If you would like to order this two volume set directly from the publisher, click HERE.

Edward F. Fitzgerald,
INTOXICATION TEST EVIDENCE (2nd Ed.),
© West Group, 1999.

Summary of Contents

This two-volume set is not the typical "how to defend drunk driver's" text you might normally encounter (which sets have their own usefulness, but proceed from a different perspective). This text, on the contrary, is designed for use by both CIVIL and CRIMINAL attorneys, for both defense attorneys and prosecutors in criminal cases, and for both plaintiff's and defendant's attorneys in civil cases.

That last is a primary goal of the text: to provide reliable information to all sides, to attorneys and expert witnesses alike, and to encourage continuing discussion in this field about what constitutes appropriate and responsible collection, testing and reporting of alcohol test values. The offer by some experts of erroneous and unsupportable opinions, of opinions that overreach and exceed the limits of responsible science, is also a major theme of this text. It is the position of this text that the courts, the public, and all parties to litigation which involves alcohol tests, have a common interest in the proper interpretation of alcohol test evidence and in the offer of opinions which properly reflect the true significance of given test results in given cases.

PART I Alcohol Consumption, Human Physiology & Individual Differences

Five chapters explain in detail what happens to alcohol in the human body, how the blood alcohol concentration (BAC) comes into being and is present for testing in breath, blood and other body fluids, what factors affect the rise and fall of the BAC (and reported values), the methods and limitations of predicting probable BAC values after drinking (the Widmark study and its impact on drinking/driving evaluations), the importance of individual differences in general and between men and women. The attorney's real understanding of alcohol tests, and of the true significance of given results, begins with this material.

PART II An Introduction To Basic Alcohol Calculations

Three chapters take the reader on a step-by step explanation through the intricacies of performing appropriate calculations in specific alcohol cases. In these chapters is the key to understanding how and why experts perform erroneous calculations (more common than one might think), and when opinions overreach based on the facts known and available. The derivation of each essential factor involved in proper Widmark calculations is explained, along with the identification of erroneous and incorrectly-used factors (by some experts and laboratories). Methods are given in detail for the Office Use of such calculations by attorneys to evaluate the facts of cases and to assess the credibility of the "drink count" histories received from clients.

PART III Blood Alcohol Testing and Reporting

Five chapters take the reader through blood alcohol testing procedures, problems and issues, both traditional and more modern methods. This material forms the basis for later chapters on the specific depositions and trial testimony of laboratory technicians and other experts (that later material puts the meat on these bones). One chapter treats in detail the conversion of serum/plasma alcohol values to whole blood values. [Note: while serum/plasma is the most common alcohol-testing method in use in hospitals, clinics and many other laboratories, most criminal statutes commonly require whole blood values, and impairment issues (criminal and civil) are commonly reported and discussed in terms of whole blood values.] Reading and understanding chromatograms (the print-outs of "gas chromatographic devices") is also discussed, as is the "Peak Height" equation. The reliability, significance of, and problems with post-mortem alcohol test values is discussed, as are the typical practices of Coroners and Medical Examiners. A separate chapter (new in 2000) discusses in detail one of the most controversial aspects of the testimony of blood-alcohol tests experts—performing Retrograde Extrapolations.

PART IV Breath Alcohol Testing and Reporting

Seven chapters provide an overview of breath-testing, the inherent problems in the conversion of breath to whole blood values, "harmful" overestimates of true BAC by breath-test devices in certain cases, specific kinds of breath-test devices (basic theory and operation), the role of Simulator Devices and Simulator Solutions, and the significance of deviations from the "target value". Special attention is given to operation and theory of the Intoxilyzer 5000 (in use in many jurisdictions).

PART V Basic Mathematical & Scientific Concepts, Terms, Measurements In Alcohol Testing Literature and Reports

Seven chapters treat this area, one of the most troublesome for attorneys, and one encountered at every level of the civil and criminal litigation of alcohol-test cases. Basic alcohol test terms (scientific and mathematical), measurement units, conversion charts (helping you to convert equivalent but different expressions of alcohol concentration into "% BAC"), chemical and mathematical concepts, the concept of "% error," understanding the calculations of experts, identifying skewed science, and explaining the specific importance of Replicate Testing (new chapter, 2001)-all are designed for attorneys, and intended to walk attorneys through these complex areas, and to serve as a resource (a place to go for answers) when new material is encountered and must be interpreted.

PART VI Breath Test Results In Criminal Cases; Pre-Trial Challenges

Five chapters deal with pre-trial challenges, pre-trial appellate review of questionable statutory language, initial considerations on motions to dismiss, challenges to new or expanded use of roadside breath-testers, with lengthy transcripts indicating the practical problems one encounters in such proceedings (working with courts pressed for time and courtroom space, and back-logged trial lists). The transcripts here are examples of the difficulties experienced when specific goals are not clearly defined by counsel at the outset and then pursued in an orderly fashion by the lines of questions put forth; when terms are not clearly defined at each stage of testimony; and when poorly prepared (or examined) expert testimony is offered.

PART VII Evaluating Alcohol Test Evidence In Civil Cases: Getting the Most from Depositions

Five chapters, with extensive deposition transcripts included, demonstrate for attorneys why their own careful preparation before a deposition is so important; why goals and a "plan" should be set up and followed (pointing out why the order in which questions are asked can be so important in many cases); discussing why depositions of the technicians themselves (the ones who performed the tests) can be so important, rather than relying only on testimony of a supervisor or director; and providing a review of the transcripts to show the later importance of "unasked questions" and areas not pinned down. This material also provides the deposition of a local Medical Examiner (one who was not a Board Certified pathologist or toxicologist) to show the common mistakes and "overreaching" frequently encountered when M.E.'s and Coroners are deposed or testify.

PART VIII Preparation & Testimony of the Expert Witness in Alcohol Test Cases

Eleven chapters-and one of the most useful parts of the book for both Attorneys and Expert Witnesses alike—these materials provide detailed examples and demonstrations of the proper and improper preparation and use of expert witnesses in alcohol cases (but the lessons outlined here often apply to the use of expert witnesses in all kinds of cases—not just alcohol-test cases). We see specific examples of erroneous expert opinions in both typical and exceptional alcohol-test cases. The so-called Chappaquiddick case (drowning of Mary Jo Kopechne), and the William Holden and Natalie Wood deaths, for example, are used to show how unsupportable opinions are too often offered on the basis of a later post-mortem alcohol value. Guidance for the preparation of your own expert, for preparing the witness properly for the qualification phase of his/her testimony ("effective" qualification--not just questions aimed at obtaining admissibility of the opinions to be offered), and matters to explore before you initially consult your expert in a given area are all discussed in detail. Examining biased, difficult or evasive experts; tips for prosecutors for examination of defense experts in criminal cases; a new chapter (2001 Supplement, due out in Fall) on the admissibility of expert testimony and the impact of Daubert, Joiner, & Kumho, with attention to forensic science testimony in particular-are all included. A demonstration transcript and chapter on effective qualification of the expert; a chapter on "defining terms" as an important tool for introducing on direct the substance of your position or defense (before turning to the specific case facts or opinions); more cross-exam tips for prosecutors faced with difficult defense experts; and a guide to general cross-examination of blood alcohol experts.

The two volumes also include numerous charts and Figures to make complex concepts more readily understandable to laymen, as well as Appendices and a helpful Index.

If you would like to order this two volume set directly from the publisher, click HERE.