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T RAN S C RIP T IITRIAL PROCEEDINGS IN COURTROOM 42 ON OCTOBER 7, 2011. HEARD ARE SUPERIOR COURT JUDGE HENRY WALSH, DEPUTY DISTRICT ATTORNEY ALVAN IIARZU, DEPUTY PUBLIC DEFENDER THOMAS HARTNETT, AND WITNESS CHRYSTAL CRAVER. RE: PEOPLE v. HECTOR MORALES. HW CC
AA

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TH UV UF HW: All right. On

Honorable Henry Walsh Chrystal Craver Alvan Arzu Thomas Hartnett Unidentified Voice Unidentified Voice People versus Morales, let's have the

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appearances now.
IlAA:

Alvan Arzu for the People your Honor. Thomas Hartnett for the Defendant, Mr. Morales, who is

11TH:

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present, out of custody, Honor. HW: All right.

and seated at counsel table, your

I ve had certain discussions,
I

uh,

in chambers of this case

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with Counsel, and

urn,

regarding various aspects the, urn, uh,

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I've read through

Defendant' s

Motion in

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Limine and the People's trial brief, both of which address the, uh, use of the Alco-Sensor® V Breathalyzer. you wanted the opportunity to speak with, of the People's experts. Have you Uh, Mr.

Hartnett, least one

um, at that

had

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opportunity? TH:
II HW:

I have, your Honor. All right. Uh, uh, Um, how do you wish to proceed?

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11TH:

402 hearing concerning the admissibility of blood

alcohol, uh, results from the (UNINTELLIGIBLE) HW: All right. Let me sharpen my question. Do you want to

examine witnesses as part of that, urn, urn, procedure? 11TH: Yes, please, your Honor.

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liW:

Okay.

Um, call your first witness. just for clarification, because the People bear I believe

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c)

11TH:
II II II HW :

Your Honor,

the burden of proof on the scientific evidence,

it will be the People's witness and they'11 have to Okay. -- establish the burden of proof. Mr. Arzu, apparently you concur so, uh, you call the

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TH: HW:

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witness. AA: Okay. Craver.
UV:

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Thank you.

Your Honor,

the

Peopl e

call

Chryst al

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Ms. Craver (UNINTELLIGIBLE) sworn in.

(UNINTELLIGIBLE)

UF:

Do you solemnly swear the testimony you're about to give in the matter now pending before this court shall be the

truth,

the whole truth,

and nothing but the truth so help

you God?

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cc:
UF:

I

do. Please state and spell your first and last name

Be seated.

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for the record.

cc:
HW:
AA:

Chrystal Craver.

C-H-R-Y-S-T-A-L- C-R-A-V-E-R.

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Mr. Arzu, go ahead. Thank you. I'm a Uh, Ms. Craver what do you do for a living? forensics scientist for the controlled the Ventura

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CC:

supervising

substances

and forensics

alcohol

sections of

County Sheriff's Forensics Sciences Laboratory.
AA:

And how long have you held that position? Urn, since, uh, January of 2010. And with that position, description? what are your duties and, uh, job

CC:
AA:

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1

cc:

In

the

[HJpCl'vi[-;OlY
Ull,

position, of

urn,

my

duties

include

the

2

overall,
II II II

management alcohol

both

the

controlled of the

substances laboratory,

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4
5

and

forensics
uh,

sections urn, uh,

reviewing, urn, breath

case work and,

accuracy checks for, Urn, writing and standard just the

testing

instruments. training, urn,

6"
7

operating

procedure,

analysts

II
lIAA:

general operation of those two sections. And what, to hold
I

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uh,

training and experience did you have to have present position? Degree in Aquatic Biology from the

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II II CC:

thi~::;

have

a

Bachelor's

II
II II

Uni versi ty of Cal i fornia at Santa Barbara. to the Forensics Sciences Laboratory I analytical environmental supervisor, I chemis- -, field, have chemistry both as with an

Prior to coming

have 9-1/2 years of in and as the
a

experience analyst

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15

been

Ventura

County

Sheriff's and I

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Forensics Sciences Laboratory since January of 1996, initially had training in the areas of

controlled

substances and prescription drugs in both bodily fluids and confiscated materials. cross-training that at time, in the In 2004, area of I specifically started to alcohol. During

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forensics

I've had in-house

training with the supervisor

that

time and other analysts on the analysis of bodily and breath how for the presence impairs and the concentration of system, urn, how it's

fluids ethyl

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alcohol,

alcohol the urn, body,

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processed governing

through

California, analysis

regulations

forensics, urn,

alcohol testing

in the State of urn, and

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California,

breath

instrumentation,

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field sobriety tests.

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AA:

Um, I've -

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CC:
AA:

-- go ahead. I can keep going I will. if you want
mE~

CC:

to.

If

you want

me

to

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7

stop,
AA:

(CHUCKLES) Uh, uh, Ms.

That that's enough.

HW:

Wait, uh, what was the Bachelor's Degree in at Cal, Craver?

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CC:

It was in actually Aquatic Biology. A-aquatics bi - -, Aquatic Biology. I see. A more general term for marine biology. Okay. Is that, uh, was that a BS? - - okay.

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HW: CC: HW: CC:
AA.:
CC:

It was a BA. BA. All right. Go ahead, Mr. Arzu. turning your attention more so toward the uh, to, what uh, training and experience do you instruments used to measure a

HW:
AA:

Now, Ms. Craver, area of alcohol, have with

regards

person's blood alcohol I-level via breath?

co:

Um,

I've attended a, a I-week's course put on by, urn, CMI, urn, the Intoxilyzer 5000

which is the manufacturer of the, EN.

That course includes, um, accuracy and maintenance and I've attended a I-week's the Alco-Sensor® uh, course has of
IV XL

calibration of that instrument. course put on by Intoximeters on Urn,

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Point of Arrest wi th the

system.

that, and

to do those

accuracy

check

calibration

instruments as well

as minor maintenance.

I rve attended

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1

two

3-day

classes

put

on

by

Intoxillleters

on

the

Alco-

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4

Sensor® V Point of Arrest system and those course have to do with, those urn, accuracy and calibration and the operation of and, urn, minor maintenance. I've also

instruments

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attended a, um, workshop put on by Intoximeters called the, um, Intoximeters users group I which, urn,
lS

a

--

I

can t
I

remember how many days, has, uh, people from

think it's a 4-day workshop that the country that use their issues

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around

different with, uh,
AA:

instrumentation get that instrumentation.

together and discuss

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(CLEARS Title

THROAT)
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And, how it

uh,

(CLEARS to

THROAT) these

tell breath

us

about

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CC:

and

relates

alcohol

instruments. Um, well, uh, Title 17 covers, urn, some guidelines on how It covers,
I

the tests have to be performed. instruments have to be on what s

um,

that the conforming

called

the

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products list to be used in, us some, urn,

in California.

And it gives

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AA:

guidelines on -- that we have to follow when accuracy checks and calibrations of those

performing instruments. Well

what's,

what's with regards

give to,

us uh,

some

of

the

basic IV XL

requirements

an Alco-Sensor®

with the maintenance and, uh, it's use.
TH: HW:

it's accuracy with regards to

Objection, relevance. You said the Alco-Sensor® IV and I thought we were dealing with the V here.

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AA:

Your Honor,

I was gonna lay some foundation --

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IIHW:

Okay. -. wi th regards to her (UNINTELLIGIBLE) so that we can move forward to the five.

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II AA: II

cc:

Urn,

Title

17

requires that

that, gonna every

urn, be ten

the used days

breath for or

testing

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instruments, analysis tests, be

urn,

are

evidential
150

tested

once

subject that

whichever come

first.

And Title 17 requires

those instruments be within .01 of the known concentration of the, uh, dry gas or simulator solution that we are using to check those instruments.
AA:

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11

Okay.

And how

long have you been,

uh,

working with the

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Alco-Sensor® IV, uh, XL with regards to the, uh, Crime Lab?

cc:
AA:

Urn, You personally. -- personally.
2004 I
I

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cc:

started training, urn, urn,

in that area in

and,

uh,

believe attended the Intoximeters class, urn,
2004

believe the end of

or the beginning of

2005.

I

don't recall the exact date.
AA:

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And now moving forward. position, uh,

Uh, Ms. Craver, y-you were in this

as the supervisor, um, during the m-month of

March 2011, correct? CC:
AA:

Correct. Um, now let's talk about the Alco-Sensor® V. uh, part of the team at the Crime Lab Uh, were you, that actually

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approved the use of the Alco-Sensor® V? CC:
AA:

Yes. Okay. Um,

I

oversaw the validation of those instruments, yes. And how long did that process take? it, we

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CC:

from the time we started originally looking at

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got a two year grant to bring the instruments on line.
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4

Urn,

once we actually, design wanted
II II II

uh,

started the process, the our, software our to

urn,

we had to uh, how we urn, Uh, our

how it

we to

wanted meet urn,

work,

internal

guidel ines,

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6

compared to how we had the Alco-Sensor® IV XL set up. then once they got them here in the laboratory,

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validation took us about, about 2-1/2 to 3 months. And, uh, part of that validation process was actually

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IlAA:
II

making sure the instrument was in compliance with Title 17, correct?

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II CC:

Correct. And when what was the date that actually the

AA:

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Alco-Sensor® V got put into service? CC:
AA:

Well it got put into service over a period of time. Okay. The first instruments went out, urn,
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CC:

think it was about And then other ones

the third or fourth week of January. fell on line. The last ones I

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think went into service near

the end of, uh, February, beginning of March. HW: CC: HW: CC: HW: AA: Of, of which year? Of 2011, your Honor. Thank you. Your Honor. Go ahead Mr. Arzu. Thank you. Now, Ms. Craver, at some uh, point you made a

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decision that the Alco-Sensor® V, out of service. it happened?

needed to.be pulled

Can you explain why you did that and when

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cc:

Urn,

it,

um,

took a little while for us to make that final We had some first indications that we had

/.

decision.

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4
c-)

something going on with the instrument about the beginning of February. didn't We started to see some error messages that we to see. Like, urn, radiofrequency

expect

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interference when as far as we could tell there weren't any radios being used near the the manufacturer about about that. serVlce. instrument. urn, Urn, uh, we contacted to them

those and,

talked

They asked us to take a couple of those out of

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Um, we also saw, urn, a sensor time out, uh, error It was meaning it was taking a cell to clear. It wasn't

message or status message.

little bit longer for the fuel

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getting a zero before the next, uh, test. 11TH: IIHW: "TH: IICC: 11TH: IIHW: CC: Objection, foundation as to field cell. Say it again, uh, Mr. Hartnett. Foundation as to field cell. Fuel cell. Fuel cell.

We took --

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You want to tell us what a fuel cell is, please? Yes. urn, cell The, urn, Alco-Sensor® V and the Alco-Sensor® IV XL, Urn, fuel

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work on what's called fuel cell technology. is a, urn, a fuel little apparatus kind of. cells now. We start

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We are more them in

familiar

with

to see

automobiles or a different type of fuel cell. urn, it's, uh,

In this one,

for the AS-4 XL it was about the size of a a it little bit sits just smaller, below the about the

quarter. size of a

For the AS-5, dime. And

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sampling

chamber for, urn,

a breath testing instrument that's a fuel

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cell instrument.
II (THROAT CLEARING)

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IICC:
It

What

happens

is a

portion of

breath

is

brought

into the

inst rument and if the fuel cell.

there 's al cohol on there it reacts wi th The fuel cell, um, breaks it down to uh, a

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6

electrons and carbon dioxide and water.

And the,

uh,

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a-amount of electrons that are released are proportional to the amount then that, of um, alcohol gives that a would be in the breath. of the And

digital

readout

alcohol

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concentration. HW:
AA:

Go ahead Mr. Arzu. Okay. (CLEARS THROAT) Now, some urn, Ms. Craver, you stated that there might have been fuel cellon a few of the instruments.

HW:
AA:

issues with

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Uh, you pulled those instruments out of the field, correct? CC: Yes. They were pulled from service after talking with the and those were sent back uh, to them for

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manufacturer evaluation.

It took them about almost,

three to four
Urn,

weeks to be able to reproduce what we were seeing. shortly after that we became aware of a -- an, uh,

subject

test and I had asked them when -- during their evaluation was there any chance that what they thought was going on could affect subject tests. And they said in their Then we
Urn, urn,

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i-initially they felt that that was not the case. were brought a result that we knew was a problem. one of the agencies had used their own, uh,

PAS device and

got a result of -- and I don't remember the numbers exactly

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1

so you'll have to bear with me.

Uh,

they'll be closer

2
3
4

it's around about a .11 on the screening and they used, uh, an AS-4 or an AS-5 and got a much lower than what they .04 in duplicate. saw on their So it was test.

screenlng

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7

They brought their -- the subject back to their office and then performed another test on an AS-5 that was sitting in their facility and not outside because it was very cold

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that evening. him on this

They thought that's possible. other AS- 5 and got again a

They retested .11,
.11,

very

similar to what they had gotten on their screening device. At that point, I immediately called the manufacturer and

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said okay,

I have something,

I don't know if it's the same

issue, but I'm pulling this from service and I'm sending it to you immediately for them to re--, to look at. HW: Excuse me, excuse me. Those two readings, .11 and .04,

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they should have been within .01 of each other? CC: HW: CC: HW:
AA:

.02 of each other for

Oh, okay.
-

-

subject tests.

Go ahead, Mr. Arzu. And Ms. Craver, after the
- -

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that

instrument was

pulled,

did all the instruments get pulled or what happened next? IICC:
Urn,

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we were having them evaluate that to see if it was the They felt that it was. During that time we We had very

same issue.

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26

saw another set of results that were very erratic. four to five different results that were very,

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different from each other. talked to them that, uh,

And as soon as we saw that and near the end of March, I talked

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1

to

the

laboratory director

director and said we

and, need

urn, to

our pull

assistant these from

2

laboratory service. IIAA:
II

:3

4
5
6

And,

uh,

let

me

ask

you

a

question

with

regards uh,

to

the

breath results, uh,

being so erratic.

Did that,

-- how

II

did that relate to Title 17? Well for, um, that particular test there was, urn, no 02

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8

IICC:
II II II II

agreement between those tests. unusual,

And the one that was very
.01

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10

the tests were actually ranged from a urn,

all the

way up to a number that, on the instrument
I

shouldn't even have appeared sight of its

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13

cause

it was even out of

analytical range. AA: So the results were not within Title 17's requirements? Correct. Okay. And, um, before you pulled the Alco-Sensor® V from uh, were in the field and how that were to pull

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CC:
AA:

the field, many of

how many of them,

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20

them had any readings that showed that, to the one that, uh,

similar readings 'em?

caused you

CC:

Urn,

at the time I

only,

um,

had really kn-known about the, The two set -the

21

the one set

that was really erratic.

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23

two that came out as an .04,

.04 and the unusual other, urn,
I

unusual error messages we had seen,

hadn't at that point

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sat down and really looked at, urn, all the data -AA: Okay. -until later. But they were pulled just -everything

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CC:

was pulled just the same.
AA:

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But everything was pulled later and you did check the data?

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1

CC:

Yes. And what did you learn? Um, I found somewhere, uh, and I have to -- would have to 'cause it's an amazing

2
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AA:
IICC:

have that all data in front of me amount of, uh, more, uh, information.

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7

But I did see somewhere we saw that had the RFI interference. We

status messages

We had some that had sensor time, timeouts. 11TH: IIHW:
II IICC:

8

Objection.

Objection, foundation as to the RFI and Um, is, is that

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(CLEARS THROAT) She's saying what she saw.

what you're - - I mean did you participate in these tests? Um, I did not do the validation. I reviewed all the data.

I had HW: Okay. All right. So, so you're telling me what you saw in

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reviewing the data? CC: HW: TH: HW:
CC:

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Correct. Now where's the objection to that? I guess what RFI means. Oh, all right. Tell us what RFI means.
Urn,

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I mentioned it earlier, radiofrequency interference.

I

saw some, uh, blanks that, uh, when the instrument perform, performs a subject test or an accuracy check, air blank of the air around it. before it'll proceed. I Uh, it does an

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that needs to be zero cases where we had

saw several

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25

blanks that were outside of that range so it aborted the test. It didn't allow it to go forward. But, urn, I was issues

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AA.:

not expecting to see that many high blanks and, uh, of that type. Okay. And you stated that you pulled

'em from the field

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1

and you sent them to the, uh, manufacturer. CC: AA: CC: Correct. Okay. Be--, Urn, why did you do that? urn, after talking with them they had, everything, they felt urn, urn, that, once they urn, that

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4

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6
'7

started their the, urn,

to look at

the cause of the problem was, sample I'm sorry,

in the way that nipple was, urn,

sample

8 9

designed and the way it kind of went current version of the that mouthpiece. that

together with their And, needed uh, to they be

10 11 12
13· 14

definitely

decided

area

remanufactured and redesigned. AA: Okay. So in their based on what you learned i-it

appeared that they believed it was a design defect? IICC: AA: Yes. Okay. I'm And how does that design defect base -- step back, gonna lay some foundation. Um, were you in

15
16

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communication with the manufacturer? CC: AA: Constantly. Okay. (CHUCKLES) just for effect on listeners for your, for

And, uh,

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21

-- as you as a listener, um, what were you told about what was going on with the instruments? IICC: What we were told or what I was told is that under certain conditions that, um, condensation or liquid could be drawn And depending on where in that whether it was on the side of

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into the sample chamber. sample chamber it appeared,

the sample chamber or directly on the fuel cell itself, it could cause some erratic results, um, or, um, unusual

status messages.

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1

AA:

And

based on what

you

were

told,

did

thi~:;

design

defect

2 3
4

affect the instrument's compliance with Title 17?

cc:

Urn,

In

the I

accuracy did once

checks in a the

that while

we see a

saw

within of

the high

laboratory, blanks. But

couple read

5
6 7 AA:

in general,

instruments all

wi thin

the requirements of Title 17 during our accuracy checks. Okay. Now, as you -now, lab, outside uh, were of -this controlled have an

8
9

environment

within

the

did you

opportunity to see the Alco-Sensor® V actually be used in the results, urn, after, urn, you identified these

10

11
12

deficiencies or design defects?

cc:
HW:
AA:

I'm sorry, I'm not sure what you're asking. (CLEARS THROAT) Do you mean in the f--, Well you s- -, -- in the field or in the lab or where? Out in the field. Um, -- you stated that within the lab, uh, you stated that the instrument would be reading accurately. Um, did you have In the field. Uh, what

13
14

15
16

HW:
AA:

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CC:
AA:

20 21 22
23

an opportunity to use or see the instrument used properly in the field and it provide accurate readings based on

your, your experience and training?

cc:

Um,

I

didn't spend,

uh,

really very,

uh,

any time out in
I

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25

the field with the instruments with, with the officers. believe I went to one check point where they were, Um, I

where

26
27
28

they were being used.

don't recall for sure if it I'd have to go back and look Urn, and we

was, uh, an AS-4 or an AS-5. at the timefrarne of that,

the one I went to.

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1

did

a

drinkinq of

study
I

wi th

them

and that

I

can t
I

remember the

t.he

2

timeframe

t.hat..

believe

was

during

first

3
4

part of the validation that we use them in a drinking study for an F--, IIAA: And Ms. uh, SFST class. now, uh, did you speak with the

5 6 7 8 9 10 11 12 13
14 IS

Craver,

II
II

manufacturer about what - - I with the manufacturer upon about

know you stated that you spoke the different, uh, would
I

guess not be

II
II

circumstances working well. the

which

the

instrument

But what did the manufacturer tell you about urn, in ideal si t uat ions working in

II
II

instrument,

compliance with Title 17? Um, they don't reference usually Title 17. Urn, We're the

IICC: II II
II

you know,

it's kinda California specific. that in, uh,

they stated

that they fel t

most of the time the instrument

would be working accurately and properly but that they were under some specific dition--, this issue would most um, the uh, conditions this would be Um, those conditions

16 17 18 19 20 21 22 23 24 25 26 27 28

II II

likely occur.

II
II

being, um, --

multiple blows where there's a possibility, allows, um, three, three possible

instrument

II
If

attempts if the person's not getting enough volume through the instrument So, before urn, they re
I

required

to

change

a

II
II 1\

mouthpiece.

more than one blow or multiple blows, The other or um, a cold coming

the possibility of a higher condensation level. is the instrument and an being very -being cold

II
1\ II

evening

individual's

warm

breath,

together and causing more condensation that could get into the sample chamber. And now let's talk about the Alco-Sensor® V instrument

IIAA:

-15-

1

number

5025.

That

was

an

instrument

that

was

being

2
3
4

maintained by the, uh, Crime Lab, correct? CC: AA: Correct. Okay. And you stated earlier that you had, uh, a kind

5
6 7

of a listing of the instruments that you, um, believed were that had erratic readings, correct? CC: IlAA:
II

Correct. And was, uh, Alco-Sensor® V instrument number 5025, one of

8 9
10
11

those instruments? CC: Um, I didn't see anything in my review of the data for this instruments, instrument, where I saw, um, an

particular

12

indication or a condition that that, uh, might be the case. This instrument was though used, um, period of time.
I

13 14

just for a very short

I think there s only approximately 10 or

15
16 17 18 19

15 tests total done on this instrument during the time it was in the field. AA: I'd like to mark this, your Honor. Um, People's --

(PAUSE) AA: And I provided a copy to the (UNINTELLIGIBLE) I'm gonna It

20
21

show you what's been previously marked as People's one. actually has -- what is that? CC: This is a copy of, uh, downloads from our, uh,

22
23

intoxicant

database on accuracy checks for, urn, different instruments. AA: And particularly on both of those pages, is there an

24

25
26
27
28

accuracy check for instrument 5025? CC: AA: Yes, there is. Okay. And what are the dates for the accuracy check on the

first page?

-16-

1

CC:
AA:

The accuracy check was performed on 3/16 of 2011. Okay. um, 17? And based on your reading of that accuracy check
I

2 :3
4

was instrument 5025 w-working in accordance with Title

5 6
7

CC:

Um l

on

this on

day

the

target

value

was .112

a

.111

with

the That

resul ts

the

instrument

being a

and a

. III .

would be within the criteria of Title 17.
AA:

8
9

And, um

l

can you turn to page two of People/s one.

And for

instrument 5025 what/s the date of that accuracy check?
CC:
AA:

10 11 12 13 14 15 16 17 18" 19

3/23 of 2011. Uh-huh.
Uhl

And what were the results of that accuracy check? target value of a .110 with the results of

CC:

there was a .112.
l

.111 and a
IlAA:

And is that Yes, it is. Now, taken Ms. out

uh,

in compliance with Title 17?

IICC:
IlAA:

Craver, of

since

l

uh, has

the the

Alco-Sensor® manufacturer

V

has

been its

service,

changed

actual design? Yes. uh, call They have changed, port it, uh, the design of the sampling
I

"CC:

20" 21 22 23 24

or sampling nipple, and the mouthpiece. one programming, uh, that they had

whichever you would 1 ike to And they have done -also

II
II II II

added, um, on the

item that they did not have on the AS-4 XL's

AS-5

previously

which, um,

in the AS-4 XL it was a called a void, void code internal workings of the instrument look

25" 26 27 28

14, where the, um, at the, uh,

II II
II

a better way to say it, the waveform of alcohol other interferencing
[sic]

electronically and things such as RFI
I

interfering And

give a different kind of waveform.

-17-

1

they

did

not

put

that

software it

originally

into

this

2
3
4

inst rument .

And we

requested

in our version

they put

that software into this instrument to help a-assure against any issues.
IIAA:
II
II

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20
~1

And, you

Ms.

Craver,

after speaking with the manufacturer, with an being able to V identify would an be when

are an

comfortable uh, versus

instrument, accurately

Alco-Sensor® it was

working uh, with

II
II

when

having

issue,

that defect that it had prior - - previously? Urn, I cannot completely, j-j-ju--, -urn, -they did not, to uh, be able the

IICC:
II

to give us issue w- -,

the ability

identify the,

II II
II

- - down to if it's ex- -,

this exact temperature, Urn, but they gave, uh, uh, instances no -an

this is when it's going to happen. an indication of what types of, urn, when it would possibly occur.

types of, But

II II
II

there's

absolute guideline.

This is exactly when it will happen as I don't have those kinds of

opposed as to when it won't. guidel ines .

II
IlAA:

But will the instrument actually give you signals when it's not working properly?

1\ CC:

Urn,

if,

if,

uh,

it's -- instance,

for instance even when -yes,

22 23 24 25 26

or if it gets an RFI message or something like that,

II
II

it will give a,

a status message saying that,

um,

i t won't Urn, but,

go forward with it's test. urn, with that initial

It's going to abort. test that we did

II II

set of

see,

I do

know of the one where there was the two .04's that we know were incorrect and there was no status message given with that one.

27" 28

II

-18-

1

AA:

And I

guess what

I'm trying to get at Ms.

Craver is,

uh,

2
:3

would the readings of an instrument that a person's blowing into, uh, show some sort of signs in its results that would

4

lead someone to say that it's not working accurately? CC: Um, well the things that I, um, would possibly see is, urn, um, high blank readings would be a possible indication.
I

s
6
)

If urn,

had,

um,

several

results

where

they

were,

8
9

inconsistent and I you know,

was getting some readings that were, urn,

low or high or not within an 02 and there wasn't um, me such as an like a large volume or it was a, a

10 11

any other indication, low volume, breath issue. it gave

indication

that

12 13

Urn, and then also things like looking at how

many times an individual had to blow, um, per, per attempt. Those are things that I would look at to see if, if, if my

14
15 16 17 18 19 20 21
AA:

opinion there was an issue. Okay. And, uh, giving you a hypothetical, if a person was

given -- was administered a blood alcohol breath test using an Alco-Sensor® V, number 5025, urn, the particularly this one,. uh, instrument

and during the preliminary alcohol screening,
.13.

at 3:03 and 3:06, the results were .12 and a subject, the same male subject gave a

And

evidentiary
.14 and

22
23 24 25 26 27 28

sample at 3:00,

3:10 and 3:13 and the results were

a

.139.

Uh,

based on your training and experience would

you say that the Alco-Sensor® V was working accurately?

cc:

Uh,

in

my

opinion urn, in the,

with, my the

urn,

four it that

results would was be seen

that

were

consistent, unlikely

opinion issue

extremely with the

that

instruments, uh, was occurring in this case.

-19-

1

IIAA:

And would those results be in compliance with Title 17? Um, yes, they would all be within the, uh,
.02

2
3 4

IICc:

of

each

other.
IIAA:

No further questions. Mr. Hartnett. Thank you, your Honor. with a Ms. Craver, you V said you in first early

5
6

IIHW: TH:

7

noticed February.
CC:

issues

Alco-Sensor®

device

8
9

It was either the end of February -- I

said February -- it

10 11
12

was either the end of January or the beginning of February.
I

don't remember the exact date. uh, blood alcohol

11TH:

And one of those devices you said gave, reading of .04.

13
14

IICC:

Um,

I did -- if I can refer to something I brought with me,

15
16

it would give me a, an-"TH:
CC:

Absolutely. -- indication of, urn, -- I have a little list of the first

17 18
19

ones we took out of service. II TH: II CC: TH: Okay. Urn, Well let me put it this way. You testified earlier that

20 21 22
23

one of the Alco-Sen--, malfunctioning Alco-Sensor® V's gave a blood result of .04, is that accurate -CC:
Y- -

24
25

,

--

TH:
CC:

in your testimony earlier? yes, I just don't recall the exact date. Okay. That--

26

27
28

11TH: IICC:

That's why I was concerned about looking at that.

-20-

1

TH: CC: TH:

Urn,

the exact date, generally around February or March?

2 3
4

Urn, beginning of, uh, March. Okay. And that device as you test i f ied earl ier actually

gave a blood alcohol reading, correct?

5 6 7 8
9

cc:
TH: CC: TH:

Yes.

It gave two consistent readings.

Two consistent readings. Yes. And just looking at those two, two consistent readings,

would that be in compliance with Title, Title 17?

10

cc:
TH:

Yes, they would have been in compliance with Title 17. And the only reason you knew those two readings were false was because of another Breathalyzer used, correct?

11

12
13
14

cc:
TH:

Correct. So you know that although
.04,

those
.04,

two

readings

are

15 16 17 18 19

incompliance with Title 17, inaccurate result, correct?

that was in fact an

cc:
TH:

Yes. So just, uh, two results within the .02 range of Title 17

doesn't necessarily mean a Breathalyzer is working properly does it?

20
21
22

cc:
TH:

For that Okay.

(UNINTELLIGIBLE) two alone, no.

And you had at least one machine that was able to .02 and it was later determined

23
24

give two readings within

that that machine was defective.

25 26
27

cc:
TH:

For that tes--, yes, yes. And that was just a

that it was showing that,

that issue,

circumstance where they had actually

28

used two machines and were aware of the variance.

-21-

1

II CC:
"TH:

Correct. So it's possible that when they only used an Alco- Sensor'") V the variance would not have been known.

2

3
4

CC:
11TH:

It's possible. Now, you originally only took certain machines out of

5
6 7

service, correct?
II CC:
"TH:

Correct. And you were working wi th Intoximeters to eval ua te the

8
9

efficacy of the machines, would that be fair? CC:
TH:

10
11

Yes. But at that time you had no reason to believe that all the machines were at risk, is that correct?

12 13
14
15

CC:
TH:

Correct. So you kept those machines in the field? Yes, I did. 'Cause at the time those machines you thought may be

IICC:
TH:

16 17

properly working. CC: Yes. And I was given an indication from Intoximeters that

18
19
20

they felt it was not affecting subject tests.
TH:

Okay.

And -- but that opinion from Intoximeters changed,

21
22

did it not? IICC:
11TH:

Yes. And when did it change specifically, do you remember? Um, I would have to look at the original memo. alm--, -- the last week of, um, March, It was, urn,

23

24
25

CC:

approximately that

26
27
28

we, we got that.

And we were actually -- as we were seeing

a couple more higher blanks, we were coming pretty much to the same decision as they were at the same time. It was

-22-

1

kind of like they said so and we kind of went oh yeah. 11TH: IICC:
II TH:

2 3 4
5 6
7

Okay. I don't recall the exact date though. Um, if I were to show you the memorandum would that refresh your memory

CC: TH: CC: TH:
AA:

Y--

,

-- as to the date? Yes, it would. Okay. And I believe this is exhibit B. Thank you.

8
9

10
11

I've seen it.

(THROAT CLEARING) CC: TH: CC: TH: Thank you. You're welcome. March 30th. March 30th. (CHUCKLES) And you've read the police reports in this

12 13
14 15 16

case, have you not Ms. Craver? CC: Um, briefly.
I

17
18

didn't go over them,

um,

real thoroughly

but I did go over them briefly, yes. TH:
AA:

19

And you know that the arrest in this case occurred in March 19, 2:30 a.m. What? 2:30 a.m. What is the date they gave us?

20 21 22 23
24

TH:
AA:

TH:

UV:March 19. TH: CC: TH: March 19th. Yes. And that was prior to the memorandum that you submitted, pulling Alco-5 -- Alco-Sensor® V's from service?

25

26
27

28

-23-

1

IICC:

Yes. And it was at that time that were you were the informed of that a the

2
3
4

11TH:
II

Alco-Sensor® defect,

V's

results

product

design

is that correct, ma'am?

5

IICC:

Urn,

6
7

II (COUGHING)

IICC:
II

-- they were telling us earlier on that they believed that that's what the issue was. formal, um, memorandum.
I

8

That's when I had some i--,

finally had it a an idea earlier

9

II
\I \I

10
11 12

than that,

but they were still thinking it wasn't affecting And -but they were still considering that

other tests.

II
1\

there was possibly gonna have to be some kind of change to the re--, architecture but they weren't giving us an absolute

13
14

uh, decision at that time.

15
16

TH: CC: TH:

But they did give you one by March 30th? Yes. Okay. And the absolute decision was that this machine

17 18

suffered from a design defect,.

19 20
21

CC: TH:

Yes. And at that time you took steps to remove all the machines from service, is that correct?

22 23
24

CC: TH: CC: TH: CC: TH:

Yes,

I

did. is that correct?

And that included machine 05025, Yes, sir.

25
26 27

And that was the machine used in this casec Correct. And that machine was removed from service effective March
3D,

28

2011.

-24-

1

cc:
TH:
CC:

Uh,

2

Or at least the date of the memorandum? At least the date of the memorandum, couple that were slightly lagged. but we had, we had a

3
4

I can tell you the exact

5
6 7 8 9

date that was removed from service if you'd like to know. TH: Uh, absolutely. Thank you.

(PAUSE)
CC:

That 30th.

one

was

actually

removed,

uh,

from

service

on

the

10 11 12

TH:
CC:

Okay.

On the 30th.

On the 30th. (UNINTELLIGIBLE) Objection. (UNINTELLIGIBLE) I didn't hear it anyway_ I want to go back to Title 17's requirements for a moment. Yes, sir. The variance rules you stated earlier were .02, correct? For, uh, subject breath tests. For subject a breath tests. has But to that's meet not for a the only
17

TH: AA: TH:
CC:

13 14 15
16

TH:
CC:

17 18
19

TH:
CC:

20
21
22 23

TH:

requirement compliance.
CC:

Breathalyzer

Ti tIe

Is that correct? There are some, uh, requirements for 15 minute
Urn,

Correct.

24
25

observation periods that that

the officer has to follow.

the accuracy checks have

to be done once every ten the accuracy

26

days or 150 subj ect tests and that the s- -,

27
28

checks need to be within a plus or minus .01 of each other. The instruments have to be on the conforming products list.

-25-

1

TH:

I want list.

to focus on that last one,

the conforming products

2
3

If an instrument is not on that conforming products

list is it considered Title 17 compliant?

4

cc:

No.

Title 17 requires that

the instruments that are used

5
6

be on the conforming products list. TH:
CC:

And who maintains the so-called conforming products list? Uh, NHTSA, the National Highway Traffic Safe

7

8
9

Administration. TH: And prior to March 30th, was the Alco-Sensor® V on the

10
11

NHTSA prior conforming products list?

cc:

It was on, it was -- there was a letter that it was on the actual years. printed one. It onl y gets updated every several

12 13
14 15 16

So the actual one if you were to look it up in the But what, uh, NHTSA stating

Federal Regi ster you may not see it. does is they supply
a

letter um,

from

manufacturers

that it will

- - it is,

accepted and put on the form,

17
18 19 20 21 22 23
24

conforming products list even though it may not be on the one that you would look up because that one is only updated every several years. TH: Okay. At the time that the Alco-Sensor® V was placed into was the Alco-Sensor® V on the

service for Ventura County, conforming products list?

cc:
TH:

Yes.

I have a letter that

from NHTSA that it was on the

conforming products list. At the time you made the decision to pull these devices

25
26

from service,

did you give any directives to Intoximeters

27
28

concerning, urn, the notification of NHTSA?

cc:

Uh, we requested that they verify with NHTSA that the, um,

-26-

1

that

the issue

that was

found and the

the,

urn,

their decision the,

2
3
4

to do the um, uh,

retrofitting of

instruments and change area. the That

sampling nipple and port make sure that sou- -,

they contact did not

NHTSA

and

instruments

5 6
7
8

need to be reevaluated to stay on list. As well as, um, we, uh,

the conforming products uh, DHS to let

talked to, uh, DHS,

them know what had happened.

And,

Clay Larsen who asked us, urn, at as

is one of the head people up there, the well. 11TH: II
IICC:

asks,

9

laboratory

to

do

a

--

to

contact

NHTSA

directly

10 11 12 13
14

And our assistant lab director did that. NHTSA made the decision device, they we that they did need to

And

reevaluate the devi--, Urn, I don't I it know know be if

correct? themselves made to that

actually pushed I

II

decision. that, uh,

that

Intoxirneters would assume

insist

15"
16

re-Iooked at.

that NHTSA

made that decision as well on their own. II pushed it to make sure it was reevaluated.

But we definitely

17 18 19 20 21 22 ·23 24 25 26 27 28

II TH:
II
IICC:

Is that because you believed at that time that that device was not Title 17 compliant? Um, urn, not necessarily. What I wanted to make sure is

II

that before I had it back in my possession again, they had looked at the issue and that

that, urn,

II

they had given it

II
11TH:
II

their blessing before we started to reevaluate it. So the list says it existed before then was not good enough to you to demonstrate that it was Title 17 compliant.

II
CC:

Would that be fair to say? Um, well at any time -as a scientist, any time we do

something in the laboratory for instance to change one of

-27-

1

our instruments, and we recheck

we go back and we recheck its calibration that it's working properly. And for us,

2 3
4

NHTSA is one of the big bodies that looks at breath testing instruments sure that in the Uni ted Sta.tes. And I wanted to make

5
6
7

that

occurred because i-in if

the scientific field I pull a column out I'm gonna make recheck it's

that's what we would do when we -of an instrument instrument and put and a new one

in,

8 9

that

recalibrate

it

and

sure

working properly. to occur. TH:
II II

And I wanted to make sure that was going

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

The time these devices were pulled on March 30th, be fair to say that

would it

it was the position of your forensics all of them was not

office that this device as it existed, Ti t Ie 17 compliant? That's not how I

II IIcc: II

By manner of design. 'cause we were seeing -- all

would put it

of our accuracy checks were within Title 17 criteria but in my opinion, it would be, um, kinda like, how's the easiest Urn, found

II
II

way to put this, you that all have the

kind of like a recall of a vehicle. of vehicles out there and and they

II
II II II II II

thousands brakes are

sticking, same,

sticking

since

they 're could

manufactured

the

it's possible

that

that

happen on any of them.

It may have only been seen on one So i t ' s kind

or two percent, but the possibility is there.

of how we treated -- they're all manufactured the same, the possibility is there, so pull everything out of service and Um, would, uh,
I

II

II
II II

make sure that everything's taken care of. there a possibility that, uh,

they couldn't be Title 17?

wasn't actually thinking of it that way.

I was thinking in

-28-

1

more

of

that

this

is

an

individual

problem since I

with want

these

2 3
4

instruments.
I

I need to make sure
I

to make service

sure they re accurate, immediately. 11TH: IICC: TH:

need to get

them out of

5
6 7 8

You took them all out of service, correct? Yes, sir. And you informed the national governing body of

Breathalyzers of your decision, is that correct? IICC: Uhf we contacted NHTSA and we contacted, um, Department of , Public Health who, urn, the California

9

10 11
12

we had recently set

our methods up saying that we were going to be using this instrument and we wanted to let them know of the issue and that we would be taking them out of service until they

13
14

were, uh, retrofitted. 11TH: And NHTSA made assurances that no Alco-5's were in use at the time of March 30th, right? CC: Um, that's, um, when we took ours out of service. I know I know

15
16

17 18 19

that there were some being used around the country. now that, them. um,

Intoximeters did a general recall of all of I'm sure it was

20
21
22

I don't know what dates those were.

some time after the 30th 'cause we were probably the first one to, to have brought everything to their attention and But they did

23
24

we -- you know, we're in the middle of that. call a general recall. them came out of service. 11TH: IICC: 11TH: But they were all pulled from service? Yes. All the ones in the United States.

I don't know when all the rest of

25

26 27 28

And did you replace them?

-29-

1

cc:

Um, we did not replace them with different instruments. allowed, um, um, Intoximeters to perform their, um,

We uh,

2
3
4

retrofit and redesign the sampling port and the mouthpieces and, um, put in the new software that received them back in we the talked to them laboratory and

5
6 7

about.

And we

we're in the process of reevaluating them. TH: Okay. enough. I want to back up
I

cause maybe

I

wasn't

speci f ic

8
9

cc:
TH:

I'm sorry. It's okay. Correct. And you sent that a memo you to law make enforcing, available um, an enforcement· alternative is that You removed them from service on March 30th.

10 11
12
13 14

cc:
TH:

notifying

would

Breathalyzer device correct?

that was Ti tle 17 compl iant,

15
16

cc:
TH:

Correct. And that device was the Alco-Sensor® IV. The Alco-Sensor® IV XL Point of Arrest system, plus we have several Intoxilyzer 5000 EN's that are stationary devices that are around the county.

17
18 19 20 21 22

cc:

TH:

Okay.

Would it be fair to say that your decision to remove a Ti tIe 17

one Breathalyzer device and then assure that

23
24

compliant device would be given instead of the device you removed moment? was therefore not Title 17 compliant at that

25
26

cc:

I'm not sure how to put this but I'm not quite comfortable

27
28

with that wording. with that wording,

I'll have to feel - - my comfort level uh, we definitely pulled them from

-30-

1

service. when our

Urn,

there was definitely an issue with them. of the, the results as
I

Urn, and

2

testing

said,

3
4

accuracy checks,

they were all within Title 17.

But we do

know that there was an issue with them so -TH:
CC:

5
6 7

There were only -- I, That's okay.

I apologize.

TH:

They were only within compliance with Title 17 insofar that there was a numerical agreement between two tests, correct?

8
9

cc:
11TH:
II

Correct. And you had seen a device that had been in numerical

10 11 12 13
14

agreement for the purposes of Title 17, correct?

cc:
TH:

Correct. And you knew that that device was itself defective. Correct. And at that time NHTSA hadn't made any decisions
Urn,

cc:

15
16

so it was still on the conforming products list. uh, a-a-a-at that point it was still

so, those

meeting

17
18 19

requirements of Title 17 but in -- but it was still, issue for us to get them out of the field. TH: Okay. didn't field. So would it -- how about this. feel confident that that

uh, an

On March 30th, you belonged in the

20 21 22 23
24

device

cc:
TH:

Correct. And on March 30th you felt confident that the Alco-Sensor® V as a whole did not belong in the field.

25
26

CC: TH:

Correct. Specifically you did not feel comfortable as an expert in your field .that Alco-Sensor® V serial the field at that time. 005025 belonged in

27
28

-31-

1

CC:

Um,

I

felt

that

because

of

the

fact

that

all

the

2
3
4

instruments were manufactured the same way and there was a possibility that that could occur on any of them since they were manufactured the same. That -- yeah, so I pulled all

5

of them all from the field including 5025. TH: Okay. And the manufacturer discussed wi th you what they

6
7

felt the problem was with the device, correct?

8 9

cc:
TH:

Correct. And they told you that the problem was a problem of design. Would that be fair to say?

10 11 12 13 14 15

CC: TH: CC: TH:

Yes. And that design applied to all Alco-Sensor® V's? Yes. And that in order to make that device accurate they

would need to change the design? CC: TH: CC:
Of the one area,

16
17 18 19

yes.

Yes.

And it was the mouthpiece. (CHUCKLES) Um, they

Everyone -- it wasn't the mouthpiece.

did change the design of the mouthpiece but the main issue was the design of the sampling port on the AS-5 itself. TH: And what is a sampling report exactly?
I

20
21

What's it relevance

22
23

guess to the device itself? Uh, your Honor,

cc:
HW: CC:

The easiest way for me to describe this. can I draw for a minute? Go ahead. I "am not an artist so --

24

25
26

27
28

(LAUGHTER) CC: -- just be forewarned.

-32-

1
2

HW:
CC:

You know everybody who does a diagram -Says that. -- they always say the same thing. (LAUGHS) Are we recording this, your Honor? Uh-hmm. So we're recording? Uh-huh. Okay. Kind of a rough design of an AS-5. the handle. There is a - - this
lS

3
4

HW:
CC:
AA:

I mean you know.

5
6 7
8

HW:
AA:

HW:
AA:

9

10
11

CC:

There's a little button here.

Across the top -- or

12
13

is a little sampling chamber. mouthpiece chamber.

It kind of comes d--,

It kind of comes down and has a long Inside there, The first there are two one being the

14 15

area where you put a tube in. little port-like things _

Okay.

16 17 18 19 20 21 22

pressure sensor which calculates the amount of volume and flow that goes through the system. And the second being

the sampling port where internally they're in there farther back than that. (UNINTELLIGIBLE) And the sampling port instrument and This

where the breath sample is drawn into the

put into the sample chamber where the fuel cell is.

port -- this little piece right here was, in their opinion, the manufacturing defect. uh, flat on the top and, Urn, uh, just real quickly, it was,

23
24

the mouthpiece would pretty the top to a l i t tl e And,

25

much come over here and come across

26
27

areas for these two to pop into, two little openings. um, near

they felt that if condensation did get into that area that sampling port, with the top piece of that

28

-33-

1

sampling port be flat,

that a meniscus or that the liquid

2 3
4

could kind of get stuck there and drawn into the sampling chamber. TH: CC: TH: And that defect applied to all machines? Yes, it did. Okay. And you said recently that you received new machines

5
6 7

from AI--, um, from Intoximeters? CC: TH: CC: TH: CC: Well the same ones but all retrofitted. Retrofitted. Yes. Curing the design defect, would that be safe to say? Yes. That part was, um, redesigned. It was elevated about

8
9

10
11

12
13
14

a sixteenth of an inch and domed so that there was no, um,
II

area where, just

uh,

liquid could collect. changed is the type of

And

they actually that that was has, to um,

15 16 17 18 19 20 21
22

II II

slightly I

plastic

something

believe

called

Santoprene™

II 11TH: IICC: II II II II
II II

less likelihood for, uh, liquids to attach to it. And they also changed the programming I heard you say. they changed something in the program. And I don't believe

that they changed for all instruments across the country_ It's something after talking to them about it, we requested that they put in our version of the software. It was which is,

23 24 25 26 27 28

something that was in the Alco-Sensor® IV XL's, um, when, uh,

I'm not very clear on how electronics work.

But when it electronically looks at the signal that's going across the fuel cell, um, Um, alcohol uh, uh, has a specific wave

II
II

design in electronics.

avoid code 14 or the urn, gave an

II

software that was in the Alco-Sensor® IV XL,

-34-

1

alert or an error message if it saw any kind of different waveform that didn't look like alcohol. They did not

2
3
4

originally include that in the AS-5. was necessary.

They didn't think it

When we found that they had not done that we

5 6
7

and after we had them sent back and they told us this, requested that that, um, um, elec--,

that data information

be put back in or that software be put back in. TH: Would it be fair to say that you did not feel comfortable using this machine despite the fixing of the design defect without that software?

8
9

10 11 12

cc:

Um,

I

w--,

um,

I

think it still would have been fine.

It makes me much more comfortable having that software in there. TH: Would it be fair to say you were uncomfortable wi th the

13 14
15
16

machines you had in the field on March 30th?

cc:
TH:

Uh, yes. And

yes,

it

was

uncomfortable having

them

in

the

field,

17 18

you

removed

them

because

they

were

not

working

19
20

properly?

cc:
TH:
CC:

That

there

was

a

possibility

that

they

would

not

work

21

properly. Based on a design defect? Yes. Okay. And the machines that you received from Intoxilyzer I guess the, we'll call it

22
23

24
25
26
27

TH:

with the new software and the, the, the adjustment.

Um, was that approved by NHTSA?

cc:

Yes.

NHTSA revaluated them and looked at them and gave us

28

a new, uh, letter -- gave Intoximeters a new letter stating

-35-

1

that
II

it

was,

uh,

reevaluated and,

and maintained

on

the

2
3
4

conforming products list. Okay. And have you at this time placed those Alco-Sensor®

11TH:
II

V's in the field? CC: Uh, no. I am still undergoing an internal, um, evaluation

5

6
7 8 9

of them. TH: So they're still testing the new version? Yeah. They have finished testing them at NHTSA and they

cc:

finished testing them at Intoximeters, but I'm the one that has to sign for them to go back out in the field so we're still in the process of testing them. TH: Would it be fair to say that you're not yet entirely

10 11 12
13

comfortable in introducing them in the field at this time if there not yet?

14 15
16

cc:
AA:

Um, I am, uh, Objection, relevance. Say it again. Relevance, your Honor. What's the relevance? ItJs the basis of --- w-we're dealing with the one before the modifications. Urn, it's been modified. I mean --

17

HW:
AA:

18
19 20 21

HW: TH: HW:

22
23

TH: HW:
AA:

That's fine, your Honor, I'll withdraw the question. Any redirect, uh, Mr: Arzu? Briefly, your Honor. Uh, Ms. Craver, you stated that you

24
25

26
27
28

pulled the instruments because of the defect that was later found to be a design defect. you could not, uh, make a Um, was that defect such that determination as to what a

-36-

1

person's blood alcohol level was, uh, II
II CC:

if they blew into the

2 3
4

instrument? Urn, I would have to look at each case uh, on an that individual particular In my

basis and instrument. opinion,

look at

everything around,

5
6 7

In my opinion in looking at the data.

most of the data is probably just fine and is an But I would

accurate reflection of someone's breath test.

8
9

have to look at everything about each instrument and look to see if I see any issues that give me an indication of

10 11

seeing that, um, defect or that, um, condensation occurring to give me an indication of it not working properly on a specific test. set of data.
AA:

12 13
14 IS
16

So I look at everything in that particular

So you look at all the circumstances, correct? Yes. I would look -if I was asked to look at them I

CC:

would look to see if some -- if the temperature that e--, that -- at the time of the test was like in the 10 to 13 degree range so it was cold outside, I would look to see if there was -- um, with this new instrument one of the things that's, uh, nice is that every time someone attempts to it requires, um,
1500 ec,

17
18 19

20 21
22
23

blow, um,

it's like the AS-4 XL,

1-1/2 liters, um, before it will capture a sample. someone says -for instance does a low blow

Um, if and they

24
25

aren't able to get enough volume there, it actually records that they tried. So it will leave sample one, attempt one, Sample two -- sample one, attempt

26 27 28

it'll give the volume. two,

it'll give the volume.

And then if they finally get you know, what the volume

it on the third one,

it'll say,

-37-

1

was and that it was a success.

If

-~

I would also look to would look at all to

2
3
4

see if there were multiple blows.

And I

that information when looking at a, a specific test to, give my opinion whether not.
AA:
I

thought

it

was

appropriate or

5

6
7

What's the significance of multiple blows? With multiple blows, urn, the instrument allows
a

CC:

person to And

8 9

try three times before it aborts that specific test. with those three blows, mouthpiece. haven't urn,

they don't have to change the

10 11
12 13 14
AA:

So if you're blowing mul tiple times and you the mouthpiece, there'S a higher 'cause

changed

probabil{ty of getting some condensation in there

you're bl-blowing more breath into that same mouthpiece. Okay. So
I

15

CC:
AA:

would look at that as well. Ms. Craver, Uh, uh, let's get down to the nuts and bolts the recall of a

16
17

Now,

of it. vehicle.

you stated earlier about the, to a
.14,

18

Can you say that

certainty that when you
.13, .12, .13,

19
20

were given this sample of a instrument was working

that the design

accurately
th~

and

that

the

21
22

defect was not affecting CC:

readings?

Um, in my opinion there was an accuracy check to -- before and after that shows it was reading accurately. look at four results like this, in my opinion, And when I it would be

23 24

25
26

extremely unlikely to get four, urn, consistent results, urn, with there being an issue, urn, arising from condensation.
AA:

27

No further questions your Honor. Last call Mr., uh, Hartnett.

28

HW:

-38-

:I

11TH:

Thank you. lssue. machine correct?

Thank you, You' can't

your Honor. off that

Just to pinpoint on the SAC results
1S

2
3
4

determine or not

from

the

alone

whether

machine

accurate,

5
6

CC:

Um,

based on the number alone?

No,

I

would be looking in I

this case at the fact
II

that there were f our numbers.

7 8 9
10
11 12

it gives me greater confidence in the results. And we've said it before so I ' l l machine correct? that had mul tiple blows say it again, with the same you had a

11TH:
II

numbers,

IICC:

Yes. Not this but -There was one that had two, uh, low. two blows and the numbers were,

II TH:

13
14
15

Ilcc:
II
II TH: IICC:

We know they were incorrect.

And they were in agreement? Yes, they were. that alone cannot let you

16 17

11TH:
II

So would it be fair to say that

18
19

know whether or not the machine was working properly at the time it was used? Um, that that alone, uh, with just two results, no. I think

II
IICC:

20
21

II
II

the more

results

that

you have that that it's

are. consistent, not occurring,

22 23 24 25 26 27 28

the better

information you have

II
11TH:

but it's not impossible that it, it could be occurring. Consistency and result is not indicative of whether or not that machine is functioning properly, would that be fair to say? Knowing that you had a consistent, uh, machine with

II
II

II IICC:

consistent results that was in fact broken. I'm sorry, I mi--, I lost the first part.

-39-

1

TH: CC: TH:

Okay. Could you please re--, -- I'm sorry.

2
3
4

Would it be fair to say that consistency and results will not let you know if the machine is working properly or not?

5
6 7

CC:

It -- again, ha- -, feel if

i-i--, I had I

alone,

no.

The more results I have,

I

that I

have more confidence in that. just two, uh, I would four have, or

But for urn, five less for

instance

8 9

confidence instance. TH:

than

would

have

with

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

The machine that gave the two consistent results, removed from service immediately?

was that

CC: TH:

Pretty close to immediately.

Yes.

So there wasn't an opportunity to see whether or not it was giving consistent yet inaccurate results over a longer

period of time?

cc:
TH:

Correct. And that's based on the fortuitousness of another machine, an Alco-Sensor® IV being used along side that machine,

correct?

cc:
TH:

Yes. And it was likely had an Alco-Sensor® IV machine been used -- not been used in that instance, remained in service longer, correct? that machine would have

cc:
TH:

Yes. And that machine correct? would, would have given consistent

25
26

results, results.

Or possibly could have given consistent

27
28

cc:

Possibly.

I,

I

couldn't

say

without

taking

-40-

,Y

1

(UNINTELLIGIBLE) but it possibly, TH: And knowing now those results would have been flat out.

2
3

wrong, correct? CC: TH: HW: Correct. Thank you. (CLEARS moisture (CLEARS Nothing further, your Honor. Ms. , we've Is the uh, Craver if you been know, the, the

4
5

6
,7

THROAT) that THROAT) inside

been that

you've ambient who's,

t.alking or

about.. that.

8 9
10 11

moisture urn, urn,

does

originate

person

being

tested

either by the moisture in the breath or saliva? IICC: IIHW: Urn, it would be, urn, moisture in, in the breath. Okay. All right. Thank you. You can step down.

12
13 14

II (PAUSE)

HW:

(CLEARS THROAT) first, uh,

All

right. urn,

Uh,

I'll

entertain

comment.

15

from the People,

to give you something to, in his papers, saying that s

16

urn, urn, shoot at if you wish. urn, urn, quotes me a

Urn, Mr. Arzu, authorities

17
18 19
20

number of

problem goes to, urn, weight rather than admissibility. so, uh, that's somet.hing I, I need you to both,

Urn, uh,

address. IlAA:

Go ahead, uh, Mr. Arzu.

21

Your Honor, based on what we are, uh, there are some issues wit.h the Alco-Sensor® V, but in this case t.his instrument

22
23 24 25
26 27 28

was actually working, uh, based on the testing within Title 17 and, uh, t.hat being said, uh, it was actually, uh,

the expert stated that. she believed that it. was probably working accurately. And so, urn, I believe that it's jury and reading

t.his is an issue ,probably t.o be weighed by the such t.his instrument, this instrument and its

-41-

1

should come in, HW: Mr. Hartnett

In this case submitted. preface
I

2
3
4

I'll

it by saying you took a

really

good deposition. You got

mean, out

and I mean that as a compliment. of this witness Now, on the subject

everything

5 6
7

matter there was there to get.

tell me why it leads

to the conclusion you want me to reach. TH: I'll and address first admissibility. the court's concern, And as I put in concerning weight my papers, the

8
9

California Supreme Court has made it very clear that blood alcohol results from a Breathalyzer machine are issues of admissibility to be decided by the trial judge. That the

10
11

12 13
14

Adam's test which I laid out in my filings with this court as being proper application of the Kelly standard and the admissibility of evidence, issue. and that this is solely a court

IS
16

Not an issue of weight that should go to the jury.

So I think it's clearly an issue of admissibility. HW: TH: HW: All right. And -- go from there. that, urn, TH: HW: Okay. I think where she -urn, she Analyze what you think her testimony was Go--

17 18

19 20 21
22
23

-- leads me to where you want me to lead because,

has testified, uh, that this machine as tested was Title 17 compliant and it was on the, was
was~

24
25

on the CFL.

Um,

it was, was,

it uh,

perhaps uh,

reevaluated. tested before uh,

The modified machine it was given no the

26 27
28

letter or

authorization.

But,

there's

been

testimony

evidence that this was ever taken off the list.

-42-

1

TH: HW: TH:

And -So go ahead. and the reason for that is, your Honor, is that, that,

2 3
4

that products list is only published every three years and it's published every year in the Federal Register. And

5
6
7

this was a rapidly develop, uh, developing factual scenario where the machine products was list approved and then and in published the matter on of a six

8 9

conforming

weeks which is much quicker than the Federal Registry can work, the device was seen as defective. I think all we

10
11

need to know about the issue of whether or not this device is Title 17 compliant came from the testimony. was pulled to out law of service immediately. and officials Two, that One, it Title this was 17

12
13 14 15

promised

enforcement

compliant devices would be provided.

Now the witness is

16

not a friendly witness, it is technically a hostile witness and she knew the magic words, but her actions speaks louder than the words. It was promised This machine was pulled out of service. that machines that Third, were, she were Title 17

17
18 19 20 21 22 23

compliant

would be

provided.

instructed the

manufacturer to notify NHTSA.

The reason to notify NHTSA

was that the conforming products list was in fact an issue. And what NHTSA said and what the witness said is well it's not on the list. them in the field. We've been assured that there's none of So what NHTSA has done is said well we in a hurry because we know

24 25 26 27
28

don't have to amend the list

from the manufacturer and we know from law enforcement that no one's using it. If no one's using 'ern then there's no

-43-

1

reason to rush a Federal Register which has time lines to amend the list. once again. We'll just wait And the 'til it becomes compliant admitted this
1S

2
3
4

manufacturer

a

manufacturing defect. we'll reevaluate it

And so what NHTSA says was fix it, and we'll put it back in the field.

5

6 7

That appears to be what happened. defect.

They fixed

the design

This was a defect that applied to all the machines a couple of them. NHTSA approved it and then The idea Ti tIe 17

8
9

not just a,

Ventura County is in the process of approving it. that they can get the presumption that it was

10

11
12 13

compliant when it obviously wasn't for two months because of a lag in the Federal Registration publishing

requirements I think is a little thin. of the County which were commendable

I think the actions speak for itself.

14 15 16

They removed this device from the field. the that national nothing board. was in The the national field and board that

They contacted made they assurances were in a

17
18

holding pattern,

and that the manufacturer assured we can

19 20
21

fix this problem quicker than the publishing cycle of the Federal Register. I think it's pretty clear this was not a This device was pulled out of

Title 17 compliant device.

22
23

the field because they couldn't know whether or not it was working. alone I think what's important to know is the variance ipso facto make it Title 17 compliant. And

24
25

isn't

that came out on the machine that recorded what we know an erroneous BAC result. Under Title 17 that It gave a .04, .04, but zero variance. we had a lucky

26
27

would be okay,

28

moment and the lucky moment was they had another machine

-44-

1
2
:3
4

check it. HW:
II II TH : II HW: II II
TH:

There was no other machine in this case. (CLEARS THROAT) let me direct you to this. 5025, yes? The

Well let me

machine we're talking about was, um, Uh - h mm . Okay. uh, Um, that

5 6 7 8 9 10 11 12 13

was there any testing of that machine that you, you believe was, um, um, indicative of, uh, a

failure to comply with, uh, Title 17? Yes. Because its mouthpiece isn't working. And the

reason -HW:
II II II

Well,

no,

no, I

no.

Any,

any

testing product

or operation defect. I've

of

the

machine.

understand about for a long time. product

dealt

with them for, elements of a

There has to be one of the cases causation, so the

liability

14" 15 16 17 18 19 20 21 22 23 24 25 26 27 28
II II II II

existence of a defect in and of itself doesn't get you very far. That s why I'm,
I

I'm pushing you a little bit to tell Uh, that there's

me what do you think on, on machine 5025. a

connection between what was recognized as a defect and, and a bum test, uh, to your client or anyone else. First, the burden is on the People to

um, I

11TH:
II II II

think two things.

show that whether or not a machine is working or not can be gleaned solely from the consistency and results. our expert told us was no, I'd be she couldn't And what that

answer

II II II II II II

hypothetical.

She

said

more

comfortable

but she

couldn't do it and she gave an example of a one, we knew wasn't working. And two,

machine that consistent attack 'cause So we

gave

results. the that

And the only reason we don't -- we can't of four or five or six results is

hypothesis

machine was

immediately pulled

from service.

-45-

.1

know

that -we

they if, know

cannot if a

glean

from

the

numbers

what

this

2
3
4

machine
I

this machine machine that

is working or not working. had consistent resul ts was

Cause

not working, decide is

therefore, the lnc.

we can't

look at results alone and or not working. Uh-oh, This thing 'em

5
6
7

machine made the

working same

Intoximeters, thi s is

determination.

isn't something we can glean from the numbers. that comes up -and I think another

8 9

something

indicative is the software wouldn't necessarily notify
II

10 11 12

of a problem like Well you can always improve something, but that doesn't uh,

IIHW:
II

mean what

you're

improving was necessarily defective,

13- II

before the, uh, TH: I think it the

before the improvement was made so. is if this fit device isn't fit for the

14 15 16 17 18 19
20
21

issue

field,
II

certainly isn't

for evidence In a

courtroom

and I think the issue is if law enforcement has pulled this device from the field, use this. If the if law enforcement has said we can't Highway Safety Administration

II

II
1\
II

National

says to the manufacturer, manufacturer says fix it. we

please fix this machine and the a problem, we're gonna

know there's

1\ 1\
II

And when an expert says that they cannot tell by results, meaning just looking at a printout

22 23 24 25 26 27 28

consistency results, because

they cannot know if the machine is working or not they've had a If broken all machine that says that that did give

1\
II

consistent

results.

machine even

1\
II

shouldn't be used and if all of that says even if it, if, uh,

the county law enforcement having gotten approval approval from the Intoximeters, they I re sti 11

1\

from NHTSA,

-46-

1

not sure whether or not it should go out in the field yet. They're still not sure. They're still checking. If they

2
3
4

pulled that machine, how can it possibly be appropriate for use in thi s courtroom? It can t
I

possibl y be appropriate.

5
6
7

Now I understand if this was a case that involved the new machine and the new approval process, meet the guidel ines. was the that maybe it would This the

But this was the old machine. Thi s was the machine wi th

8 9

broken machine.

defect.

This was the machine where they didn't know how to that's why they

10 11 12 13 14 15 16

tell if they were working or not working, pulled all of 'em out of the field.

If they had confidence they

in some of the machines that they leave in the field, would have kept them there. They pulled them out.

And the

idea that they can pull the machine out but still use it's resul ts in a criminal trial, I think falls well beneath

what the Kelly standard contemplated. Title 17 compliant. I don't think

I think it was not this is an issue of

17
18
19

weight that goes to the jury because the jury simply isn't in a position to make this decision. working.
HW:

This machine wasn't

20
21

You,

you

(CLEARS

THROAT)

you

presented

it

with

great

22
23

clari ty.

I'm not worried about a

jury not being able to

track what the issues are.
AA:

Any closing comment Mr. Arzu?

24
25

Your Honor,

the -- I guess really what it comes down to is

defense counsel saying that the abundance of caution that the, uh, that um, the lab the took should default any sort of

26
27
28

resul ts,

that

instrument

could read or did give

even if it was accurate.

And in this case, uh, we have a

-47-

1
2

little post. working

bit We

more. have,

We uh,

have you

the know,

accuracy the, four um,

checks the

prior

and

the,

instrument that are

3
4

properly. We

We

have

the

readings we

consistent. II II
II

have a

little more,

have a

little

5 6
7
8 9 10
11

more than just isolated two instrument or two breath tests. We have a little more and I think that is sufficient, urn,

to have the case go forward. All right. Ms. Most -- I thought most, urn, testimony was her descriptive in, uh, to an automobi le

IIHW:
II II
II

Craver's

analogy

recall, percent, they,

where she said if they find a defect in one or two everything gets recalled but it doesn't mean that uh, uh, the probl em. testimony here And to
A

12
13

II

they all have the, been adequate,

I,

I

thi nk

there's that

demonstrate lot
I

14 15

this machine was Title 17 compliant _ for cross-examination But do and in that. things terms The of

of good think a it

material jury can

that

16
17

understand. I'm not gonna

excluding is

entirely,

mot ion

denied.

18 19 20
21

We're back Tuesday at 1:30. TH: HW: TH: Your Honor, Go ahead. Um, this case moved forward on an A count only. The if I can make an additional motion.

22
23

assumption being that the BAC level

~ould

not be an issue Insofar

'cause it would not be an element of the offense.

24
25

that i t ' s relevant to the A count and I think the court has said i t is relevant as to weight, was charged be I was not as on proper it would because of the way this notice now that the And I machine would

26
27
28

would

litigated

be.

re-respectfully ask for a continuance to receive a balance

-48-

v

1

II

of the cal ibra t ion 1 aws, issue prior to the the A

all

those things tha t filing, -and now

were that

not at we're

2
3
4

II
II II II

count

proceeding

with the

machine, of

I'm the

we're in

obviously of the

1 it igating
jury,

ef f icacy

machine

front

5

I'm gonna need a larger --

6
7

IIHW:
TH:

(CLEARS THROAT)
And that's just the way this -it was -that this was charged.

If

8
9

HW: TH:
HW:
AA:

Uh,

it' s

--

10 11
12

-- a B count I would understand. There's -I have no objection. All right. Mr. I'll Yeah. Uh, there's a little voice inside of me, Urn, uh,

13
14

HW:
II

Hartnett, give you

saYlng being careful what you wish for. your continuance But, um, if, if you want to,

15
16
17

II
II
II

evaluate further data.

I mean the risk you run is uh, position
I'm

that you're gonna find that it solidifies the, of the prosecution. Now you're um, the uh,

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tactician,

not

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gonna talk you off it. a risk. TH: HW: II
IlAA:

But,

sometimes that

can be

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How much time do you need?

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24

Uh, I

can I have a moment?

suppose it depends on how long it takes them to get you the data but, uh, --

the, uh,

And I'm not sure how long that would be, your Honor.

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(BACKGROUND VOICES)
HW: TH: Got you covered. I think we're gonna move forward without the continuance,

your Honor.

Tuesday at 1:30.

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HW: TH: HW:

Okay.

Fair enough.

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4

Thank you. See you then.

(BACKGROUND VOICES) UV: All right. (UNINTELLIGIBLE) case with,
urn,

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(UNINTELLIGIBLE) TH: HW: Yes. Yes.

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II (COUGHING)

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11TH:

Okay.

Thank you.

See you.

II (DOOR CLOSES) IIUF:
II

I already scolded him because it's bad enough that the gives me this with not two hole punches. it, it's not even frickin' stapled.

P.D.

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The D.A. gives me

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HW: UF: HW: UF:

(CHUCKLES) So I told him, I go -Well whose (UNINTELLIGIBLE) are stapled? -- you know when you submit documents for filing Oh. they're

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supposed to be stapled and two-hole punched.
HW:

Some of my colleagues have Okay. (CHUCKLES)

UF: HW:

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-- commented that Mr. Arzu is a pleasant man, but he's not the brightest star.

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UF:

I was gonna say I -- this is the first time I've seen him, but I was like -- okay -- yeah.

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HW: UF:
HW:

Well, uh, He didn't exactly strike me as -he did this, this morning (UNINTELLIGIBLE) do some

-50-

1

re-dos. UF: HW: Yeah.

He (UNINTELLIGIBLE) come forward himself. Uh-huh. (UNINTELLIGIBLE) so these, these are

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3
4

This part never was a relative.

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UF: HW:

Yeah. When I spoke with my friend from this morning sitting in

the back row (UNINTELLIGIBLE) UF: HW: UF: HW: UF: Oh. (LAUGHS)

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She's monitoring him or me or -Or (LAUGHS)

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-- both of us. Yeah. I don't know.

(END OF TRANSCRIPT)
MORALES HECTOR Trial Trans Chrystal C,-aver 100711 aa bm 11 T

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