2014-10-17 FALP XII(1)

Congratulations to the graduates of the 12th class of the American Chemical Society Hands-on Gas Chromatography class. This makes for 210 graduates in 40 states.

 

Today’s graduates include:

First name Last Name State
Tim Bussey CO
Gregory Willis GA
Thomas Addair KS
John Thurston KS
Barton Morris MI
Neil Rockind MI
Steven Hernandez NJ
Jeff Meadows OH
Alan Woodland OK
John Arose PA
Rich Roberts PA
TC Tanski PA
Leslie Johnson TX
Mark Kelley TX
Jessica Phipps TX
Courtney Stamper TX
Michael Cohen WI
Nathan Dineen WI
Sarah Schmeiser WI
 

[10/16/2014 Second update: NCDD Regent Don Ramsell has taken down his ad hominem attack, but the error on the NCDD website and its quiz still exists. Now in a bizarre attempt to re-frame the quiz, he explains what I can only assume that he meant for the quiz to mean (as a trained lawyer, he knows language and words are important. I took him at his literal word, but here it is) he writes:

#1

#2

Here is the answer again:

The chemicals which are added to many blood samples taken by police, sodium fluoride and potassium oxalate, are salts. If too much is added, or the amount of blood placed into the tube is less than the desired amount, then the ratio of salt to blood can become too high. This can cause extra alcohol to leach into the air above the blood sample (i.e. headspace) in the blood vial. If the laboratory uses the headspace method of analysis, the results will become artificially high.

I do not know of a single assay that is used today involving the testing of human Blood for Ethanol determinations for criminal prosecution in the United States in a ante-mortem sample that does not rely upon the use of some form of higher alcohol as an internal standard (generally either n-prop or t-butanol) both of which behave as described below in great detail an in the peer review literature from at least 1994. In 1964 G. Machata of the University Forensic Institute in Vienna first worte about HS-GC-FID for blood ethanol analysis. Machata, G. Mikrochim Acta, 1964, 262-271. Three years later, he wrote the first application note for automated HS-GC-FID analysis for BAC determinations. The model F-40 (Bodenseewerk Perkin- Elmer & Co.) was the first automated and integrated headspace GC system based upon these principles, was introduced in the spring of 1967 at the International Exhibition–Congress on Chemical Engineering (ACHEMA) in Frankfurt am Main, Germany. Machata G (1967) über die gaschromatographische Blutalkoholbestimmung. Blutalkohol 4: 252–260. (You can read it here) As noted in the contemporaneous literature of the time, these methods were published using the internal standard technique.

#9

Here is one of the published chromatograms:

#20

Here is the published English summary (It's main text is in German) noting the use of internal standard:

#10

Specifically, as noted on page 207 in the seminal book in the subject "Static Headspace-Gas Chromatography: Theory and Practice"  By Bruno Kolb, Leslie S. Ettre:

#6

Various ISTDs were used through the years including using internal standards of tert-butanol, n-propanol, MEK, acetonitrile and others. So going as far back as 1964 or 1967 internal standards were begin used in headspace GC. Again, I know of no assay that is used today involving the testing of human Blood for Ethanol determinations for criminal prosecution in the United States in a ante-mortem sample that does not rely upon the use of some form of higher alcohol as an internal standard (generally either n-prop or t-butanol). So one has to wonder if he will ever concede that he is wrong or that the question was inartfully written. Let's put aside pride and get the accurate information out there, please.

I do find it interesting that the source for his claim that as written below is correct is the Handbook of GC/MS (which I have read cover to cover) and it does not support his proposition. Here is his link as it appears:

#3

It is interesting to note that his reference does not mention ethanol. In fact it is in a wonderful and great book about GC-MS or Gas Chromatography with Mass Spectrometry which (except for the notable exception of two labs in the United States) is not used in Blood Alcohol analysis at all. It is in an application note in the appendix "Static Headspace Analysis of Volatile Priority Polutants." What is briefly described is the deuterated internal standard technique. It is something used in GC-MS and is a fantastic way for conducting GC-MS analysis and quantitation, but we do not use deuterated ethanol as an internal standard in GC-FID work because with the typical column used and the detector used, the Flame Ionization Detector, we are incapable of differentiating between ethanol in the samples versus deuterated ethanol.

He wrote: "As has been written, the salting out problem disappears 'when n-propanol is used as the ISTD.'"

I wonder where it has been written other than here. It certainly still is not on that quiz. I think it is a disservice to the bar and to justice to propagate error for the sake of "winning more cases." It's ok to be wrong. It is not ok to correct oneself when pointed out that one is wrong. Confession of error is a good thing. Time to confess error. Nevertheless, this remains a great illustration of the thrust of this blog post. Be careful who your coach is.]

[10/16/2014 Update to this post: As I mentioned below, I think that there can be no possible insult in pointing out a source of error. Those who get offended by the questioning and pointing out of error need to re-examine whether or not they are out for personal or institutional glory or accurate information dissemination. Error is wrong. Everyone makes error, myself included. What is not excusable is continuing to propagate error once you are alerted to it. Shortly after this post was issued, there was a public response by the NCDD Regent Don Ramsell on his Facebook post (it is unclear if his post was an authorized and Board directed post, I will presume not). Within that response by Don Ramsell both Regent Don Ramsell and Regent Paul Burglin do not mention me specifically by name; however, they post details that make it clear that it is me that they direct their anger at. I pray for them and ask that you do too. But what is most important is not the ad hominem attacks, which sadly I suppose in their mind I invite when I point out error that involves them or their institution, but that they clearly now know of their error on their "quiz" and have not fixed it. Be careful who your coach is. Check out the"quiz" for yourself. Hopefully they fix it soon. I am doubting it. https://ncdd.com/we-help-win-more-cases-answers ]

 

I have written before about one of the things I think is plaguing the Continuing Legal Education system when it comes to criminal defense lawyer education. The widespread practice of lawyers teaching lawyers science breeds and foments the potential propagation of error. This problem is widespread. It is epidemic. There are some notable exceptions in terms of lawyers who know and have rigorous training in science, but there are actual and great potential problems in this method of education.

It leads to mythology and propagation of error.

Error is error. There is no shame in pointing out error. There is great shame in presenting something as empirical fact which is wrong and then to continue to propagate that error. Certainly, I am not free from error. If I am wrong, I like to have that pointed out to me. I research it. If I am wrong, I acknowledge it, and correct it and most importantly learn from it. I have been wrong in the past. I will likely be wrong again in the future. But we have to be careful in what we teach others. This is especially so with institutions that serve as the conduit of knowledge and information dissemination in the legal world. (The defense bar is not the only group that has this problem, it also affects prosecution and its experts.)

In that prior post (The Ethics of CLE Agenda: A Jury Argument or a Science Argument), I wrote and remarked:

It is a small part of the reason that I stopped speaking at lawyer CLE programs. Too often, I would find myself on stage presenting fair, balanced, and objective information on the science (such as the limitations of an assay or its specificity and selectivity) just to be followed by someone next who would present the science “very loosely” (and that is putting it mildly) and as such, totally teaches the audience faux science to pass off to a jury. There never is a caveat to this faux science presentation. They sometimes back up their beliefs not with data, but with a line out of context in a trade journal or a line in a peer reviewed journal. When you ask them for sources, they point you to a ream of information and when it is looked into with an educated eye, their contentions are not supported at all. I have even asked the faux science presenters to consider putting in a disclaimer. But they will not, the faux science is presented as scientific truth to the audience. The proportion of faux science presentations to legitimate science at CLEs has exploded over the years. About a year ago, in my travels across the United States, it came to the point where in good conscience I could not and would not participate in some of the seminars any more. If I had already accepted to teach at them, I always asked to be first or near first and put up a slide that had a single word, “Bias” in white letters on a black background. Even in conferences where there is only good and legitimate science presented, I would so disclose my bias to every audience.

And later I wrote:

The titles [such as the NACDL/NCDD "DWI means Defends with Ingenuity(R)" seminar held every year in Vegas] aren’t the only problem, it’s the content. Words are just words. The content is what matters the most. People, lawyers, come to these conferences to learn and then to apply their learning in the courtroom to defend an accused. The content is what matters. Over the most recent years, the content has focused less and less and less on legitimate scientific information and more on what I term a “Jury argument.” A jury argument is one that “works”  on a jury (read as “tricks the jury”), but holds little or no water in the scientific world. I personally do not teach or propagate jury arguments. In fact, I like to expose them. I think the faux science jury argument presentations are harmful to the public, harmful to the lawyers listening and are harmful to anyone who is accused. In fact, I believe they are borderline unethical.

Is there a place to teach jury arguments? Perhaps there is, perhaps not. It is debatable for some. No so much for me.

What isn’t debatable is one thing: if we present legitimate science side-by-side with jury style fast and loose faux science arguments, we as a defense community and as presenters and as organizers must declare which is which. To the audience, there is great harm potentially if it is not distinguished. A lawyer instructed in jury argument faux science may very well come into court and face an expert who will expose the non-scientific aspects of the presentation leading to perhaps an unjust guilty verdict.

All of this leads me to an important issue that as a defense bar we just ignore: Bias. If this continues, it is a long-term path to infecting a whole generation of lawyers with invalid science. It is not sustainable.

We, as a defense community, need to do better for our future and so we don’t get discounted as extremists. Let’s hit the reset button and present the science legitimately and if we have to present jury arguments, let’s state as much upfront to the audience rather than teaching a whole generation of lawyers to present faux science. The truth is that when science is presented accurately the citizen accused often wins – as the science is often on his side.

Here I add on more specific examples of objectively wrong science presented as fact by lawyers teaching to other lawyers:

This is a picture of a slide that was provided to me from a lawyer’s presentation at the 2014 NCDD Mastering Scientific Evidence seminar entitled “Blood Testing: Fermentation and Facts”:

2014-03-20 09.07.19

It is not a clear picture. I did not take it. In case you cannot read it, the slide clearly reads:

Fermentation the Fatal Flaw to EVERY BREATH TEST

Perhaps this was just a typo and the presenter meant to write “BLOOD” and let’s operate under that premise, but to claim to lawyers that it is a legitimate scientific defense in EVERY case? I think not.

But let’s also consider this as well: NCDD1NCDD1

Let’s leave aside the “We help you win more cases” as that is likely just marketing to help them sell memberships (perhaps they should consider rephrasing it to “we help you learn legitimate science to promote justice”), but when one takes the quiz, one encounters the following question and what they believe is the right answer:

Wrong Answer

While it is partially right about the role of inorganic salts, it is totally wrong in the end result to BAC analysis. This has been known and published for many, many years in the peer review. The most prominent and most sited article is Jones AW. Salting – out effect of sodium fluoride and its influence on the analysis of ethanol by headspace gas chromatography. J Anal Toxicol 18;292 – 293, 1994. Since 1994, it has been well settled science that a short draw (the most practical way that salting out happens or the differentiating use of salts (more salts used in the defense lawyer’s client’s sample unknown than the instructions call for) will always result in an under-reported BAC when n-propanol is used as the ISTD.

I wrote before on this blog at What’s Salt Got to Do With It? Salting Out Effect (October 26, 2010) about salting out and the use of inorganic salts.

But just to amplify, the addition of inorganic salts are going to effect the Beta (the phase ratio) which in turns effect the partition coefficient at equilibrium in the vapor phase.

The phase ratio (β) is defined as the relative volume of the headspace compared to volume of the sample in the sample vial.

Calculating the Phase Ratio

Phase Ratio (β) = Vg / Vs

where Vs is the volume of sample phase;

Vg is the volume of gas phase

Sensitivity is increased when β is minimized

Lower values of β (i.e. larger sample size) will yield higher responses for volatile compounds.

Decreasing the β value will not always yield the increase in response needed to improve sensitivity. When β is decreased by increasing the sample size, compounds with high K values partition less into the headspace compared to compounds with low K values and yield correspondingly smaller changes in Cg. Samples that contain compounds with high K values need to be optimized to provide the lowest K value before changes are made in the phase ratio.

Now applying the above to the case of the typical ISTD (n-propanol) and the target analyte (ethanol), the following is revealed:

Ethanol at 50 degrees C in aqueous solution has a relatively high partition ratio in comparison to n-propanol (1220 versus 520). Remember the higher the partition ratio the more resistance of the analyte to get into the vapor (gaseous phase). This means that n-propanol at equilibrium will escape more readily into the headspace than ethanol at this temperature.

As mentioned above with the addition of inorganic salts were/are effecting this K value for both. This effect is not equal. The response will be different among them. As the EtOH K is higher it is harder to reduce the K value there (it has more to go). The impact of the inorganic salts is greater on n-prop than EtOH. So by adding inorganic salts, there will be proportionally more n-prop than EtOH. Stated differently, the n-propanol will more easily elute to the gaseous phase by a disproportional amount versus the EtOH. This will result in more n-prop proportionally in the gaseous phase than there should be if no inorganic salt was used.

When we are using ISTD method, if the ISTD area count is larger than the expected, there will be a ratio correction DOWNWARD of the ethanol amount.

When we are using ISTD method, if the ISTD area count is less than the expected, there will be a ratio correction UPWARD of the ethanol amount.

 

Now when we operate static headspace GC-FID and are infinitely precise and infinitely accurate with our volumetric delivery of the ISTD and the only variable is the amount of inorganic salt in the tube between that of a short draw (where the proportion of inorganic salt is higher) and a long draw (where the proportion of inorganic salt is lower), then the following will result:

Short draw= proportion of inorganic salt is higher in the tube= N-prop elutes more readily in headspace than EtOH proportionally, but still n-propanol is higher= ratio correction not in proportion to increase of EtOH increase= BAC underreported.

Long draw= proportion of inorganic salt is lower in the tube= N-prop elutes less readily in headspace than EtOH proportionally, but still n-propanol is lower= ratio correction not in proportion to increase of EtOH increase= BAC over reported.

In conclusion, scientifically, that quiz answer is objectively wrong.

 

 

 

There is a myth among prosecutors, defense attorneys and judges that is propagated time and again all over courtrooms in the US that involves the idea of “therapeutic ranges” when it comes to DUID cases and prescribed drugs. The notion is that there is a one-size fits all chart that we can all refer to in order to settle the question of whether or not there is impairment based upon a drug in a given case. I understand why that is so attractive to prosecutors, judges and defense attorneys because it is a shortcut to thinking. It saves time. However, scientifically, there is no such thing.

I call it “cookie cutter pharmacology.” It is dangerous for traffic safety. It is dangerous to justice. It is just plain dangerous.

cookie-cutter

Can anyone use the “cookie cutter” charts such as Winek’s, Basselt’s and the like to his or her advantage in pre-trial discussions with opposing counsel to try to attain some sort of favorable result? Sure. Absolutely. In fact, it is done every single day. But is it right? No. Here’s why.

img-duid1

Do not try to use these charts against someone who even marginally educated in the pharmacology. Reliance on such charts is not scientifically warranted for many reasons:

  1. These charts were developed for postmortem use in autopsy cases as a guide to help determine cause of death from an overdose as a potential cause of death, not impairment for a driver. It is a guide or resource for further investigation in postmortem toxicology – that is all.
  2. There are no footnotes as to the sources of the literature for the published levels. If you pull the original research you will find some that will differ significantly.
  3. All you have to do is to look at the 2001 Winek’s Drug & Chemical Blood-Level Data chart to see several items that are the same thing listed independently based upon their generic name versus a trade name, but have different reported values. For example: Ambien and Zolpidem. Ambien is the trade name and Zolpidem is the drug. Both are the same darn thing, but when looking at the chart we see:

chart

 

It does not make sense.

 

  1. The matrix and the measurand are not reported in the reported values. Some are plasma results, some whole blood, and some are urine. There is a large difference among them. What is your lab report?
  2. What is the time of collection versus time of last driving of your case versus what was here in the chart? This is massively relevant.
  3. The simple fact is that someone who is using an acute dose and is pharmacologically naive to the drug can absolutely be impaired for the purposes of safe driving at a concentration under what is published in these charts.

4

The true questions in any given DUID impairment case are as follows:

  1. What is the testifying witness’s definition of “impairment”? Is it to the slightest degree or substantial impairment or something in-between?
  2. For what purpose is this person’s definition of impairment being used for? For safe driving? For doing roadsides? What?
  3. Do they have epidemiological or actual driving studies that show odds ratios and crash data or standard deviation of lateral position or follow distance data that support their call that the drug in any amount is even associated with the possibility of a crash?
  4. Can the observations of the officer at roadside be linked uniquely to the results of a blood test at time of blood draw which is far removed from the time of actual driving? What is the pharmacokinetic behavior of the drug?  We never get the blood draw at the time of driving and no one can legitimately use retrograde extrapolation to get to the drug level at the time of driving and observation. You cannot tell where one is on the pharmacokinetic cycle based upon a single blood draw point.
  5. How much stock does the opining expert who makes the impairment call place in the unverified observations of the police officer? Or is there objective information such as video? Consider the case of amphetamines alone (no ethanol). If you add this equation the published information that if a DRE officer (the highest trained officer per NHTSA using the most complex series of testing done by officers) was present and did the full battery of the DRE evaluation, then that most highly trained officer using the DRE diagnostic tool only has a likelihood ratio of .083 (which is a negative correlation) in correctly predicting amphetamine PRESENCE in the person’s system, and that in one peer reviewed study that the accuracy rate for stimulants presence IN URINE (amphetamine is a stimulant) was only 9%, then how on earth can your minimally trained Academy-only educated officer stand a snowball’s chance in Hades to correctly opine presence…. let alone impairment due to this drug using far less to investigate and knowing far less? None I assert.
  6. How much (or little) does the opinion expert know about that human being who they are making this important judgment about?

So in conclusion, if you are confused after reading all of this, you are right to be confused. Mama is right, we are all beautiful snowflakes. For DUID impairment cases “Life is like a box of chocolates. You never know what you are going to get” when it comes to evaluating a stranger and having no meaningful pharmacological data or history.

7

Well trained forensic scientists who understand pharmacology are rare. Exceedingly rare. We all want a just result. We all want safe roads. We want the innocent driver who is following doctor’s orders and is not impaired not to go to jail and lose his or her driver’s license. We all want dangerous impaired drivers off the road. In sum, we all want to get it right.

This is why we have to educate ourselves on the value of “cookie cutter” pharmacology and avoid it. Justice demands no less.

 

“Just because you’re paranoid doesn’t mean that there isn’t somebody watching you”

That is a truism in this day and age. There has been much publicity about the Edward Snowden revelations and NSA’s PRISM and the Boundless Information programs. It has invited a lot of useful and needed public and private debate in the role of government and the tension between security and privacy. Some have stated that the PRISM program is not used for domestic crime fighting based upon claims by the Executive branch. It seems as if the Executive Branch tacitly concedes that if PRISM or Boundless Information programs were used for domestic crime fighting that it may be illegal and unethical and perhaps unconstitutional to do so. Some news agencies have reported on the DEA using information gathered from NSA programs for domestic crime solving (“Exclusive: U.S. directs agents to cover up program used to investigate Americans“) and in particular the derivative Special Operations Division (SOD) programs. This some people have dubbed this type of surveillance as “Trickle Down Surveillance.”

It has been well known for a long time that cell phone carriers retain information that can later be obtained by law enforcement concerning a certain cell phone. This information is almost always obtained by a search warrant.

But what can be done in real time?

What is the extent and capability of Big Brother and its tracking in real time?

 

The above look like cell phone towers. Are they all functional cell phone towers from industry or are they a method of domestic law enforcement warantless cell phone tracking and potential eavesdropping?

Perhaps.

There are many devises out there that can act as cell phone data “catchers.” They can be fixed or static cell phone looking towers. But there are also much more portable versions that are housed in vans, or hand-held or can be worn on one’s body:

IMSI-Catchers

 

To understand the forensics of cell phone tracking and potential eavesdropping one has to understand the basics of how a modern cell phone works. A carrier assigns a cell phone an International Mobile Subscriber Number (IMSI) or Temporary Mobile Subscriber Identity (TMSI) or the Electronic Serial Number (ESM). In an over simplified way this IMSI/TMSI/ESM is the manner in which your cell phone is differentiated from all other cell phones so you get your calls and not someone else’s. The most popular form of these devices are called “The Stingray.” Much like the Xerox company’s experience with its copier machines, the term Stingray is over-used in the community and has come to represent all similarly situated and capable devices. The term “Stingray” is trademarked by the Harris Corporation out of Florida and is one particular device. The Harris Corporation guards zealously the technical specifications and the capabilities of its devices.

What is known is this:

The IMSI/TMSI catcher devices act as a “Man in the Middle” style of intercept. In essence, your cell phone is almost constantly sending out signal in order to acquire cell phone tower coverage. The preference of your cell phone is to seek out the highest and best form of network which is going to be the 4G network ( A5/3 encryption or better). It so happens that the 4G network is better encrypted. If 4G is not available, it seeks 3G. And rarely, if 3G is not available, it will go to the old 2G network. The old 2G network is not well encrypted at all (A5/1 encryption). What the current version of IMSI catchers do is force a cell phone coverage area out of the better encrypted 4G and 3G networks, down to the 2G networks. Handsets that are artificially “stuck” in 2G will readily accept signals from other devices such as a Stingray or other IMSI catcher and a quasi-direction finder is then used to pin-point location.

So law enforcement, if they wanted, could seek the IMSI of TMSI or ESM information from the carrier of their particular target, the provider can then give general area and last use information to help narrow down the search, then the government would deploy a IMSI/TMSI catcher (such as a Stingray) in the area where the target is sought to be and then track in real time where the person is based upon this MITM style attack. It has been described by one user as “quite easy.”

Or in the alternative, if the government wanted, if there was a gathering, such as a demonstration or a riot, the same technology could be used to “grab” all of the IMSIs or TMSIs or ESMs in the area and then latter apply to carriers to determine who the subscribers are.

There is an upgrade to the original Stingray called “Stingray II” which enables the Stingray to work on 3G and 4G networks now as the 2G network will no longer be supported.

Other similar tactics can be used for Denial of Service (DoS) style attacks where a device, such as the Harris Corporation Gossamer 4000 device (it can both track IMSI and also push a DoS attack) can be used to possibly “jam” a particular cell phone or all cell phones in an area.

Another platform known as “FishHawk,” (PDF) is reported to be able to eavesdrop in real time the conversations that happen. There are reports of software/hardware called “Triggerfish” which can eavesdrop in real time as well. “Porpoise” (PDF) is designed to be installed on a laptop and is reported to be able to intercept text messages in real time.

There is a proliferation of these types of devices. How frequently they are being used is not known as most state’s guard the very possession and deployment of these devices greatly. They are frequently protected against FOIA or FOIA like disclosures because of their sensitive nature. According to the ACLU in its report “How the Government Is Tracking Your Movements” there are at least 15 states that have this capability.

2014-09-30_1348The Pennsylvania State Police have purchased a Stingray and Stingray II according to the Declaration who posted these purchase orders and receipts for the Stingray and Stingray II upgrades. It is unknown how or if it is used.

Without a doubt, there are constitutional issues surrounding the use of these types of devices in domestic crime fighting. In at least one case, the issue has come to a head. In State of Florida v. James L Thomas, 2008-CF-3350A there was a suppression hearing based upon the use of this technology.What is very revealing in the suppression hearing was what an officer explained under oath. He said that  he “quite literally stood in front of every door and window” with his stingray to track the phones inside a large apartment complex.

2014-09-30_1410

and later the officer states:

2014-09-30_1412