AFFIDAVIT

From February 1, 2010, untilJanuary 31of this year, I was the chemical testing programmanager for theMetropolitan PoliceDepartmenthired under a DDOT one-year contract funded

by a NHTSA grant. I was to be the temporary caretakerofMPD's chemical testing program ,which had been leftwithout guidance when the police officer who had been the department' ssole and long- serving expert in this fieldmoved to another assignment.My responsibilities inthatposition included the introduction ofnew breath alcoholtesting instruments theIntoximeters EC / IR - II), maintenance and repairofthatequipment, creation ofmaterials to trainpersonnel in their use, the actual instruction itself, testimony in supportof the new devices, andliaison with the Chief Toxicologist at the OCME. I also was charged with training officers inDWIDetection and Standardized Field Sobriety Testing and, during the transition to the new

analyzers,maintainingthe instruments then in use - Intoxilyzer5000s of the 68 series - and

testifying in support of the Intoxilyzerprogram on behalfof the OAG .

I was given the position on the basis ofmyprevious experience with chemical testing

programs. From late 1973 to early 2003, I was a sworn officer with the U . S . Park Police.For two

three -year periods, I worked in that agency' s breath testing program , as an instrumenttechnician and program coordinator, then later, in addition to other traffic - related duties, as the

program supervisor. From 2004 to 2010, after my retirement, I oversaw the breath testing

program ofanother federal police agency and provided both technical and instructional support

for the program part-time as a contractor. Furthermore, between 2004 and 2010 , I provided

training and expert witness testimony pro bono to the U . S . Attorney ' s Office in Alexandria onvarious DWIissues, to include breath alcohol testing. From late 2006 through April 2010 alsoreviewed for the OAG legal challenges to the MPD breath testing program and offered advice onhow to counter them . This work , too, was performed pro bono.

On my second day at work last year, as I began to look at whatmy predecessors had been

doing, I discovered that the MPD instrument technicians , both police and civilian, had been

programming since late 2008 their Intoxilyzer instruments with data during the units' calibration

routines which would produce measurements approximately 20 - 21% higher than actual breath

alcohol values. The error was compounded by the use of alcohol solutions whose strength had

been depleted by repeated use, so the amountof error was actually (up to 40 % ) than thatwould be expected from the change in data entry values alone .

The discovery was alarming, though not completely unexpected, and I found itdifficultto accept the evidence beforeme. To be absolutely certain that there had notbeen any technical

modifications to the units in recentyears which had escaped myattention, the next day Icontacted the instrumentmanufacturer (CMI), a company which repairs the equipment (GuthLaboratories), and the state toxicology laboratory in North Dakota, where Intoxilyzer equipmentis still used. The information I received confirmed what I already knew : that despite

improvements to the instrument' s processing system over the years , which included new filter

wheelmotors, there had been no change in the values entered by the technician duringthe

calibration routine.

I should note for clarification that the calibration isnothingmore than a structured way oftelling the instrumentwhat value to assign to itsmeasurements. Breath testing devices are

mindless devices which have to be told how to express their measurements. In the Intoxilyzer

5000, a technician is required to use at least three different alcoholreference solutions and water

vapor to calibrate each unit. Once the device knows, so to speak , what a . 000 breath alcohollevel

looks likeand then is told how at least three simulated breath alcoholconcentrations should read ,

the instrument can apply its internalmathematicalalgorithm to measure correctly all possible

alcohol concentrations it might encounter within its analyticalrange.

On February 4 , I hadall the instruments then in service with the MPD pulled from the

field and tested them . I discovered, in fact, that the measurements in allbutone were

unacceptably high . The unit which produced results only about 5 % high was later found to be

malfunctioning. When I re-calibrated one instrumentwith the correctdata , subsequentchecks

produced testresults well within accuracy parameters generally in use by the forensic breathtesting community . The alcoholreference solutions I used for this purpose were first checked on

a former USPP instrumentwhich had been turned over to theMPD about a month earlier when

the Park Police switched to different equipment. For your information, alcohol reference

solutions are mixtures ofdistilled water and alcohol combined in certain proportions which ,

when heated to 34 degrees Celsius in specialized equipment (breath alcoholsimulators), should

generate alcohol vapors in concentrations whose values are predictable when tested by any

breath alcoholanalyzer. They are used to calibrate the instruments, to check the accuracy of a

unit' s measurements, and to verify that a unit is functioning properly . I would emphasize that

calibration and accuracy testing are differentprocedures. Accuracy testing maybe done withouta calibration, but an instrumentcalibration is only successfulwhen it is verified by accuracy

testing. In fact, accuracy testing is the final step of the calibration process.No one in MPDapparently ever understood the difference and the connection between the two processes.

The OAG ' s acting Traffic Safety Resources Prosecutor was notified on February 3 thatthere mightbe problemswith the MPD Intoxilyzer calibration routine. When I confirmed the

existence of the over-reporting problem on February 4 , she wasnotified again immediately. Ialso notified Chief Patrick Burke, who headed MPD ' s Homeland Security department, underwhich the Traffic Branch is placed. Oddly , none of the parties I contacted ever cameto check theprintouts and other data that confirmed the existence of a problem with obviously serious legalimplications.

I then attempted to determine how such an egregiousmistake had been made. Once I haddismissedmaliceas a cause, itdid nottakemelong to find the answer. A closer check of thefiles inmyoffice atthe Traffic Branch and some questioning of the civilian instrumenttechnician with whom I worked revealed that the instrumentcalibrationswere not being - andhad notbeen -- ever checked for accuracy. Had even a single accuracy test been conducted beforea miscalibrated instrumentwas returned to service in the field, the errorwould have beeninstantly uncovered. Calibrationscan be internally consistentbut nonetheless still produce

inaccurate results; themiscalibrated instruments are proof of that fact. Themiscalibration of the

Intoxilyzer instrumentsbegan in thelatter half of2008 and continued into January 2010. There is

no record in the files that any post-calibration accuracy testing was everperformed after thecalibration errors were committed . This information was conveyed to Chief Burke in writing at

the end ofmy firstweek as program manager, on or about February 5 or 6 .

The reason that these checkswere notperformed has its roots in the gradual abandonment

of accuracy testing in the field by theMPD, which certainly dates back to themid- 1990sand,

from myrecollection of conversations with severalMPD technicians with whom I consulted

when I firstbegan to work on Intoxilyzer equipment, perhaps even as early as the late 1980s. Therecords atmy disposal at Traffic Branch showed that the lack ofaccuracy testing pre-dated by at

least a decade the start of the instrumentmiscalibrationsand explains why the technicians 'mistakeswentundetected for such a long time.

The legal implications of this absence are possibly far greater than the problemscreated

by the over-reporting of test results, as egregious as they are . The DC Code requires that, as the

basis for admissibility of test results, an instrument be checked and found to be accurate withinthree months preceding a breath test. It appears that this has never been done, though neither theMPD nor the OAG have been willing to acknowledge this fact. To do so would be to admit

supervisory andmanagement failures of the first order by the MPD. In the case of the OAG ,

such an acknowledgement would be to admit its failure to provide ethically and legally mandated

disclosures to the defense of potentially exculpatory evidence (Bradymaterial) once it becameknown

Instead, these two agencies are trying to fix blame on the OCME and CMI, the

instrumentmanufacturer . Neither isblameworthy , and the legalresponsibility foraccuracytesting rested solely on the instrument technicians and the agency which manages the program .

Further elaboration of theaccuracy testing conceptmight be usefulat this point.

Accuracy testing hastwo components. First, it is used to verify that instrumentcalibrations are

successfulby determining whether the error or uncertainty of a unit' s measurements is limited to

a forensically acceptable range. Accuracy, in fact, is a way of describing the degree oferror in an

analytical system . The federal governmenthas established standards for evidentialbreath testingequipment, and these standards require that instruments produce results with a systematic error

no larger than 5 % or , whichever is greater. Error or uncertainty is normal in any

measurementsystem (radar and laser speed measurementdevicesincluded), and accuracy is amethod ofexpressing themagnitudeof this limitation across an instrument' smeasurementrange.

In breath testingdevices, the error in anymeasurementis small affecting the third decimalplace ,and is only relevant at threshold levels specified in the law . In the District, these breath alcohollevels are . 080, and 250 g/ 210L . It is generalprosecutorial practice to apply themaximumamount of error permitted by federalregulation to test results at these threshold levels in order to

provide defendantswith the greatestpossible benefit of the doubt.

The second kind of accuracy testing accompanies or tales place in close proximity tothe testing of a DUIsuspect and complements the extensive testing performed quarterly here in

the District. If the result falls within a certain range of its expected value, the instrument is

functioning properly and the results of the suspect' s test can be considered reliable. Had either

accuracy testing protocolbeen in place when the Intoxilyzersbegan to be miscalibrated, the error

would have been detected before any realdamagehad been done. Since the error was not,

severalhundred people received jail sentences as a result of falsely high results.

In addition , the absence ofany accuracy testing whatsoever over an extended period of

timemay place many hundreds, if not thousands, ofDWIconvictions at risk . MPD abandoned

accuracy testing in the field no later than themid -1990s and replaced itwith a weak and

inconsistentrepeatability protocol. Repeatability or precision is a way ofdescribing the

relationship or the degree of agreement among repeated measurementsofthe same value. Inshooting, this agreementwould be the equivalent of a tight shot group on a target the tighter,

the better. Wide variations in tests results are unacceptable. The effect of that decision was to

produce controlanalysis numbers (i. e ., accuracy test results) that had nomeaningbecause they

no longer said anything about the functioning ( .e., accuracy ) of the instrument. In other words,the control analyses lacked parameters. To return to the shootinganalogy, a tight shot group is

meaningless if it is not sufficiently close to the center of the target. Precision, then , is different

from accuracy, and this distinction was never understood by MPD instrumenttechniciansor their

managers. Measurements can be precise butinaccurate, and this was the case with the MPD

accuracy testing procedure used in the field . Ithad poor repeatability standards and no accuracy .

The problem was aggravated by the lack of records related to the alcohol solutions used in the

controlanalysis procedure.

I had been aware of this deficiency while supervisor of the Park Police traffic unit and inconsequence refused to allow the use ofMPD equipment in the Park Police alcohol vanwhenever I deployed the vehicle to support MPD checkpoints . I advised Chief Burke, then thelieutenant in charge of the Traffic Branch, several times that the absence of valid accuracy

testing inMPD ' s field protocols could fail to detect technician errors and instrumentmalfunctions and urged him to correct the problem . I and a number of other people involved inbreath alcohol testing , to included members of the USCP, also pointed out this flaw to the MPD

instrument technician responsible for the later miscalibrations. When I discovered that the

invalid procedure was still in place while reviewing cases for the OAG between 2006 and 2009, Itwice called Chief Burke and urged him to address the deficiency . I also asked the prosecutors

whom I was assisting to take action as well. No one felt inclined to intervene

Toward the end of January 2010 , I had the technician with whom I was to work checkMPD' s Intoxilyzer instruments with a . 100 alcoholsolution recently obtained from the ParkPolice and inform meof the results . I wanted to get an idea of how the units were functioningbefore assumingmy duties in February. The technician called to that the solution hadgiven results in the 13- 14 range and suspected that the solution was bad. When asked why theinstrumenthad notbeen removed from service because of the high accuracy test results, thetechnician replied that thenumbers were consistentwith each other (precision). Itwas obvious to

me that the technician did not understand that accuracy - and not consistency or precision - was

the purpose of the testing he had been asked to perform . It was my first direct evidence that there

was probably something seriously wrong with the MPD Intoxilyzer equipment , and I made a

mental note to deal with this issue as soon as started the job.

An earlier indication that there might be no post-calibration accuracy testing beingperformed byMPD had cometo my attention while I was reviewing a case for theOAG in 2009.

After I was provided with the printouts of an instrument calibration routine, I asked the

prosecutor for the accuracy test results. Aftermaking inquiries with the instrument technician,

she informedmethat the calibration printoutswere the only documents in the file and that no

others had been generated. I suggested that the absence of these testsmightindicate that there

could be a significant flaw in theMPD program even more serious than the deficient control

analysis protocoland requested that the assistant investigate . I do not know whether any

inquirieswere actually made.

It is accepted practice thatall forensic work be reviewed. Atno recent point in theMPD

program is there any evidence that the work of the instrument technicians was being checked by

anyone within MPD orby anyone outside the department. There certainly was no scientific

oversight, and the claim by RobertHildum ofthe OAG thatthe breath testing program had been

approved by theOCME is untrue.

The last Chief Toxicologistof OCME to look at the program , Dr. Fiona Couper, now the

head toxicologist for the State ofWashington, actually disapproved of the program s accuracytesting protocol in the field and requested that any references to the Chief Toxicologist beremoved from theMPD manual (rev. 2007) used to train instrument operators. Recognizing that

she had neither legalnor administrative authority over breath testing performed by theMPD , Dr.Coupermade the decision to designateMPD asthe source ofprogram information and expert

witness testimony. Her choice of wording was unfortunate because the word “ designate” impliedapprovalwhen none in fact existed. Furthermore, Dr. Coupermay nothave had the authorityunder law or administrative agreement to make such a designation.

I was familiar with the situation because I was working informally with the OAG at thetime. In the summer of 2007, I attended a meeting with Dr. Couper and at least one TrafficSafety Resources Prosecutor from the OAG . MPD Captain Burt Henry was also present. Capt.Henry was then assigned to SOD and oversaw the activities of the Traffic Branch The purposeof the gathering was to encourageMPD to review and to acceptbreath testing guidelines whichwould be used by all police agencies in the District. Developed by AAG Kara Preissel, AAGPoppiHagen and myself, the proposed guidelines included a valid accuracy testing protocolforfield use. At that meeting, Dr. Couper informed Capt. Henry that shewas not responsible forand did nothave any supervisory authority over theMPD program . She had notapproved thetrainingmanual for operators and noted that she did not approve of the testing protocolscurrently in place. Dr. Couper requested that references to the OCME and the ChiefToxicologist be removed from MPD trainingmaterialand formsand then referred Capt. Henryto thememorandum designating the Traffic Branch and Ofc. King as the point of contact for allinquiries about the department' s program . Asfar as I know , Capt.Henry took no action toaddress Dr. Couper ' s concerns.

- 20Date

Ilmar

Subscribed and sworn tomethis day ofMay, 2011.

ClaudiaNotary

CLAUDIA LEGAYPublic

Commonwealth of Virginia

7250261MyCommission ExpiresMar 31 2013