Texas lawyers defending DWI breath alcohol testing cases continuously search for ways to attack the Intoxilyzer 5000 and the admissibility of test results. In recent years the Scientific Director of the Texas Breath Alcohol Testing Program has adopted formal written “Standard Operating Guidelines” (SOGs) for technical supervisors to follow in the operation and maintenance of the machines. Through the use of SOGs the Scientific Director hoped to lend “scientific” legitimacy to the breath alcohol testing program, leading to eventual approval and accreditation of the program by the American Society of Crime Laboratory Directors / Laboratory Accreditation Board (ASCLD/LAB). A collateral benefit (to defense attorneys) of establishing the SOGs was the creation of a state-wide database (“Black Mamba”), which contains invaluable data about every Texas Intoxilyzer 5000 in service. So how does this help DWI defense lawyers? One issue is whether the breath-test results are admissible evidence if the SOGs were not followed. Another is what information contained in the database might be useful in the cross-examination of technical supervisors at trial? There may be more.
A company called Forensic Information Solution Services (F.I.S.S.) is helping College Station DWI lawyers utilize the information contained in the Black Mamba database. For a fee, the company will review the data and provide the attorney with a report about the Intoxilyzer 5000 in question. Following is the text of a recent email response from F.I.S.S. about their services:
1. Q: “What happens during your consultation?”
A: “In order to start our analysis process…all we need is the Subject’s name, date of test, Intoxilyzer # and location of test. This can be sent to us via email, over the phone or loaded onto our website www.dwi-fiss.com. Once received, we will provide our detailed analysis (FISS Report) back within 3 weeks. Within the FISS Report, we provide a list of discovery materials for you to request. Once you receive discovery, please send them to FISS and we will review and make any additions. The FISS Reports and supporting documents will be emailed to you and a conference call can be scheduled to review the details of the FISS Report. Expert Testimony to the findings of the analysis is also offered.”
2. Q: “Must you physically visit each Intox 5000 machine?”
A: “We do not physically go to each Intox 5000 machine. Through the Public Information Act, we have already received from the STATE [TX] the data that resides within each Intoxilyzer across the State (currently we have data from 2007 to July 2013 loaded). This is updated each month. We have loaded this information into a user friendly format that allows us to research each machine, Technical Supervisor, Operator, Arresting Officer, Testing Site and solution used in a more efficient and effective manner from our computers. We also offer attorneys access to the data through our website where you can see information immediately and conduct your own analysis.”
3. Q: “For each breath-test case I’m defending, I obtain SOG records from the Technical Supervisors. Does that information streamline your investigation?”
A: “It helps…however it also depends on each case. We find that the Technical Supervisors typically provide the 30 days before and after a test, which we feel is not enough information to truly know how that particular machine has performed in the field. In our FISS REPORT, we review over a year’s worth of data and provide an analysis of what has transpired on the specific machine used during a client’s breath test. We will pinpoint if any direct violations of the SOG’s have occurred or if there are specific areas to challenge. We will also provide a list of discovery materials to request and once the discovery is received and sent to us, we will review and make additions to our FISS Report. Comparing the internal data to what has been received from the Technical Supervisors provides a good check and balance to insure nothing is missing. In order to do a complete analysis, both the electronic data and the hard copy reports are needed.”
These F.I.S.S. reports, analysis, and expert assistance may be a windfall to DWI defense lawyers all across Texas. I’d suggest giving them a call to help with your next breath alcohol testing case.
Stephen Gustitis is a criminal defense lawyer in Bryan-College Station. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is also a husband, father, and retired amateur bicycle racer.