Patrick J. Silva - Attorney at Law
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Who do you want as your attorney? The Master or the student? Patrick Silva has over 21 years of DUI experience, he has been published in DUI reference books, he has spoken in front of hundreds of attorneys at conferences, taught classes to lawyers on his secrets and strategies, and has a nationally listened to podcast dedicated to teaching other DUI lawyers how to win. (909)798-1500
Fuel Cells in Plain English
Welcome back to the DUI Trial Lawyers Academy. This podcast is brought to you by SilvaandSilvaLaw.com, great lawyers helping great people. And now for your host, sought after speaker, avid mountain bike racer, and renowned DUI trial lawyer, Patrick Silva.
Welcome back to the DUI Trial Lawyers Academy. This is your host, DUI trial lawyer Patrick Silva. In today's podcast we're going to be discussing fuel cells. I'm going to be explaining fuel cells in simple language, language that you can convey to a jury in a proper cross-examination.
Let's take a simple concept. What is a fuel cell? How would you explain it? I've done this on cross and got the state expert to agree on this. So, a fuel cell. Think of it as a Duracell battery. A Duracell battery has two chemicals, and when these chemicals touch, they produce energy. The energy is what powers our radios, flashlights, whatever we have those batteries in. When we're thinking of a fuel cell, you could say, "Well, the fuel cell is basically half of a Duracell battery, the energy-wise, and the other half of the energy is coming in front of the alcohol that's in the person's breath."
So, we're trying to explain the concept of a fuel cell to the jurors. And, I've done this, and the cross might go something like this, to the state expert. "Well, inside this breath testing machine, there's the technology and it's referred to as a fuel cell?" "Yes, yes, yes." "And it's the actual field salvage it's determining the alcohol level that it's registered on my client's breath?" "Yes, yes. Yes." "Well, can a fuel cell, if we're putting it in layman's term, Mr. Expert, can a fuel cell be explained like a Duracell battery that has two chemicals, the chemicals touch, and they produce an energy and that's what powers our flashlights? And in same sense, the fuel cell is only half of that, and the other half of the energy would be the alcohol found in the breath."
And surprisingly, they agree. Because it's a simple concept, that's exactly what's happening. If you start getting into the technical nitty-gritty stuff on the fuel cell, well, you're probably going to lose your jurors. But, if you're talking the technical stuff, if we look at AW Jones and again, that's a prominent name and he wrote an article, "Evaluations of breath alcohol instruments".
And what he's saying is that the fuel cell is oxidized at a platinum electrode surface. So, technically what they'll call it is, it's a electrode surface that's coated with black platinum. And they'll, they being the state expert, will recognize that. But let's keep it in simple terms. What type of devices use fuel cell technology? Well, let's go with the Dräger units, the handheld units, the 7510 models, anything that's handheld is going to have a fuel cell technology.
What about the Intoximeter as well? The Alco-Sensor IVs, Vs, any handheld units are going to have a fuel cell technology, and it's very easy to check. Now, how are you going to attack the fuel cell? Well, guess what? Fuel cells don't last forever. The theme is that there's a lifespan. The lifespan, which your expert will be able to verify is between three to five years on the manufacturer's side.
So the manufacturer's saying, "Hey, this fuel cell only lasts three to five years." What your expert can also testify to is that as the fuel cell is used, and used, and used, decreased sensitivity on the electrode surface, and your expert can extrapolate that with the decreased sensitivity, the reading's not going to be accurate. Not accurate enough to meet scientifically reliable standards.
Another important aspect is to understand that fuel cells will register other compounds besides ethyl alcohol as ethyl alcohol. The fuel cell will register, ethyl, methyl, and isopropyl alcohol. Now, why is that important? If the fuel cell is registering other compounds and saying that, "Hey, this is ethyl alcohol." There's a problem. Now, what is isopropyl alcohol? Well, that's the rubbing alcohol, but it's actually something that can be produced in the human body and can be registered. And you'll find that with diabetics in people on ketone diets, if you have a client and let's say they're diabetic and had their blood sugars high and they're in a ketosis state, then their body's going to be producing acetones.
Now, the acetones will not register on the fuel cell. However, the acetones will bio-transform into isopropyl alcohol, which can register and the state expert will recognize that, and there's several articles. And again, if you go to Garriet's Medicolegal and you start reading that journal, it's a huge book, there's a lot of information on breath testing equipment.
I do own the Alco-Sensor IV, and I did get a hold of a Dräger 7510. When I run my own tests to see what will register, of course mouthwash, which does not have ethyl alcohol will register, and here's an interesting point. Soy sauce. Soy sauce will register as ethyl alcohol. Took a little soy sauce, switched it around in my mouth, waited a minute or so, and the soy sauce registered a 0.24. Yes, triple the legal limit. 0.24.
If that's going to be your theme, that other things register and the machine's not reliable, you might want to have your expert look up some articles or lend them your machine if you have one and have them do a self study to say, "Yeah, I tested these types of machines and the fuel cell will register other compounds and recognize it as ethyl alcohol."
But what if your client blows into machine that has two methods of testing? Let's say it has a fuel cell technology and it uses infrared. Well, you got to know the technology of your machine. Let's go back on a trial I did where the breath machine was a Dräger 7110. I'll call it "the big boy machine". That's the one at the station, looks like a typewriter with a black or clear hose, and it had two testing mechanisms. It had the fuel cell and it had the infrared.
On that trial, I use something called "half a brain" argument. My cross-examination of the state's expert literally was less than half an hour, probably about 25 minutes and she just laid the foundation groundwork for my expert to come in and close the door. But, my cross-examination basically went something like this.
"Well, Mrs. State expert, this machine, the Dräger 7110, it actually has two testing mechanism. Is that right?" "Yeah, yeah. That's right." "And one's called a fuel cell?" "Mm-hmm (affirmative)" "And the other one's called infrared?" "Mm-hmm (affirmative), that's right." "And in order for the breath result to be scientifically reliable, both of these testing mechanisms need to be in proper working order?" "Yes." "And they both need to be properly, meaning both properly used." "Yes, that's right." "And Mrs. Expert, it's like the machine has two brains, right?" "Mm-hmm (affirmative)"
"Now, if one of these brains wasn't working, would the result being scientifically reliable, since the machine requires both?" She goes, "Well, no, it wouldn't." "So, in order for the breath result of my client, which is a 0.12, needs to be scientifically reliable, both the fuel cell and the infrared need to be working properly?" "Yes, that's right."
So, we went through this and she basically laid the groundwork and then my expert came in and talked about the lifespan of the fuel cell. Now, how are you going to prove that your fuel cell is over five years old? What you're going to do is you're going to subpoena all the maintenance and repair logs, documentations, for that particular breath machine. If you're looking at the maintenance and repair logs, you're going to see if your machine has ever been replaced with a new fuel cell.
In this particular trial, the fuel cell was about seven years old, about six months after my client blew into the breath machine, the breath machine actually had the fuel cell replaced. So this was a great, great scenario. Now, unfortunately, what they did was they went and replaced all 39 breath machines in my county. And lucky for me, October 2019 was the five-year mark, so now my attack on the reliability of the breath result is going to come into play on my breath trials.
You also need to examine your particular machine to determine if the fuel cell is giving you the reading, which is your evidentiary value, the numerical value, and the infrared is only a backup to say, "Yes, there's a presence." Different models have different systems.
So let's say the infrared is only a backup, and your fuel cell has given you the numerical value. You also need to subpoena all documentations to prove that both the infrared and the fuel cell were being properly used in the testing of your client's breath sometimes. Sometimes, and we've seen it, where it's only half of the unit. So, let's say the fuel cell, testing and giving numerical value.
All right, so we've hit a lot here giving you planning to attack a breath machine that's using fuel cell technology. You're going to subpoena maintenance repair logs, you're going to see if the fuel cell was ever replaced, you're going to get the manufacturer manual on the particular machine, you're going to read it. You're going to have discussions with your expert, you're going to decide is this particular unit using fuel cell and infrared/only infrared/only fuel cells, and if you're talking to infrared, that's a whole nother discussion. There's a tax there.
All right, this is attorney Patrick Silva. You know what to do. Put on the boxing gloves, climb into the ring, have a great fight. Over and out. Bye.
Thank you for listening to the DUI Trial Lawyers Podcast. This episode brought to you by SilvaandSilvaLaw.com.
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