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Eric Gaston attends factory training for the BAC DataMaster in Mansfield, Ohio…

Posted by Unknown | Mar 04, 2014 | 0 Comments

Focusing on one area of the law can potentially allow an attorney to become more proficient in that area than if their practice focused on multiple things.  However, focusing on one area of the law also has the potential to make one's practice stagnant and monotonous.  One of the things that attracted me to a career limited solely to the defense of DUI, was both the ability to get good at it, and the fact that the landscape of DUI law is always changing. It seems that every day there is a new defense, new case law and legislation, and new developments in the science that surrounds chemical breath and/or blood testing.

With regard to breath testing, I recently had the opportunity to visit National Patent headquarters, in Mansfield, Ohio – home of the BAC DataMaster.

The BAC DataMaster and DataMaster CDM are the breath testing instruments used here in Washington state.  The training I received was conducted by John D. Fusco, president and CEO of National Patent, and David M. Radmomski.

At the factory, over the course of three days, I was able to observe first hand how the instrument is put together, and how the individual components were constructed.  I was also given instruction for certification that is modeled upon the format and content of the training requirements for the BAC DataMaster Supervisor program.

The training and experience I gained at National Patent was invaluable in terms of being able to understand the science, the mechanics, and the limitations of Washington's breath testing equipment.  One of many things that I observed was the effect that mouth alcohol can have on producing a breath sample that is not a true indicator of the amount of alcohol actually consumed.

As part of our training we were allowed to introduce mouth alcohol into an otherwise valid breath sample, and the effects were shocking.  In each instance the DataMaster CDM accepted samples that were far in excess of the amount of alcohol actually consumed; one subject was able to provide a breath sample that was over .30 (nearly three times the legal limit!) after consuming only one beer.

The problem of mouth alcohol and breath test readings is well known and documented among the scientific and law enforcement community, in fact Rod Gullberg, of the Washington State Patrol, authored an article entitled, “The Inadequacy of Instrumental ‘Mouth Alcohol' Detection Systems in Forensic Breath Alcohol Measurement.”  Both the DataMaster and DataMaster CDM utilize software that is designed to detect mouth alcohol.  As far as I could tell, this software is wholly inadequate and raises some very legitimate concerns with regard to the validity and accuracy of breath tests.

I was also trained upon the use of the newest DataMaster device in the National Patent stable – the DMT.

I believe that I am the first and only attorney in Washington to have been trained on this device, and from my limited experience it appears to be a vast improvement over the machines that Washington currently uses.  The scientific principles are the same, but rather that using a Motorola 6809 chip (which is an 8 bit chip, circa 1970, and is no longer in production), the DMT incorporates a modern and much faster processor as well as a Windows based system.  Whether a product of the faster chip, or some other change, it was much more difficult to get the DMT to accept a sample corrupted by mouth alcohol (although still possible).

Again, being able to obtain hands on experience, at the source, will provide me with a much better understanding of how to attack breath evidence and defend my clients.  My law partner, Bill Kirk, has also attended this training, and we both plan on going back periodically as the instruments continue to evolve and be improved upon.  Knowing thy enemy is always important, and even more so in a field as complex as evidentiary breath testing.  We look forward to putting our experience to work.

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