Pennsylvania DUI Blog

The variables of the Gas Chromatography process

Justin McShane — Wed, 10 Mar 2010 06:22:38 -0500

I have posted before on Gas Chromatography and its principles.

Gas Chromatography and why is it is so important to Pennsylvania DUI arrests
Crimping a Headspace Vial in Gas Chromatography: How not putting the "lid on the jar" can lead to disaster in a DUI case
A large problem in Gas Chromatography: No uniform standard for GC run position or composition

As I have written before:

As headspace gas chromatography (as opposed to direct injection) is based upon Henry’s law. Henry’s Law states that at a constant temperature, the amount of a given gas dissolved in a given type and volume of liquid is directly proportional to the partial pressure of that gas in equilibrium with that liquid. Or stated differently, an equivalent way of stating the law is that the solubility of a gas in a liquid at a particular temperature is proportional to the pressure of that gas above the liquid. Headspace gas chromatography requires a closed system (i.e. no pressure leaking from the gaseous phase). As a result if the crimping of the headspace vial (which is typically a manual process) is not complete, then it is not a closed system. Hence, without assurances that the crimping is properly done, there is a large possible source of error as Henry’s Law is violated. It is indeed the entire principle upon which Headspace Gas Chromatography is based.

Henry's Law depends upon several key variables In the entire apparatus reamin constant throughout the run to work. These are:

Flow/pressure rate
Temperature of the headspace vial incubation oven
Temperature of the oven
Injection port temperature

If any of the variables change and there is a "cold spot" or a pressure dip, then Henry's Law is violated. The ultimate alleged and reported result is not accurate. It is an isothermal process when Headspace Gas Chromatography with Flame Ionization Detector is used in ETOH determination. But guess what is not recorded and reported at all times during the run of the analytical device?

Flow/pressure rate
Temperature of the headspace vial incubation oven
Temperature of the oven
Injection port temperature

Interesting, huh? In the Courtroom, we must not guess; we must not accept assertions based upon faith. it's not Amen. But rather, data, facts and proof.

-Justin J. McShane, Esquire, Pennsylvania DUI Attorney

I am the highest rated DUI Attorney in PA as Rated by Avvo.com

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Defending DUI Drug Cases: Part 3 from PA DUI attorney Justin J. McShane

Justin McShane — Tue, 09 Mar 2010 06:42:54 -0500

Pennsylvania DUI attorney Justin J. McShane, Esq. presents his lecture "Defending DUI Drug Cases" in Hartford, CT in December 2009. In Part 3: "Pharmacology," expert DUI Attorney McShane explains the differences, both in testing procedure and impairment determination, between DUI Alcohol and DUI Drug cases. The McShane Firm is the premiere DUI/DWI law firm in Harrisburg, PA. For more information, visit themcshanefirm.com.

-Justin J. McShane, Esquire, Pennsylvania DUI Attorney

I am the highest rated DUI Attorney in PA as Rated by Avvo.com

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Board Certified Criminal Trial Advocate
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If he was an analytical chemist or a DUI defense attorney he would say "Show me the separation!!"

Justin McShane — Mon, 08 Mar 2010 07:01:02 -0500

Who can forget Cuba Gooding Junior in the movie Jerry McGuire shouting "SHOW ME THE MONEY!"???

If he was an analytical chemist or a DUI defense attorney facing a purported result from a Headspace Gas Chromatograph with a Flame Ionization Detector, he would yell:

"SHOW ME THE SEPARATION!!!!!!"

Well, that is one of the things that a good criminal defense attorney who specializes in defending the citizen among us who has been accused of a DUI should always demand whenever there is a reported result from a chromatographic process.

Why?

As I posted before in Gas Chromatography and why is it is so important to Pennsylvania DUI arrests:

Chromatography is strictly and simply speaking "separation science". It is the study of how an analyst can take a complex matrix (compound) and separate it out into its component parts.

If you can't prove separation between like analytes, then your result means nothing.

Much like I posted before "A large problem in Gas Chromatography: No uniform standard for GC run position or composition". There is also no uniform nomenclature for what this is called.

I have seen it called:

Resolution Control Standard
Separation chromatogram
Matrix chromatogram
some don't call it anything at all (because they don't do it)

For ETOH determinations at a minimum we need to see this proof of separation for from standards that are NIST certified values or comprised of USP grade materials (see generally: Metrology in DUI prosecution for the importance of these concepts):

acetaldehyde
acetone
acetonitrile
ethanol
ethyl acetate
isopropanol
methanol
methyl ethyl ketone
butanol

Below is an example of just such a type of proof:

-Justin J. McShane, Esquire, Pennsylvania DUI Attorney

I am the highest rated DUI Attorney in PA as Rated by Avvo.com

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Police Oppose Anti-lying Policy

Justin McShane — Fri, 05 Mar 2010 06:48:32 -0500

Should a police officer have to be ordered to tell the truth?

My office and I have litigated thousands of DUI and criminal cases all over Pennsylvania. In this time I have met hundreds of Pennsylvania police officers. In my opinion, most are very sincere in trying to perform their sworn duties with integrity. However, some are not so honorable. A few outright lie. In many criminal matters, especially DUI, the police officer’s opinion and testimony is a main part of the case against the citizen accused. When an officer is “fudging the details” or outright lying, this presents a huge problem for truth and justice which is the supposed currency of our courts. It is very sad to say, but the actual confirmation of police officers not telling the truth is unfortunately much more common than you might think. With dashcameras in patrol cars, the difference between truthful testimony and hyperbole to “win” a case can be discovered and exposed.

To illustrate this, here is a recent story out of Boston.

Edward Davis defies cops’ union with his anti-lying edict

Bucking anticipated union opposition, Boston Police Commissioner Edward Davis decreed yesterday that any officer caught lying on the job, in court testimony or to the department’s Internal Affairs unit would be fired.

Think about this for a second. Lying has become such big issue that the Police Commissioner had to issue a new policy banning lying and penalizing it with automatic termination. What's even more disturbing is that the Police Union is opposing these sanctions as being too strict. This is absolutely outrageous. A police officer lying is a very serious transgression. Take this scenario. A person is accused of a DUI and is convicted due to tainted evidence and a lying police officer. That person faces license suspension, fines and even jail time for a crime they didn't commit. They lose their job, their integrity, and their self-esteem- and the police officer shrugs it off as a “white lie”. That's not fair.

Lying police officers have no place in law enforcement. If they lie they cannot be trusted to uphold the law. I wholeheartedly support Commissioner Davis' one-strike-and-you're-out policy and wish Pennsylvania would enact a similar policy. Police should be trustworthy and uphold the law by following the law and reporting the truth.

-Justin J. McShane, Esquire, Pennsylvania DUI Attorney

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The Carry-over Effect: Lack of Blanks between tests leads to false positive or inflated BAC results

Justin McShane — Wed, 03 Mar 2010 07:02:55 -0500

Imagine. You go into your doctor’s office for a routine physical. As part of that routine physical, the doctor takes your blood. You come back two weeks later where the doctor delivers the single worst sentence you have ever heard in your life: “I’m sorry but you have cancer.” Then comes ever worse news from the doctor when the doctor says: “You have one possible chance at living. You have to undergo radical chemotherapy and a bone marrow transplant immediately.” You are shocked. You are young. You feel healthy. There is no family history of cancer.

After you recover as much as you can from the initial shock, you ask the doctor: “How do you know?” The doctor tells you that your blood sample that the doctor took two weeks ago was sent to the lab for routine testing using a test called a Complete Blood Count (CBC) examining your blood contents along with many other people from his practice. The doctor informs you that based upon the test run you have an abnormally high White Blood Cell Count (WBC) which is indicative of malignancy. You are floored. Still in disbelief, he shows you the result. As the doctor hands you the result, the doctor explains to you that at this lab, the lab runs a bunch of CBC tests right in a row using the same single testing instrument. That as a cost and time saving measure, the lab does not perform tests in-between each of his patient tests to make sure the device is clear thus making sure each test is only a report unique to that particular test and not due to the previous test.

While looking at the result, you note that your sample was labeled as sample 14 meaning that there were 13 others tested before yours. You ask the doctor about that. He pulls out his other reports and discovers that immediately before your test, there was a test done of his other patient who was unfortunately in Stage III or terminal end stage of cancer but who is still fighting with a superhigh WBC result. The doctor tells you about this other patient’s results and condition. The doctor gets a visible frown on his face. Despite all of this information, the doctor still tries to schedule the chemotherapy and the bone marrow transplant.

You have got to be thinking to yourself…no way. I would not undergo all of that based upon the way the tests were performed. That’s crazy.

Well, exactly that type of testing and evidence is what happens in Court every day and all day long in DUI and DUI Drug cases in the United States. It is reckless and shameful.

When you are accused of a crime that is almost entirely based on a numeric value, which is essentially what occurs in a prosecution based strictly on a reported Blood Alcohol Content result or a DUI Drugs case, we all want to be sure that the result is accurate, precise, repeatable, reliable, traceable, reproducible, robust and true being unique to that individual accused and that individual accused alone. However, as we discussed before "A large problem in Gas Chromatography: No uniform standard for GC run position or composition", namely there is no order or reason as to what goes into the autosampler carousel and in what order the samples go into the autosampler.

This lack of standardization, even within the same lab and even from run to run made by the same technician, and especially with the nearly absent use of blanks is one of the fundamental flaws of Gas Chromatography for ETOH or drugs of abuse testing in America. In my considered opinion and in the general scientific community (as opposed to the law enforcement community), it is the single largest and most basic systemic problem with the way that Gas Chromatography is practiced in forensic testing today.

With this post, I will explain how the lack of using a blank before and after each unknown sample run invites well-deserved scientific scrutiny and rightly calls into question the conclusory reported and alleged result in every single case.

But first some background:

What is a blank?

Simply and generally, in analytical chemistry a blank is a sample that is prepared using the same methods that an unknown would be prepared within the run simply without the unknown added.

Ok, let’s translate that. In our case of assaying an accused’s blood which contains an unknown amount of analyte of interest (e.g., drugs of abuse or ETOH) is typically prepared by diluting the sample by adding a known amount of internal standard which is typically n-propanol when the unknown looked for is ETOH. [Blogger’s note: in the future a detailed post will be used to examine the use and potential problems when internal standards are used]. When a blank is created, the same exact amount of n-propanol that is added to the accused’s blood is added to a sample jar (in our case a headspace vial) but with no blood added. In simpler terms, it is a virgin sample with only n-propanol added. As a result, as there is only n-propanol, there should only be one peak on the chromatogram which corresponds to n-propanol. The lack of any other peaks is where the name of “blank” comes from in the analytical world.

(Pictured above: a blank with only n-propanol)

Why is this important?

In a phrase “carry-over effect” in another phrase an inaccurate inflated reported Blood Alcohol Content. Simply put, a false Blood Alcohol Content result. Think of it as contamination.

In analytical chemistry, carry-over effect can be thought in terms of pick up. When a carry-over event occurs the sample “picks up” the analytes of interest from a previous sample. A carryover effect is an effect that "carries over" from one experimental condition to another. It is a form of contamination from one sample to another.

Carry over in gas chromatography analysis can come from three typical sources: first, autodiluting [Blogger’s note: an entire future post will be dedicated to this concept]; second, injector contamination [Blogger’s note: an entire future post will be dedicated to this concept]; and third, remaining analyte on the column.

Whether direct injection or an autosampler is used, without a blank inserted before and after an unknown, then there is no way of scientifically knowing the alleged reported result is unique to that particular sample.

Until this very basic systemic flaw is solved, then it cannot be responsibly and scientifically asserted that the reported result is unique to the unknown analysis and not carried over from another analysis.

(Pictured above: an over lay of chromatograpms where in green there is the electrical signal as detected by a Flame Ionization detector when a Resolution Control Standard or Separation chromatogram is generated and in black is the blank run)

It is so easy to solve, yet no one seems to care. You just insert a blank. I guess the forensic science community doesn’t care because the result doesn’t affect them.

As an illustration, I draw your attention to a past post as a concrete example for this discussion. In "Highest reported BAC .708: I call Shenanigans", we discussed an extremely high reported BAC result. Much like our cancer example, would you like to be the next test sample after that superhigh result? I would think not.

How about we start doing things in a scientifically responsible manner and run blanks in-between unknowns????

-Justin J. McShane, Esquire, Pennsylvania DUI Attorney

I am the highest rated DUI Attorney in PA as Rated by Avvo.com

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Defending DUI Drug Cases: Part 2 from PA DUI attorney Justin J. McShane

Justin McShane — Tue, 02 Mar 2010 07:00:49 -0500

Pennsylvania DUI attorney Justin J. McShane, Esq. presents his lecture "Defending DUI Drug Cases" in Hartford, CT in December 2009. In Part 2: "Drug Identification and Quantification," expert DUI Attorney McShane details the difference between impaired and metabolite states, and explains why "the numbers by themselves are meaningless or junk." The McShane Firm is the premiere DUI/DWI law firm in Harrisburg, PA. For more information, visit TheMcShaneFirm.com.

-Justin J. McShane, Esquire, Pennsylvania DUI Attorney

I am the highest rated DUI Attorney in PA as Rated by Avvo.com

You can follow me on Twitter, Facebook or Linkedin

Board Certified Criminal Trial Advocate
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A Pennsylvania Supreme Court Approved Agency

A wakeup call: Independence in Crime Labs is not enough

Justin McShane — Mon, 01 Mar 2010 06:32:31 -0500

While independence is necessary for any laboratory to insure against bias, it is just a start. Without meaningful double blind unannounced proficiency-based testing of every technician conducted by yet and another independent certified set of laboratory auditors, then it means nothing. We also need the technicians to be true credentialed scientists having graduated from brick and mortar post-secondary institutions employing the scientific method in the discipline that they are formally trained in and not testifying beyond beyond the scope of their expertise. Finally, to make it have any sort of testing scientific meaningful, the methods must be robust and internally and externally validated.

-Justin J. McShane, Esquire, Pennsylvania DUI Attorney

I am the highest rated DUI Attorney in PA as Rated by Avvo.com

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There is no such thing as the presumption of innocence in DUI cases

Justin McShane — Fri, 26 Feb 2010 06:00:51 -0500

There’s no such thing as the presumption of innocence in modern day United States and Pennsylvania jury trials.

It’s a sad fact that it seems as if a person, especially accused of a DUI, has to prove themselves to be innocent through the course of trial proceedings rather than the proper burden being applied both in terms of production and persuasion in that the Government must provide sufficient proof that rises to the level of proof beyond a reasonable doubt in order for anyone to be convicted of any crime.

It seems as if, in DUI cases, it is totally rejected in favor of a person accused has to prove that he/she wasn’t driving drunk before a not guilty verdict is returned.

It’s simply illustrated by the everyday common sense fact that occurs when we are driving in our cars to and from wherever we are going. You might see a police car with a person in the back seemingly handcuffed behind the officer. When we take a look at that situation, for example when we are stopped at a stop light and the police car is next to us we look over at that person.

Don’t we think to ourselves: "I wonder what he/she did", instead of asking ourselves: "Boy, I wonder if he/she did anything wrong."

That is a pretty sharp and useful illustration of how the presumption of innocence doesn’t necessarily apply and isn’t the default position. When we go to trial at The McShane Firm, which is quite frequently, we take a very hard stance and challenge jurors to apply the principles of not only the presumption of innocence but also that the Commonwealth has its burden of proof beyond a reasonable doubt along with all of the other Constitutional protections such as the right to remain silent and not to be forced to provide testimony against one’s self as granted to us by our wise forefathers both in the United States Constitution and the Bill of Rights.

-Justin J. McShane, Esquire, Pennsylvania DUI Attorney

I am the highest rated DUI Attorney in PA as Rated by Avvo.com

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DUI Witch Hunting

Justin McShane — Wed, 24 Feb 2010 07:00:13 -0500

When I introduce myself as a Pennsylvania DUI lawyer to new people I get some mixed responses. Many people who are probably well intentioned see this as absolutely abhorrent. Then comes the inevitable question set in an offensive tone, “How do you defend THOSE people?”. This leads into discussions about carnage on the road and the thousands of deaths annually caused by DUI drivers and the it typically devolves into how I feel about people who are accused of a DUI and through “smart lawyering” are acquitted to only later go on to either re-offend or hurt or kill someone. My answer is to them is quite simple: “I defend them because you would not.”

Most of these people probably haven't sat down and given serious thought to this issue. At the core of the issue lies the question, “Should a person accused of a DUI be allowed a truthful and honest defense in a court of law?” Think about it, people accused of murder, rape, tax evasion, child molestation and a host of other crimes are allowed a fair trial and are permitted to present a truthful defense. Why should it be any different for someone accused of a DUI? In the United States, everyone has a right to a fair trial by jury. Alleged murderers, tax cheats and drunk drivers included.

Even with the right to counsel, there are a huge number of innocent people locked up in prison for crimes they did not commit. My recent posts Putting Innocent People in Jail and the Pennsylvania DUI Innocence Project show how widespread this problem actually is.

Here's another question, “If we want to limit defenses and rights, what criteria would we use to determine who is entitled to a defense against their criminal charges?” Do you see where this is going? When we as a society start to sit down and cherry pick out who gets a defense and who doesn’t, it's a slippery slope that leads to us having a trial simply by accusation or a witch-hunt. This is where the Salem Witch trials really come into play. There was no defense to being accused as a witch. Once you received that moniker that you’re a witch then you were condemned to death. I defend people who are accused of a DUI. I do so ethically and by providing the truth to jurors so they can make an informed decision not based solely upon limited data or solely based upon accusation. I do this because every American has the right to be defended against their charges: DUI included.

-Justin J. McShane, Esquire, Pennsylvania DUI Attorney

I am the highest rated DUI Attorney in PA as Rated by Avvo.com

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Defending DUI Drug Cases: Part 1 from PA DUI attorney Justin J. McShane

Justin McShane — Tue, 23 Feb 2010 06:42:04 -0500

Pennsylvania DUI attorney Justin J. McShane, Esq. presents his lecture "Defending DUI Drug Cases" in Hartford, CT in December 2009. In this introduction, expert DUI Attorney McShane presents an overview of how DUI lawyers can use forensic science to successfully defend clients accused of DUI-D cases. The McShane Firm is the premiere DUI/DWI law firm in Harrisburg, PA. For more information, visit TheMcShaneFirm.com.

-Justin J. McShane, Esquire, Pennsylvania DUI Attorney

I am the highest rated DUI Attorney in PA as Rated by Avvo.com

You can follow me on Twitter, Facebook or Linkedin

Board Certified Criminal Trial Advocate
By the National Board of Trial Advocacy
A Pennsylvania Supreme Court Approved Agency

DUI Tunnel Vision: How Contextual Bias leads to False Arrests

Justin McShane — Mon, 22 Feb 2010 06:52:10 -0500

Contextual bias is a particular problem with respect to DUI arrests, not just in the state of Pennsylvania but in the entire country. Through often politicized law enforcement initiatives such as Operation Night Hawk and other similar DUI focused patrols, intense pressure is placed upon police officers and troopers to “hunt” drunk drivers. They are assigned a certain stretch of highway and given the specific task of searching out DUI infractions. That is all they are assigned to do on this particular occasion. This type of DUI focused patrol is called a saturation patrol. The fact that they are focused on DUI from the onset leads to a well known psychological phenomenon called contextual bias.

Contextual bias goes by another name that police officers are specifically trained and warned about when they go through the National Highway Traffic Safety Administration core curriculum with the Standardized Field Sobriety Tests. Here contextual bias is otherwise known as “tunnel vision.” Tunnel vision occurs when an individual who may be very well intentioned is suggested a particular conclusion and they eventually adopt it even though they maybe naturally may not have come that same conclusion otherwise. An easy example of this is the “cloud game”. You and I go outside and I point up at the sky and say “Hey look. That cloud looks like a rabbit.” You look up at it and you think to yourself that it really does look like a rabbit. Meanwhile, had I not suggested it, you might have thought it looked like a turtle or a duck or maybe nothing, but based on my suggestion, you start looking for long ears and a bushy tail and viola you see a rabbit. This is the essence of contextual bias.

This comes into play with DUI in Pennsylvania when Pennsylvania State Troopers are assigned to roving DUI patrols. They have been assigned to“hunt” DUI’s and in the process, perhaps intentionally or unintentionally, committing the error of contextual bias. These police officers are geared up for “hunting for drunks”and receive kudos at the end of their shift or saturation patrol based on how many arrests or contacts were made. Some are even given comp time or get easy duty assignments such as working as a construction detail as an attenuator where they sit for hours on end with their lights on at the beginning of a roadway project. When you factor in this extra incentive, it is a small wonder why a police officer who honestly means to do well can leap to a truly aberrant conclusion that a DUI exists when the evidence isn't there. This is the problem with contextual bias and how it can result in innocent Pennsylvania drivers getting falsely arrested for DUI.

-Justin J. McShane, Esquire, Pennsylvania DUI Attorney

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How an opinion can cost you your license and your freedom

Justin McShane — Fri, 19 Feb 2010 06:56:12 -0500

It is amazing to me how a Pennsylvania DUI is the only crime or charge that someone can be convicted of solely based on an opinion of another person. What I mean by that is that a police officer is frequently called upon during the course of a trial to render his layperson opinion (not an expert opinion) as to the driver's ability to safely drive an automobile. Under Pennsylvania DUI law it is an absolute requirement by the Government to prove beyond a reasonable doubt that a person is substantially impaired due to alcohol. At the end of the day the police officer renders an opinion, usually based upon his training, knowledge, and experience as to this ultimate conclusion. The jury is asked by the Government to adopt this opinion. However, most of the time this opinion is rendered based upon incomplete information and assumptions rather than data. There is an old saying that goes: “What do you call an opinion without data to support it? Answer: A guess.”

It is very true that an opinion is based on the eye of the beholder. At roadside, a Pennsylvania police officer has a very difficult job to do. He’s multitasking. He is distracted by many events that are going on at the same time. He has to make judgment calls that are often difficult and snap decisions about whether or not this person should be charged with a DUI. The jury doesn’t have this difficulty. The jury has a benefit of hindsight and true overall perspective. This is why the burdens of proof are different for a police officer makes an arrest on the low burden of probable cause, but for a Jury to make a conviction, it must be based upon proof beyond a reasonable doubt. The Jury must make this decision based on all of the evidence or out of the lack of evidence to measure whether there is enough to satisfy the Government’s very heavy burden of proof beyond a reasonable doubt.

At the end of the day, the police officer is called upon to make his opinion as to whether or not someone is impaired and therefore a DUI. If you think about it, this is a really difficult call to make. What the officer has to do is, within a short time, make a determination whether or not the physical symptoms that the motorist displays at roadside is due exclusively to alcohol intoxication or not.

Most people become very nervous when they are stopped by a police officer and confronted with the possibility that they may be arrested. After all that’s why you’re being asked to get out of the car. Everyone knows that if the officer says he smells alcohol and he’s asking you to get out of the car, he suspects you of a DUI. These DUI tests that they give you at roadside are not scientifically valid as I have discussed before and frequently people are told how to do these tests only once. They are highly complicated and require extreme concentration even under the best of circumstances. It would be an interesting statistic to find out how many people who are in a relevant demographic can indeed perform the Standardized Field Sobriety Tests even with no alcohol in their system given a high pressure situation. To date no studies that I am aware of have been performed on that, however, this would be an interesting place for research. Nevertheless, there are many non-intoxicating reasons that an individual can fail the roadside tests and display symptoms that the police officer honestly believes to be consistent with a DUI. It is not just nervousness but also can be simply due to being clumsy, disabled, or having a medical condition.

This is why we need to move away from a rash decision that is based upon a very limited amount of data and present the whole truth to the Jury about the entire circumstances of the suspect at that time along with their entire medical history. It is with all of this information and only with all of this information that the Jury can hopefully render an opinion based upon truth and facts comprised of meaningful data as opposed to no data and simply a guess as most police officers are forced to do with the constraints at roadside.

-Justin J. McShane, Esquire, Pennsylvania DUI Attorney

I am the highest rated DUI Attorney in PA as Rated by Avvo.com

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Putting Innocent People in Jail

Justin McShane — Wed, 17 Feb 2010 07:03:08 -0500

I came across this article and it made me sick to my stomach. It made me mad and when you read it I'm sure you'll be mad too. A “forensics” lab in San Diego was found to be producing faulty test results that lead to innocent people being convicted of being under the influence of narcotics:

Local criminal cases may have been tainted by false drug tests:

The criminal drug cases against as many as 1,000 people may have been tainted by false-positive narcotics tests from a Los Angeles-area lab, and defense lawyers in San Diego County have been told by prosecutors that their clients may be jailed due to faulty tests, it was reported Saturday.

Imagine an innocent person, someone you love, is arrested and is falsely convicted of a DUI or a drug related offense because of sloppy lab work. They are thrown into prison losing their freedom over a crime they did not commit. They lose their job, have to spend enormous amounts of money on legal and court fees. They lose their dignity and self-respect. They lose everything because someone in the crime lab was careless and didn't follow the right procedures.

I have defended thousands of DUI and Drug cases in Pennsylvania and I can tell you from first hand experience that this happens a lot more than you think. I have blogged previously about how the Wellspan Hospital System in Central Pennsylvania has discontinued doing DUI blood tests for the government.

The main problems are the same. The laboratory staff is overloaded with work and cuts corners and doesn't follow scientifically recognized procedures. This leads to tainted results and false DUI convictions.

This is another reason why the Innocence Project is so important. There are many many people who are in jail for crimes they did not commit all because of faulty and sloppy forensics. It's a tragedy of epic proportions that could happen to any of us. This is one of the reasons I urge you to find an attorney who is a forensics expert to represent your criminal or DUI case. If you are in Central Pennsylvania, please call me at The McShane Firm at 1-866-MCSHANE. I am a recognized forensics litigator and have the knowledge to challenge the government and call them to account for their junk forensics.

-Justin J. McShane, Esquire, Pennsylvania DUI Attorney

I am the highest rated DUI Attorney in PA as Rated by Avvo.com

You can follow me on Twitter, Facebook or Linkedin

Board Certified Criminal Trial Advocate
By the National Board of Trial Advocacy
A Pennsylvania Supreme Court Approved Agency

Warning about social media when you're accused of a Pennsylvania DUI

Justin McShane — Mon, 15 Feb 2010 07:54:44 -0500

Over the past couple of years, there has been a huge boom in the popularity of Social Networking Sites like Facebook, MySpace, and Twitter. These sites have become part of our daily lives and thus many people have become careless in the use of these sites. Take this warning seriously: If you are accused of a Pennsylvania DUI, be very careful about your social media sites- especially your pictures. If you were charged with a DUI in Harrisburg, would you rent out a billboard near the Harrisburg Courthouse with a picture of you drinking at a party? That would be stupid, right? Because the judge, the jurors, the prosecution and probation and parole officers could all see that, right? Well it’s the same thing with social media.

I once represented a young Shippensburg college student who had a very active MySpace site. She was under the age of 21 and was accused of a DUI. We fought the charges and took the case to trial. Because the trial was over multiple days, a particular juror (even though the jurors were clearly instructed not to do so) got on the Internet and Googled the accused’s name and discovered this MySpace page. On the page were various pictures of this under 21 year old young lady engaging in what appeared to be a drinking party. Obviously, this soured the juror's opinion of the defendant, not based upon the facts of the case but rather based upon images the defendant posted on MySpace. The images were public for everyone to see. We became aware of this because another juror knew it was improper to do a Google search for information outside of the record and what was presented in Court and had the courage to report this. It resulted in a mistrial. It was an important lesson learned by us and our firm about the need to be aware of the implications of social networking.

Therefore, it is a common practice by our firm to always send out a notice at the beginning of a case to the people who trust us to handle their Pennsylvania DUI to be aware and accordingly adjust their social networking sites and remove any images or information that could harm them later on. This admonition not on goes with people who are accused of a DUI but also people who are on probation or parole after a conviction of a DUI. Probation and parole officers have been known to scour the internet to determine whether or not an individual is compliant with the terms and conditions of probation and parole. I have had the unlucky circumstance of representing Pennsylvania citizens who had been charged based upon information that probation and parole officers were able to glean off of blog posts, images, and status updates on these social networking sites. Again anything you think can be used against you should not be there for the world to see.

Below is what we have in every single one of our contracts:

VERY IMPORTANT WARNING

We live in the day and age of the computer and the internet. As social networking on the internet becomes more and more popular (we even participate in these sites), the Government is not far behind. Believe it or not, AG’s, AUSA’s, DA’s, Judges and Probation and Parole Officers and ARD administrators are people too and some, if not most of them, have some form of internet savvy/experience and may very well have access to or participate themselves in social networking websites. Please be aware that information posted in MySpace, Facebook, etc. is accessible by anyone. Even marking it as “private” does not immune the supposedly private comments from a court order or a subpoena to produce information. Providing information, comments, postings, blogs, and in particular pictures can be very detrimental to your case. We have seen it literally destroy cases. We have seen bail violations, probation and parole violations and evidence entered into trials based solely upon these social networking websites and its contents. We encourage you to have these sites. They are useful and fun which is why we have them too. Never, ever, ever comment on your case or someone else’s similar case on these sites. You must be cautious of having any mention of or pictures with alcohol, controlled substances, paraphernalia etc. Basically use your common sense. Anything that would be a violation of your bail or possibly get you into trouble should not find its way to the internet. What you say on myspace, facebook, etc (even if it is not your particular page, but rather a friend’s page) can and may be used against you in a court of law. Having anything relating to your case even if it is well intentioned such as proclaiming your innocence will only give the Commonwealth more ammunition. Please be cautious. Consider this article that appeared in the Chicago Tribune on June 5, 2009 (www.chicagotribune.com/news/local/chi-facebook-braceletjun05,0,3973881.story)

FACEBOOK drinking photos show parole violation in fatal DUI case: Court orders woman, 20, to wear alcohol ankle monitor

Having their pictures posted on Facebook while partying with friends may not seem like a big deal to many college students. But for a Campton Hills woman charged in a DUI-related fatal crash, those pictures had serious consequences.

Under orders from a Kane County judge, Erika Scoliere, 20, was outfitted Thursday with an alcohol-monitoring ankle bracelet after police found online photos of her consuming alcohol on Facebook. The woman, who is awaiting trial, was charged with reckless homicide and aggravated DUI after a July 2007 collision in South Elgin that killed a motorcyclist. As a condition of her bail, Scoliere had been ordered not to consume alcohol or be around people who are drinking, but South Elgin police found photos of Scoliere, who attends college in Ohio, drinking with friends.

"It appears the defendant is having a grand old time drinking tequila," Judge Thomas Mueller said during Wednesday's court hearing as he leafed through copies of the pictures. " 'Erika passed out in my bed. Ha Ha,' " the judge said, quoting one of the captions.

Jennifer Grasz, a spokeswoman for careerbuilder.com, said situations like Scoliere's show the danger of posting questionable material. Increasing numbers of employers use Facebook and other sites to check on potential employees, she said.

"Once you post something online, it's online for an unlimited amount of time," Grasz said.

A basic rule, she said, is not to post material you wouldn't feel comfortable being seen by a family member or a prospective employer. Assistant State's Atty. Steve Sims argued for the ankle monitor for Scoliere, noting that she had previously violated her bail. In a 2008 hearing, it was revealed that she never contacted the county court services department for any of the weekly phone check-ins while away at school. Scoliere's attorney had characterized the situation as a misunderstanding.

Her attorney, Stephen Komie, argued that the anklet would be open up Scoliere to public scorn. "It imposes the red 'A' that Hawthorne talked about in 'The Scarlet Letter,' " Komie said. But the judge, noting the previous violation, said, "she has now earned the privilege of wearing the SCRAM bracelet." SCRAM stands for Secure Continuous Remote Alcohol Monitor. The device can detect alcohol via perspiration and will alert authorities. Scoliere will be charged $15 a day to wear the device, which has been in use in Kane County since 2007. After the hearing, Scoliere, accompanied by her parents, left the courtroom in tears.

-Justin J. McShane, Esquire, Pennsylvania DUI Attorney

I am the highest rated DUI Attorney in PA as Rated by Avvo.com

You can follow me on Twitter, Facebook or Linkedin

Board Certified Criminal Trial Advocate
By the National Board of Trial Advocacy
A Pennsylvania Supreme Court Approved Agency

What's more important Sports or Courts?

Justin McShane — Sat, 13 Feb 2010 07:41:37 -0500

Olympic doping lab world's most sophisticated

A dope-testing lab considered the most sophisticated in the world is up and running for the 2010 Winter Olympics in Vancouver.

I read this article the other day and it got me thinking: What's more important making sure a cheater doesn't win a race or making sure an innocent person is not convicted of a serious crime like DUI?

I have blogged before about the shoddy nature of our nation's forensics labs:

There are more sophisticated ways of testing that aren't being used, procedures that are not being followed, and there are better ways to monitor DUI and drug testing. Over the course of the countless DUI trials I have fought, I have seen the whole gambit of tainted blood and urine tests which end up producing results that if accepted would have convicted many of these innocent people. Fortunately, as a premier forensics and DUI expert I was able to catch these flaws. However, everyday people are convicted because of these mistakes.

Take a look at this article. The world's most sophisticated testing lab has been set up for the Winter Olympics but not to ensure justice in our courts. Think about it. Canada is spending an enormous amount of resources to ensure cheaters don't win medals but our lawmakers turn a blind eye to the fact that our forensics system is broken and many innocent people have gone to jail because of it. WHY?

Preserving the purity and sanctity of sports is important but ensuring "justice for all" is the fabric of our society.

-Justin J. McShane, Esquire, Pennsylvania DUI Attorney

I am the highest rated DUI Attorney in PA as Rated by Avvo.com

You can follow me on Twitter, Facebook or Linkedin

Board Certified Criminal Trial Advocate
By the National Board of Trial Advocacy
A Pennsylvania Supreme Court Approved Agency

Pennsylvania Police Officer DUI cases

Justin McShane — Fri, 12 Feb 2010 06:42:24 -0500

A lot of DUI blogs out there seem to focus on celebrities, politicians, and law enforcement officials who are accused of a DUI. These flashy headline grabbers garner a disproportionate amount of attention. Keep in mind, an accusation is just that- an accusation. At that point it has not been proven in a court of law. Unfortunately, when we are dealing with DUI, innocent until proven guilty, becomes more like innocent until accused of a DUI. There is certainly a rush to judgment which is clearly unfair. Everyone has the constitutional right to a fair trial and due process, whether they be an entertainer, politician or even a Pennsylvania police officer accused of a DUI. Everyone is entitled to a truthful and ethical defense whether they be hardened criminals or an innocent person falsely accused.

As a prominent Pennsylvania DUI Lawyer, I have had the opportunity to represent thousands of citizens accused of DUI including some Pennsylvania police officers. I see it to be hypocritical and unethical not to extend my services even to the most formally staunch DUI police officer because at the end of the day, even a police officer is a common citizen accused of a crime. They have the same rights you and I do.

One thing that really bothers me is the hand that the media plays in reporting these high profile DUI cases. Once again, there is a rush to judgment and a failure or unwillingness to offer a balanced and neutral assessment of the facts and DUI laws. Police reports are cited as if they are absolute and unchallengeable. In fact, the local newspapers all over Pennsylvania report a list of people who have been arrested (read: accused) of a DUI, but they never publish a retraction or even a mere mention of the many DUI suspects who are found not guilty of a DUI. That's not fair to anyone.

As a Pennsylvania DUI attorney I simply ask that everyone who reports on these matters do so in an ethical and open manner that provides the benefit of the doubt. Therefore, it is incumbent upon all of us to keep a truly open mind and to apply the good old fashion adage and major legal principal of the presumption of innocence. Police officers and celebrities are due the same constitutional rights that all of us are entitled to which is the presumption of innocence and the ability to present their case and have their day in court.

-Justin J. McShane, Esquire, Pennsylvania DUI Attorney

I am the highest rated DUI Attorney in PA as Rated by Avvo.com

You can follow me on Twitter, Facebook or Linkedin

Board Certified Criminal Trial Advocate
By the National Board of Trial Advocacy
A Pennsylvania Supreme Court Approved Agency

Harrisburg Based DUI attorney Justin McShane invited to speak at the annual Alabama Criminal Defense Lawyer's Association meeting

Justin McShane — Wed, 10 Feb 2010 07:08:13 -0500

Harrisburg based DUI lawyer Justin J. McShane has been invited to present before the Alabama Criminal Defense Lawyers Association on advanced DUI training. Although ACDLA is sponsoring the event, it is a multi-state training seminar The seminar is scheduled for Friday, October 8, 2010 in Biloxi, Mississippi at the the 5-star quality Beau Rivage.

The training session will be as follows:

Introduction/Welcome
Dr. Wanda Marley will present on pharmacology
Mary McMurray will present on Breath testing
Blood and urine analysis and other analytical chemistry topics by Justin McShane, Esquire
Dr. Fred Whitehurst, Ph.D/J.D, will present on Laboratory practice and procedure
Tommy Kirk, Esquire “Keeping Your Practice in Focus”

Why not come and join us?

-Justin J. McShane, Esquire, Pennsylvania DUI Attorney

I am the highest rated DUI Attorney in PA as Rated by Avvo.com

You can follow me on Twitter, Facebook or Linkedin

Board Certified Criminal Trial Advocate
By the National Board of Trial Advocacy
A Pennsylvania Supreme Court Approved Agency

Why saying the sample was run on a gas chromatograph is nearly meaningless

Justin McShane — Mon, 08 Feb 2010 07:00:27 -0500

Saying the sampling was done on a Gas Chromatograph is like saying that you won a car. Both description are useful in that they help differentiate.

In the case of all vehicles, it is useful to distinguish cars from trucks or motorcycles.
Whereas in the case of chemical testing, it is useful to distinguish gas chromatography from enzymatic assay testing or breath testing.

But neither initial descriptions give any idea of specifics.

In the case of cars, there are different makes, models and years.
Whereas, in gas chromatography there are many different options.

This is why when you are a citizen among us who has been accused of a DUI and the magic number (i.e., the alleged BAC result) is derived from a purported Gas Chromatography result, you need to find a DUI lawyer who knows a lot about the scientific process and what precisely and in detail the configuration and the method of Gas Chromatography used. You shouldn't settle for simply someone who has heard of it, but you deserve someone who is a near expert in Gas Chromatography. So, ask some questions of your potential DUI lawyer. See what level of familiarity and detail he/she may have. If their description amounts to a simple answer like its "a car" in our analogy, then maybe you need to look elsewhere.

I had wrote very generally on Gas Chromatography before and the specific training that I had received through the American Chemical Society and Axiom Labs at:

Gas Chromatography and why is it is so important to Pennsylvania DUI arrests

I had further posted on Crimping a Headspace Vial in Gas Chromatography: How not putting the "lid on the jar" can lead to disaster in a DUI case and A large problem in Gas Chromatography: No uniform standard for GC run position or composition

Now let's take it to another level and start to look at the variations in configuration to turn the description of "a car" into something much more meaningful. This post will focus on the various non-programmable hardware-related or configuration-related issues. The specifics of the configuration. A future post will focus on the programmable or process/protocol-related issues.

In terms of configuration the variables in modern gas chromatography for ETOH or drugs of abuse determination include:

Carrier gas: In America typically helium is used as the inert gas used to "push" the analytes through the system; although hydrogen is the second most popular method. [Blogger's note: More will be written on this distinction and specifically on the need for blanks between unknown samples]

(pictured above left: a Gas Chromatograph with helium tank as the carrier gas; and above right: a Gas Chromatograph with hydrogen generator-the blue box to the right)

Internal standard: It is a substance added to achieve an "artificial peak" in chromatography when measuring an unknown and in analytical chemistry, it is a chemical substance that is added in a constant amount to samples, the blank and calibration standards in a chemical analysis. The ratio of the unknown analyte signal to the internal standard signal as a function of the analyte concentration of the standards and hence can achieve a known result. Generally, in alcohol testing it is n-propanol, but for drugs of abuse in particular other internal standards can be used. [Blogger's note: In the future more will be written on the importance of this distinction and especially in terms of the salting out effect]

Injection type: Direct injection versus headspace methodology versus autosampler [Blogger's note: In the future more will be written on the importance of this distinction]

(pictured above to the left is an injection port where one may do a direct injection; and above right is an headspace autosampler) [to see an autosampler in action please go to: A large problem in Gas Chromatography: No uniform standard for GC run position or composition]

(pictured above left is a manual headspace sampler; and pictured above right is an installed headspace autosampler on a gas chromatograph)

Column: Not all columns are the same. There are two basic types: capillary versus packed. Generally in modern gas chromatography for ETOH and drug of abuse testing, capillary columns are used. However, there is no universal column (e.g., Restek BAC 1, Restek BAC 2, Agilent DB-ALC 1, Agilent DB-ALC 2, Rxi™-5ms, DB-5) What type of capillary column is installed majorly affects specific performance.

(pictured above left: uninstalled packed column; and pictured above right: installed packed column inside of gas chromatograph)

(pictured above left: uninstalled capillary column; and pictured above right: installed capillary column inside of gas chromatograph)

Number of columns: The gas chromatograph can be set up so as to accept a single column or two which is referred to as dual columns. With dual column configuration duplicate testing is possible.

(pictured above: a dual column configuration)

Detector: Without a detector, a gas chromatograph is just a screening device as it can only denote separation between analytes of interest and not the quantification of those analytes. The addition of a detector makes the qualitative measure achieved by the gas chromatograph itself (i.e., the separation characteristic) into a combination of qualitative measurement with the quantitative measurement (as achieved separately by the detector). In gas chromatography there are so many possible detectors that are used, but primarily for ETOH and drugs of abuse testing of unknowns, flame ionization detectors (usually used in ETOH determinations) and/or mass spectrometry (usually used in drugs of abuse) is used. With mass spectrometry different detectors are available such as Triple Quadrupole configuration. [Blogger's note: Much more will be written on this later]

(pictured above left: a gas chromatograph with a flame ionization detector using an autosampler; and pictured above right: on the left an open mass spectrometer and on the right an open gas chromatograph)

(pictured above left: an installed FID or Flame Ionization Detector; pictured above right: an exploded view of flame ionization detector)

Multiple injectors and multiple detectors: There is no end to the configurations that one can develop. There are GC-FID, GC-MS-MS. One can have a GC with multiple injector ports too.

(pictured above left: 2 FIDs 2 columns and dual injector ports; and pictured above right: close up of dual Flame Ionization Detectors)

(pictured above left: a GC-MS-MS; pictured above right: dual injector ports)

An overall perspective:

(pictured above: Can your DUI attorney identify the basics? What do the different color arrows represent? If you are a good defense attorney go ahead and post the answer and get credit)

In order to determine whether or not a test is accurate, precise, traceable, reliable, repeatable, trustworthy and true, we must look at these differences. In order to determine whether or not your DUI attorney knows what he or she is doing, then they must know all of this at a very minimum.

-Justin J. McShane, Esquire, Pennsylvania DUI Attorney

I am the highest rated DUI Attorney in PA as Rated by Avvo.com

You can follow me on Twitter, Facebook or Linkedin

Board Certified Criminal Trial Advocate
By the National Board of Trial Advocacy
A Pennsylvania Supreme Court Approved Agency

A large problem in Gas Chromatography: No uniform standard for GC run position or composition

Justin McShane — Fri, 05 Feb 2010 06:30:01 -0500

I try to learn everything that I can about analytical testing. Not being a scientist and only being a lawyer, I am an outsider to this fascinating world. I find that as I learn more, more questions present themselves. As an outsider last year l learned something that really kind of surprised me.

When Gas Chromatography is used and especially when an auto-sampler for Headspace Gas Chromatography (HSGC) is used, there is no universal standard operating procedure as to what headspace vial goes into what position and what minimum standards comprise a auto-sampler Headspace Gas Chromatography run.

(above video an auto-sampler)

But why does this matter?

As a nationally known DUI attorney and having received forensic expert training, I get weekly calls from colleagues from Georgia, Tennessee, New Hampshire, California, Arizona and elsewhere about Gas Chromatography. I love it. I thank my colleagues for the trust in consulting with me. It is amazing to me to see the variation. The variation is not only from state to state, but also from labs within a state and yes, even from technicians within one lab. Wow!

So if there is no uniformity, then there can be no consistency. There are large issues that can emerge with this approach. I have personally seen the following:

An entire run without a single blank (Pennsylvania)
An entire run without positive controls (New Hampshire)
An entire run without a separation matrix that would prove separation between methanol, ethanol, isopropanol or butanol at the very least (Georgia, Tennessee)
No calibrators within the run (Texas)
A "historical calibration curve" used as a calibration curve where the columns were actually replaced between the columns that produced the "historical calibration curve" and the columns that were used to test this unknown (Pennsylvania)
A lack of blanks run between unknowns to prove lack of carry-over effect (everywhere) [Blogger’s note: a more comprehensive post on this will follow]

-Justin J. McShane, Esquire, Pennsylvania DUI Attorney

I am the highest rated DUI Attorney in PA as Rated by Avvo.com

You can follow me on Twitter, Facebook or Linkedin

Board Certified Criminal Trial Advocate
By the National Board of Trial Advocacy
A Pennsylvania Supreme Court Approved Agency

Metrology in DUI prosecution

Justin McShane — Wed, 03 Feb 2010 06:00:37 -0500

Metrology is the body of science surrounding measurement or how we know for certain or for as near as certain as scientifically possible that some measurement is in fact that quantitative measure.

It is the very essence of measurement. Because if we do not know that some measurement is accurate, precise and true, then we know nothing. We have no frame of reference. No basis for comparison.

This concept with analytical devices is achieved when known standards are used. Stated differently, an instrument's bias, precision, and accuracy can be measured by calibration to a traceable standard..

What this really all involves is the concept of traceability.

But where do these standards come from?

In DUI prosecution, the concept of traceability is involved in any form of calibration, internal standards, positive controls, negative controls or reference solutions used in achieving a Blood Alcohol Content result.

There are two (2) basic ways that the concept of traceability can be legitimately achieved:

NIST standards
USP grade raw materials

NIST is an acronym that stands for the National Institute of Standards and Technology which is part of United States Department of Commerce. They certify weights and measures. Many state's have a like agency.

USP is an acronym that stands for United States Pharmacopeia which is a non-government entity that makes commercially available standards. USP sets standards for the quality, purity, strength, and consistency of these products. They issue certificates to insure that a purchased product is in fact what it purports to be. Certified Reference Materials (CRMs) represent the next generation of exceptional quality USP Reference Standards. CRMs have undergone additional metrologically based testing and statistical analysis to meet both USP's stringent criteria and guidelines established by the International Organization for Standardization (ISO).

Why is this important?

In analytical testing whether it is breath, blood or urine we have an unknown which is the amount of EOTH or drugs of abuse in the substrate (breath, blood and urine of the accused DUI suspect), we can only know how much it is if it is compared against a known amount from a standard. It is this comparison between the known and the unknown that gives us the amount of the unknown to report.

So if calibrators, internal standards, positive controls, negative controls or reference solutions are not NIST traceable or comprised of USP grade raw materials, then there is no way to know, in a scientifically responsible way, what the unknown really is.

-Justin J. McShane, Esquire, Pennsylvania DUI Attorney

I am the highest rated DUI Attorney in PA as Rated by Avvo.com

You can follow me on Twitter, Facebook or Linkedin

Board Certified Criminal Trial Advocate
By the National Board of Trial Advocacy
A Pennsylvania Supreme Court Approved Agency