okay.
MS. MCTAVISH: Your Honor, based on Mr. Jones's brief
statement, we would ask for an offer of proof before we proceed
with either of these witnesses as to what they were to testify
to based on what he said on the narrow issue that Ms. Lorente
explained to the Court that we're here for today.
THE COURT: Would that be your offer of proof?
MR. JONES: That's my offer of proof.
THE COURT: Okay. All right. But I still -- you know in
my mind, it's your burden, Mr. Jones, so you get to start.
MR. JONES: All right. I would like to call Dr. Hlastala
to the stand.
THE COURT: All right.
MS. MCTAVISH: Your Honor, we would like to designate
Mr. Cooksey as our investigator.
THE COURT: Investigator? I would not consider him an
investigator.
MR. KAPSACK: Judge, for the record, Bruce Kapsack
speaking, it would seem to me that given the relatively informal
nature of this hearing and the fact that there are going to be a
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number of experts going back and forth, there's no need to
designate an investigative officer. As a matter of fact, it
would probably benefit everybody to have the experts and all the
other witnesses stay in the courtroom to listen to each other as
is the case with expert witnesses.
THE COURT: I'm not designating him an investigating
officer.
MS. MCTAVISH: Okay.
THE COURT: All right. If you'll raise your right hand to
be sworn, please.
Do you solemnly swear the evidence you'll present in this
matter now pending before the Court shall be the truth, the
whole truth, and nothing but the truth?
THE WITNESS: I do.
THE COURT: All right. Please be seated.
THE WITNESS: Thank you.
THE COURT: And if you would state your full name for the
record and spell your last name.
--oOo--
MICHAEL P. HLASTALA,
called as a witness by the Defense, who, being first duly sworn
to tell the truth, the whole truth and nothing but the truth,
was examined and testified as follows:
THE WITNESS: Michael P. Hlastala, spelled
H-L-A-S-T-A-L-A.
THE COURT: All right. You may inquire.
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MR. JONES: Thank you.
DIRECT EXAMINATION
BY MR. JONES:
Q Dr. Hlastala, I'm going to show you an exhibit, and if you
would take a look at it and tell me what this is.
A This is my curriculum vitae dated October 2007.
MR. JONES: Thank you. Your Honor, would the Court like
to read along with that? I realize the clerk is not here.
THE COURT: That's all right. I got all kinds of
stickers. Did you want to mark that as an exhibit?
MR. JONES: I do.
THE COURT: All right. I'll mark that as Exhibit 1 to
this hearing.
(Exhibit 1 was marked.)
MR. JONES: Yes. I don't know if there's any objection to
it being entered as evidence at this time. I was just going to
ask the doctor some of his qualifications. He's
authenticated --
THE COURT: Any objection to this being admitted into
evidence for the purposes of this hearing only?
MS. LORENTE: That's fine.
MS. MCTAVISH: For this hearing only, that's fine.
THE COURT: All right. So I'll admit that.
BY MR. JONES:
Q Thank you. Doctor, can you please tell me your vocation?
A Yes. I'm professor in the school of medicine at the
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University of Washington.
Q Okay. What's your specific job title, sir?
A Well, I'm a professor of physiology and biophysics and I'm
an adjunct professor of bioengineering.
Q Thank you. Do you have any experience in studying the
effect of alcohol on the human lung?
A Yes.
Q Can you please tell me succinctly some of the highlights
of that experience.
A Well, my field of research deals with what's called gas
exchange physiology, the exchange of gases in the human body and
other animals as well, including oxygen, carbon dioxide, and a
number of other animals -- a number of other gases with
different characteristics.
One of gases that I have studied in the last 24 years or
so is an alcohol, ethyl alcohol, because it is such a highly
soluble gas. It's -- goes into water quite easily or into
blood. So that's the reason I've been studying it.
Q Okay. Have you published any articles on this topic?
A Yes.
Q Can you name a few and just succinctly tell me what the
topics and what these articles are about.
A Well, I've done research related to the way that the high
soluble gas exchanges in the airways. They behave differently
than the normal gases like oxygen and carbon dioxide, which
exchange in the air sacs. The lung is a branching network of
airways, and there are two, so with air sacs, call that alveoli.
And oxygen, carbon dioxide exchange in those air sacs, but
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alcohol exchanges in the airways to the blood vessels that go
around it called the bronchial blood vessels, and it exchanges
through the mucus and the airway tissue to that blood.
Q Doctor, I can short-circuit this and just ask if --
MR. JONES: I would like to move him as an expert in the
field of pulmonary biology of the human lungs, vis-a-vis
alcohol.
MS. MCTAVISH: Your Honor, we would like a chance to voir
dire.
THE COURT: Okay.
MR. JONES: I can allow that now or wait.
THE COURT: Sure. Go ahead, voir dire.
MS. MCTAVISH: Thank you.
VOIR DIRE EXAMINATION
BY MS. MCTAVISH:
Q Are you -- Doctor, are you familiar with the Dräger
Alcotest 4710, are you familiar with that particular device?
A You mean a 7410?
Q Yes.
A Yes, I'm familiar.
Q What is your familiarity based on?
A Well, I've testified -- I'm familiar with fuel cell type
breath testing devices. I've testified regarding the 7410 and
the 7110 on other occasions.
Q What was your testimony regarding specifically?
A I don't remember. But I -- it would have been related to
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limitations in these breath test devices.
Q What kind of limitations?
A Well, the 7410 is a device which uses a fuel cell, and
therefore, it can only take a single sample so that limits it
because it can't obtain continuous measurement that an infrared
device can, and therefore, it can't detect the presence of
alcohol.
Q Okay.
A One more thing. The fuel cell actually measures the OH
group or the hydroxyl group, and there are many products that
we're exposed to in the everyday environment that has hydroxyl
groups that can get absorbed into the body, so that's the reason
that the fuel cell has very limited accuracy in my opinion.
Q Okay. Have you ever conducted any research with the
Dräger 7410?
A Only in the extent that I've reviewed material about the
instrument.
Q Have you ever held this device?
A No, I have not. I've seen one. I can't remember if I
held it or not, but it was related to some issues related to
blowing through it.
Q Have you ever published any peer-review articles regarding
this particular device, the Dräger 7410?
A I have not.
Q Have you ever testified before regarding breath volume
samples on the Dräger Alcotest 7410?
A Well, I've testified on other instruments, and also, I
know that the 7410 has a minimum exhale volume of 1.5 liters as
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do all the Dräger machines. So I have testified about those in
New Jersey and the Chung case, which you may be aware of.
Q And going to that case, did that testimony in New Jersey,
did that deal at all with the breath volume sample that was
taken?
A Yeah. There was some discussion of the volume and the way
that alcohol changes during exhalation and also the consequences
of that -- some of the consequences related to bias against
people with smaller lung volumes. So I testified related to
that in the Chung case.
Q Were you -- in that case in New Jersey -- now we're
talking about this Chung et al. case, correct?
A Yeah. It was the combined case, it was brought together
for motions.
Q Were your theories accepted in that case?
A I have no idea. These aren't theories. They're valid by
my experimentation and also by the experimentation of others, so
I wouldn't call them theories.
Q Now, we're dealing with the particular experimentation,
are we talking about the breath volume on the Alcotest 7410?
A On any breath test instrument.
Q But particularly the volume as it relates --
A No. In the context of this hearing, we're talking about
the 7410.
Q Was your prior testimony relating to volume as it relates
to the accuracy of the calibration of the machine?
A My prior testimony?
Q Yes.
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A Yes.
Q What other people? You mentioned other people who had
similar research. Are those also doctors who have testified?
A Well, I can't say that for sure. I know several of them
that have both testified and have lectured at medical
conferences. I'm unaware of any forensic scientists that have
been working in this particular area, except perhaps
Wayne Jones, you might recall him as a forensic scientist.
Q You said other people had conducted tests on the Alcotest
4710, who are those people?
THE COURT: 7410.
BY MS. MCTAVISH:
Q 7410?
A I'm -- I don't remember saying that. Other people have
conducted -- oh, well, I know that other people have, but I'm
not sure I've seen published information on that.
Q So is the information that you're relying on, was it
published?
A I don't remember the -- I mean the only thing about the
7410 I've looked under -- looked at manuals to understanding the
mechanisms, that is fuel cell mechanism, which is common in
portable breath test, yes.
Q Regarding your knowledge of the Dräger Alcotest that's in
question here, 7410, how does it measure volume and collect
samples?
A My understanding is it measures exhaled flow and
integrates that to get volume and it waits until you exhale a
minimum of 1.5 liters, and then it will continue until -- once
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you stop blowing. Then a sample will be taken and delivered to
the fuel cell which is the device that analyzes its alcohol
level.
Q So basically your understanding of how --
MR. JONES: Your Honor, I'm going to pose an objection. I
think we're going beyond voir dire and getting into the heart of
it. I don't really mind the information coming out, but I would
like to proffer that this Dr. Hlastala is an expert on the issue
of whether volume matters in breath test.
THE COURT: I don't know if that's been established. You
offered him as an expert in human physiology and particularly
the lung and exchange of gases, but we've gone way beyond that
in the voir dire.
BY MS. MCTAVISH:
Q So referring to my last question. Your knowledge on the
Dräger, is that based on the actual physical manipulation of the
machine?
A No. As I said, I haven't done that, but I did acquire
information from looking -- from obtaining manuals and things
like that and looking at what they say about how their machine
works.
Q Have you ever testified in California as an expert on this
machine?
A I have.
Q And when was that?
A In about -- back -- on that particular instrument, I don't
remember when. It would have been perhaps six months, perhaps a
year ago.
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Q So was it just this one time you testified regarding in
California?
A Twice.
Q Regarding the machine?
A Twice in Santa Barbara.
Q Was this on the same case?
A No, a different case.
THE COURT: Any further voir dire?
BY MS. MCTAVISH:
Q Were you qualified as an expert in those cases in the area
of breath volume, the Dräger Alcotest 7410?
A That wasn't an issue in those cases, so the attorney did
not seek to have me qualified in that area.
Q So you have not been qualified as an expert on this device
in California; is that correct?
A I have. I've testified about the device and about factors
that affect the accuracy of the device.
Q But not on breath volume particularly?
A Only that I know you have to exhale a certain volume
that's required, it's 1.5 liters. So I know -- I'm aware of
that, and that was mentioned in my testimony in the prior cases.
MS. MCTAVISH: Nothing further.
THE COURT: All right. So, Mr. Jones, you want to proffer
him as an expert on what?
MR. JONES: I want to proffer him as an expert of whether
breath volume matters in the breath testing of the Alco 7410 or
any machine, actually, any breath testing device.
THE COURT: I would say that foundation has not been
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adequately laid, so you may continue to voir dire on that issue.
VOIR DIRE EXAMINATION
BY MR. JONES:
Q Doctor, are you a consultant in the area of breath testing
device?
A I am.
Q Can you please tell me what issues you've consulted on?
A Well, I've consulted on the issues related to exhaled
volume, alcohol concentration, minimum exhale volume, the rate
of exhalation and factors related to that. I -- I'm a pulmonary
physiologist. The field I deal with are the dynamics of flow in
the alveolar lungs and the process of the exchanging of
substances, including alcohol.
Q Okay. How many times have you been qualified as an expert
on -- an expert in a criminal case that involves questioning the
accuracy of a breath testing device?
A I don't know exactly, but it would be in excess of 1,500
times.
Q Thank you. Would any of those 1,500 times have you been
here in California?
A Yes.
Q Approximately how many, if you recall, ballpark figure?
A Maybe a dozen.
Q Okay. Let me ask you this, Doctor, are you aware of
whether Dräger makes the particular DOJ version of the EPAS 7410
available to non law enforcement scientists like yourself?
A I don't know that.
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Q Okay. What are some of the areas of expertise that you
have been qualified on regarding breath alcohol testing
machines?
A On breath testing, in general, for a variety of different
kinds of machines and also on blood and blood testing, also on
carbon monoxide poisoning, but most have been related to alcohol
breath and blood testing.
Q Have you ever testified as to the mechanism -- or the
physiology involved of exhaling breath and the machine reading
this breath and giving a result?
A Yes, about -- in excess of 1,000 times.
Q Okay. Here in California, any of them?
A Yes. All of those cases that I mentioned would have dealt
with that.
Q And please list -- or please name machines that you can
recall that you've given testimony about concerning the accuracy
of the results?
A Well, there's a long list. The 7410, the 7110, the
Alcotest. I have a DataMaster and the Intoxilyzers in my lab.
Also the breathalyzer, which is a mobile instrument intoximeter,
the various models of each of those, the Alco-Sensor IV.
Q That's good enough for now. Have you ever conducted any
studies regarding the accuracy of breath alcohol testing?
A Yes.
Q Can you please name the titles of these documents or
articles?
A Well, I don't remember them all, but I have approximately
23 peer-reviewed articles on alcohol and breath testing.
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Q Could you name just like five -- four or five?
A One of them is -- if I could have my curriculum vitae, I
could read them off.
Q Are they in your curriculum vitae?
A Yes, they would be in there. One is an alcohol breath
test reviewed in the Journal of Applied Physiology, this was an
invited review. And the two that I have here, one of them is
the impact of breathing pattern and lung size on the alcohol
breath test, and that's in the analysis of biomedical --
Q Can you please explain that particular article?
A Well, the two of them -- the first alcohol -- a brief
review is that first really peer-reviewed presentation of the
observation that alcohol exchanges in the lungs with the mucus.
So as you're breathing, it's continually changing as it's coming
out and it identifies --
MS. MCTAVISH: Your Honor, I briefly interpose an
objection here as to the relevancy of the doctor's testimony at
this point.
THE COURT: Mr. Jones, the issue that appears to be before
the Court based upon the briefing is the relevancy of the breath
volume of the Alco sensor Dräger company's 7410.
MR. JONES: Yes.
THE COURT: So --
MR. JONES: That's what we intend to talk about.
THE COURT: All right. In what way, though?
MR. JONES: This is a breath testing machine, the
technology of which is generally known, and it produces results
based upon exhaled breath and --
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THE COURT: I understand that.
MR. JONES: And we generally talk about how those results
are arrived at and the relevancy of breath volume data that is
produced by the machine in analyzing whether those results are
correct. Whether they're correctly reflecting the true breath
alcohol content.
THE COURT: I'm not conducting a Kelly-Fry of this
machine.
MR. JONES: I agree with that. This is not about a
Kelly-Fry, your Honor. This is about a relevancy of the breath
volume. And then I don't believe that you're going to have --
that's a very specific issue of a very general area of breath
testing, and I believe my client is one of the foremost
authorities in this country to talk about that -- I'm sorry, my
witness.
So as an offer of proof, we have Jeff Zehnder, who's
standing by to testify that this particular DOJ version of the
7410 Plus is not made available to non law enforcement. So it
would have been impossible or virtually impossible for him to
become an expert on this particular DOJ model that is not
provided to anybody outside of DOJ.
THE COURT: I understand all of that. My hearing today is
to determine whether or not there is some relevancy. I
understand -- I understand what I'm looking at here.
MR. JONES: Well, your Honor --
THE COURT: I don't want you to bring in a sledgehammer to
drive in a finishing nail is what I'm saying.
MR. JONES: I agree with that. Let me tell you, I was
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actually anticipating because of the way Judge York posed her
request, please have DOJ come in here and explain it. And I was
anticipating that DOJ may be going forward first and then we
would be coming in kind of as rebuttal to what they were going
to be saying.
I'm prepared to go forward in any order the Court wants to
do it. I was just merely attempting to qualify him in the area
of breath testing, in the area of pulmonary physiology of the
lungs, and how the two interact and how we arrive at the
readings. That's what I'm attempting to do.
MS. LORENTE: And, your Honor, it's again the People's
position that this witness may be very familiar with lung
physiology and the way that breath machines generally capture
breath and give a reading, but it's the People's position that
this hearing is a very narrow one as it deals with breath
volume. And I don't believe this witness has expressed anything
that would qualify him as an expert in the area of breath volume
and the relevance of breath volume and the relevance of breath
volume to these particular machines, the Dräger 7410
specifically or the fuel cell technology machines that are very
similar to it. And it's the People's position that, in fact,
Mr. Jones is basically trying to undermine what has been
scientifically accepted as a way to -- to measure breath alcohol
content and blood alcohol content. And I believe it's -- he's
really trying to undermine the scientific theories of what's
been generally accepted. That's the attack it seems like.
THE COURT: Okay. Let me be very specific, Mr. Jones. I
want you to limit the inquiry to why breath volume in a fuel
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cell device. And I understand the position that these aren't
made available to anyone other than the Department of Justice.
I've had that argument presented to me before in other cases.
But let's keep it very narrowly focused on that issue. What's
the relevancy of breath volume in a fuel cell device, and let's
keep it limited to that.
MR. JONES: And I will do my absolute best to do that,
your Honor.
THE COURT: Okay.
MR. JONES: Is my client admitted as an expert on that
issue?
THE COURT: Not yet. So let's hear some inquiry on that
issue, and if you would like to jump in and help --
MR. KAPSACK: I do.
VOIR DIRE EXAMINATION
BY MR. KAPSACK:
Q So let's cut to the chase, so to speak. As a pulmonary
specialist, you're familiar with the lung volume --
A Yes.
Q -- capacity, correct?
A Yes.
Q Okay. When one measures alcohol -- or where one exhales,
let's start there. When one exhales, do -- have you studied how
that exhalation pattern reflects the alcohol level?
A Yes.
Q And have you published anything with regards to those
studies?
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A Yes.
Q Has that been peer-reviewed?
A Yes.
Q Okay. And just so -- I'm not sure if the Court's familiar
or counsel is familiar. When something is peer-reviewed, what
does that mean?
A Peer-reviewed means it's reviewed anonymously by other
scientists with comparable expertise and not accepted until it
has gone through that process. So it's been validated by other
peer scientists.
Q Do you ever find out who those other scientists are?
A No, that's anonymous.
Q So when counsel asked you before during her brief voir
dire whether or not your theories have been tested, the fact
that it was accepted for peer-reviewed publication means it has
been in fact --
A Yeah. Like I said, I have 23 peer-reviewed papers and all
of those have been reviewed by other scientists and accepted.
Q Okay. So --
A Related to alcohol.
Q So if your theories were completely out of whack, they
wouldn't be accepted?
A They wouldn't be accepted; that's correct.
Q With regard to those studies or those peer-reviewed
articles that you've done, do any of them relate to the
breathing or blowing pattern and alcohol measurement by breath
testing devices?
A Yes.
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Q How many of these, if you can --
A Most of them. I don't know exactly how many.
Q Okay. And just so it's clear. How many publications have
you written in your life?
A I have over 400, and of those 173 are peer-reviewed
articles. I also have a textbook in my field of respiratory
physiology.
Q Okay. So you're not trying to be evasive when you can't
remember the name of each one, it would be pretty hard to keep
all 400 in your head?
A It is.
Q Okay. So -- now, you have a number of peer-reviewed
articles that go specifically to the ability of a breath test
device to measure alcohol based on breathing; is that fair to
say?
A That's correct.
Q Part of that basis of breathing is the volume of air given
in a sample; is that correct?
A Yes.
Q Okay. And has that been peer-reviewed?
A Yes.
Q Is that part of the peer review that you talked about?
A Yes.
Q So you have written articles that have been accepted by
other scientists in your field that go specifically to volume of
breath as it relates to breath testing for alcohol; is that
correct?
A That's correct.
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Q Okay. Does the type of machine that you're using, does
that matter as regards to the breathing pattern?
A No. That's all within the human -- the sampling of the
sample is different in different types of machines, but with the
fuel cell device, it's a single sample taken from the end of the
exhalation.
Q As opposed to infrared machine which does a continuous
sampling?
A That's correct.
Q So in other words, a fuel cell is a snapshot; an IR is a
video?
A That's correct.
Q And with regards to breath volume and testing by these
snapshot fuel cells, is that part of the study that you have
submitted for peer review that have been accepted?
A Yes.
Q And you have testified as to that issue in the past?
A I have.
Q As a recognized expert?
A I have.
MR. JONES: Okay. We would now like to offer him as an
expert as to what breathing, including volume, would do to
impact a breath test.
THE COURT: All right. Voir dire on this issue at all?
MS. MCTAVISH: Yes, please.
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CONTINUED VOIR DIRE
BY MS. MCTAVISH:
Q Dr. Hlastala, is one of those articles that you referred
to as being peer-reviewed the invited editorial on the alcohol
breath test?
A Yes.
Q I know you've had a lot of --
A I didn't mention that, but that is one that I published.
Q And that was the Journal of Applied Physiology?
A Yes.
Q And in that article, did you challenge the model of using
the machines as they operate today?
A Yes. And I'm going to say why. They're wrong as they're
currently used, and I'm going to tell you why, hopefully, today.
THE COURT: We'll see.
BY MS. MCTAVISH:
Q So then, Doctor, the topics of the articles that have been
peer-reviewed is your analysis of why the machines are wrong; is
that correct?
A No, not all of them. A couple of them relate to that.
Some relate to actual experimental data, not necessarily a
critique of the breath test itself.
Q The ones that relate to experimental data, do those deal
with the fuel cell technology and breath volume?
A Most are related to infrared technology. That's the kind
that allows us to look at the whole profile. The fuel cell
doesn't allow us to look at the whole profile.
Q And, Doctor, you said that you had testified in the Chung
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case in New Jersey, but you did not know the outcome of that
case?
MR. KAPSACK: Well, objection, Judge. The outcome of that
case isn't relevant.
THE COURT: Sustained.
MR. KAPSACK: Thank you.
THE COURT: All right. Anything else?
MS. LORENTE: One moment, please.
BY MS. MCTAVISH:
Q Okay. So then, Doctor, is it fair to say that the bulk of
your work deals with the way breath -- the way the breath
machine operates?
A Well, specifically related to that, yes, but I mean the
majority of my work relates to other issues related to the human
body.
Q Has the methodology that you're using in these
peer-reviewed articles, has that been accepted as relevant in
the scientific community?
A Yeah, of course. We use appropriate methodology to make
measurements.
Q What is that methodology that you used?
MR. KAPSACK: Objection; this is going a little far
afield. The methodology that was reviewed by the peer-review?
THE COURT: I'm not sure I understand your question.
MS. MCTAVISH: Your Honor, just going to the dollar
factors in determining whether the testimony is relevant here.
We're attempting to address whether the technique that has been
used by the doctor has been subject to peer review and the
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methodology that were used were subject to peer review. And
that's just directly related to whether the expert is -- whether
he can qualify as an expert.
THE COURT: I'm not sure I'm understanding what
methodology you're referring to. The methodology of the peer
review or the methodology of -- I mean you're going to have to
be specific as to articles or something. I'm not sure what the
methodology refers to.
MS. MCTAVISH: The methodology that was used to reach the
conclusion that the doctor is -- put -- had put forward.
Specifically, we're looking at this editorial in the Journal of
Applied Physiology, the invited editorial on the breath
Alcotest.
THE COURT: You mean the scientific methodology of
hypothesis testing and then reaching conclusions? That's what
I'm not understanding exactly what you're talking about.
MS. MCTAVISH: Yes, that would be the scientific
methodology that would be subject to peer review.
THE COURT: I'm going to sustain the objection.
MS. MCTAVISH: Thank you.
THE COURT: All right. Anything else?
MS. MCTAVISH: Nothing further.
THE COURT: All right. I will allow the doctor to testify
concerning issues of lung physiology as it relates to the
testing devices. But that will be after our afternoon recess.
All right. Fifteen-minute recess.
(Recess.)
THE COURT: All right. We're back on the record in Case
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No. P07CRM1311, People versus Marrs and the related matters.
Witness is on the stand.
You may continue your examination.
MR. KAPSACK: I was just waiting for counsel.
MS. LORENTE: Thank you.
CONTINUED DIRECT EXAMINATION
BY MR. KAPSACK:
Q Okay. Dr. Hlastala, first of all, can you diagram for the
Court what an exhaled breath alcohol or breath pattern would
look like on the pad that's there?
A Yes.
MR. KAPSACK: If he may, Judge.
THE COURT: All right. We'll mark that as Exhibit 2 to
the hearings.
(Exhibit 2 was marked.)
MR. KAPSACK: And again, Judge, given that it's just us
attorneys and your Honor, I'm going to assume there's certain
leeway with the witness, approaching or not approaching.
THE COURT: Sure. Absolutely.
THE WITNESS: Okay. This is a plot of alcohol in this
direction versus exhaled volume in this direction. As we start
to exhale here at the beginning, then go out here towards the
end, what happens is as we start to breathe out, alcohol starts
to rise almost immediately. It starts to go up, then it
looks -- slows down the rate that it climbs but continues to
rise as it continues to exhale. So it depends on the volume
that you exhale what the alcohol value will be.
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Q Okay. Thank you. So if I understand you correctly, the
longer a person blows, the higher the result will be?
A Yes.
Q Okay. Go ahead and have a seat.
A I also want to make one other point --
Q Okay.
A -- about the minimum volume, which is 1.5 liters and
greater. 1.5 liters is about a quart and a half. It's -- I
have a lung volume of about five and a half liters, and this
would be about a quarter of my lung volume, something like that.
Q Okay. Now, when we're taking about the volume, the Dräger
that we're talking about in this particular case, that's that
hand-held Dräger; correct?
A Yes.
Q With regards to -- well, let me back up for a second.
When one measures volume, would you agree that the easiest way
to measure the volume would be to put it into a calibrated
container?
A Yeah. One way would to be exhale into a bag and then
measure that volume that's in the bag.
Q Okay. That's not done with those machines, correct?
A That's correct.
Q The other way to measure volume is through a mathematical
formula, correct?
A Yeah. Well, essentially to measure flow, the rate that
you're breathing, and then the word we use is integrate or to
add up that to measure how much volume has come out.
Q Okay. That's how the Dräger 7410 does it in this
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particular case?
A That's correct.
MS. MCTAVISH: Objection; foundation.
THE COURT: Sustained. Lay a little further foundation.
BY MR. KAPSACK:
Q Okay. Have you studied the Dräger machines as to how they
perform this function?
A Well, all breath machines do that. If you don't measure
volume, the only way you directly -- you have to measure flow
and then integrate that.
Q Okay.
A That's a basic physics principle.
Q Okay. Sort of like an analogy would be if I'm driving
60 miles an hour and I drive for three hours, we know I went 180
miles?
A Yeah, essentially.
THE COURT: You're going to interject math word problems
at that?
MR. KAPSACK: Well, you know what, Judge, we all became
lawyers because we didn't want to do math. Except every PI
lawyer I know can give you a third of a number like that.
Notice the PI lawyers in the back are laughing.
THE COURT: All right. Go ahead.
BY MR. KAPSACK:
Q So are you familiar with the technology in the Drägers
that this is how it functions?
A It has to measure flow and then integrate it to get the
volume. Now, remember, it measures 1.5 liters, so it has to
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have a way of knowing when you get to 1.5 liters.
Q Okay. So the machine knows when it gets to 1.5 liters,
that is the basic parameter for acceptable breath test?
A That's correct. It won't take into it before that 1.5
liters, but it'll take into when you stop breathing afterwards.
Q Okay. Is there some type -- well -- and as you
demonstrated in Exhibit 2, it takes it afterwards at -- and as
that happens, the alcohol level is still elevating, correct?
A Yeah, it'll -- if you breathe out to this point, let's say
two liters and stop, it will level off because you're not giving
any more. And that in the old days was interpreted as meaning
we're getting alveolar air, because we've leveled off.
MS. MCTAVISH: Objection, your Honor, as to the operation
of the machine.
THE COURT: Overruled.
Go ahead.
THE WITNESS: And similarly if you breathe farther out
then stop here, you'll get a reading that'll be higher and --
I'll just make that note on that. If you stopped here and
leveled off, you get a reading like this. And if you stop here
and -- it would level off and you would get a reading there.
And you stopped here, it would level off. So you could get
three different readings from the same individual by having them
exhale different volumes.
BY MR. KAPSACK:
Q Okay. Just so that the record is clear, if you don't mind
maybe putting S1, S2, and S3 by the first, second, and third
stops.
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A S1?
Q S1 for stop one.
A Okay.
Q Now, based on your training, experience and expertise with
regard to the measurement of exhaled alcohol, is it possible for
someone to blow and stop at S1 and have an alcohol level of,
let's just say .06?
A Yes.
Q And if that same person was then told blow longer and
harder, the next reading would be .08?
A It could, depending on how far they exhale.
Q If they went to S3, it could be .1 up?
MS. MCTAVISH: Your Honor, objection. He's leading the
witness.
MR. KAPSACK: Expert witnesses can be lead.
THE COURT: Overruled.
BY MR. KAPSACK:
Q Is that correct?
A Yes, that's correct.
Q But as long as we've met the 1.5, we have a valid breath
sample?
A That's correct.
Q So therefore, the operator of this machine can manipulate
the results by forcing a longer breathing from the accused,
correct?
MS. MCTAVISH: Objection; calls for speculation.
THE COURT: I'll take that as a hypothetical question
since he's an expert.
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Go ahead.
THE WITNESS: Well, I won't use the word "manipulate," but
I can say that if you have someone breathe farther, you'll get a
higher reading.
BY MR. KAPSACK:
Q So the longer you blow, the higher you go?
A The longer you blow, the higher you go.
Q Would capturing the underlying data that we've been
talking about with regards to breath volume enable yourself or
other similar trained experts or somebody to look at it to see
if that, in fact, occurred?
A Say that again, I'm sorry.
Q If you were given the underlying data, the breath flow
that you mentioned, the integration, and therefore the volume,
if you were given that and you looked at corresponding results,
would you be able to form the opinion that the individual was
moved up the chart, so to speak?
A Yeah. You could form the opinion based upon the volume
that's measured and to look at how much is in their lungs. In
other words, smaller people would have more difficulty breathing
all the way out and couldn't, but larger people can. So you
have to normalize that to the individual's lung volume.
Q Okay. And that's with regards to individual lung volume?
A That's correct.
Q But looking at -- with regards to an individual who has
sufficient lung capacity to go pretty far out?
A Yes.
Q Okay. Would it be possible -- well, let me back up for a
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second. You're familiar that in California -- you're from
Washington?
A I am.
Q I believe it's the same. That for a breath sample to be a
legitimate breath test, the two results must be within .02 of
each other?
A Yeah. In Washington, it's 10 percent.
Q Okay.
A They changed that anyhow.
Q You're familiar with that concept?
A Yes, I am.
Q Based upon what you've drawn for us with the S1, S2, and
S3 it would be possible to get three samples or maybe even four
samples or five samples some of which show a specific alcohol
level and others would show a lower than that specific critical
alcohol level, correct?
A Yes.
Q And that would be based on the blowing pattern into the
machine?
A Yeah, that's correct. I've sat in front of machines like
DataMaster, and the Intoxilyzer, and done that easily. You can
change the reading by a significant amount. About 40 percent or
so in somebody my size.
Q You named two specific machines. So we're clear this is
not based on the machine technology, it's based on the lung
physiology?
A Yeah.
Q It doesn't matter what machine we hook you up to?
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A It's almost irrelevant, not quite. It's the lungs. What
you're doing to the lungs that's causing the reading; and
whatever you measure, you measure.
Q And now the ultimate question, if the defense team,
experts, attorneys, whatever had access to the underlying
breathing data, in other words, the flow rate and the
integration, therefore the volume, then the defense would be
able to show that the end reported results are not the end-all
and be-all. That there may be exculpatory evidence contained
therein?
A Yes.
Q And specifically, this would go to what we call critical
values, correct?
A I'm not sure what you mean by "critical volumes."
Q You understand that in DUI cases --
A Oh, I see what you mean.
Q Different numbers mean different things?
A Yeah, right. A .08 is an example of a critical number.
Q Exactly. And so with your example, somebody would blow an
06, another 06, and then the person administering the test could
say, "You know what, blow longer and harder," and get longer and
harder blows that were .10, .10. And so we have two sets of
numbers that say the person is guilty, two sets of numbers that
say the person is not. And everybody goes, I wonder why, but if
you looked at the underlying data, you can say the reason is
they were asked to blow longer?
A Yeah, that's correct.
Q And that would be true for a commercial driver at 04?
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A Yeah. Any time you're around the threshold, it can make a
difference how far you blow.
Q So then this volume information is critical for analyzing
how accurate or inaccurate the end result breath test would be?
A Yes.
Q Okay. All right. And so that's why it's relevant?
A Yeah. In my opinion, it's relevant. Not only is that I
think that the flow is relevant and also the actual time --
MS. MCTAVISH: Objection; beyond the scope of the
proceedings, your Honor.
THE COURT: You're getting into legal conclusions as far
as relevancy.
MR. KAPSACK: Okay. I was going to follow-up with just a
couple --
THE COURT: All right. Go ahead.
BY MR. KAPSACK:
Q We touched upon volume, but if I just told you it was two
liters, is that enough or do you need to know the flow rate?
A No. Because the strength of the blow makes a difference
and also changing the strength during the breath. So -- and --
that's all related to what is the alcohol level. So I would say
that you need to know all of those things to have a better
understanding of the meaning of the samples.
Q And to go back to what we mentioned before, on these
hand-held machines, volume isn't determined by an actual
capture, but rather by a mathematical formula using the
information you just mentioned?
A That's correct.
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Q So therefore necessarily that information is being
analyzed by this machine?
A Yes.
Q And therefore, it's in that machine somewhere?
A It is.
MR. KAPSACK: Okay. I have no other questions.
THE COURT: All right.
Cross-examine?
MS. MCTAVISH: Thank you.
CROSS-EXAMINATION
BY MS. MCTAVISH:
Q Doctor, in your study of the breath machine that you just
went over, did you have reason to reach any conclusion that the
end result, which you marked as three, would result in an
improperly high reading?
A Yes, actually, it will. And I can -- may be a little
difficult to explain. But if you look at the equilibrium
alveolar volume, it actually is up here. And what we do with
breath tests is if you were to take blood and compare it with
air above it and the alcohol concentration -- Wayne Jones has
done this, published it -- you find a ratio between the two of
1,750, not 2,100.
Q And --
A And what's happening --
Q Doctor, if I can --
THE COURT: Let him finish.
THE WITNESS: What's happening is that on the average,
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when we measure exhaled breath and compare it with the bloods,
we get a number of 2,100. And that's because when we exhale, we
lose about 20 percent or so approximately of the breath. Some
people lose less and some people lose more. So that's why,
depending on the way you breathe, you get different values. So
on the average here, we lose about 20 percent of the alcohol
concentration as we're exhaling. Sometimes people breathe all
the way out and will get higher alcohol numbers, and that would
be a lower loss. And some people would have -- would have a
higher loss or a lower alcohol number depending on how far out
they blow.
THE COURT: Okay.
BY MS. MCTAVISH:
Q Okay. Is this related to this hill that you have here?
Is this related to the way the machine works? Do you feel that
this difference here is related to the actual operation of the
machine?
A No. What the machine does is it just waits until you get
to 1.5 liters; and when you stop blowing, it takes a sample.
The operator, I think, has a button on it that can select it and
have that sample taken. Other machines, like infrared machines,
do it in a different way. But it depends on how much you blow
out where the sample is taken and so the machine doesn't correct
for these differences.
Q So in your opinion, do the breath machines that operate on
a fuel cell technology, are those accurate and fair machines?
A No.
THE COURT: Anything else?
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MS. MCTAVISH: No, your Honor.
THE COURT: Redirect?
MR. KAPSACK: No.
THE COURT: All right. May this witness be excused?
MR. KAPSACK: Subject to recall.
THE COURT: All right. I'll let you step down at this
time.
Next witness.
MR. JONES: Your Honor, at this time, I'd like to call
Jeff Zehnder to the stand.
THE COURT: All right.
MR. JONES: May we have one brief second, Judge?
THE COURT: Sure. Standby.
MR. KAPSACK: Yes, Mr. Zehnder.
THE COURT: All right.
THE CLERK: You do state the testimony you will give in
the matter pending before the Court will be the truth, the whole
truth, and nothing but the truth?
THE WITNESS: Yes, I do.
THE CLERK: Please be seated. Please say your full name
for the record and spell your last name.
--oOo--
JEFFREY LOUIS ZEHNDER,
called as a witness by the Defense, who, being first duly sworn
to tell the truth, the whole truth and nothing but the truth,
was examined and testified as follows:
THE WITNESS: My name is Jeffrey Louis Zehnder, Z as in
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zebra, E-H-N-D-E-R.
THE COURT: You may inquire.
DIRECT EXAMINATION
BY MR. JONES:
Q Mr. Zehnder, can you please state your occupation.
A I'm a forensic toxicologist.
Q Can you describe in more detail what your job entails?
A Basically, I am involved in the analysis of drugs and
alcohol and biological fluids, blood, breath, urine. And also
the analysis of drugs in solid dose materials. I spend a lot of
my time analyzing evidence, forensic evidence in terms of
driving under the influence cases. And that's basically what I
do.
Q Mr. Zehnder, do you own a 7410 EPAS machine?
A No.
Q Have you ever had access to one?
A Yes.
Q Can you please tell me the nature or the circumstances of
your access to the machine?
A Basically was in a case which I believe was about three
years ago in South Lake Tahoe where the attorneys agreed to do
an experiment where they allowed me to get my hands on an EPAS
in conjunction with the Department of Justice.
Q Okay. What was the particular issues you were examining?
A Well, I had discovered -- I have a 7410 Plus model Dräger,
which is not an EPAS.
Q I'm sorry.
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A But I had discovered using my machine that if you cover
the exit port, it would compress the breath --
MS. MCTAVISH: Objection; relevance.
THE COURT: Overruled. Go ahead.
THE WITNESS: -- and cause falsely high results. Because
I was involved in a case here in El Dorado County in which you
had gross overrepresentations in calibrations of the device. So
when I was called as witness and I didn't understand why that
was happening and apparently nobody else did either. So I went
home and did that little experiment and -- but since my machine
is not the EPAS, my machine has a different mouthpiece. We
needed to try it on the EPAS device to see what would happen.
For that reason, even though the device that I had and the 7410
Plus, basically has the same internal mechanisms outside of the
exit port path of the breath which was different. So that's
why. So we got -- the lawyers got together and said, "Okay.
Well, let's try it out and see if it works."
BY MR. JONES:
Q What happened?
A Nothing. I mean I basically -- what I found -- what I
found out is that the exit port on the EPAS device is not the
same as mine, which we didn't know at the time. So I was trying
to cover a port that wasn't the exit port, so nothing happened.
And that's basically what happened.
Q Let me ask you this, Mr. Zehnder: Have you ever tried to
gain access to the DOJ version of the 7410 Plus, the EPAS?
A Not illegally.
Q I'm not suggesting illegally. Have you ever legally tried
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to obtain one?
A No. Outside the agreement that we did with the Department
of Justice back three years ago, no. Or are you asking me if I
tried to buy a device from Dräger? I tried to do that.
Q I'm asking you -- what happened?
A They told me that the Department of Justice in California
owns the device and nobody else -- they will not sell it to
anybody other than the California Department of Justice. That's
what I was told by Dräger when I tried to buy one.
MR. KAPSACK: May I, Judge?
THE COURT: Sure.
DIRECT EXAMINATION
BY MR. KAPSACK:
Q Mr. Zehnder, so you indicated that on your machine, you
covered the exit port that caused a backup?
A Yes. It pressurized the breath.
Q How was the -- that related to the issue of volume?
MS. MCTAVISH: Objection; relevancy.
THE COURT: Sustained.
BY MR. KAPSACK:
Q Okay. Did there come a time where you saw a study by the
California Department of Justice that verified your finding of
covering the exit port causing an increased rating?
MS. MCTAVISH: Objection; there's been no foundation.
THE COURT: Lay the foundation.
MR. KAPSACK: Okay.
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BY MR. KAPSACK:
Q Have you read any documents from the California Department
of Justice with regards to covering the exit port?
A Yes.
Q And have you seen any calibration records from the
California Department of Justice regarding covering the exit
port?
A Yes.
Q And as an expert, are these the kind of documents you rely
on?
A Yes.
Q And have you seen the document where the California
Department of Justice admitted that covering the exit port
causes false high readings?
A Yes.
MS. MCTAVISH: Objection; outside the scope of the
hearing.
THE COURT: Overruled.
BY MR. KAPSACK:
Q I'm sorry, your answer was?
A Yes.
Q So the California Department of Justice has admitted what
you found, covering the exit port on the 7410 EPAS can cause a
false high?
A It's in the documentation. And I've also heard witnesses
testify that they know that that happens, under oath.
Q Okay. And now based on your training and experience and
having listened to Dr. Hlastala is part of the rational or is
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the explanation of this the fact by covering the exit port,
you're putting back-pressure on the machine?
A Correct. You're pressurizing the breath. And since it's
a single sample of breath that's taken in a given volume when
you pressurize it, the breath decompresses it and it causes a
higher sample to be -- or a greater sample to be captured
causing a falsely high result.
Q So this is another reason why the volume measurement would
be important to the defense?
A Well, I think the volume measurement, just as scientific
understanding of the machine itself, would be good for
everybody, because --
MS. MCTAVISH: Objection; nonresponsive your, Honor.
THE COURT: Sustained.
BY MR. KAPSACK:
Q Is this something -- let me rephrase it. The volumometric
measurement would be important for the defense to determine if
this possible anomaly has occurred?
A There needs to be another little experiment done to
determine whether or not the volume measurement is or can be
related to covering or not covering the exit port which could
cause -- which could be very useful in the evaluation of any
particular breath test. Because the problem with the 7410 is
that the exit port can be covered inadvertently or purposefully
and there's no mechanism by which to keep that from happening,
but if we could measure the volume and relate that to the --
whether or not the breath was pressurized, it would be useful
for ruling that out or proving that it happened, either way.
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MR. KAPSACK: Okay. Thank you.
THE COURT: Cross-examine.
CROSS-EXAMINATION
BY MS. MCTAVISH:
Q Mr. Zehnder, have you ever published any peer-reviewed
articles regarding the Dräger 7410?
A No.
Q Have you published any peer-reviewed articles regarding
breath volume?
A No.
Q Have you been qualified as an expert before in California
regarding breath volume?
A Not directly, no. Not specifically that aspect of it.
Qualified as an expert in breath testing, in general, probably
at least 1,000 times.
Q But you've never given testimony specifically on breath
volume; is that correct?
A Well, not specifically. But as it relates to breath
testing and deep lung air, I have testified in regards to that,
but not specifically -- not necessarily measuring the volume.
But the volume would be useful in determining just to what
extent the breath sample was suitable, in my opinion.
MS. MCTAVISH: No further questions.
THE COURT: Redirect?
MR. JONES: Yes, your Honor.
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REDIRECT EXAMINATION
BY MR. JONES:
Q Mr. Zehnder, are you aware that the 7410 Plus EPAS version
records breath volume?
A Yes.
Q When did you become aware of that?
A Actually, that was about -- maybe a month ago. It was a
case that actually you brought to my attention about a month
ago.
MR. JONES: No further questions.
MR. KAPSACK: No further questions.
THE COURT: All right. Anything further?
MS. MCTAVISH: One moment, please.
RECROSS-EXAMINATION
BY MS. MCTAVISH:
Q Can you ever look at the volume and determine if the exit
port was actually plugged?
A I don't know. That's an experiment that needs to be done.
And it's my understanding that it hasn't been done, but it
should be.
Q So there's no -- no tests that have been conducted on this
theory; is that correct?
A To my knowledge, no. Keep in mind that nobody has the
device to do it except for the Department of Justice.
MS. MCTAVISH: Nothing further.
THE COURT: Anything further from this witness at this
time?
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MR. KAPSACK: Just briefly.
REDIRECT EXAMINATION
BY MR. KAPSACK:
Q How long would it take for you to do that kind of
experiment?
A Probably -- including the two shots of Wild Turkey, about
a half an hour.
Q So 28 minutes for the experiment then? Withdrawn.
THE COURT: Anything further?
MR. KAPSACK: No.
THE COURT: All right. You may step down. Subject to
recall.
THE WITNESS: Thank you.
THE COURT: Any further witnesses at this time?
MR. KAPSACK: No further witnesses.
THE COURT: All right. Witnesses for the People?
MS. LORENTE: Can we have a very brief -- just a few
minutes to talk to our expert before we put them on?
THE COURT: Very briefly because we need to wrap up by
4:30 or thereabouts.
MS. LORENTE: I understand, your Honor.
(Recess.)
THE COURT: All right. We're back on the record and
witnesses for the People?
MS. LORENTE: Yes, your Honor, the People call
Joe Palecek.
THE CLERK: You state the testimony you will give in the
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matter pending before the Court will be the truth, the whole
truth, and nothing but the truth?
THE WITNESS: Yes, I do.
THE CLERK: Thank you. Be seated. Could you please say
your full name for the record and spell your last name.
--oOo--
JOSEPH PALECEK,
called as a witness by the Prosecution, who, being first duly
sworn to tell the truth, the whole truth and nothing but the
truth, was examined and testified as follows:
THE WITNESS: Yes. Joseph John Palecek, P-A-L-E-C-E-K.
DIRECT EXAMINATION
BY MS. LORENTE:
Q What do you do for a living?
A I'm a criminalist.
Q Who do you work for?
A California Department of Justice, the Sacramento crime
lab.
Q Would you describe what a criminalist does?
A Well, a criminalist is a scientist that uses the various
scientific principles to analyze, identify, and interpret
physical evidence, write reports on those findings and testify
in court when necessary.
Q How long have you worked for the Department of Justice?
A Just a little over six years.
Q And specifically in your work as criminalist for the
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Department of Justice, you testify in court as related to your
findings?
A Yes, I do.
Q And specifically, what kind of cases do you testify about?
A Primarily they're in DUI cases regarding alcohol, but I
also testify in regards to drug analysis and the findings there.
Q And in your testimony about DUI cases, do you testify
specifically about the EPAS device, the Dräger 7410?
A The majority of my cases do involve the Dräger 7410 Plus,
yes.
Q And as part of that testimony, do you testify about the
results of that test?
A Yes, I do.
Q How many times would you estimate that you've testified
while you've been at the Department of Justice in DUI cases?
A Forty-five, 50 times.
Q And how many times would you estimate that you've been
qualified as an expert in the area of EPAS devices and alcohol
concentration in the blood or breath?
A Well, the EPAS would be specifically the breath analysis,
so I won't talk about the blood, but of those cases, 35 or 40.
Q Okay.
THE COURT: I want to make sure I understand. The 45 to
50 was total times, you said 30 to 35 in the EPAS device.
THE WITNESS: Yes. Because sometimes I analyze strictly
the blood, and I go and testify to those as far as analysis and
interpretation, and then -- as specifically for just the 7410
Plus or the EPAS instrument, it's the lower value.
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THE COURT: All right. Okay, go ahead.
MS. LORENTE: At this time, I would like to ask the Court
to recognize Mr. Palecek as an expert in the area of EPAS
devices.
THE COURT: Any voir dire?
MR. KAPSACK: As to that, no.
THE COURT: All right. You may proceed.
MS. LORENTE: Thank you.
BY MS. LORENTE:
Q I'm going to ask you some questions specifically about the
Dräger 7410 device. Are you familiar with that device?
A Yes, I am.
Q And could you briefly describe to the Court what that
device is?
A The 7410 Plus is a breath alcohol instrument that the
Department of Justice uses for DUI purposes. It's a hand-held
device, the EPAS system itself consists of the 7410 Plus, a
Casio or data entry card reader and a printer itself.
Q And what is the technology that that machine uses?
A It uses fuel cell technology.
Q And has that technology been generally accepted in the
scientific community as an accurate way to test alcohol levels
in a person?
MR. KAPSACK: Objection; Judge, as the Court pointed out,
as counsel said before, we're not getting into the general
science, we're dealing with one issue.
THE COURT: We're not dealing with Kelly-Fry, so I'll
sustain the objection.
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MS. LORENTE: Thank you.
BY MS. LORENTE:
Q Mr. Palecek, how specifically, does the 7410 determine
breath volume?
A The instrument records or captures breath volume. It has
a pressure transducer in it. And once a person begins to blow,
once that pressure is greater than 80 liters per minute, it
starts calculating this breath -- breath volume. And so for as
much time as it goes on until it starts to drop below a
six-liter-per-minute value, when it captures that sample, that's
how it will determine this breath volume that it does record.
Now, someone can blow harder and they will get -- and if
it's the same time frame, they will have a larger volume if they
go for a longer time period. They can have, again, a larger
volume; but once they reach that six liters per minute, then
it'll capture the sample for analysis.
Q Okay. So the volume is a function of, then, the pressure
that the person exerts at the time?
A Yes.
Q Okay. Now, is it possible for a subject to give two
breath samples that agree within .02 of themselves and different
breath volumes?
A Yes. I've looked at the records and I have seen where the
two breath samples could be the same value, yet the breath
volumes are two times difference. There was one that was like
around 1,700 mils and another one that was like 3,500. And so
we could have that scenario. We could have a scenario where
someone has two samples where it's within the plus or minus .02,
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and the one that gave the lower breath volume is actually a
higher value and vice versa. So the breath volume does not
necessarily dictate what that breath alcohol value will be.
Q Okay. So when you talk about those results, is there
necessarily always a positive relationship or an inverse
relationship or is it random?
A From what we have discovered, it has more of a random.
Q Now, are you aware of any test on the 7410 where there
have been these different volumes that have been delivered to
the machine?
A Yes, I am.
Q Can you tell us about those?
A Yes. I had contacted -- because of this breath volume
issue, contacted our instrument and support group, and I had
them use a simulator with a known alcohol concentration and I
told them what I want you to do is first use the instrument and
only go for five seconds. Then what I want you to do is perform
another test, but this time go for a longer time frame. And
what they did is the first one, they went for five seconds; and
the second one, they went for 25 seconds. So this simulator is
running at a specific pressure, and in both cases, it's going to
be the same. So we're looking at a difference of five times the
volume, and the value that was obtained using the simulator was
the same number, yet our volume is widely different.
Also, the U.S. Department of Transportation, they perform
tests using the instrument at three different flow rates and --
or pressures, and they used a known standard and the value that
they obtained in each of these was the same.
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Q So those are two different sets of tests that you know
about that have, in effect, kept the pressure constant and
extended the time period and received the same --
A Yes.
Q -- result as far as the level?
Now, is the breath volume used by the 7410 device in any
of its calculations?
A For the final breath alcohol value, no, it's not.
Q Okay.
MR. JONES: Your Honor, for purposes of this hearing, I
want to make sure we're talking about the DOJ version of the
7410. I believe that's assumed, but I want to state that on the
record.
MS. LORENTE: All of my questions deal with the Dräger
7410.
THE COURT: All right.
BY MS. LORENTE:
Q So the breath volume is not used to determine the final
breath alcohol level?
A No, it's not.
Q So based on your training and your experience for six
years at the Department of Justice, does breath volume matter?
A Breath volume matters only from the standpoint that the
instrument needs a minimum of 1.5 liters before it will consider
the test a valid test. There's a time frame and a pressure
requirement and then it has to exceed the 1.5 liters of breath
sample. Other than that, the volume is really immaterial. And
from the information that we looked at where we have multiple
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tests where the volume does not seem to really matter as far as
the final breath sample, I don't believe that it does.
The breath volume is actually a holdover from when they
initially started to analyze breath samples for alcohol; and
from what I understand, they would use a balloon and have the
subject blow into this, and it was some value associated with
that, and they would analyze this. Yet, that is old school,
it's not how it's done anymore. And again, in our purpose, it's
just for information only. It's not used for anything for the
calculation.
Q Okay. So let's talk about how the machine captures the
breath. I think what you said is that an individual blows into
the machine, and once it reaches that, in effect, threshold
level of 1.5 liters, then, in effect, the sample will be valid;
is that correct?
A Yes.
Q Okay. In effect, the machine will capture a sample?
A Once the pressure drops below six liters per minute.
Q Okay. So if a person breathes into the machine, at what
point during that breath will the machine capture a sample?
A It will -- once -- again, once the pressure begins to drop
at six liters per minute, it will take that one CC sample and
analyze that using the fuel cell.
Q So, in effect, a person breathes out, and then once they
have completed the exhale, then when the breathe starts to cede,
the machine captures the sample?
A Yes, it does.
Q So -- and then you talked about the whole idea of breath
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volume really being a holdover. Now, can you explain, how long
has the Dräger 7410 been around in the Department of Justice?
A It was there before I showed up, which is six years. And
I believe they had it for maybe another three or four years.
Q Okay. So basically, the machine captures this value
because that's the way -- there used to be a requirement to fill
a balloon, and that's why breath volume -- the idea was to
capture, what did you say, 500 milliliters, what was it?
A I believe that's what this balloon -- I wasn't around when
they were using this particular device, but it's also stated in
Title 17 where the breath sample needs to be measured, and so
that might be why it's there. But again, it's not used for
anything.
Q Okay. So it's sort of an archaic idea that just stuck
around. It's still in the regulations, but it doesn't have any
actual effects on what the results will be? And by results, I
mean breath volume doesn't have an actual impact on what
someone's blood -- or breath alcohol level is?
MR. KAPSACK: In his opinion, I assume?
THE WITNESS: Okay. If somebody just meets the minimum
requirements, the breath sample that is captured may be lower
than the actual alcohol in the person. Yet, what we're looking
for is someone to give a -- like an end respiratory breath
sample to where they've essentially -- and I use this in my
training -- gas out so that that would be closer and truer to
the real breath alcohol value.
BY MS. LORENTE:
Q Okay. And so you heard the defense two experts testify.
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Is there anything they said during their testimony that would
change your opinion about whether changes in breath volume would
ever result in a falsely high reading?
A No. It never would result in a falsely high reading.
MS. LORENTE: Okay. I'm going to show you a document --
I'm going to actually mark that as People's 1.
THE COURT: That'll be Exhibit 3.
MS. LORENTE: Three.
(Exhibit 3 was marked.)
MR. JONES: We acknowledge we viewed it at this point,
your Honor. I've never seen this document before that I know
of.
MS. LORENTE: I saw it this afternoon for the first time
as well.
THE CLERK: Is it a combined exhibit with everybody?
THE COURT: Yeah. We have seven cases that this refers
to, so we'll add all the other stickers on the back later.
MS. LORENTE: Thank you.
BY MS. LORENTE:
Q Mr. Palecek, I'm going to show you a three-page document.
Why don't you take a look at that. Do you recognize that
document?
A Yes, I do.
Q And what is it?
A This is an instrument that we are responsible for, and it
consists of test dates, they're all evidential tests. It has
breath values and the volumes associated with them.
Q And you have -- so are those -- are those records of that
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actual machine?
A Yes. I generated this actually yesterday, and I just
deleted off anything that had to do with subject names. So
these are tests that are plus or minus 30 days of one of the
subjects that I think is a part of this trial.
Q Okay. And you brought that document to me this afternoon?
A Yes, I did.
Q And you have some highlighted values there. Could you
describe what you've highlighted on that document?
A Yes.
MR. KAPSACK: Judge, I'm going to object. This has gone a
little far afield as to the question of relevancy of volume.
MS. LORENTE: I'm getting there.
THE COURT: Well, I'll allow you some latitude, but let me
hear what we've got. All right.
BY MS. LORENTE:
Q Let me just cut to the chase, why did you bring that to
me? What does it illustrate?
A It illustrates that regardless of your breath alcohol
concentration, it does not mean that the volume, if you have a
higher breath alcohol concentration, you're going to have the
higher volume because in some cases, we have a high breath
alcohol concentration with a higher volume of the two, and in
other situations, we'll have a lower breath alcohol
concentration with a higher breath alcohol volume. You can't
relate one to the other, because first of all, we're not there
watching the subject blow into the instrument. We don't know
how they're blowing into the instrument, it's just information
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that's captured.
Q Okay. So what you have on this document is several
columns, one which is a number that reflects what the breath
volume was, correct?
A Yes.
Q And next to that is a value of what the person's actual
tested out as far as their blood alcohol concentration, correct?
A Yes.
Q Okay. And you have two blows each on each of those
evidentiary samples, correct?
A Yes, we do.
Q Okay. And that document elucidates your opinion that, in
effect, breath volume does not correlate to what the evidential
test will result in?
A Yes.
MS. LORENTE: Okay. No further questions.
THE COURT: Cross-examine?
MR. KAPSACK: Thank you.
CROSS-EXAMINATION
BY MR. KAPSACK:
Q Maybe -- well, let me start off, you said you contacted
ITS, was that it?
A ITS?
Q ISG, I think you said, to conduct a test. You said you --
when you heard about this, you contacted --
A Our instrument support group.
Q Oh, instrument support group. They conducted some tests
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with regards to what you were going to testify here today,
correct?
A I wanted to test whether or not the volume is going to
generate a different value.
Q Okay. I'm going to ask you again. You asked them to
conduct some tests with regards to what you're going to testify
here today?
A Yes, I did.
Q Okay. Because you knew it was important?
A I did not believe it was important, but I wanted to see
how the results would turn out.
Q Okay. And you brought those results with you for us to
look at?
A No, I did not.
Q Okay. What about the other test that you said you relied
upon that did the same thing, are these at the Department of
Transportation?
A Yes.
Q You brought those test results?
A I believe I may have them. If I don't, I may be able to
get them for you.
Q Okay. Well, on both of those sets of tests, there was a
standard use -- a standard solution, correct?
A Yes.
Q Well, if you have a one oh standard solution that never
varies, then the amount of the time someone blows or how long it
blows through is irrelevant, isn't it?
A That was what we were trying to prove.
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Q But we're not dealing with a standard, we're dealing with
an alcohol curve that consistently goes up and never
standardizes, correct?
A What we're looking for --
Q No. No.
A Based upon what you are saying, yes.
Q I asked -- thank you.
A Yes.
THE COURT: Wait. Wait. Whoa. Stop. I'll direct
traffic in here.
MR. KAPSACK: Thank you.
THE COURT: If you have a problem, you let me know and
I'll direct traffic. Next question.
BY MR. KAPSACK:
Q I would like you to take a look at Defendant's Exhibit 2.
A Yes.
Q You would agree that the alcohol curve, the exhaled air,
alcohol curve that Dr. Hlastala drew is a fair and accurate
representation of exhaled air?
A No, I would not.
Q You would not?
A No.
Q What's wrong with it?
A First of all, he's assuming that at 1.5 liters, that that
is where it meets the curve. I have not seen any data that this
is true. If he has that, I would like to see this. Now, at 1.5
liters, we are essentially at 91 percent of what a final
respiratory expiration would be. So between what he has as the
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1.5 liters and where someone would be at the end of their
expiration is only like 9 percent difference. He has it where
it looks like it's quite a bit different.
Q Okay. The fundamental aspect I want to ask you, though,
is near the end of that end exhalation, a human being does not
reach a static alcohol exhalation, correct? There's still that
continued uprise?
A I have not seen data like this. But for different points
that I have seen, because, you know, I haven't seen in real life
where it's going across on a screen, but for looking at
different points along a line, yes, you're right.
Q Okay. So the difference between a human sample and the
simulator experiment is the simulator stayed steady at whatever
that's set at, but the human still goes up a little bit,
correct?
A Only because we're trying to get to that accurate value
that the -- is in the final breath sample.
Q That's not answering my question. My question is simply
put. The experiment dealt with a never-changing alcohol vapor,
correct?
A Yes.
Q But a human breath is a changing alcohol vapor as end
exhale, correct?
A With time, yes.
Q Okay. So the experiment doesn't relate to the issue here
because the experiment, you can't get more alcohol as you go
further in, you're always going to have the one oh that's made
up to or whatever it's made up to, right?
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A I thought the issue here was volume of the instrument.
Q Okay. So now that you understand that the question is
volume of the blow, not volume of the instrument, that
experiment that you asked to have conducted is not really
relevant here?
A I believe it is.
Q Even though you just told us that human being exhalation
alcohol level keeps going up, but the experiment stays the same?
A Yes.
Q Now, with regards to -- can I take a look at that
document, by the way?
A Sure.
Q So it's your position that the volume of the blow, there
won't be a significant difference or there won't be any
difference between the two breath samples or between the number
of breath samples?
MS. LORENTE: I'm sorry. I think that misstates his
testimony.
THE COURT: Sustained. Reform the question.
MR. KAPSACK: I will.
BY MR. KAPSACK:
Q Dr. Hlastala said in the simplest terms that it is
possible that the longer someone blows, the higher the result
they get. You heard him testify to that?
A I would agree to that.
Q So you would agree that that's true?
A Yes.
Q And so by looking at volume, we can see if someone's
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higher number is caused by longer blowing, correct?
A No, you can't.
Q You can never look at samples and say here we have a 25,
here we have a 26, here he blew a little bit, here he blew a
lot?
A We don't know what that rate is. Like what is that
pressure, because I can blow double pressure in half the time
and have the same volume.
Q So we would have to know that information as well is your
position?
A Well, yes.
Q Okay. So you would agree, then, that if we had all of
that information then we would be able to reconcile differences
between different breath test numbers, correct?
A No.
Q You don't think we would be able to?
A No. That document right there shows that, because we
don't know how this person blew into this instrument.
Q What I'm saying is if we had that information, how they
blew?
A Well, I can sit here and take a big inspiration and blow
out all day long and get a value, that's assuming I had alcohol
in my system. I can take very small inspiration and do the same
thing. Now, those are two widely different volumes, yet I can
come up with the same value because I got to my end respiratory
volume.
Q But the question is, can you come up with different values
because of different breathing?
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A Yes.
Q And the way -- or one way to reconcile that or to
understand it or to explain it would be by looking at how the
person exhaled?
A Well, but we're not there to see this.
Q I understand that, but that information is, in fact,
captured by this machine?
A No, it's not. What's captured is the volume.
Q How does this machine capture volume?
A Pressure and time.
Q So pressure and time is in the machine?
A It's not recorded anywhere.
Q How do you know that?
A I've never seen it.
Q You've never seen it. Have you ever seen the inside of a
crater of Mars?
MS. LORENTE: Objection; your Honor.
THE COURT: Argumentative; sustained.
THE WITNESS: I don't know what that has to do with --
BY MR. KAPSACK:
Q Just because you haven't seen it doesn't mean it doesn't
exist, correct?
MS. LORENTE: Objection; argumentative.
THE COURT: Sustained.
BY MR. KAPSACK:
Q The document that you introduced for us here today, how
long did it take you to produce this?
A It probably took -- we were having issues with computers,
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about an hour and a half.
Q Okay. And assuming there were no issues with computers
how long would this take to produce?
MS. LORENTE: Objection; relevance.
THE COURT: Sustained.
MR. JONES: Your Honor, if I may, that was one of the
issues that Judge York requested the DOJ come and explain was
the nature --
THE COURT: I have ruled. Next question.
MR. JONES: Okay.
MR. KAPSACK: I have no other questions. Thank you.
THE COURT: Redirect?
MS. LORENTE: Yes.
REDIRECT EXAMINATION
BY MS. LORENTE:
Q The defense counsel had you take a look at the alcohol
curve, and you explained on direct with me when the machine
captures the breath sample, and you did testify that there's
about 9 percent past that 1.5-liter mark where the breath is on
a very small margin going up a little bit, correct?
A Yes.
Q Okay. And so the blood alcohol level on the tail end of
the curve might be a little bit higher than what the machine
actually captures, correct?
A Okay. I'm not sure what you're asking there.
Q Okay. I'm not either. On the curve there, the alcohol
level, if you could redraw that curve or, I guess, redraw the
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volume line, you would make the volume line further out than
where it is, correct?
A The 1.5 liters, I'm not sure where that is on this
particular curve. Yet, if we were to have numbers on the -- I
don't know what "A" stands for.
Q Alcohol.
A Alcohol concentration from where the 1.5 meets that curve
to end expiration, it would only be like 9 percent.
Q So at that point, it's whatever that is?
A Yes.
Q 91 percent, right?
A Yes.
Q Okay. So is there anything that you know about in
everything you've studied that says that the alcohol at the end
of that curve is falsely high?
A No. It'll never be falsely high.
Q Isn't that the most accurate reading?
A Yes. If someone was to give a true end respiratory breath
sample, like I said before, they've gassed out, that would be
the closest and best to evaluate their breath alcohol value. If
they don't give that, what's happening is you're getting a lower
value and it's more beneficial, I guess, to the subject
especially if they can get two within .02 of each other.
MS. LORENTE: Okay. Nothing further.
THE COURT: Anything further?
MR. KAPSACK: Yes.
///
///
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RECROSS EXAMINATION
BY MR. KAPSACK:
Q Okay. So if they did get two within .02 of each other
that were beneficial to them, but the administrator of the test
had this kind of knowledge or maybe not, if they said, "I want
you to blow again and I want you to blow longer and harder,"
they would move further down that curve and therefore a higher
result?
MS. LORENTE: Objection; calls for speculation.
THE COURT: Overruled. He's an expert. It is a
hypothetical.
THE WITNESS: Okay. In that regard -- okay. Let's
assume, for this purpose, the full --
BY MR. KAPSACK:
Q I'm sorry. I'm just asking for a simple yes or no. If --
you just said that if you go to full exhalation, you'll get
closest to the true value of the alcohol content?
A Yes.
Q Okay. And you also said if somebody blows less than that
and got two results within .02, they would have a lower result,
correct?
A Yes.
Q So I'm just asking in the flip side if someone blows low
at first and gets two resulting within .02 of a low number then
be told blow longer and harder and they would be further down
that line, get a high result, which is closer to the quote,
unquote true value?
A Okay. If I caught you correctly you were saying two that
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are low at a .02 agreance (sic), then the test would be ended
right there. We don't go to a third test.
Q I'm not asking what you do. I'm not asking a proper
procedure.
A The instrument won't allow a third test when you get two
in agreance of .02.
Q I can restart the machine, can I not? As breath test
operator?
A Sure.
Q And I can give it to you again, correct?
A Yes.
Q And I could get higher results if I tell you to blow
longer and harder the second time, assuming that you quote,
unquote phoned it in on the first one?
MS. LORENTE: I'm going to object --
THE COURT: Reform the question without the phoning it in.
BY MR. KAPSACK:
Q If the person meets the minimum requirement for the Dräger
hand-held machine and cuts themselves short, they don't reach
end exhalation, you would agree that if they gave a subsequent
test where they reached end air exhalation, the result on the
second test would be higher?
A It could be.
Q You're saying not -- you're disagreeing that, as you said
before, it always goes up to 9 percent over that time?
A No, I said it could be. I mean, I think that chart that I
gave you shows that or demonstrates that.
Q Okay. So you're saying it could be higher on that end
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exhalation?
A It could. And it may not because, again, we're not there
and we don't see how this person is actually giving this breath
sample.
Q But if we had that information, as you said before, if we
had this information from this machine, it would be the same as
being there?
A I don't think so.
Q You don't think if you were given the information off of
this machine that Mr. Smith blew at X rate for Y amount of time,
you would be able to tell how they were blowing?
A No, I wouldn't know.
MR. KAPSACK: Okay. I have no other questions.
THE COURT: Okay. Anything further of this witness?
MS. LORENTE: No, your Honor.
THE COURT: Anything further? Any further testimony for
the People?
MS. LORENTE: Nothing.
THE COURT: Anything further for the defense testimony
wise?
MR. KAPSACK: No, nothing.
THE COURT: All right. Here's the situation. We're at T
minus -- plus 11 minutes rather. How long is it going to take
for closing arguments?
MR. JONES: Three or four minutes.
MR. KAPSACK: I was going to say five or six.
MR. JONES: Five or six. I'll go with that.
MR. KAPSACK: I'm sorry, Judge, and I believe both sides,
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we all wanted to move our exhibits in, I would assume?
MS. LORENTE: Sure.
THE COURT: Okay. All right. That's mine then.
MS. LORENTE: Actually -- okay. If I can just see that
for a second.
Yes, your Honor, in regard to the exhibits.
THE COURT: Okay. So Exhibit 1, 2, and 3 are in.
All right. Go ahead with your argument.
MR. KAPSACK: Well, let's remember where we are. This is
a discovery request. I think the simple case on discovery is
United States versus Nixon where the Supreme Court said to the
President, unless you can show national security, it goes in, it
comes. It's not up to the prosecution to decide what is or
isn't relevant. Brading and Youngblood make that clear. It's a
question of whether that can be exculpatory.
You heard from Dr. Hlastala that based on his training and
expertise, it can been exculpatory. You hear from the
prosecution's witness, and when you look at his testimony in its
entirety, even he has to admit, yes, you can get different
readings that can be important. But, you know, you don't have
to take anybody's word for it.
Exhibit 3 from the prosecution on November 17th we have an
individual who blew a .19 with 3240 volume, I don't know what
the measurement unit is. And then he had a .17 with 2920
volume. So clearly, Dr. Hlastala is right, the longer you blow,
the higher you go.
What a jury will or will not do with this is not for us to
decide, it's a question whether the defense has the right to
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present this argument to a jury --
THE COURT: No. No. We're not even at that stage yet.
MR. KAPSACK: Well, yes.
THE COURT: It's whether or not or get it in discovery.
It is not what's admissible at trial.
MR. KAPSACK: I agree and I misspoke.
THE COURT: All right.
MR. KAPSACK: What I meant was, should the defense have a
right to look at this to use it one way or the other. And we're
talking -- we're not necessarily talking about, you know, does
volume excuse a .20 as being not guilty or something like that.
We're talking about information that the defense needs so that
maybe somebody who is an .08, it can be shown to the
prosecution, look, you have all these different test results,
you have these different volumes, maybe you should consider that
it's not a DUI. Or maybe they're a 10, and you look at these
different numbers and it's a wet reckless rather than a DUI or
at the 15 enhancement or the 20 enhancement, et cetera. That's
the relevancy here, is to get this information, the flow, what
is it, the flow and the rate to get the volume so the defense
can look and it and intelligently inform their clients and
intelligently speak with the prosecution. That's all we're
asking for.
And as far as how difficult, because while I understand a
Court is not supposed to take into consideration the difficulty
of something if it is necessary, it is something that we all
realistically weigh. This is a real simple button to push to
get it.
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The defense -- you know, we get calibration records, we
get maintenance checks, we get accuracy, 99 times out of 100
they don't do much good for us, but we get them so that we can
evaluate. We're just asking for a couple more pieces of data so
we can evaluate so we can look at it and say we have an anomaly
here. That's all we're asking for. Nothing more than that.
The ability to look at underlying data so that we can all have
some faith and credit in the results or we can show an anomaly
in the results in the defense of our clients. And that's it.
That's all we're asking for.
THE COURT: All right. Ms. Lorente?
MS. LORENTE: Yes, your Honor. There has been zero
testimony that has explained or put forward the idea that any of
these results are falsely high. There has been zero testimony
that has shown any correlation between breath volume and a
change in results that would be -- not be beneficial to the
defendant, in effect.
This information is only -- should be discovered if it's
relevant, and it's only relevant if it's potentially
exculpatory. And there's been nothing shown that anything about
breath volume is potentially exculpatory.
Frankly, the defense expert is not credible. He doesn't
believe that breath tests can accurately test someone's blood
alcohol level and he doesn't have knowledge about breath volume
as it relates to this particular machine. He doesn't have --
and he's never conducted experiments. I don't know what he's
relying on as far as experiments that other people have
conducted with breath volume. I mean, we put two experts on the
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stand, one that has done personal tests or has -- excuse me, has
had tests done over at the Department of Justice to elucidate
our exact point that regardless of the amount of breath volume,
a person's results are independent of that. And so we would ask
that you deny the defense motion that these records be
discovered. It's a fishing expedition to get more fodder, and
there's just no foundation for it at all.
THE COURT: Okay.
MR. KAPSACK: I would like to address just one point.
THE COURT: All right.
MR. KAPSACK: Contrary to what counsel said, it's just the
opposite. The experiment that was conducted can lead to no
other conclusion than the one that they came up with because
there was no change in the alcohol level. It was a one oh. You
introduce a one oh to a breath machine, it doesn't matter if you
introduce it for five minutes or five hours, it's always going
to be a one oh.
The question here and as it relates to volume is that
human beings do not produce a steady alcohol level. They
produce an alcohol level that constantly rises until they stop
breathing and that experiment didn't address that. And that's
the issue. And since human beings do have this constant going
up, and the only way to find out if that going up is based on
volume, are we entitled to it, that's what we're asking for.
And that's what November 17th on that exhibit shows, is it one
side, yes. The longer you blow, the higher you go. And the
defense should be allowed to have that information to present
it.
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THE COURT: All right. Anything further on this issue?
MR. KAPSACK: Submitted.
MS. LORENTE: Submitted, your Honor.
THE COURT: All right. We also had the issue of the
Trombetta.
MR. JONES: Your Honor, if I may?
THE COURT: Yes.
MR. JONES: This matter -- the reason why this was on
calendar, I agree with Ms. Mctavish, Judge York ruled and I
believe your Honor has ruled on another case on Trombetta.
Judge York said that we can review those cases when we do this
breath volume hearing, and that was really all she said. I'm
not asking for a Trombetta hearing on those cases at this stage.
I'm still in the process of collecting and analyzing the
information that's come in and possibly be formulating further
requests for information or scheduling a Trombetta hearing where
we actually litigate whether evidence was -- whether the warning
was given and what happened and what should be done. I don't
want to argue Trombetta.
THE COURT: Okay.
MS. LORENTE: I mean, if I could clarify because we're
dealing with breath volume here, as far as both departments, but
your Honor has ruled in my cases with Mr. Jones in this
department as to what the People are required to turn over, and
I've complied with that. So I don't think we have an issue in
our cases here.
MS. MCTAVISH: And, your Honor, in regards to
Department 2 --
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MS. LORENTE: And I just want to hear Mr. Jones on that
because I think we're done in Trombetta.
MR. JONES: I think they've complied to date.
MS. MCTAVISH: As well as the Department 2 cases. We've
provided the discovery, and if Mr. Jones determines he wants to
write a motion, we'll take it up in that department.
THE COURT: So we don't need to do anything further in
Trombetta?
MS. MCTAVISH: No.
MR. JONES: Not at the moment.
THE COURT: Well, that shortens some things. All right.
This is something that, you know, I've been given a lot of
information. It's my understanding it's going to be Mr. Palecek
and Mr. Zehnder, and that was it. And I have a doctor from the
University of Washington, associated in counsel, so I'm going to
need to look at this. I would like to get this wrapped up, but
I'm going to have to go back through my notes and things, so
I'll take the matter under submission and get a ruling on this.
We need to set further dates on these matters, and I
apologize for the lateness of the hour, but I'm not going to be
able to rule today. But let's see, how would be the most
expeditious way to do this? Can somebody let me know which
cases from Department 2?
MR. JONES: I can, your Honor. That would be Joe Hill,
William McCoy. And there were actually two Robert Shoopman
cases, one ending in 0215.
THE COURT: I have three, one is an infraction.
MR. JONES: Right. So it's the two cases, one ending 0215
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and the other ending in 0717.
MS. MCTAVISH: And Mr. McCoy also has some trailing VOP
matters.
THE COURT: There's a whole stack here. I would suggest
that I put all of the McCoy matters back on in Department 2 -- I
mean, we can do it as early as Monday or next Friday.
MS. MCTAVISH: If Mr. Jones can notify his client.
THE COURT: For -- just for kind of a review or trial
setting.
MR. JONES: Whatever the Court wants to do. I won't be in
a position to talk about what I want to do until I get the
Court's ruling, and then he and I -- the client and I can talk
about what we want to do with the case.
THE COURT: Right. I intend to get that out, I plan to
work on it this weekend, so you'll probably have it the first
part of next week.
MS. MCTAVISH: So we can put it on the 6th.
THE COURT: Well, is Monday the public defender's calendar
in that department as well? I'm just asking a general because
the 6th is a Monday.
MR. JONES: I'm here. I can be back and forth between 2
and 1. I do that every Monday.
MS. MCTAVISH: But, Mr. Jones, you're usually in
Department 7 on Fridays.
MR. JONES: We're talking about Monday.
MS. MCTAVISH: Yes.
THE COURT: Counsel, I have a very simple question and a
very simple answer, to quote Chamberlain Haller in My Cousin
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Vinny. The public defender's misdemeanor trial setting
calendars, are they on Monday in Department 2?
MS. MCTAVISH: Yes.
MR. JONES: Yes.
THE COURT: All right. So do you want these on
October 6th?
MR. JONES: Whatever the Court wants to do, that's fine
with me, October 6th is fine.
MS. MCTAVISH: Yes, please.
THE COURT: It's incumbent upon your clients, I mean, if
they're willing to waive time.
MR. JONES: Well, if the Court is going to have the
results, then yes, my clients will waive time.
THE COURT: The Department 2 cases are set in Department 2
on October 6th at 8:15.
The Department 1 cases, which would be Langlois-Lindsay
and Marrs and Martinez are set October 8, 2008, at 8:30 in
Department 1 for further proceedings.
MS. MCTAVISH: Thank you.
MR. KAPSACK: And just so the record is clear, my
association was only for today. I don't want Mr. Jones dumping
these cases on me.
THE COURT: Okay. And I'll take the three exhibits, and
Court is in recess. Have a good weekend everybody.
MR. JONES: Thank you.
(Whereupon, court proceedings concluded at 5:01 p.m.)
---o0o---
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IN THE SUPERIOR COURT FOR THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF EL DORADO
DEPARTMENT NO. 1 HON. JAMES R. WAGONER, JUDGE
---oOo---
THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff,
vs.
PHILLIP TYLER LANGLOIS-LINDSAY,
Defendant.
___ _ /
No. P08CRM1091
THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff,
vs.
ROBERT DAVID MARRS,
Defendant.
___ _ /
No. P08CRM1311
THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff,
vs.
ELLA DONNA MARTINEZ,
Defendant.
___ _ /
No. P08CRM0016
THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff,
vs.
JOE DAVID HILL,
Defendant.
___ _ /
No. P08CRM0702
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THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff,
vs.
WILLIAM CHARLES MCCOY,
Defendant.
___ _ /
No. P08CRM0557
THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff,
vs.
ROBERT MICHAEL SHOOPMAN,
Defendant.
___ _ /
No. P08CRM0717
STATE OF CALIFORNIA )
COUNTY OF EL DORADO ) ss.
I, MARICELA P. JONES, Certified Shorthand Reporter
for the STATE OF CALIFORNIA, do hereby certify that the
foregoing pages 1 through 80 are a true and accurate transcript
of my stenographic notes in the above-entitled matter.
DATE OF PROCEEDINGS: September 26, 2008
Dated this 19th day of October 2008, at Placerville,
California.
__________________________
MARICELA P. JONES
CSR #13178