Transcripts and Testimony of FDLE/ATP Employees and other LEO

This section is dedicated to helping the defense counsel prepare for the state's "expert witnesses" testimony. In the last 4 years I have had the opportunity to sit in on numerous DUI trials to observe not only the DUI attorneys in action but the state prosecutors and the state’s own "expert witnesses" FDLE/ATP Program Manager. The Alcohol Testing Program manager is the State's primary "expert" on breath testing and the methods associated with infrared light absorption.

During that time I have come to really appreciate the legal skills it takes to successfully defend a person charged with a DUI. Why? Think about this, "how is the defense counsel supposed to adequately prepare for an adversary witness (the Intoxilyzer 8000) when they do not have the opportunity to properly cross examine that witness because they cannot "buy" a Intoxilyzer 8000 (with Florida software). This effectively prohibits the defense counsel from conducting independent testing to confirm each and every "excuse" that the state's witnesses (Agency Inspectors) proffer in regards to problems with the Intoxilyzer 8000 failing a test. Time and time again the courts have let the state's expert witnesses a.k.a. "FDLE/ATP" employees give any ol' excuse as the reason for a testing failure.

This is where the story gets strange. I was observing a MOTION TO SUPPRESS a breath test because the defense counsel was challenging the “scientific reliability” of their client's breath sample based the Intoxilyzer 8000 producing a BrAC reading with only a 0.015 volume of breath. The state asked for a continuance to bring in their “expert witness” to testify as to “how this could happen”. The judge granted the continuance with a chuckle and said, ““I can’t wait to hear how the Program Manager will explain this one”. FDLE/ATP's excuses for machine failures has taken a sort of comical twist in the halls of justice, with not only the attorneys, but the judges accepting one unbelievable excuse after another with a chuckle under their breath. Here is a sample of how the alcohol program manager adapts courtroom testimony;

["The Court has had difficulty reconciling Ms. Barfield's testimony at the hearing regarding the “accuracy”and “reliability” of the low sample volume breath test results with her letter to Katherine Fernandez-Rundle, dated October 19, 2006, wherein she stated that" “[i]t is only with this unique and specific scenario that the breath sample has not been determined to be reliable.” (emphasis added). Ms. Barfield's letter also included an attachment indicating that most of the breath tests listed were “Not A Valid Test.” Although the hearing in this matter lasted for nearly three hours, the apparent inconsistency between Ms. Barfield's testimony and her letter of October 19, 2006 was not fully developed". ]

So to try and keep track of what was said, where it was said and who said it, I have created this link to start a data bank of testimony from the state’s expert witnesses. Why? There's an old saying that one should always question the messenger or in other words, question the answers offered by the employees of FDLE/ATP.

The FDLE/ATP alcohol testing Program Manager's testimony data bank.

Any ol' excuse will do. Not any more, with exceptional GLADIATORS like Robert Harrison, Esq. & Kerry E. Mack, Esq. and some of the sitting judges are actually beginning to see through FDLE/ATP's "excuses for testing faliures and mantainance repairs" the courts.
Click here to see how Honorable Phyllis R. Galen County Court Judge in Sarasota Florida saw through the Program Manager's lame excuse.

This is the exact thing I have been talking about, lame excuses and FDLE/ATP employees saying anything to just "misrepresnet the facts". It seems that some FDLE/ATP's employees are more interested in the state's win/loss record rather than justice and what is right or wrong. I wonder how many many inncoent people's lives have ruined by FDLE/ATP employees 'questionable excuses for testing failures' and how some judges that ruled in favor of the state becasue they were not as keen to biased witness testimony as Judge Galen.

Case No. CTC 07-0496XDHANC

The Alcohol Testing Program Manager is proffered as the state's expert witness because of the job title. During the expert witness voir dire the program manager testifies to being a “forensic toxicologist” based on job experience, yet not one attorney has ever asked for verification of any hours or training documentation nor is the program manager recognized by American Board of Forensic Toxicology.

Click here to for more information on the alcohol program manager and the lack of peer recognition and various cases in which the manager testified.

The FDLE/ATP program manager explains how the Intoxilyzer 8000 determines alcohol slope:

in regards to calculating a breath-test result, the Intoxilyzer 8000 requires satisfaction of three variables: 1) time, and 2) volume, and 3) slope. The relationship among the variables is such that time and volume help to achieve slope. With respect to time, the Intoxilyzer 8000 requires at least one second of sustained breath. With respect to volume, the Florida Intoxilyzer 8000's are programmed to require a minimum of 1.1 liters of breath. Upon confirming a breath sample of at least one second and 1.1 liters of volume, the instrument then checks for the achievement of slope -- the plateau of the breath-alcohol content, which is indicative of deep lung air, which will be most representative of a subject's blood-alcohol level.

The program manager testified that alcohol slope cannot be achieved in less than two seconds. To calculate a breath-alcohol level, the instrument averages four samples at 250 millisecond intervals. In order to assure that slope has been met, if the Intoxilyzer 8000 calculates a breath-alcohol level of <0.077 g/210L, slope cannot rise or fall >.002g/210 liters. If a breath alcohol level of >0.077 g/210L is calculated, slope cannot rise or fall more than 2.6%.

Okay, so how does the Program Manager explain
"Subject Breath Test" like this one. Click here to see a "SUBJECT BREATH TEST" that not only shows the Intoxilyzer opperates in a way that the Program manager said was impossible, but the BTO intentionally manipultes the results generating a "REFUSAL".

This "SUBJECT BREATH TEST" is unique because Miami's Intoxilyzer 80-000880 (Sandra Veiga's old territory) can magically determine a BrAC reading with less than the minimum required 1.1 liter of breath supplied (1st sample) and then the Intoxilyzer determines that the subject "REFUSED" the test on the 2nd attempt when in fact the Subject "Hyacinth V. Williams" provided more than the minimum 1.1 liter of breath . The sad part is that the subject was charged with a " REFUSAL" F.A.C. 2007 Ch0316 Section 201932 0316.1932 316.1932 (1)(a) 1. a. resulting in a one year license revocation by the DMV. WARNING IF YOU HAVE BEEN CHARGED WITH REFUSAL AND YOUR TEST RESULTS WERE SIMILAR TO THIS TEST, contact us and we will refer you to a GLADIATOR who will take your case.

Test results like this are "NOT" refusals; they are intentional manipulation of the test results by the Breath Test Operator by pushing the "R" key or the "Green Start" button to prompt the Intoxilyzer to abort the test and override and delete the testing data collected which prompts the Intoxilyzer to issue a "SUBJECT REFUSED TEST". This action is not only a state criminal act but it is also a federal crime to intent to deceive the courts.

Again, this is why I am calling for mandatory videotaping of all testing because I believe that videotaping would stop this type of manipulation by law enforcement. If all test are not videotaped, LEO can use any ol' excuse as to why an Intoxilyzer failed an Agency Inspection test or you say "REFUSED" a breath test by failing to provide a breath sample.

Who do you think the courts are going to believe when the officer says, "well my cologne affected the Agency Inspection test" or when you say that you "blew" and the LEO says "the subject refused to provide a breath sample". Without video tape the courts always, always view the officer's testimony as...... more credible.... & YOU LOSE...!!!

The FDLE/ATP Department Inspectors testimony data bank.

FDLE/ATP Dept. Inspector Don Suereth
Intoxilyzer 5000

Lets see the Program Manager says it takes at least two seconds to analyze a breath sample for the alcohol slope, but Don Suereth says it only takes one (1) second. Who do you believe? The program manager or one of FDLE/ATP Dept. Inspector's.

A Collection of Testiomny from the "Big Three" : The Program Manager, Don Suereth and Roger Skipper. Click Here


Courtromm Testimony of Other
Law Enforcement Agencies/Officers
a.k.a. The Rotten Apples

Thursday, February 26, 2009

Two Pinellas Deputies Suspended Over False Report

Two Pinellas County deputies received significant suspensions after making false entries in an arrest report, according to an internal affairs investigation released Thursday.

On Feb. 22, 2008, Cpl. Frank Felicetta conducted a traffic stop that resulted in a DUI charge and a window tint infraction. In court, he gave testimony that contradicted his arrest report, leading to the charge and the infraction being dropped.

Further investigation revealed that Felicetta searched the vehicle without gaining consent, even though his report said he did have consent.

He received a suspension of 160 hours.

In the same incident, Deputy Joseph Miner was found to have made a false report. The internal affairs investigation says Minerlied in his report about reading the suspect his Miranda rights.
Miner received a suspension of 56 hours.

Jonathan Abel, Times Staff Writer

Posted by Times Editor at 12:25:26 PM on February 26, 2009



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