) V. ) AT LAW NO. 9 ) JOVAN PHILLIP VOJVODIC ) HARRIS COUNTY, TEXAS

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1 October, REPORTER'S RECORD VOLUME OF VOLUME(S) TRIAL COURT CAUSE NO. THE STATE OF TEXAS ) IN THE COUNTY CRIMINAL COURT ) V. ) AT LAW NO. ) JOVAN PHILLIP VOJVODIC ) HARRIS COUNTY, TEXAS 0 TESTIMONY OF CARLY DAVIES On the th day of October,, the following proceedings came on to be held in the above-titled and numbered cause before the Honorable Analia Wilkerson, Judge Presiding, held in Houston, Harris County, Texas. Proceedings reported by computerized stenotype machine. Tavis Jacks, Texas CSR No. Official Court Reporter, County Criminal Court No. Franklin Houston, Texas 00

2 October, APPEARANCES Ms. Casey Little SBOT No. Assistant District Attorney Harris County District Attorney's Office Franklin Houston, Texas 00 Telephone:..00 Attorney for the State of Texas 0 Mr. Stuart Tallichet SBOT No. 0 Assistant District Attorney Harris County District Attorney's Office Franklin Houston, Texas 00 Telephone:..00 Attorney for the State of Texas * * * * * * * * * * Mr. Joseph Philip Scardino SBOT No. 00 Attorney at Law 00 Congress Street, Floor Houston, Texas 00 Telephone:..00 Attorney for the Defendant

3 Carly Davies - October, Direct Examination by Ms. Little THE COURT: Is your next witness available? MS. LITTLE: The State would call Carly Davies. THE COURT: Have a seat up "here." You may proceed when ready. MS. LITTLE: Thank you, Your Honor. DIRECT EXAMINATION 0 BY MS. LITTLE: Q. Ms. Davies, can you please state your name and introduce yourself to the jury? A. Carly Davies. Q. How are you presently employed? A. I currently work as a technical supervisor for the Texas Department of Public Safety Breath and Alcohol Testing Program. Q. And how long have you been employed as a technical supervisor? A. I have been employed by DPS since January st,, and I have been a certified technical supervisor since May of. Q. And let's talk about the path that you took to become a technical supervisor. Can you tell the jury a little bit about your educational background?

4 Carly Davies - October, Direct Examination by Ms. Little 0 A. I have a bachelor's in biomedical science from Texas A&M Corpus Christi and a minor in criminal justice. Q. And let's talk about your current duties. What are you responsible for when you are acting as technical supervisor? A. Part of my duties include the monthly maintenance and inspection of our Intoxilyzers throughout Harris County. I'm also the custodian of records produced by the instruments. I serve to keep our operators' certifications renewed in Area, which is Harris County, and I also store and maintain our certified reference materials. Q. Let's talk a little bit about certification. What agency certifies the Texas Breath Alcohol Testing Program? A. The Texas Department of Public Safety. Q. And are you presently certified by the Texas Department of Public Safety as a technical supervisor? A. Yes, ma'am, I am. Q. Were you certified as a technical supervisor on March th,?

5 Carly Davies - October, Direct Examination by Ms. Little 0 A. Yes, ma'am. Q. And to become a technical supervisor what training must you undergo before receiving this certification? A. I first had to attend and pass our Breath Test Operator Program. I then monitored an operator school. I went through a training course offered by our manufacturer, CMI, on the maintenance and repairs on the Intoxilyzer 000. I also completed a week-long course at the Indiana University Borkenstein School on alcohol and highway safety, and I took and passed a certification exam provided by our technical -- I'm sorry, scientific director. Q. Let's talk a little bit about the underlying scientific theory of the Intoxilyzer instrument. Are you familiar with the underlying scientific theory? A. Yes, ma'am, I am. Q. And can you please explain the scientific theory to the jury? A. The Intoxilyzer 000 uses the Lambert Beer Law which states that the number of absorbing molecules in a sample are going to be directly proportional to the number of absorbing molecules in

6 Carly Davies - October, Direct Examination by Ms. Little 0 the whole. Q. And can you please explain to them how it is that the Intoxilyzer actually works? A. The Intoxilyzer 000 has an infrared light source inside that will shine infrared energy through a sample chamber and strike a photo detector at the other side. The photo detector will see how much light is coming through and when a subject blows through the Intoxilyzer, the sample chamber will fill up with their breath and any ethanol or alcohol molecules that are in that sample will absorb that light. The photo detector will then determine how much light is being absorbed and can insert that into an alcohol concentration. Q. The Intoxilyzer, does it look for anything other than ethanol? A. Yes. It uses multiple wavelengths of infrared energy. Every molecule on the planet is going to absorb infrared energy in a different pattern that's unique to that molecule much like a fingerprint. So the ethanol will absorb differently than isopropenyl, methanol, acetone, things that are similar in molecular construction to the ethanol. So the instrument will be able to

7 Carly Davies - October, Direct Examination by Ms. Little 0 determine if there are substances other than alcohol inside the sample chamber, and, if this occurs, it will flag that as an interference and alert the breath test operator that an interfering substance has been detected and it will then recommend for a blood test to be drawn to determine what that substance is. Q. How does it let the operator know there is an interference? A. It will flash the word "interferant" on the screen and on the breath test it will actually print out the error code "interferant" and instruct them to get the blood test. It will not print any analytical alcohol data that was collected though. Q. Okay. Let's talk briefly about what the operator must do when someone agrees to take a breath test. Does the subject just step up there and take the test or what happens? A. No, ma'am. First the operator has to perform a -minute waiting period. This waiting period ensures that any mouth alcohol present on the subject's mouth would have dissipated before the start of the test. At that point after the -minute waiting period is completed, the operator will then

8 Carly Davies - October, Direct Examination by Ms. Little 0 hit the green "start-test" switch which will then automatically send the instrument into a series of diagnostic checks. It will check the clock, temperature, all of its internal workings. If this passes, it will say "circuitry check okay" before going into the data entry portion of the test. At this point, the operator will then enter information such as the subject's information, name, date of birth, the operator's information and certificate number and then the arresting officer's information if there's a different arresting officer. At that point when they are done they can review or continue. If they continue, the instrument will then go through the analysis phase. It will first conduct an air blank to make sure the sample chamber is clear of any substances and is full of room air to set that zero reference point, and it will then ask for the operator to ask the subject to provide the first breath sample. After the first sample is accepted, it will then clear out with another air blank before checking the reference device. The reference device is actually attached to the Intoxilyzer and provides a vapor with a known concentration of alcohol, which

9 Carly Davies - October, Direct Examination by Ms. Little 0 is.0. This lets us see that the instrument is accurately calibrated and can accurately measure alcohol concentration. After it analyzes the reference device vapor, it will clear out with another air blank. In about a one-minute wait, it will then ask for the second breath sample. As long as that is accepted, it will clear with another air blank and as long as there are no errors detected during any stage of testing, it will then print the valid test record with the alcohol concentration results for the operator to sign. MS. LITTLE: May I approach the witness? THE COURT: Certainly. Q. (BY MS. LITTLE) I'm showing you what has been previously marked as State's Exhibit. Do you recognize this? A. Yes, ma'am. Q. What is it? A. It's a copy of the breath test slip. Q. Was this record kept in the ordinary course of business of the HPD crime lab? A. Part of the Texas Department of Public Safety Crime Lab, yes.

10 0 Carly Davies - October, Direct Examination by Ms. Little 0 Q. Did an employee or representative of the Breath Alcohol Testing Program for the Houston Police Department transmit this information? A. Yes, ma'am. Q. And is this the regular practice of the Houston Police Department to make this record? A. Yes, ma'am. Q. Were these records -- was this record made at or near the time of the event of March,? A. Yes, it was. Q. And did the representative who made the entry have actual knowledge of the event? A. Yes, ma'am. Q. Based on your training and experience does this record indicate that the proper steps were taken -- proper testing methods were taken? A. Yes, ma'am, they do. Q. Is the -- was there a circuit check done in this case? A. Yes, ma'am. Q. And was it okay? A. Yes, ma'am. Q. Does the test record say "alcohol concentration" at the bottom center column? A. Yes, ma'am, it does.

11 Carly Davies - October, Direct Examination by Ms. Little 0 Q. And what does that mean? A. That's the alcohol concentration as measured per grams per 0 liters of breath. Q. And there was an air blank before the first test? A. Yes, ma'am. Q. And then the subjects first test? A. Yes. Q. And another air blank? A. Yes. Q. And reference sample? A. Yes, ma'am. Q. And another air blank? A. Yes, ma'am. Q. And a second subject test? A. Yes. Q. Followed by a final air blank? A. Yes. Q. And the reference sample was in the -- within the proper range? A. Yes, ma'am. MS. LITTLE: Your Honor, at this time State offers Exhibit into evidence. Tendering to opposing counsel. MR. SCARDINO: No objection, Your

12 Carly Davies - October, Direct Examination by Ms. Little Honor. THE COURT: All right. State's will be admitted. MS. LITTLE: Publishing to the jury, Your Honor. 0 (State's Exhibit No. published.) Q. (BY MS. LITTLE) What was the first result of the subject test? A... Q. And the second result? A... Q. And that is almost three times the legal limit? A. I believe more than three times the legal limit, yes, ma'am. Q. And let's go back through and -- if you could use the screen to the left to show the jury where the circuit check is that ensures us that the instrument is performing properly. A. The "circuitry check okay" is indicated right "here" at the bottom of the data. Q. And let's go through that air blank subject test again. A. Here we have the first air blank which ensures the sample chamber was cleared out of any

13 Carly Davies - October, Direct Examination by Ms. Little 0 alcohol or is cleared with room air to ensure it's going to have a zero reference point followed by the first subject test. After that we will clear out again with another air blank with room air before sampling the reference. Up "here" you can see where it has the reference predicted. That's the predicted value of.0, and you can see we have a reference analysis reading of.0. The allowed tolerance for the reference device is plus or minus.0. So this is well within range. After the reference we have another air blank which clears out with room air before the second subject test. After the second subject test was accepted, it was then -- the sample chamber was cleared out with another air blank using room air. Q. Can you explain to the jury what is the reference sample? A. The reference sample device is a small simulator that's attached with an inlet and outlet tube to the instrument. In between each subject test on every test run throughout Harris County the instrument will then sample the vapor that's inside that device.

14 Carly Davies - October, Direct Examination by Ms. Little 0 Again, using Henry's Law, the amount of ethanol molecules in that vapor is directly proportional to the amount in that solution. It allows us to ensure the instrument is accurately calibrated, and, therefore, we can rely on the results of the alcohol concentration from the subject's breath samples. Q. So you are essentially pushing alcohol through the system to make sure the instrument is testing it and detecting it properly? A. Right. It's a vapor containing alcohol which simulates the breath. Q. I would like to talk about the people that were involved in this particular test. Do you know an Intoxilyzer operator by the name of Barbara Bougere? A. Yes, ma'am, I do. Q. And was she certify on March,? A. Yes, she was. Q. Is she certified today? A. Yes, she is. Q. Are you familiar with the Intoxilyzer instrument,000 with this serial no.: 0? A. Yes, ma'am, I am. Q. And how are you familiar with this

15 Carly Davies - October, Direct Examination by Ms. Little 0 instrument? A. It's one of the instruments in our area that I'm responsible for the maintenance and inspection of. Q. Where is this instrument located? A. Central A Houston which is the central intox location for Houston Police Department. Q. Has the Intoxilyzer instrument model,000 been certified by the scientific director of the Texas Department of Public Safety? A. Yes, it has. Q. And is this particular instrument, serial no. 0, certified? A. Yes, ma'am, it is. Q. Was this instrument certified on March,? A. Yes, it was. Q. In your capacity as a technical supervisor are you responsible for maintaining and monitoring these instruments? A. Yes, ma'am, I am. Q. And were you responsible for this particular instrument? A. Yes, ma'am. Q. Are there other technical supervisors who

16 Carly Davies - October, Direct Examination by Ms. Little 0 are also responsible? A. Yes, there are. Q. What are their names? A. During this time period Ms. Camille Stafford and Ms. Lee Anne Spino who serves as our regional manager. Q. And were both of those individuals certified technical supervisors by the Texas Department of Public Safety on March,? A. Yes, they are. Q. And to your knowledge do they have to undergo all of the exact same training you went through? A. Yes, ma'am. Q. And do all technical supervisors in the State of Texas have to pass the test that demonstrates they are qualified? A. I believe the certification exam began about years ago, but Ms. Camille Stafford and I have both taken and passed that test. Q. Ms. Davies, during the course of your training did you learn about the effects of alcohol on -- scratch that. You previously stated you were also the custodian of records for the -- this particular

17 Carly Davies - October, Direct Examination by Ms. Little 0 Intoxilyzer instrument, correct? A. Yes, ma'am. Q. And as custodian you are required to keep records of maintenance and monitoring of this Intoxilyzer instrument, correct? A. Yes. Q. Do you have those records with you today? A. Yes. Q. According to your reports what was the closest date before March, that you checked this particular Intoxilyzer instrument? A. The instrument was actually placed into service at this location on March rd, by Ms. Camille Stafford. Q. And it was placed into service two weeks -- less than two weeks before this test was done? A. Yes, ma'am. Q. And when it was placed into service it was functioning properly? A. Yes, ma'am, it was. Q. And what was the closest date after March at which time that you checked on this particular Intoxilyzer instrument? A. I perform an inspection on this instrument on March,.

18 Carly Davies - October, Direct Examination by Ms. Little 0 Q. And what was the operational condition on that instrument on that date? A. The instrument was operating correctly and capable of accurately detecting alcohol concentration. Q. And since that date have you had other times that you checked it? A. Yes, ma'am. Q. And was it always operating properly? A. Yes, ma'am, it was. Q. Has this instrument required any repairs since it has been put into operation? A. For the maintenance records I have regarding March, April and May, no, ma'am. Q. Do you have an opinion based on your training and experience as to the operational condition of this Intoxilyzer instrument on March,? A. Yes, I do. Q. And what is that opinion? A. The instrument was operating correctly and capable of accurately measuring alcohol. Q. Now, during the course of your training did you learn about the effects of alcohol on a person's mental and physical faculties?

19 Carly Davies - October, Direct Examination by Ms. Little 0 A. Yes, I did. Q. And based on your training and experience how can alcohol affect a person's mental faculties? A. Alcohol works as a depressant on the central nervous system. So the first effect is a person's loss of judgment. You are also going to lose the reaction time, inhibitions, all of these which are required as mental faculties to safely operate a motor vehicle. Q. And what did you -- how can alcohol affect a person's physical faculties? A. Physical faculties affected by alcohol would be a person's loss of gross motor skills, ability for their eyes to properly track, again, reaction time is going to be affected and all of these are required to safely operate a motor vehicle. Q. And in your opinion and based on your training and experience would a person with an alcohol concentration of. and. have lost the normal use of his mental or physical or both faculties? A. Yes, ma'am. He would have lost both mental and physical faculties. Q. And what is the legal limit that is set by the Texas legislature?

20 Carly Davies - October, Direct Examination by Ms. Little 0 A..0. Q. And we have determined this is over three times that legal limit? A. Yes. Q. What about tolerance? What if a person -- if a person has a high tolerance, so they are able to drink a lot and seemingly function, have they still lost the normal use of their physical and mental faculties? A. Yes, they have. Q. If you were to see someone who had these test results, what would you expect to see? A. Again, that depends on the individual, their tolerance level which is their ability to mask the outside signs of intoxication. So it would depend on the individual. Q. Let's say we have someone who does not have a high tolerance. What would you expect to see? A. Someone without a high tolerance of alcohol, you would expect to see very exaggerated outward signs of intoxication, staggering, slurred speech, things of that nature. Q. And what about someone who has a very high tolerance of alcohol? A. With the high tolerance of alcohol that

21 Carly Davies - October, Direct Examination by Ms. Little 0 allows someone to mask the outward signs of intoxication. So they may not appear to be as intoxicated as they really are. They might be able to speak properly and stand up better than they should versus someone with a low tolerance. So, again, it depends on the individual's tolerance level. Q. And if someone does have a high tolerance does that mean that they do not lose their mental and physical faculties? A. No, ma'am. At a.0 everyone is considered legally intoxicated and would have lost the mental and physical faculties regardless of tolerance. Q. Going along with tolerance, if you see someone who has this test result, but they may look decent on the video, does that make you call into question the instrument or the individual? A. The individual. Q. And why is that? A. Again, with regards to tolerance, that allows them the ability to mask the physical faculties that are affected. But when it comes to driving, that person's reaction time and decision-making abilities that are affected by alcohol, those usually cannot be masked.

22 Carly Davies - October, Direct Examination by Ms. Little 0 Q. And you maintain these instruments, correct? A. Yes, ma'am. Q. And do you know whether they are functioning correctly? A. Correct. Q. What is an "improper zero set"? A. Improper zero sets are seen -- the infrared light source I described early has to be very stable. It's going through a straight line through that sample chamber. Any electrical disturbances -- if the machine is hit, it's going to take that stable light source and shake it a little bit and it won't allow the zero set to be set. If it's detected, it will actually print the error "improper zero" and not allow the test to continue. The operator has the option to rerun that subject again, and they have been told if they see that again to contact the technical supervisor. We have seen this before during storms with electrical disturbances. I personally have set one off before by setting a binder too hard on the Intoxilyzer during that step. So we instruct the operators to keep the subject away from the Intoxilyzer and do not touch it during this process.

23 Carly Davies - October, Direct Examination by Ms. Little 0 Q. Was there an improper zero set in this case? A. For this test in question? No, ma'am. Q. How do you know that? A. Because the test record is clearly printed, and it does not indicate any error messages on the record itself. Q. In your opinion this is a valid test? A. Yes, ma'am. MS. LITTLE: Your Honor, we pass the witness. THE COURT: Okay. At this time we are going to take the lunch break. (Break taken.) (Defendant and jury present.) THE COURT: Which way would you like to go? MS. LITTLE: We will play the video, Judge. (State's Exhibit published.) MS. LITTLE: Your Honor, I think we are ready to put the witness on. The defense doesn't need the other video. MR. SCARDINO: Yes. It showed enough of my client that I'm happy with that.

24 Carly Davies - October, Cross-Examination by MR. SCARDINO THE COURT: Okay. You want to recall the video or -- 0 MS. LITTLE: I think Ms. Davies can go ahead, and the defense can cross her. THE COURT: Okay. Take your seat back up "here." CROSS-EXAMINATION BY MR. SCARDINO: Q. Ms. Davies, let's talk about a couple of things that you talked about as it deals with persons who have a breath test result of what you saw. You testified earlier that these people that necessarily look like they are not impaired but the Intoxilyzer is telling us they are impaired and you testify that they are impaired, correct? A. Yes, sir. Q. And that someone at that level would exhibit many signs but you said some of those signs can be masked by the fact that they had a high tolerance of alcohol? A. Correct. Q. No evidence in front of you that my client has a high tolerance for alcohol. A. No, sir, there is not.

25 Carly Davies - October, Cross-Examination by MR. SCARDINO 0 Q. And you didn't see the rest of the trial if there has been any evidence that my client has a high tolerance for alcohol. A. Correct. Q. And you talked about some of those things they might exhibit would be loss of judgment? A. Yes, sir. Q. Okay. Now, you can't mask loss of judgment, can you? A. Judgment is the first thing to be impaired by the alcohol comsumption, and I believe it's more physical faculties masked by tolerance. Q. When you say that's the first thing to go is judgment if somebody is intoxicated -- and you can't mask poor judgment by having good judgment, can you? A. No, sir. Q. So you either have it or you don't. So when people watch this video they will see whether or not my client was exhibiting poor judgment, correct? A. Correct, if that's what they take from the video. Q. It's for the fact finders to see if he was asking good questions and making good judgment,

26 Carly Davies - October, Cross-Examination by MR. SCARDINO 0 correct? A. Correct. Q. Are you familiar with Dr. Kurt Dubowski? A. Yes, sir, I am. MR. SCARDINO: May I approach the witness? THE COURT: Certainly. Q. (BY MR. SCARDINO) I'm going to show you what I've marked as Defense Exhibit No. and ask you if you recognize that document? A. Yes, sir, I do. Q. And that is a scale that Dr. Dubowski has established talking about what someone -- what characteristics someone would display at a certain breath test level? A. Correct. Q. In this case we are talking about my client. I believe you say he was a.? A. A. and.. Q. He falls in this category -- MS. LITTLE: Objection. She is testifying from a document not in evidence. THE COURT: Sustained. MR. SCARDINO: After tendering to the

27 Carly Davies - October, Cross-Examination by MR. SCARDINO 0 State we would offer Defense. MS. LITTLE: The State would object to hearsay with this document. THE COURT: At this point I will sustain the objection. MR. SCARDINO: May I approach? THE COURT: Certainly. Q. (BY MR. SCARDINO) You are familiar with Dr. Dubowski's work, correct? A. Yes, sir. Q. And you are familiar with this document and that it -- it suggests what people would look like at certain levels, correct? You don't disagree with this, do you? A. I disagree with some of his assumptions. It's pretty much a generality, but it doesn't take into consideration individual tolerance or anything of that nature. Q. Okay. I will give you that. But you don't disagree with his studies, and these studies, you are familiar with them? A. I don't agree 00 percent that each person falls within one of these categories. It depends on their tolerance and the individual. So I would not

28 Carly Davies - October, Cross-Examination by MR. SCARDINO 0 put a person in a specific category based on alcohol concentration alone. Q. Let me ask you this: You testified for the ladies and gentlemen of the jury that my client's test results were a. and a., correct? A. Yes, sir. Q. And the., do you agree, would -- MS. LITTLE: Objection. Again, he's testifying from a document not in evidence. THE COURT: Sustained. Q. (BY MR. SCARDINO) Would you disagree that someone with a. would exhibit these characteristics: Disorientation, mental confusion, vertigo, exaggerated emotional state, which are fear, rage, grief, et cetera, disturbances of vision, perception of color, form, motion, dimensions, increased pain threshold, increased muscular incoordination, increased staggering gait -- MS. LITTLE: Objection; compound question. THE COURT: Sustained. Q. (BY MR. SCARDINO) Would you agree someone at that level would display all of those characteristics?

29 Carly Davies - October, Cross-Examination by MR. SCARDINO MS. LITTLE: Objection. THE COURT: She can say she agrees or 0 disagrees. A. I disagree. It depends on the person's tolerance and the individual. Each alcohol concentration would determine how they would outwardly show that they are intoxicated. So it depends on the individual. Q. (BY MR. SCARDINO) Okay. You agree with me that Dubowski is an authority in the field, right? A. Yes, sir, he's highly regarded in breath alcohol testing. Q. And you recognize this as a document that he's created, correct? A. Yes. Q. So it's a learned treatise, is it not? A. Again, I don't hold the same opinions as Dr. Dubowski in regards to that. Q. But you do recognize it as a learned treatise that he has generated? A. Yes, sir, he generated that document. MR. SCARDINO: I will reoffer as Dubowski is an authority in the area and this is a learned treatise created by him, Your Honor. MS. LITTLE: State is going to object.

30 0 Carly Davies - October, Cross-Examination by MR. SCARDINO 0 We don't know whether tolerance was taken into effect. THE COURT: That sounds like argument versus the admissibility. So I will overrule, and it is admitted. MR. SCARDINO: May I approach? THE COURT: Certainly. Q. (BY MR. SCARDINO) Ms. Davies, now would you look at what has now been admitted as Defense Exhibit No., and would you read the ladies and gentlemen of the jury what the -- if someone was a. or greater, which one of my client's tests were, correct? A. Correct. Q. Then he would fall in the category of stupor, correct? A. According this document. Q. And would you read to the ladies and gentlemen of the jury what should be exhibited by a person that fell in that category? A. It states: "General inertia, approaching loss of motor functions, markedly decreased response to stimuli, marked muscular incoordination, inability to stand or walk, vomiting, incontinence of urine and feces, impaired consciousness, sleep or stupor."

31 Carly Davies - October, Cross-Examination by MR. SCARDINO 0 Q. Now, you have watched the video along with the ladies and gentlemen of the jury, correct? A. Yes, sir. Q. And they will be able to decide for themselves if they saw any of these characteristics, correct? A. Correct. Q. All right. Let me talk to you a little bit about the device. A. Okay. MR. SCARDINO: May I approach the witness again, Your Honor? THE COURT: Sure. Q. (BY MR. SCARDINO) All right. Ms. Davies, let me show you what I have marked as Defense Exhibit A because I can remember if I introduced a already. THE COURT: You did. Q. (BY MR. SCARDINO) So I'm making it a A. Can you tell the ladies and gentlemen of the jury what that is, or do you recognize that document? A. This is the instrument certification calibration for instrument, Serial No. -0. Q. Okay. And that's the same instrument we

32 Carly Davies - October, Cross-Examination by MR. SCARDINO 0 are talking about that was used in this case? A. Yes, sir. Q. Tell the ladies and gentlemen of the jury how these records are kept. A. These are kept secured in our lab in our instrument certification file. Q. Okay. I got these via subpoena through the crime lab, correct? A. Yes, sir, through discovery motion. Q. All right. Let me show you all these, and we will talk about it again. Let me show you Defense Exhibit, and tell me if you recognize that document. A. Yes, sir. Q. What is it? A. It looks like an addendum to a thermometer no. 0 completed by Camille Stafford. Q. Again, are those records kept by a crime lab? A. Yes, sir. Q. Okay. And Defense Exhibit No., tell me what that is, also. A. Calibration certificate of a thermometer used in our lab during calibration.

33 Carly Davies - October, Cross-Examination by MR. SCARDINO 0 Q. Same thing? Kept in course of business in the crime lab? A. Yes, sir. Q. And how about? A. Again, this is a report from the company used for calibrating our thermometers. Q. All right. And? A. This is the calibration report for the thermometer. I'm looking for the number to see if it's the -- yes, for serial no. 0. Q. This is the calibration of the thermometer used to calibrate the Intoxilyzer device used in this case? A. Yes, sir. Q. Okay. And -- Defense Exhibit No.. Can you tell me that what that is? A. Copy of the maintenance record of the inspection performed on the instrument on March rd,. A practice test performed by operator Bougere, operator certificate on // and, again, subject tests run on //. This looks like a subject test run on // and then again a subject test on //. Q. Okay. And, again, these are all records that were secured from the crime lab and that pertain

34 Carly Davies - October, Cross-Examination by MR. SCARDINO 0 to this case? A. Yes, sir. Q. And you have seen all of these and are familiar with all these? A. Yes, sir. MR. SCARDINO: At this time I offer Defense A through. THE COURT: What was the learned treatise? MR. SCARDINO: I named that. THE COURT: Okay. MS. LITTLE: Please tender to opposing counsel. THE COURT: He's heading that way. MS. LITTLE: I have a couple of questions, if I may, for the witness before I -- THE COURT: Sure. VOIR DIRE EXAMINATION BY MS. LITTLE: Q. For Defendant's Exhibit, are these all correct copies? A. Yes, they appear to be. If they had requested a discovery order we send subject records which is how these would have been obtained. Q. Can you confirm these are also correct

35 Carly Davies - October, Cross-Examination by MR. SCARDINO 0 copies, please? A. They appear to be. Had I brought them with me from my own lab I could have compared side by side, but they appear to be correct. MS. LITTLE: The State would object to Defendant's Exhibit. These are test results for other individuals. They are not relevant in this case. THE COURT: I'm assuming you are explaining why they are relevant in the next few questions? MR. SCARDINO: I will. THE COURT: Overruled. MS. LITTLE: No objection for the others. THE COURT: A through will be admitted. CONTINUED EXAMINATION BY MR. SCARDINO: Q. I will try to be as nontechnical as I can because I have to be because I am. Let me talk to you a little bit about these devices. A. All right. Q. So you have testified, and we have a

36 Carly Davies - October, Cross-Examination by MR. SCARDINO 0 device, that we call the Intoxilyzer 000? A. Yes, sir. Q. And it has a manufacturer and the manufacturer makes recommendations to the end users on how it should be used properly? A. Correct. Q. All right. Now, to get it to work properly it has to be calibrated. A. Yes, sir. Q. All right. Now, that's two kinds of calibrations. There is the calibration of the device as it's in use, and then there's the original calibration that's used to set it up to begin with, for lack of a better term. A. No. The only calibration performed on the instrument is actually done at our lab when it's initially calibrated. Q. Let's talk about that for a minute. To calibrate it initially you have to use a thermometer, correct? A. Yes, sir. Q. All right. Now, let me point out to you -- MR. SCARDINO: May I reapproach, Your Honor? THE COURT: Certainly.

37 Carly Davies - October, Cross-Examination by MR. SCARDINO 0 Q. (BY MR. SCARDINO) In Defense Exhibit No., tell the ladies and gentlemen of the jury what that document is and where it came from. A. This is a report. Every -- whenever we send our thermometers to the company to be calibrated, if for any reason it cannot be calibrated, they would return it with the report. And if it can be calibrated, they would return it with the calibration certificate. This is the report indicating there was a malfunction with the thermometer itself and that it was unable to be recalibrated. Q. So no one gets confused with this, we are talking about a thermometer that's used to calibrate the Intoxilyzer device that is used on subjects like my client? A. Correct. Q. And that is done once a year. A. I believe this one was serviced on January th,. Q. And does it indicate when it was serviced before? A. Calibration date before that was January th,. Q. Do you know the protocol for your

38 Carly Davies - October, Cross-Examination by MR. SCARDINO 0 laboratory as to how often that you check this thermometer that you use to calibrate the device that is used on people that come into the police station? A. Once a calendar year. Q. Now, that's not an industry standard, is it? A. Again, I'm only familiar with our standard operating guidelines. Q. It wouldn't surprise you that there are other governmental entities that use the same thermometer that check it once a month or once every other month? A. Again, I'm only familiar with what we do here in the State of Texas. Q. Now, tell the ladies and gentlemen of the jury what this report tells you about this thermometer. A. It indicates that when the thermometer was sent back to the company that it arrived with nitrogen separated. The nitrogen was combined, but the unit is still out of tolerance. Q. Okay. Now, doesn't it tell us when it arrived the condition it arrived in was malfunctioning? A. Yes, sir.

39 Carly Davies - October, Cross-Examination by MR. SCARDINO 0 Q. All right. And the condition that it was returned in -- A. Out of tolerance. Q. So now we have got a thermometer you use to calibrate the Intoxilyzer devices that there is something wrong with it? A. Yes, sir. Q. Does that happen very often? A. No, sir. Q. And is there anyway to know when it started to malfunction or when it broke, for lack of a better term? A. The separation would have been noticed before it was sent back on January th,. Q. We will talk about that in a minute. There's nothing that indicates when it broke except it was sometime between when it was tested in January of ' and sometime when it was tested in January of '? A. Correct. Q. Or is it ' and? A. January,, correct. Q. So there is nothing that indicates when it started malfunctioning? A. Correct.

40 0 Carly Davies - October, Cross-Examination by MR. SCARDINO 0 Q. All right. All we know is sometime during that time period? A. Yes, sir. Q. And you are telling the ladies and gentlemen of the jury that you only use -- only test or calibrate the devices once a year? A. The thermometers? Q. No -- yeah. The thermometer you use, you only send that back and forth once a year. A. Yes, sir. Q. But you use it to calibrate the devices how often? A. As needed throughout the year. Q. Is there any regular schedule of that? A. No, sir. Q. Is there another way to verify -- hypothetically, like this: If you had a malfunctioning thermometer and you were using it to calibrate the Intoxilyzer devices and you didn't know it was malfunctioning -- you wouldn't have noticed until you sent it off and got it back, correct? A. No, sir. During our testing while we are calibrating, if we would have noticed a separation of nitrogen, that would have indicated to us it was malfunctioning at that time.

41 Carly Davies - October, Cross-Examination by MR. SCARDINO 0 Q. All right. Is there another way to test that besides noticing separation? A. Again, during our calibration procedures it's actually measuring the temperature of the solution in the reference device which is also indicating to us the same temperature. So if we saw a great difference in those two, then that would be an indication to us to let us know there is an issue with the thermometer itself. Q. Okay. But if you didn't, you wouldn't know? If you didn't see it, you wouldn't know, correct? A. Correct. Q. Now, there's another way to figure out, maybe, if you have a malfunctioning thermometer. How many of these thermometers do you have in your laboratory? A. Roughly three or four. Q. Could it be as many as six? A. I believe right now we have about three or four. I don't believe we have six. Q. Can you tell the ladies and gentlemen of the jury how long it takes to figure -- to calibrate the Intoxilyzer devices with this thermometer we are

42 Carly Davies - October, Cross-Examination by MR. SCARDINO 0 talking about? A. As far as how long is the thermometer in use during it's calibration? Q. No. I didn't ask the question very well, and I apologize. I will cut to the chase. Is it a lot of trouble? Does it take a long time to calibrate the Intoxilyzer devices with this thermometer we are talking about? A. The whole calibration procedure takes roughly two hours, give or take. The thermometer is not in use during that entire time. It's used to check the temperature of the solution in the simulator device before and after the tests that run on it. Q. Okay. Well, this is a pretty important procedure, isn't it? I mean, it's the thing that calibrates the devices that are put in the police stations that people come and blow into to get a reading to determine whether or not they are intoxicated? A. Correct. Q. So a couple of hours to run that test is no big deal in figuring that out, is it? A. Correct. Q. Now, if you had a malfunctioning

43 Carly Davies - October, Cross-Examination by MR. SCARDINO 0 thermometer, another way to check that would be to use one of the other ones you have to see if it comes out with the same readings? A. Correct. If we believed it was malfunctioning, we would have used another one. Q. Did you do that in this case? A. No, sir. We didn't believe it was malfunctioning. So we did not need to. Q. There's no doubt that it did malfunction. A. Yes, on January th,. That's when went sent it back for the issue. Q. That's just assuming the sending back is what caused it to malfunction? A. No, sir. It was noticed in the lab there was separation in the nitrogen. When you look at the thermometer, the little gray strip through there, that's where we saw the separation when we got it out to use it for another calibration unrelated to this case. And at that time is when we decided to send it back to see if it could be fixed and recalibrated, and that's when they returned "this" report saying it could not. Q. So you don't know when it first separated? A. I don't have the exact date, no, sir. Q. Okay. Do you know what NIST traceability

44 Carly Davies - October, Cross-Examination by MR. SCARDINO is? 0 A. Yes, sir. Q. What is it? A. NIST stands for the National Institute of Standards and Technology. We use that, as far as their solutions, to verify our solutions we have created for the use of testing are correct and accurate. Q. Do you know what the requirements are for a thermometer to be NIST traceable? A. Not off the top of my head, but I could review the documentation in our lab. Q. Do you have any of that documentation? A. No, sir. Q. Do you ever check the NIST traceability with an ice point bath? A. No, sir. Q. Do you ever check the NIST traceability with a steam point bath? A. No, sir. MR. SCARDINO: May I have just a moment? THE COURT: Certainly. Q. (BY MR. SCARDINO) This thermometer we are talking about, do you know what kind of thermometer

45 Carly Davies - October, Cross-Examination by MR. SCARDINO 0 it is? A. I believe there's a model or number on "here." I don't know if there's a specific name. We call it the NIST traceable thermometer in our lab. I don't know if there's a specific technical term for it. It's referenced "here" as model 0--C. Q. Would you agree that it's a glass partial immersion thermometer? Do you know what I'm talking about when I say that? A. I do, but I would have to see that written here to confirm that for testimony. That sounds about right though. Q. Do you ever perform this calibration without -- A. On the thermometer itself? Q. Yes. A. No. That's done by Dynamic Technology, the company we send our thermometers off to yearly to be calibrated. Q. You use it to calibrate the instruments we are talking about, right? A. Correct. Q. So you use it then? A. Yes, sir. Q. You don't immerse it in a liquid at the

46 Carly Davies - October, Cross-Examination by MR. SCARDINO 0 time you calibrate it -- use it to calibrate these devices? A. Yes, we put it inside -- the reference devices have a little portal where you can untwist the cap and insert the thermometer and that way even though the reference device is telling you the temperature of the solution, we use these calibrated NIST traceable thermometers to verify that temperature. That's when it's inserted in solution during our calibration. Q. Do you know how far it's to be emersed in the solution? A. We usually just set it in to where it's kind of in the center of the solution. I don't know if there's an exact depth that it needs to be emersed. Q. You are not familiar with the manufacture suggestion that it be millimeters -- millimeters? A. No, sir. Q. Okay. Do you have any documents or know that information from the manufacturer about that? A. I don't believe I have that with me, sir. Q. Okay. MR. SCARDINO: May I approach?

47 Carly Davies - October, Cross-Examination by MR. SCARDINO 0 THE COURT: Certainly. Q. (BY MR. SCARDINO) Ma'am, let me show you Defense Exhibit No.. -- it's. I want you to -- tell the ladies and gentlemen of the jury where this document comes from and what it is. A. Calibration report for the thermometer, serial 0. Q. From the manufacturer, correct? A. Yes, sir. Q. And doesn't it tell you how far to submerse it into the solution? A. Are you referring to the area marked with the green? Q. Yes. A. This indicates the temperature or the means at which the thermometer was tested by the company. It doesn't state that it has to be done at those exact parameters for our testing. Q. Do you think it's important that you know the temperature in the laboratory that day when you are doing this calibration on the Intoxilyzer machine -- the devices? A. When we calibrate we ensure we are roughly around the same temperature as we expect it to be out in the field. If our lab is too cold or too hot, we

48 Carly Davies - October, Redirect Examination by Ms. Little 0 won't attempt to calibrate. Q. Do you have any documents that have anything to show that you took the temperature in the laboratory that day? A. No, sir, I don't. MR. SCARDINO: I will pass the witness at this time, Your Honor. THE COURT: It's your witness, again. MS. LITTLE: Thank you, Your Honor. REDIRECT EXAMINATION BY MS. LITTLE: Q. The defense attorney was just talking about malfunctioning thermometers. Is there any reason why you would not have noticed a malfunctioning thermometer? A. No, ma'am. Q. So as soon as you are doing a test you would notice and see there was separation? A. Yes, ma'am. Q. And you would see a huge difference in the two thermometers, correct? A. Yes, ma'am. Q. Because there's one thermometer that's actually on the Intoxilyzer instrument? A. There's actually one on the reference

49 Carly Davies - October, Redirect Examination by Ms. Little 0 device itself. It's a digital thermometer that indicates the temperature of the solution inside the device. Q. That's where you take it out and put the other thermometer in to test it? A. The port where I discussed where the thermometer goes in, that is actually taking the temperature while the device is still reading the same temperature. That's where we look for our comparison. Q. So if two thermometer are the same temperature, both are functioning? A. Right. When doing the calibration if I saw the NIST traceable thermometer was reading degrees Celsius, I would trust that reading. Q. We spoke earlier about this particular Intoxilyzer instrument, serial no. 0. It was put into service in March, correct? A. Yes, ma'am, March rd,. Q. And this thermometer he's talking about malfunctioned in January, correct? A. Yes, ma'am. Q. So it was sent in for service to correct the malfunction before this device was put into service?

50 0 Carly Davies - October, Recross-Examination by MR. SCARDINO 0 A. The thermometer was used in the calibration of this instrument in November of by myself. At that point the instrument was calibrated and ready for evidential service. Between that point and January, is when we noticed separation when we took the thermometer out for another calibration. This instrument was calibrated November and then placed into service in March. So it was actually in our lab during that time between calibration and being placed into service. Q. Is there any reason why you would be concerned about this calibration done in November? A. No, ma'am. Q. And we just heard a lot of stuff from the defense, a lot of technical scientific stuff. Is there anything that they said that is unusual or that could have affected this test? A. No, ma'am. Q. So this is still a valid test? A. Yes, ma'am. MS. LITTLE: We pass the witness, Your Honor. THE COURT: It's your witness. RECROSS-EXAMINATION BY MR. SCARDINO:

51 Carly Davies - October, Recross-Examination by MR. SCARDINO 0 Q. We have a thermometer that's definitely malfunctioned, and it was definitely sometime during the time that the device that tested my client was in service. A. The malfunction occurred before January,, and the instrument was not placed into service until March. Q. Right, but it's sent back annually, correct? A. Yes, sir. Q. So you don't know when it actually malfunctioned? A. It was after the calibration in question in between January. Q. How do you know? A. Because I currently work at that lab and I actually performed the calibration in question and the malfunction did not occur during my calibration. Q. You said that because you were assuming it was the nitrogen separation, right? A. No, sir. We actually saw the nitrogen separation which when we sent it back we kind of assumed we weren't going to get it back at that point. Q. That doesn't necessarily make the cause of

52 Carly Davies - October, Recross-Examination by MR. SCARDINO 0 the problem, does it? A. That was the reason that they noted as why it can't be recalibrated, and that was one of the significant things we saw when we sent it off. Q. Can you show us there on that document where it says it was the nitrogen separation? Where does it say that? A. Technical remarks state that the "thermometer arrived with nitrogen separated. Nitrogen was combined, but unit is still out of tolerance." Q. They are telling you even though that was it, that wasn't necessarily what was wrong with it, correct? A. According to this documentation it was unable to be calibrated. They were able to recombine the nitrogen but not recalibrate it at that point. Q. So even recombining it, it still was broken, for lack of a better term? What we are talking about is Mercury in a thermometer, correct? And they pump nitrogen into the thermometer to keep the Mercury intact, right, so it doesn't separate? A. Correct. Q. So when we are talking about nitrogen

53 Carly Davies - October, Recross-Examination by MR. SCARDINO 0 separation, we were talking about little gaps in the Mercury? A. Yes, sir. Q. So what they are saying in the report is they recharged it with the nitrogen to make the Mercury where it wouldn't separate, but it still was broken. Isn't that what the report tells us? A. Yes, sir. Q. So it wasn't the nitrogen separation that was breaking it to begin with, which you told them you thought that's what was wrong with it. It turns out that's not what was wrong with it. It's something else. It doesn't tell us what it is. It just says it's "out of tolerance." A. Correct. They were unable to calibrate it again after they were able to recombine the nitrogen. Q. You wouldn't put this back in service, would you? A. The thermometer? Q. Correct. A. No, sir. After that point when it could not be calibrated it will not be used for calibration in our lab. Q. All right. So it was just an assumption on your

54 Carly Davies - October, Recross-Examination by MR. SCARDINO 0 part that what was wrong with this thermometer was the nitrogen separation? A. That's what alerted us to the fact we needed to send it off. That was a visible error we saw with the thermometer itself at that time. Q. But now we know that wasn't necessarily what the problem was because it was fixed and sent back and still not working. A. Right. And all they indicated on the report was it was still out of tolerance and not able to be calibrated. They didn't list the reason why. MR. SCARDINO: I will pass the witness, Your Honor. MS. LITTLE: I just have one brief redirect. No further questions for this witness. (Ms. Davies recalled by the State for further questioning.) MR. SCARDINO: I rest, Your Honor. THE COURT: Anything further from the State? MS. LITTLE: The State has a brief rebuttal witness. THE COURT: Go ahead. MS. LITTLE: The State calls Carly

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