This case involves a motor accident resulting in death, and the allegedly insufficient organizational controls which lead top the accident. The target defendant is the general manager (GM) of a car dealership with a history of alcohol abuse. The CEO of the company was the defendant’s father-in-law, who had known of the defendant’s liquor consumption for some time. Furthermore, it was generally understood among the employees at the dealership that the GM abused alcohol. One night, the GM took home a motorcycle from the dealership, putting her stepdaughter on the motorcycle with her in spite of the fact that she was intoxicated. At some point during the ride, the defendant lost control of the motorcycle and crashed the vehicle, killing her step-daughter in the accident. The plaintiff alleges that the policies and procedures of the dealership did not contain any regulations or mechanisms to prevent chronically intoxicated people from the operating the dealership’s vehicles.

The effectiveness of any organizational policy depends on several factors, including: a.) the ability to observe violations of the policy or to have violations reported b.) the ability to enforce violations of the policy through some form of punishment c.) the organizational norms about the viability of the policy. Simply having policies and procedures on the books does not necessarily discourage undesirable behavior. For example, if there was a policy that everyone needed to pass a breathalyzer test before borrowing a vehicle, but everyone in the organization (including senior management) did not follow the policy, then the policy is de facto ineffective through cultural norms that surround the policy within the organization. Furthermore, if there is no way for those who observe violations of the policy to report the violations without fearing for the safety of their job, then the policy is unlikely to be effective. Policies that pass the three thresholds laid out above typically have a real and measurable impact on organizational behavior. This does not mean that people do not subvert the policies from time to time, but if the organization has set up policies that meet those criteria, they are typically effective in changing behavior.

1. Would it make a difference if there were policies and procedures in place to curtail this type of behavior? 2. If you have proper adopted policies, can it make a difference?

Location: New York B.A., Amherst College M.B.A., Emory University M.S., Management, University of Pennsylvania Ph.D., Management, University of Pennsylvania Former S******* C********* V**** Former S******* C********* K*** S***** A********* Current A******** P******** M********* a** O************ m**** u*********

This expert has been researching and working in the fields of behavioral strategy, strategic decision making, and managerial cognition for 15 years. He received both is Masters and Ph.D. in Management from the University of Pennsylvania, and he holds editorial positions with "Administrative Science Quarterly", "Academy of Management Journal", the "Strategic Management Journal", and "Organization Science". This expert was recently named to both "Top 50 Most Influential Business Professors" and "Top 40 Business Professors Under 40" by mbarankings.net and "Poets & Quants", respectively, and he has presented many times at professional meetings such as the Duke Strategy Conference and the Academy of Management Annual Meeting. Currently, he is an Associate Professor of Management and Organizations in the M.B.A. program of a major university and focuses his research on the challenges faced by managers and executives in making good decisions.

Lax Organizational Policies Contribute to Drunk Driving Death

This case involves allegations of evidence tampering in relation to a wrongful death action. A patron at the defendant bar consumed approximately 4 drinks or more prior to leaving the establishment. She was allegedly visibly intoxicated and impaired while continuing to order and consume drinks. While driving, the patron blacked out and struck a pedestrian in a crosswalk, killing him. A breathalyzer revealed that the impaired driver had a BAC of .14 at the time of the accident. The plaintiff alleged that the accident was a result of the patron being over-served and allowed to leave the bar when she was visibly impaired. To this end, the defense retained an expert in video forensics and visual surveillance to recover and review footage of her drinking at the bar before the accident.

I am a certified forensic examiner with almost 15 years of digital forensic and over 20 years of IT experience. I am regularly tendered as an expert witness, and my firm handles family law, criminal, business and employee misconduct cases, as well as wrongful death cases. I travel around the country examining mobile devices for accident cases as well. This is something I can assist with; my firm does a lot of work with DVRs. I have not testified in a case exactly like this case, but I have testified about video evidence and DVRs in a criminal case before. I testify regularly and typically find myself in court about once a week. Depending upon the type of DVR, the size of the HD and the retention policy our chances of recovering the data may be slim, unless steps were taken to preserve the DVR or it was taken out of service. Sometimes if we can't get the video, we can at least extract log files that can tell us when the system was accessed and what may have been done. Actual conscious tampering is rare; losing data from inaction or upgrades is more common.

1. Please discuss your background in digital video forensics. How long have you been practicing in this capacity? 2. Are you able to review the case and/or inspect the video system, to determine if there has been any tampering of evidence? 3. Are you able to recover deleted footage?

Location: NC Graduate, Behavioral Science, Erskine College Certified, Forensic Examiner, GIAC, AccessData Member, Information Systems Audit and Control Association Presenter, 30+ Speaking Engagements Former E********** T********* & I*********** R** E******** Former P******** & C********* E******** I* & F******** Current P******** & C********* A D****** F******** B******* i* t** R************* A***

This digital forensics expert has been providing litigation support and e-discovery services for nearly 20 years. He graduated from Erskine College in South Carolina, where he studied behavioral science, law, and computers. Since the mid-1990s, he has been operating consulting businesses focused on forensic data acquisition and investigations. The expert is a Certified Forensic Examiner and a Member of the Information Systems Audit and Control Association. He has experience consulting in criminal cases, business disputes, employee misconduct, family law, and wrongful death investigations.

Video Forensics Expert Discusses Security Camera Footage Recovery in Criminal Trial

This case involves a man who was pulled over for speeding on a major thruway. He was administered a ticket but no breathalyzer reading was recorded. Several hours later, the same man was arrested for disorderly conduct in a residential area. At the time of arrest, the man had a breathalyzer reading of 0.09. It was alleged that the man’s blood-alcohol content at the time he was pulled over was higher than the breathalyzer reading at the time of arrest. An expert was sought to opine on the appropriate protocol for taking breathalyzer readings and the accuracy of a reading taken after several hours.

I have served as an expert witness on countless DUI cases in New York courts and have published and lectured on the flawed nature of breath-alcohol analysis. A breathalyzer reading taken several hours after the initial stop cannot be used to demonstrate the individual's blood alcohol content when they were first stopped. Often times the prosecution will argue that if the individual blew a 0.09 on a breathalyzer five hours after the stop, their blood alcohol content had to have been higher at the time of the initial stop, but this is definitely not necessarily true. I have published research on retrograde extrapolation and its unreliability. Additionally, how many times the individual blew into the machine and if the mouthpiece was changed after each blow should be looked at.

1. Please describe your background as relates to breathalyzer reading accuracy/protocol.

Breath Alcohol Analysis Expert Weighs In On Accuracy of Delayed Breathalyzer Readings

This case involves a diabetic man who drove himself to a bar for an event with a group of his coworkers. The man claimed only to have had 3 drinks while at the event. Around 11:30 pm, the man left the event and drove home. While on the highway, he was pulled over for speeding. According to the officer who pulled him over, the man was driving at 85 mph in a 55 mph zone. The man was given a breathalyzer test which came back with a reading of .20 and was charged with driving while intoxicated. The man claimed that his diabetes contributed to an unfairly high breathalyzer reading. An expert in pharmaceutical toxicology was sought to discuss the extent to which the man’s diabetes and ketoacidosis could have affected the breathalyzer results.

Acetone is produced during diabetic acidosis and is exhaled similar to ethanol. It is detected on many breathalyzer instruments as ethanol. The common intoxilyzer detects acetone as ethanol because it absorbs infrared energy in the 3.38 to 3.40 micron range, the same range where ethanol is found. Breath acetone is generally regarded as an indicator of a serious diabetic acidosis among Type 1 diabetics. Peer-reviewed studies have demonstrated that acetone in the breath of an untreated diabetic can contribute and result in an erroneously high BAC. In the current case, a 0.2% ethanol reading is higher than reported in the literature. Mormann et al., has documented diabetic subjects with acetone levels sufficient to produce a BAC of 0.06% In the current matter, the ethanol level could be found as unreliable. I would need to review the complete file as well as the most current studies with respect to the maximum error rate. Also need to know the manufacturer, model number, and year of the breathalyzer used.

1. Is it possible for ketoacidosis to cause inaccurate breathalyzer readings?

Man’s Medical Condition Allegedly Affects Breathalyzer Reading

Expert Institute Expert

Natalie Lincoln was charged with vehicular homicide in the death of a man when the car she was driving crossed the center lane and struck the decedent’s vehicle.  At the scene of the accident, the defendant passed a field sobriety test performed by a police officer and had a negative breath test for alcohol.  First


Natalie Lincoln was charged with vehicular homicide in the death of a man when the car she was driving crossed the center lane and struck the decedent’s vehicle. At the scene of the accident, the defendant passed a field sobriety test performed by a police officer and had a negative breath test for alcohol. First responders and paramedics described the defendant as awake, alert, cooperative, and without signs of intoxication. When the defendant was examined in the emergency room because of injuries sustained in the accident, she was alert and oriented, and had a normal eye examination.

At 20:55, the defendant was alert and oriented. At 21:40, 4 milligrams of intravenous morphine was administered to the defendant for back and neck pain from the accident. A police officer and Drug Recognition Expert (DRE) was called to evaluate the defendant. Their examination began at 21:45. The DRE also conferred with the officer who had initially evaluated the defendant. After which a repeat breath alcohol test was administered, also negative. The DRE collected information about the defendant’s use of medications that day, which included baclofen, adderal, and citalopram. The DRE then performed an examination. He described the defendant as emotionally upset (crying), having dry mouth, a raspy voice, bloodshot and watery eyes. The DRE documented that the defendant was drowsy and fell asleep at the end of the examination.

The DRE performed an eye examination. It showed lack of smooth pursuit, as well distinct and sustained nystagmus in both eyes. The angle of onset of nystagmus was less than 40 degrees in the left eye, but not the right eye. The DRE observed vertical gaze nystagmus. The DRE documented that the exam was performed when the defendant was only wearing one of her contact lenses, because she had lost a contact in the accident. The defendant had poor vision (20/1000). The DRE did not perform other field sobriety tests (walk and turn, one leg standing) because the defendant was immobilized in a cervical collar. The DRE report documented that the defendant was falling asleep during the examination.

Based on the DRE exam, the officer concluded that the defendant was under the influence of a depressant and narcotic analgesic. Subsequently, she was not safe to drive a motor vehicle. A warrant was obtained for a forensic blood sample. The subsequent sample was collected approximately 2 hours after the DRE exam. The following analysis of the blood sample was negative for ethanol and all other drugs of abuse. The sample was positive for baclofen at 0.25 mcg/mL, with the normal therapeutic range reported as 0.1 to 0.4 mcg/mL.

A jury trial ensued, with the charge of vehicular homicide being based on the DRE’s testimony that the defendant’s ability to drive a motor vehicle safely was impaired by her use of baclofen. This is a skeletal muscle relaxant and central nervous system depressant. At trial, the DRE opined that the abnormal eye findings, including lack of smooth pursuit and sustained nystagmus, were caused by baclofen and were indicative of impairment. On cross-examination, the DRE testified he was aware that morphine had been administered to the defendant prior to the exam. However, he was not aware of the dose or when it was administered.

The DRE testified that the presence of vertical nystagmus in the defendant was inconsistent with the use of morphine. He based this testimony on his training and a fact sheet that was issued on narcotic analgesics by the National Highway Transportation and Safety Administration. The DRE testified that he could not recall encountering baclofen in any other examination that had had previously performed. The DRE also testified that his training had not informed him that morphine is a central nervous system depressant. The decision matrix he used as a DRE classified it as a narcotic analgesic.

A toxicology expert witness was called by the defense. The expert’s credentials included board certification in medical toxicology and clinical experience in addiction medicine. The toxicology expert witness opined that the defendant was not impaired by baclofen at the time of the accident. The expert acknowledged that baclofen can cause sedation as an adverse effect, but that this most commonly occurred in the first days of treatment and goes away after repeated doses. The expert testified that the defendant had been taking the baclofen for over three years. Furthermore, there were no reports to her treating physician of sedation or adverse effects. Also, the levels of baclofen that were measured in the defendant’s blood were consistent with normal, therapeutic use of the medication.

The toxicology expert witness testified that the most likely explanation for the abnormal findings on the DRE examination were secondary to the morphine that had been administered intravenously, five minutes before the officer conducted his examination. The jury was informed by the expert about scientific studies that had demonstrated that the IV administration of morphine and other opioids can affect smooth eye pursuit movements and cause nystagmus. The expert also educated the jury that over the last several years, several scientific studies had reported the observation of vertical eye nystagmus when morphine and other opioids are administered intravenously. The jury was also informed that morphine is both a central nervous system depressant and a narcotic analgesic. This is especially true when the drug is administered intravenously.

The toxicology expert witness informed the jury that some central nervous depressants, particularly alcohol, can cause abnormal smooth pursuit movements and gaze nystagmus. However, there were only several drugs that had been shown to cause these same effects. These included central nervous system depressant drugs like barbiturates, phenytoin (Dilantin), lithium, and carbamazepine (Tegretol). The toxicology expert informed the jury that no scientific studies had demonstrated that baclofen causes the kind of abnormal smooth pursuit or horizontal gaze nystagmus findings that are performed on a DRE examination. The expert also testified that baclofen is sometimes used in the medical treatment of conditions where people have nystagmus.

The toxicology expert witness’s summary opinion was that the defendant showed no signs of impairment or intoxication when evaluated by first responders, police officers, or treating physicians. It was not under 5 minutes after the IV administration of a significant dose of morphine that the defendant showed abnormal eye movements. These were consistent with morphine (a central nervous system depressant and narcotic analgesic). Moreover, the facts of the case did not support that the defendant’s use of baclofen resulted in impairment or the automobile crash. After a 90 minute deliberation, the jury found in favor of the defendant.

The DRE is performed by an officer who is not clinically trained

The 12-step process that DRE’s follow to reach their conclusions does not include a review or communication with physicians or other health care providers who are involved in the care of the subject in question

The DRE relies upon fact sheets developed by the NHTSA, which are over 10 years old. These include inaccurate information about important drugs like narcotic analgesics

The eye exam performed by DRE’s are prone to false-positives. A substantial percentage of normal people have horizontal nystagmus at maximal deviation of the eyes

The decision matrix used by DRE’s to determine the class of drug(s) that could explain the findings cannot be generalizable to all drugs. Baclofen as example

Toxicology Expert Witness Testifies in Vehicular Homicide Case Involving a Drug Recognition Expert

This article was authored by a DUI expert witness with nearly 20 years experience as a police officer. He is also a field training officer at a county police department and serves as the Vice President of a nightclub security consulting firm. The Most Overlooked Element in a Winning or Losing a DUI Case: Is


This article was authored by a DUI expert witness with nearly 20 years experience as a police officer. He is also a field training officer at a county police department and serves as the Vice President of a nightclub security consulting firm.

The Most Overlooked Element in a Winning or Losing a DUI Case: Is the Officer Properly Trained to Determine Probable Cause?

It seems that more and more defense attorneys are challenging Driving Under the Influence (or DWI) cases simply because they really have nothing to lose. In addition, plea-bargaining is not usually in the best interest of their client. There are virtually dozens of holes that a good defense argument can attack in these types of cases. These include the traffic stop, the officer’s investigation, or the breath/blood test. Police officers are specifically trained on how to locate and conduct a proper DUI investigation. However, they often make a number of errors that do not conform with their training. Not only does it pay to know this information on the defense side, but prosecutors should also be aware of the training and ensure the cases officers are performing correctly.

Police officers across the nation are often trained under nationally recognized standards developed in 1977 by the National Highway Traffic Safety Administration (NHTSA). These Standardized Field Sobriety Tests (SFST) have been in place for over forty years. The SFST battery consists of Horizontal Gaze Nystagmus (HGN), Walk and Turn (WAT), and One Leg Stand (OLS) – executed in that order. The training was developed using research-based data that helps officers make OBJECTIVE observations of specific clues. This assists them in determining whether someone is impaired or intoxicated. By using standardized elements and administrative procedures, a well trained police officer can make a “correct” arrest decision based on objective (not subjective) determinations of impairment.

With the research backed data from NHTSA, the International Association of Chiefs of Police (IACP) helped to promote the training to agencies and officers across the country to help reduce DUI and DWI fatalities. Using these standardized elements, officers are trained over a (mandated) 24 hour period. They are taught during this time how to locate and correctly identify impaired drivers. They are also taught to make an arrest based on the objective clues they see. While this was (and is) the goal of the training program, police officers are often not properly trained. Therefore they fail to sufficiently implement their training in the field.

The NHTSA SFST training teaches three phases of detection: Vehicle in Motion, Personal Contact, and Pre-arrest Screening. Most defense attorneys attack and argue the stop (Phase 1 – Vehicle in Motion) in a motion to suppress hearing. However, they are often choosing not to focus on the area where most officers make mistakes during their investigation, Phase 3 – Pre-arrest Screening. In the SFST training the officers are taught to follow the standardized elements and not deviate from the training they received. Doing so will render the tests “inherently unreliable” (see: State V. Homan, 732 N.E.2d 952, Ohio 2000). The Homan case indicates that even “minor deviations” can create a bias in the results. This defeats the ability of the officer to rely on the results of the tests.

During in class training, officers practice often and must pass a test and a skill based assessment. Then they receive a certificate allowing them to use the tests in the field. The program is rigorous and standardized for each instructor to follow in providing the training and evaluations.

While many officers complete the training and evaluations, they do not practice the skills. Many times they see other officers using different tests (or variations) in the field and deviate from the training they received. Here in Virginia, many basic police academies have only taught DWI detection and a portion of the SFST program up until the full 24-hour program was put in place in January 01, 2014 as part of the basic training curriculum. This means that officers trained before may be using pieces of the SFST battery or not using them at all. A proper DWI case, if field sobriety tests are being used, must include some sort of standardized elements. If not used, the officer’s determination for probable cause is clearly speculative and subjective in nature.

What does all this mean for both the defense and prosecution? That both need to ensure that the officers who are making DUI/DWI arrests are using the SFST battery in accordance with their training, as well as following the standard. The SFST battery is a perishable skill set. Consequently, it MUST be constantly used or trained to ensure its proper use in making arrest decisions based on probable cause.

The NHTSA training manual recommends that officers be re-certified every two years in the SFST battery. However, many agencies are most likely not conforming to this recommendation. Regardless of the training, for an officer to determine probable cause in an arrest for DUI/DWI they must accurately use the SFST battery as it was developed and educated. Failure to use the battery properly, or as trained, will call into question an officer’s “correct” arrest decision. Hence, it may be shown that their determination for probable cause is based on pure speculation.

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Breathalyzer Related Blog Posts

Toxicology Expert Witness Testifies in Vehicular Homicide Case Involving a Drug Recognition Expert

DUI Expert Witness Advises on The Most Overlooked Element in Winning or Losing a DUI Case

Breathalyzer Expert Witness Case Studies

Lax Organizational Policies Contribute to Drunk Driving Death

Video Forensics Expert Discusses Security Camera Footage Recovery in Criminal Trial

Breath Alcohol Analysis Expert Weighs In On Accuracy of Delayed Breathalyzer Readings

Man’s Medical Condition Allegedly Affects Breathalyzer Reading

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