1 1 STATE OF WASHINGTON DEPARTMENT OF LICENSING 2 3 4 5 ERIC ARNTSON 6 Plaintiff, 7 v. Case No. (*Redacted information) 8 9 STATE OF WASHINGTON, 10 DEPARTMENT OF LICENSING, 11 12 Defendant. 13 ___________________________ 14 15 HEARING 16 OCTOBER 17, 2007 17 18 - - - 19 20 BE IT REMEMBERED THAT, pursuant to the Washington Rules of 21 Civil Procedure, this proceeding was taken before Kathleen 22 McKee, a Certified Court Reporter, on October 17, 2007, 23 commencing at the hour of 1:03 p.m., the proceedings being 24 reported at 320 North 85th Street, Seattle, Washington. 25 2 1 APPEARANCES 2 GEORGE BIANCHI 3 Attorney at Law 4 THE BIANCHI LAW FIRM 5 605 Thomas 6 Seattle, Washington 98109 7 (206) 728-9300 8 (206) 728-9305 9 GEORGEBIANCHI@THEBIANCHILAWFIRM.COM 10 TED VOSK 11 Attorney at Law 12 LAW OFFICES OF VOSK AND VELASQUEZ 13 2135 112th Avenue NE, Suite 210 14 Bellevue, Washington 98004 15 (425) 818-4823 16 (425) 455-4354 17 TVOSK@COMCAST.NET 18 MOSES GARCIA 19 Attorney at Law 20 STAFFORD FREY COOPER 21 601 Union Street, Suite 3100 22 Seattle, Washington 98101 23 (206) 623-9900 24 (206) 624-6885 25 MGARCIA@STAFFORDFREY.COM 3 1 EXHIBIT INDEX 2 3 EXHIBIT: DESCRIPTION: PAGE MARKED: 4 No. 33C Notice of Simulator Solution 45 5 File Review 6 No. 55 Washington State Patrol Breath 54 7 Test Section DataMaster Quality 8 Assurance Procedure Form 9 No. 56 Washington State Toxicology 57 10 Laboratory Simulator Solution 11 Date Entry Review Form 12 No. 57 Washington State Toxicology 57 13 Laboratory Simulator Solution 14 Date Entry Review Form 15 No. 58 Washington State Toxicology 57 16 Laboratory Simulator Solution 17 Date Entry Review Form 18 No. 59 Curriculum Vitae of Rod Gullberg 28 19 No. 60 Computing the Simulator Solution 42 20 Summary Statistics 21 No. 61 Examples of Problems Observed in 43 22 Toxicology Laboratory Simulator 23 Solution Records 24 No. 62 Curriculum Vitae of Dr. Barry 120 25 Logan 4 1 No. 54 Procedure for Preparation of 144 2 QA Solution 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5 1 SEATTLE, WASHINGTON 2 WEDNESDAY, OCTOBER 17, 2007 3 1:03 P.M. 4 MS. KOEHLER: This is an administrative proceeding 5 before the Department of Licensing of the State of 6 Washington. I'm Kathy Koehler, hearing officer for the 7 Department of Licensing. Today's date is October 17th, 2007 8 and it is approximately 1:05 p.m. This is a hearing of 9 record in the matter of Eric J. Arnston versus the 10 Department of Licensing, license number (*redacted information). And 11 this is a reconvened hearing from a hearing that first began 12 on September 18th, 2007. And there have been several 13 additional proceedings that were status conferences and 14 those conferences occurred on October 5th, 2007; October 15 12th, 2007; and October 16th, 2007. 16 The attorney for Mr. Arnston is George Bianchi. 17 Mr. Bianchi is present. And the attorney for the Department 18 of Licensing is Moses Garcia and Mr. Garcia is present. On 19 my right is Jerry Anderson, Assistant Attorney General, who 20 is legal advisor to the hearing officer on procedural issues 21 only in this proceeding. And on my left is Ellen Barton, 22 another hearing officer with the Department of Licensing. 23 And although I am the hearing officer hearing the Eric 24 Arnston matter, because this transcript may be used 25 throughout the state of Washington as a transcript in other 6 1 proceedings before the Department of Licensing, we want to 2 make sure that we create a very complete record. So as you 3 know from the procedural rules the hearing officer does have 4 the opportunity to ask questions as well as the attorneys 5 representing the parties. I may ask questions after the 6 conclusion of the parties asking their questions. And 7 because we are trying to create a very complete record Ms. 8 Barton may also ask some questions. 9 And what I would like to do at this point because 10 there are some additional people in the room is to go around 11 the room and have you state your name and also who you 12 represent. So obviously we've got the court reporter here 13 and sir, can you please identify yourself? 14 MR. VOSK: Yes, Your Honor. My name is Ted Vosk, 15 bar number 30166, and I'm here on behalf of Mr. Bianchi and 16 his clients. 17 MS. KOEHLER: All right. And then we have Mr. 18 Bianchi. 19 MR. BIANCHI: Yes, Your Honor. George Bianchi, 20 bar number 12292. 21 MS. KOEHLER: Ma'am? 22 MS. WARBINTON: I'm Blakeley Warbinton, bar number 23 36798, King County Prosecutor's Office. 24 MR. VELASQUEZ: Cesar Velasquez, bar number 22760. 25 I'm the partner of Ted Vosk. 7 1 MR. GARCIA: And Moses Garcia, bar number 24322, 2 and I represent the Department of Licensing in these 3 actions. 4 MS. KOEHLER: Okay. And Mr. Garcia, just for the 5 record, are there other parties that you represent here 6 today? 7 MR. GARCIA: Yes, I also represent the Washington 8 State Patrol and the employees in their official capacities, 9 which would include the two witnesses that we have endorsed 10 which would include Rod Gullberg and Dr. Logan. 11 MS. KOEHLER: All right. And as an attorney for 12 the Washington State Patrol do you also represent the 13 Washington State Toxicology Laboratory? 14 MR. GARCIA: I do. 15 MS. KOEHLER: All right, thank you. Did I miss 16 anybody? All right. I think we have some housekeeping 17 matters -- oh, Mr. Arnston is not here today; is that 18 correct? 19 MR. BIANCHI: His presence was waived. 20 MS. KOEHLER: All right. Thank you. And we have 21 a few housekeeping issues to take care of. I also 22 understand that the -- Mr. Garcia, I think you mentioned 23 that you may have a few issues to bring up? Let me-- 24 MR. GARCIA: Actually, I think that was Mr. 25 Bianchi. 8 1 MS. KOEHLER: Okay, well let me start then with 2 asking about Dr. Emery. We had a status conference 3 yesterday and I believe that I asked -- we inquired as to 4 the possibility of his testimony and when he would be 5 available. And do I understand correctly that he's now been 6 in contact with you, Mr. Bianchi? 7 MR. BIANCHI: We were in contact with him prior to 8 the status conference on October 12th. We endorsed and then 9 he left town later that day and returned last night. He is 10 physically out in the hallway -- the waiting area to say his 11 availability to be able to testify at a future date. We 12 brought him here today for that purpose. 13 MS. KOEHLER: All right. So are you prepared to 14 tell us when he's available next week? 15 MR. BIANCHI: We thought that if we could bring 16 him in and you could ask that yourself and coordinate with 17 everyone's calendar because I didn't know what dates you 18 were looking for. 19 MS. KOEHLER: All right. What about the Dr. Logan 20 transcript? My understanding was that that would be 21 available this morning. I have yet to see it. 22 MR. BIANCHI: It is not here yet and as I was 23 suggesting at the prior hearing, I was working based upon 24 information provided by the transcriptionist as to when 25 they -- as to when it would be available. It turns out it's 9 1 not available as of this moment. The transcription was a -- 2 the transcript has been done by two individuals from -- 3 Legal Support I believe is their name. One is Rondi 4 Kiernan, Legal Support Services, excuse me. And the other 5 individual was Kimberly Fitzpatrick. Ms. Kiernan delivered 6 to my office this morning at approximately 10:30 the 7 originals of the transcripts from day one and day two which 8 were -- had some minor editing to day one. This change -- 9 the word "singing" to "signing" throughout the transcript. 10 And so they do have cover sheets and signatures at this 11 point. She was in contact with Ms. Gilbert -- let me make 12 sure of the name -- after midnight last night, knowing that 13 she was still working on the transcript. And 14 Ms. Fitzpatrick, excuse me. And from my office prior to 15 coming here we e-mailed, as well as phoned this other 16 transcriptionist to try to find the status. And prior to 17 coming in here there was no response from her. We know that 18 she was working on it and this was -- we had hoped -- I had 19 hoped to have it today but as you know sometimes it just 20 takes longer for a transcript. I apologize. There was 21 more -- there was approximately 55 hours devoted already to 22 the two prior transcripts that they have been working 23 diligently trying to get done in a timely manner. That disc 24 did get to them at -- but it delayed from what we had 25 anticipated because it was to be delivered to them by a 10 1 third party and it turned out it didn't reach them in the 2 time frame I had originally anticipated. So I apologize for 3 it not being ready for today. 4 MS. KOEHLER: When do you anticipate it will be 5 ready, or do you just have no idea at this point? 6 MR. BIANCHI: That's what I was trying to find out 7 by calling and e-mailing was to see where she was and when 8 it would be done and I couldn't get through. I apologize. 9 I know that she is supposed to be working on it this morning 10 again. 11 MS. KOEHLER: All right. Now did you indicate -- 12 one of you indicated you had some other procedural matters 13 to bring up? 14 MR. BIANCHI: First of all -- why don't we deal 15 with this first? First of all, for purposes of this 16 hearing, as we -- as we had discussed there were exhibits 17 which were used through the course of the other proceedings 18 that we're having transcripts finished on, the exhibits from 19 the Sharon Gilbert matter. In conformance with 20 Administrative Code 308-103-150 we're asking you to admit 21 and consider for purposes of this hearing additional 22 exhibits which are all on the Washington State Patrol breath 23 test website that we have pulled down for convenience for 24 review on this case. One of them would be the quality 25 assurance -- excuse me, the -- yes, it is the procedure for 11 1 the preparation of quality assurance solutions for use with 2 the breath test instrument dated October 23, 2004, signed by 3 Dr. Logan as well as other toxicologists. 4 MS. KOEHLER: That's the procedure for quality 5 assurance procedures for simulator solutions for breath test 6 instruments? 7 MR. BIANCHI: No, for simulator solutions. It's 8 the -- how to use a gas chromatograph to test the simulator 9 solution for the quality assurance simulator solution. 10 MS. BARTON: Mr. Bianchi, is this what was in 11 effect before the March '07 protocol? 12 MR. BIANCHI: This is different. The protocols 13 which were in the exhibits in Skagit County were the 14 procedures for the simulator solutions used during the -- 15 used during the course of a breath test. This is the 16 procedure for the simulator solutions used during the 17 quality assurance procedure of the DataMaster which is done 18 on an annual basis, the quality assurance. 19 MS. BARTON: So this is current? 20 MR. BIANCHI: This is current for what was used on 21 the Arnston matter. 22 MS. KOEHLER: All right. 23 MS. BARTON: Is there a new one? 24 MR. BIANCHI: I can't say. I was just focusing on 25 the Arnston case. 12 1 MS. KOEHLER: Mr. Garcia, do you have any 2 objections? 3 MR. GARCIA: I'll reserve until when it appears, 4 Your Honor. I know he's asking the Court to admit it but at 5 this point there's no foundation. I don't know what his 6 purpose is at that point. 7 MS. KOEHLER: Will you be using this exhibit in 8 conjunction with one of the witnesses that will be 9 testifying today? 10 MR. BIANCHI: Sure, yes we will. 11 MS. KOEHLER: Okay. Then what we will do is mark 12 the exhibit at this point but it won't be admitted unless 13 and until a foundation is laid. 14 MR. BIANCHI: Well again, we'd ask that you 15 consider under Administrative Code 308... 16 MS. BARTON: 150. 17 MR. BIANCHI: 308-103-150 that this could be 18 admitted by the hearing officer and also that the -- the -- 19 under 308-103-120, subsection 1, "The admissibility of 20 evidence shall be liberally construed to effect the intent 21 and purpose of the hearings." So we would ask that you 22 consider under that light. 23 Another document that we would ask for your 24 consideration under both aspects that we've previously cited 25 is the quality assurance procedure performed on instrument 13 1 number 14-0051 on August 9th, 2006. Again, this is a record 2 found on the Washington State Patrol breath section website. 3 MS. KOEHLER: And is this with regard to 4 Mr. Arnston's breath test? 5 MR. BIANCHI: It is, as is reflected by Exhibit 1, 6 which has already been admitted. I'm sorry. 7 MS. KOEHLER: Now, before you go any further, 8 Mr. Bianchi, I want to take care of one other small 9 housekeeping matter. Because this hearing in the Arnston 10 matter was started before the Skagit County proceedings were 11 incorporated into this record, the numbering on a few 12 exhibits is identical. So we have some No. 1 -- I think we 13 got up to about No. 4 in the Arnston matter. I'm going to 14 renumber the exhibits that were initially admitted into 15 Arnston just with an "A" in front of the number. So for 16 example, the exhibits that were admitted during the first 17 hearing of September 18th will now be A1, A2, A3, all right? 18 MR. BIANCHI: Yes. 19 MS. KOEHLER: And going backwards just a little 20 bit I've marked the procedure for the preparation of the 21 quality assurance solutions for use with the breath test 22 instrument as Exhibit 54. And you were talking about the 23 QAP. Did you hand a copy of that to Mr. Garcia? 24 MR. BIANCHI: I did. And I'll hand one to -- down 25 to you also. There was an exhibit, I thought I had it here. 14 1 Exhibit 1, page seven of the -- it would be Exhibit A1, page 2 7 of the -- which has already been admitted in the Arnston 3 matter, reflects that it was instrument DataMaster CDM140051 4 to tie in with this new exhibit that we're asking to be 5 admitted. 6 MS. KOEHLER: Okay. I'm marking the quality 7 assurance procedure for instrument 140051 dated August 9th, 8 2006 as Exhibit 55. Mr. Garcia, same objection? 9 MR. GARCIA: Yes. I'll reserve at this time, Your 10 Honor. 11 MS. KOEHLER: All right. And I'll reserve ruling 12 on that as well. Did you have any other exhibits, Mr. 13 Bianchi? 14 MR. BIANCHI: We did. There would be also posted 15 on the website for the state patrol breath test section are 16 the testing -- well, first of all I'll go back -- I'll go 17 back. Strike what I said. 18 In the Arnston matter under Exhibit A1, page 7, 19 there was a batch number 07010, a simulator solution batch 20 number. That is already marked as Exhibit 33 in the 21 transcripts from Skagit County. So that's already there. 22 But dealing with-- 23 MR. VOSK: May I interrupt just for one second? 24 Just for clarity of record I just noticed the transcription 25 is referring to Mr. Bianchi as Mr. Vosk so I just wanted 15 1 to -- okay, and I apologize for the interruption. I just 2 wanted the record to be accurate. 3 MS. KOEHLER: Thank you, Mr. Vosk. 4 MR. BIANCHI: When you reference Exhibit -- 5 proposed Exhibit 55 you'll see that it references also 6 simulator solutions 06015. And with that in mind we would 7 ask to be kept as a -- used as an exhibit in this case. 8 This would be again from the state patrol breath test 9 section website record as it relates to simulator solution 10 badge number 06015. 11 MS. KOEHLER: All right. You actually have two 12 documents here? 13 MR. BIANCHI: They go together. The second one is 14 a chromatograph that goes with the documents. 15 MS. KOEHLER: All right. Was the chromatograph 16 also on the website? 17 MR. BIANCHI: It was. 18 MS. KOEHLER: All right. In the same section of 19 the website? 20 MR. BIANCHI: Yes. 21 MS. KOEHLER: Along with the first portion of this 22 document? 23 MR. BIANCHI: Yes. There was all -- the only 24 thing that's missing from that is there were chromatographs 25 associated with the other two technicians involved with 16 1 06015, those being Lisa Piquette and Niziha. That's spelled 2 N-i-z-i-h-a. Nuwayhid, N-u-w-a-y-h-i-d. But they were not 3 pertinent for our purposes on this -- for use as exhibit, so 4 I excluded them from the exhibit. But they are -- as a 5 proposed exhibit but they are on the website also. 6 MS. KOEHLER: All right. I'm marking the 7 documents that you've handed up to me that were found on the 8 Washington State Patrol Breath Test website for batch number 9 06015 as Exhibit 56. Mr. Garcia? 10 MR. GARCIA: And I'll reserve, Your Honor. I'm 11 assuming that he'll offer these as part of his 12 cross-examination of the witnesses and we can address it at 13 that time. 14 MS. KOEHLER: All right. 15 MR. BIANCHI: We would also have the same type of 16 information dealing with batch number 06014, which is also 17 reflected on proposed Exhibit 55. 18 MS. KOEHLER: All right. This is a two-page 19 document you've given including the chromatographs? 20 MR. BIANCHI: I did. 21 MS. KOEHLER: All right. I'm marking this exhibit 22 as Exhibit 57. Do you have any other exhibits? 23 MR. BIANCHI: I do. I have -- again referencing 24 proposed Exhibit 55. That document also references 25 simulator solution number 06012. And we would ask or 17 1 propose that this be admitted also. And again, that's not 2 the complete record from that. It's the document pertinent 3 for purposes of this hearing. 4 MS. KOEHLER: All right. I've marked this exhibit 5 as Exhibit 58. Do you have any other exhibits? 6 MR. BIANCHI: I have no additional exhibits to 7 proffer at this point. 8 MS. KOEHLER: All right. Do either of you have 9 any other preliminary matters? 10 MR. BIANCHI: I would defer to Mr. Vosk at this 11 point. 12 MR. VOSK: I've got several, Your Honor. The 13 first is, and this is just because I'm not certain exactly 14 how DOL is planning on using these things and I want to make 15 sure that I don't get in any trouble with any kind of 16 improper practices. I want to make clear for the record 17 that the only people I'm here to represent in any way are 18 Mr. Bianchi and his clients. I think constitutionally I 19 cannot act as a stand-in for the attorneys of any other 20 individuals that might appear before DOL. That would be a 21 violation of due process. I think also under the RPCs 22 because I have not spoken or gotten permission from anybody 23 else, any other attorney or any other individuals that may 24 have pending proceedings before DOL, I simply don't have the 25 authority to speak on anybody's behalf. So I just wanted to 18 1 make clear for the record that if these transcripts are 2 posted or if the DOL tries to apply them to other hearings, 3 I am not giving my assent or authority for that because I 4 don't have the authority to give any assent. 5 The second -- the second thing I wanted to address 6 is -- has to do with exactly what role Mr. Garcia is going 7 to be playing today. I heard him say that he's representing 8 both -- or two different agencies, DOL, WSP, including the 9 tox labs and employees, in an official capacity. And I 10 think that the law with respect to any kind of proceeding as 11 this is clear that witnesses belong to no party, that no 12 party really exercises domain or control over those 13 witnesses which would preclude the other side from speaking 14 to them. Mr. Garcia, if he's a representative of the DOL, 15 can prevent and, frankly I can't speak to -- I can't speak 16 to a toxicologist in the lab, I can't speak to Barry Logan. 17 And according to a representation made just prior to these 18 hearing's beginning that he's now representing Rod Gullberg, 19 I can't have free contact with the witnesses that are 20 appearing. 21 MS. KOEHLER: Okay. Let me stop you right there, 22 Mr. Vosk. Are you making a motion to disqualify Mr. Garcia? 23 MR. VOSK: I am. 24 MS. KOEHLER: All right. Your co-counsel, 25 Mr. Bianchi, has already raised that motion and it's already 19 1 been ruled upon. It was ruled upon yesterday. And my 2 ruling was that I would not be disqualifying Mr. Garcia for 3 the reasons that I stated on the record yesterday. And we 4 will proceed today and we're not going to revisit that 5 issue. 6 Did you have anything else? 7 MR. VOSK: I did with respect to that and that's 8 only to get on the record if we're -- even that issue aside, 9 is that that has left us in a position of not adequately 10 being able to prepare. I haven't received, as far as I 11 know, any kind of summary of what Dr. Logan intends to 12 testify to. I can't call him on the phone and ask him. 13 With respect to Rod Gullberg I have been communicating with 14 him to try to make sure that we were all on the same page 15 and going in the same line. And yesterday he sent over a 16 set of plots and information. And then only this morning 17 provided the data for those plots. So we haven't had a 18 chance to go through any of the -- any of the information. 19 He may have sent the plots over -- when was it, two days 20 ago? 21 MR. GARCIA: Yes. 22 MR. VOSK: We haven't had a chance to allow our 23 expert to go through any of the information. We haven't had 24 a chance to prepare so I think by going forward at this 25 moment it's more or less denying our client any kind of 20 1 effective assistance of counsel because we simply haven't 2 been able to evaluate the evidence that was provided to us, 3 which was the reason that we chose to withdraw both Sergeant 4 Goldberg and Ashley Emery. Not because of any weakness we 5 saw in our case, but because of ever -- not Emery. We 6 decided to withdraw Sergeant Gullberg, not because we saw 7 any weakness in our case but we simply haven't had the 8 opportunity to evaluate the information he gave us. If we 9 were permitted time to evaluate that, possibly find out we 10 agree, we would have no reason to go forward anyway. But we 11 simply don't know. But he testifies today. We'll have no 12 way of evaluating what he's testifying to because we simply 13 haven't had the opportunity. And so on that I would just-- 14 MS. KOEHLER: All right. 15 MR. VOSK: I think you know where I'm going. 16 MS. KOEHLER: Let the record reflect I'm raising 17 my hand and asking Mr. Vosk to stop. Again, this was an 18 issue that was raised yesterday at five minutes to five when 19 it came across the fax machine as a motion to exclude Rod 20 Gullberg as a witness. And I've already ruled on that. 21 I've already ruled that Mr. Gullberg will testify, will be 22 allowed to testify as a witness for Mr. Garcia's client. 23 If, after the testimony is given today, you certainly are 24 going to have the opportunity to ask Mr. Gullberg any 25 questions that you want to ask him. If there's anything 21 1 that's still unclear we can revisit the issue then. But for 2 now he is going to go forward and he is going to testify. 3 MR. VOSK: Okay. And just let me make it clear 4 because I'm not certain that I was. I wasn't asking to have 5 him excluded. I was simply asking for a continuance so that 6 we would have time to take a look at the information that 7 was provided so that we could be prepared to even know 8 whether or not we think his testimony needs to be challenged 9 in any way, so we can even understand what his testimony is. 10 So that just as a point of clarification, I wasn't asking to 11 have him excluded. I was asking for a continuance so that 12 we might have time because I don't think that an effective 13 cross-examination can even be performed since we've only 14 been given the data at 6:02 this morning to support plots 15 which we had two days ago. 16 And frankly when I spoke to Mr. Gullberg last 17 Thursday he told me he had one opinion on these matters and 18 then only in his e-mail I think it was yesterday or the day 19 before said, "Oh, I've got a completely different opinion 20 now." And then sent over some materials so I could evaluate. 21 But I have no -- no way to be able to evaluate in that short 22 a period of time and given that the witnesses change -- gave 23 me one official expert quote/unquote opinion to begin with 24 and then completely changed it, I don't know how I can be 25 expected to be prepared to cross-examine him today. 22 1 MS. KOEHLER: Did you bring those documents with 2 you today that he provided to you? 3 MR. VOSK: I've got them on my computer. I think 4 Mr. Bianchi printed them up, yes. 5 MS. KOEHLER: All right. And I notice that you 6 have your computer sitting in front of you? 7 MR. VOSK: Absolutely. 8 MS. KOEHLER: Okay. So you're free to ask 9 Mr. Gullberg any questions on cross today that you wish to 10 ask him. And if for some reason you feel that you can't 11 understand the information that he provided you, you can ask 12 him about that. If there's something additional you need to 13 do to understand the information, you can bring this issue 14 up again and we will revisit whether you can ask him some 15 additional questions at a later time. 16 MR. VOSK: Okay, then maybe -- maybe -- in order 17 to-- 18 MS. KOEHLER: We're not -- let me make it very 19 clear. We're not reserving -- you're not reserving your 20 cross-examination for a later date. You will -- you will 21 proceed with your cross-examination today. 22 MR. VOSK: And if we don't then you're going -- 23 you will deny us any future cross-examination of him? 24 MS. KOEHLER: That's correct. 25 MR. VOSK: In order to try to facilitate this one 23 1 of the things I wanted to ask was to exclude -- when the 2 State's got one of its witnesses testifying not to have the 3 other one present but to permit us to have our expert here 4 since our expert has not had a chance to go through these 5 things. We haven't had an opportunity to discuss with him 6 any of these -- these new issues, outside of, you know, the 7 ten minutes I did last night when he phoned me at midnight 8 when he got in from wherever he was. If he's here he may at 9 least be able to give me guidance and help me understand 10 what the testimony means. I'm-- 11 MS. KOEHLER: Mr. Garcia, do you have any 12 objection to Dr. Emery sitting in and listening to the 13 testimony? 14 MR. GARCIA: Yes. If we're going to exclude 15 witnesses and I will be excluded from having my expert 16 present to advise me -- if we're going to allow them than 17 Dr. Logan should be in the room to be able to advise me 18 also. So with respect to Dr. Emery I don't think Dr. Emery 19 is expected to testify today. So the only purpose in having 20 him here is to assist defense counsel in conducting 21 cross-examination. I have not seen that allowed by any 22 court. He is expected to be a witness and he's providing 23 the defense their cross-examination questions. So 24 presumably sometime in the future when he's prepared by the 25 defense he will present himself and have an opportunity to 24 1 review the testimony through a transcript. I believe that's 2 the intention, for these proceedings to be reduced to a 3 transcript. So at that time if he wants to present 4 testimony on any relevant point that would be appropriate at 5 that time. 6 MS. KOEHLER: Is Mr. Gullberg in the waiting room 7 right now? 8 MR. GARCIA: He is. 9 MS. KOEHLER: Is Dr. Logan in the waiting room? 10 MR. GARCIA: He was expected at two. My 11 understanding is that he should be well -- here well in 12 advance of that time. 13 MS. KOEHLER: Okay. Were you anticipating having 14 Dr. Logan sit in? 15 MR. GARCIA: I assumed the witnesses would be 16 excluded. Earlier that was the indication. 17 MS. KOEHLER: Mr. Bianchi or Mr. Vosk? 18 MR. VOSK: Your Honor, with respect to this if 19 what we were talking about were matters within the ken of 20 the lay individual, I wouldn't be asking to have a witness 21 here. We're talking about highly technical matters that 22 are, frankly, outside the ken of most individuals. And I've 23 only recently been, as I explained earlier, provided with 24 the materials and the opinion of Mr. Gullberg. I don't know 25 how I can be expected -- you know, as I just got through, I 25 1 don't know how I can be expected to conduct any kind of 2 cross-examination or really have the due process, the full 3 due process where I can confront the witness, either without 4 more time, or at the very least with the assistance of an 5 expert here who can translate this into something I can 6 understand. I mean-- 7 MS. KOEHLER: All right. I'm raising my hand 8 again for the record. Right now I am going to rule on the 9 motion that I finished reviewing -- briefing on yesterday 10 and that was the motion to exclude Dr. Emery. I am going to 11 allow Dr. Emery as a witness. I am going to allow both Dr. 12 Emery and Dr. Logan to sit in on the testimony of 13 Dr. Gullberg. And Dr. Emery can sit in on the testimony of 14 Dr. Logan. I am going to say that they are witnesses in the 15 case. If you want to consult with them during a recess 16 you're free to do that. I don't want them interfering with 17 the case, or delaying the proceedings, or speaking out. 18 They are witnesses in this hearing room and they need to 19 conduct themselves as such. 20 MR. VOSK: Will it be appropriate if there's 21 testimony at a technical point if I ask him quietly, not to 22 speak up, but to explain to me exactly what was just said 23 means because again, without the time to prepare I'm not 24 sure that I will even understand much of the testimony. 25 MS. KOEHLER: We will take a recess after the 26 1 direct testimony of each witness and you can consult with 2 your expert at that time if you choose to do so. All right? 3 MR. VOSK: Okay. 4 MR. GARCIA: That's fine. 5 MS. KOEHLER: Are there any other preliminary 6 matters? All right. Are we ready to call Rod Gullberg? 7 MR. VOSK: Give me just one second, Your Honor. 8 I'm sorry. 9 MS. KOEHLER: Why don't you go ahead and get him? 10 Thank you. 11 MR. VOSK: And Your Honor, may I go get Dr. Emery? 12 MS. KOEHLER: Yes, you may. 13 MR. VOSK: Thank you. 14 MS. KOEHLER: Mr. Gullberg has come into the room, 15 as well as Dr. Emery I presume. All right. And while you 16 were out of the room, Dr. Emery, there was a discussion of 17 you sitting in today and listening to the testimony. And I 18 advised your counsel that you could do that but that any 19 conversations or questions between you and counsel would be 20 to take place during the recess, not during the testimony. 21 I don't want these precedents disrupted in any way and I 22 want to make sure that we can proceed and that everybody can 23 hear and that the record's very clear. So do we understand 24 each other? 25 DR. EMERY: Yes. 27 1 MS. KOEHLER: Okay, thank you. And you are Mr. 2 Gullberg, I presume? 3 MR. GULLBERG: Yes. 4 MS. KOEHLER: All right. 5 (Whereupon, Rod Gullberg, having been first duly 6 sworn by the Hearing Examiner, was examined and testified as 7 follows.) 8 MS. KOEHLER: Can you please state your full name 9 and spell it for the court reporter? 10 MR. GULLBERG: Yes. My name is Rod Gullberg. The 11 last name is spelled G-u-l-l-b-e-r-g. 12 MS. KOEHLER: You may proceed, Mr. Garcia. 13 MR. GARCIA: Thank you. 14 EXAMINATION 15 BY MR. GARCIA: 16 Q. Mr. Gullberg, how are you employed? 17 A. I'm employed by the Washington State Patrol. I 18 am -- my position is research analyst. I'm assigned to the 19 breath test section at the Roanoke office in Seattle. 20 Q. And who is your supervisor? 21 A. Sergeant Brock Sharp is my most immediate 22 supervisor. 23 Q. And who is the director for the breath test lab? 24 A. Well, the overall bureau commander is Dr. Barry 25 Logan. 28 1 Q. Okay, thank you. And your curriculum vitae is 2 posted on the website for the Washington State Patrol; is 3 that correct? 4 A. Yes. 5 Q. Showing you a document. Could you examine that 6 document? 7 A. Okay. 8 Q. What is that document? 9 A. Yes, it is my curriculum vitae. 10 Q. Your Honor, I'd ask that that be marked as number 11 59. 12 MS. KOEHLER: Who is handling the 13 cross-examination of Mr. Gullberg? Okay. Mr. Vosk, have 14 you seen this curriculum vitae before? 15 MR. VOSK: Yeah, I have no objection. 16 MS. KOEHLER: All right. Then I'm marking 17 Mr. Gullberg's curriculum vitae as Exhibit 59 and Exhibit 59 18 is admitted. 19 (Whereupon, the Curriculum Vitae of Rod Gullberg 20 was marked Exhibit 59 for identification.) 21 MR. GARCIA: Thank you. 22 Q. And Mr. Gullberg could you give the Court a brief 23 overview of your experience with the breath test program? 24 A. Well, I was first hired with the Washington State 25 Patrol back in 1972. Shortly thereafter I was assigned to 29 1 the academy for training. I was commissioned as a trooper 2 in 1974. And I was trained during that time to an operator 3 of the breathalyzer instrument. In 1977 I was trained as a 4 technician where I would then repair, test, and certify 5 breathalyzer instruments. And in 1978 I was assigned to our 6 academy as an instructor where I got involved in the breath 7 testing program. So since 1978 I have been involved in the 8 breath testing program within the Washington State Patrol. 9 I became more full time involved in 1983 when I was promoted 10 to sergeant and assigned to the crime laboratory division in 11 Seattle. And since that time until I retired about two 12 years ago I was supervisor of the breath test program within 13 the Washington State Patrol. When I retired from the 14 commissioned rank I was hired back as a civilian in my 15 current position and again assigned to virtually the same 16 program working for the same people, same office, same 17 duties. I just don't supervise any more. 18 Q. I also notice in your CV under your education you 19 have a master's of science in biostatistics? 20 A. Yes. 21 Q. When did you receive that? 22 A. I believe the year was 2003. 23 Q. And what does that discipline involve? 24 A. Well, statistical applications applied primarily 25 to biology or medicine. Most medical research today 30 1 involves a statistician to help design the experiment, 2 determine sample size, determine statistical analysis to be 3 done. So the emphasis is statistics in a biological 4 measurement context. 5 Q. And have you published either in treatises or 6 otherwise on this subject? 7 A. Yes. 8 Q. And those are detailed in your CV? 9 A. Yes. 10 MR. GARCIA: I'll ask the Court to take judicial 11 notice of State Supreme Court decision in State v. Ford, 110 12 Wn.2d 827. 13 MR. VOSK: No objection. But Your Honor, I'd like 14 to know that it has to be asked as a published case. 15 MS. KOEHLER: Proceed. 16 Q. And Sergeant Gullberg, in State v. Ford is that 17 the case in which the court reviewed your test trials on the 18 BAC device? 19 A. Yes. 20 Q. Okay. And you were intimately familiar with the 21 BAC device from the test trials, the approval process you 22 went through, and your experience with that device since 23 that time? 24 A. Yes. 25 Q. Currently -- strike that. 31 1 Currently on the Washington State Breath Test website there 2 are a variety of materials that are posted there; is that 3 correct? 4 A. Yes, that's right. 5 Q. Okay. I'm showing a document-- 6 MR. VOSK: Is that going to be admitted? 7 MR. GARCIA: I'm just going to show -- 8 demonstrative. 9 Q. I'm showing you a document. What does that appear 10 to be? 11 A. It's what the-- 12 MR. VOSK: I'm going to object at this point, Your 13 Honor, basis of knowledge. 14 Q. Have you visited the Washington State Patrol 15 Breath Test website? 16 A. Yes. 17 Q. Are you familiar with its contents? 18 A. Yes. 19 Q. Okay. What does this document appear to be? 20 A. It's a print out showing one of the screens that 21 you would find there. It's the BTP public records index. 22 And under that you can obtain CVs for any of the personnel 23 within the breath test section and the toxicology lab, our 24 policy manuals are there, our operator training outlines are 25 there, thermometer records, permit cards, studies and 32 1 articles, and so forth. 2 MR. GARCIA: Okay. I'll hand this to the Court. 3 It's not being offered as an exhibit, simply demonstrative. 4 Q. Now what is the purpose of posting all these 5 documents on the website? 6 A. Well, probably a variety of reasons. It's-- 7 MR. VOSK: I'm going to object at this point, Your 8 Honor, basis of knowledge. The witness started answering 9 "probably," so I'm not sure we've established that he knows 10 the purpose. 11 Q. Do you know the purpose for why these materials 12 are posted? 13 A. I think I do. 14 Q. Can you answer the question? 15 A. To put this information that's part of-- 16 MR. VOSK: Your Honor, I would object again, basis 17 of knowledge. He says he "thinks he does." I'm still 18 waiting to hear the basis of-- 19 MS. KOEHLER: It's overruled. You may answer the 20 question. 21 A. It's to put this information which is our public 22 records out there for the public for anybody to have access 23 to. It was largely implemented because of the discovery and 24 public disclosure requests we used to get in past years that 25 would become overwhelming. And so we thought, let's put it 33 1 out there, anyone can get it any time. And it greatly 2 reduced the public disclosure copying and mailing we had to 3 do. 4 Q. Thank you. Now you're familiar with the issue and 5 issues that arose since the resignation of Ann Marie Gordon; 6 is that correct? 7 A. Yes. 8 Q. Okay. Have you had any tasks related to that 9 issue since March of this year? 10 A. Yes. 11 Q. What was your first involvement in this issue? 12 A. Well, it's probably about a month ago that 13 Dr. Logan asked that I and Trooper Ken Denton would go 14 through and review all of the records within the toxicology 15 lab that had to do with the preparation and testing of 16 simulator solutions. So we were given access to the 17 chromatograms, that's a document that shows the print out -- 18 the print out of the measurement results. And we were also 19 given the data entry sheets that the toxicologists complete 20 when they perform these measurements to ensure that they 21 corresponded. So that's what we've been doing the past few 22 weeks. 23 Q. In terms of priority what was your first priority 24 in accomplishing that task? 25 A. Well, to begin to review the most recently 34 1 prepared solutions, those prepared this year, 2007. So we 2 began with the most recent ones and worked backwards in 3 time. 4 Q. And approximately how far back have you reviewed 5 the records? 6 A. To 2005. 7 Q. I'm showing you the worksheet and associated 8 chromatograms, Exhibit No. 33 for batch number 07010 of the 9 Kitsap County record. Would you review that document? And 10 would that be an example of a product from that process you 11 just described? 12 A. Yes, it would be. 13 Q. Okay. Perhaps you could walk the hearing 14 examiners through the process that you used in reviewing 15 each of the batch preparations. 16 A. Well, this is a data entry sheet that's prepared 17 by the state toxicology laboratory. We've been familiar 18 with this for probably ten years or more that they've been 19 following this procedure in providing these records to us 20 for every batch that's prepared. At the top here one finds 21 the target value for this solution preparation. This 22 happens to be a .08. And it's also designed to be a field 23 solution, so this solution would be used on instruments 24 throughout the state associated with the administration of 25 the breath alcohol test. A batch number is assigned to that 35 1 as well and this happens to be 07010. It talks at the top 2 here about what's prepared in terms of volume of water and 3 ethanol alcohol. 4 Then below here we see the results of the 5 measurements performed by each of the analysts employed in 6 the toxicology laboratory. Each one performs five 7 measurements. So we see the sequential results of five. 8 And the last measurement is a control, CTRL, a control 9 measurement. It's a reference standard that's a purchased 10 control from another commercial manufacturing company that's 11 measured along with this run of five simulator measurements 12 on this batch. So each analyst will perform five 13 measurements. It may be different days that they perform 14 it. Down here on the right one sees the date that they 15 would have performed those measurements. And next to their 16 name, typed out, and then their signature. 17 So the number -- total number of measurements can vary. 18 They have up to 16 analysts allowed here but sometimes 19 there's only ten or twelve or perhaps three for some 20 solutions. They require that at least three perform five 21 measurements each. This happens to be one where 15 analysts 22 each performed five measurements. 23 So then one also sees in the middle of the page 24 here the external control lot number. That's this 25 commercial -- commercially purchased lot number that's 36 1 associated with the control value that had a reference value 2 .10 grams per hundred milliliter. And the expiration date 3 on that lot number is there as well. To the right in the 4 middle are the statistical summary of all this data. So we 5 find the mean, the average value. It's the arithmetic mean, 6 simply the sum of all the results divided by N. "SD" is the 7 standard deviation. Then we have the range. That is taking 8 the mean, plus or minus three standard deviations, to give a 9 range. And then the precision or CV. CV stands for 10 coefficient of variation. It's also a measure of 11 variability. It's the standard deviation divided by the 12 mean times 100. It's a relative standard deviation. So we 13 have that summery of the data. 14 Then at the bottom is the name of the individual 15 who prepared this solution. And then the names and 16 signatures of the analysts within the lab who performed the 17 measurements. Then associated with that are chromatograms. 18 One page for every management result. So this illustrates 19 the result here for Justin Knoy and he -- if you look on 20 there you'll see he's the first one to perform the risk 21 measurements. And here-- 22 MR. VOSK: Your Honor, at this point I want to 23 raise an objection, only because that's not part of the 24 exhibit. It looks like that was submitted in Skagit. I 25 have no problem if opposing counsel is going to try to get 37 1 that admitted but I don't have a copy of that right now. 2 I'd like to take a look at it so I could follow. 3 MS. KOEHLER: In the Skagit County exhibits, which 4 are now part of this case, in Exhibit 33 we have only three 5 pieces of paper. The chromatogram is not part of Exhibit 6 33. Is it part of another exhibit? 7 MR. VOSK: And I don't want to be obstreperous, if 8 they want to use it. I just need a copy. 9 MR. GARCIA: That's fine. 10 MS. KOEHLER: If we could get a copy? 11 MR. GARCIA: Yeah, I had it marked as 33A so that 12 we don't confuse the record, so that it can stick with the 13 original. 14 MS. KOEHLER: Okay. Actually, I'm going to mark 15 it as 33B. 16 MR. GARCIA: That's fine. 17 MS. KOEHLER: Only because we've already used "A" 18 in a different context and I don't want to get confused. 19 And I just got a note that Dr. Logan is here. 20 MR. GARCIA: Oh, here's a copy. 21 MS. BARTON: How many copies? 22 MR. GARCIA: We already have a copy. 23 MS. KOEHLER: So we need at least one more for me. 24 MS. BARTON: Are there going to be any others? 25 MR. GARCIA: No, no. That should be the only one. 38 1 MS. KOEHLER: Okay. I just got a note that Dr. 2 Logan is here. 3 MR. GARCIA: Okay. 4 MS. KOEHLER: Did you want to ask him to come in 5 and listen to the testimony? 6 MR. GARCIA: Um-hmm. 7 MS. KOEHLER: Okay. 8 MR. BIANCHI: That was 33B that you've marked that 9 as? 10 MS. KOEHLER: Let's wait for Mr. Garcia to come 11 back in. 12 MR. VOSK: Are we off the record? 13 MS. KOEHLER: We're not. 14 MR. GARCIA: And this is Dr. Logan. 15 MS. KOEHLER: All right. Mr. Garcia has come back 16 in the room and Dr. Logan is here as well. And before we 17 went off the record -- we actually never went off the 18 record. But before we took a brief break, I marked the 19 chromatographs for -- chromatogram for -- that go along with 20 Exhibit 33 as Exhibit 33B. And I understand you have no 21 objection Mr. Vosk, to this being a witness -- to being an 22 exhibit? 23 MR. VOSK: No objection, Your Honor. We may be 24 supplementing to that to the rest so just so Your Honor 25 knows. 39 1 MS. KOEHLER: All right. 2 MR. VOSK: You may mark it just so it's easier 3 later. That exhibit could end up being approximately a 4 hundred and thirty or forty pages long. 5 MS. KOEHLER: All right. 33B is 12 pages in 6 length and I'm going to mark each page so it's real clear 7 what we're talking about on the record. And you have no 8 objection to these 12 pages, Mr. Vosk? 9 MR. VOSK: No. 10 MS. KOEHLER: All right. Then 33B is admitted. 11 Pages 1 through 12. 12 Q. Mr. Gullberg, you were explaining what purpose the 13 chromatograms serve in the process that you were following 14 for checking the worksheet. 15 A. Yes. Each -- each result on the worksheet for 16 each analyst has a one-page chromatogram result. So this 17 first page, for example, illustrates 0.101 grams per hundred 18 milliliter for analysts Justin Knoy on batch 07010. And we 19 see that in the first cell for the first analyst. And these 20 are just illustrations for two of the analysts. So we will 21 find five sequential results that correspond to the first 22 column under analyst one. 23 The other individual I showed in here just by way 24 of example was Mr. Asa Louis and his five results on batch 25 07010. And he was analyst number five. So going to analyst 40 1 five here on column five, one will find the five results, 2 which will correspond to five separate pages along with the 3 control result. So this is what we did. We went through 4 each one of these pages and made sure that that cell had 5 that corresponding result for ethanol. And if it did not, 6 as for example on this exhibit analyst number nine cell 7 number two, the results should have been 0.103 instead of 8 0.102. 9 Q. When you discovered a discrepancy between the 10 chromatogram and the worksheet what did you do? 11 A. Exactly as what's illustrated here. We crossed 12 out with one line so that you could still read the original 13 result. I wrote in the correct result. I initialed and 14 dated when I did that. 15 Q. In addition to field errors in the individual 16 cells, once you had completed your review of all of the 17 analysts' chromatograms and compared those to the cells, 18 what did you do? 19 A. Well, I recomputed the statistics. The mean, the 20 standard deviation, the range, the precision, and then the 21 equivalent vapor concentration which represents the 22 concentration of alcohol in the headspace of a simulator 23 when the solution is heated to 34 degrees Celsius. So I did 24 those calculations. If they changed, as they did in some of 25 the cases here, I drew a line through. I put in the 41 1 corrected result, initialed and dated that. 2 Q. And did you find during your process to date any 3 result that -- once you were complete with your review, did 4 you find any result that took the adjusted numbers outside 5 the range of the requirements for the protocol? 6 A. No. 7 Q. I'm showing you a document titled "Computing the 8 Simulator Solution Summary Statistics." Could you take a 9 look at that document? 10 A. Okay. 11 Q. What is that document? 12 A. This is a document I prepared early on in this 13 review process so that I could document clearly the steps 14 involved in arriving at the statistical calculations so that 15 anyone else coming in and wanting to redo this could follow 16 this. And it describes how the mean or the arithmetic 17 average is calculated, standard deviation, coefficient 18 variation, the range, and the equivalent vapor 19 concentration. 20 Q. Okay. And who performed the calculations on the 21 adjusted numbers? 22 A. I did. 23 MR. GARCIA: Your Honor, I'd ask this to be marked 24 and admitted. 25 MS. KOEHLER: I'm marking this exhibit as Exhibit 42 1 -- what is the exhibit that -- okay. I'm marketing this 2 Computing the Simulator Solution Summary Statistics as 3 Exhibit 59. 4 MR. ANDERSON: It's Exhibit 60. 5 MS. KOEHLER: Is it Exhibit 60? Okay. 6 Mr. Gullberg's CV is 59. So this Computing the Simulator 7 Solution Summary Statistics will be marked as Exhibit 60. 8 Are you moving to admit it? 9 MR. GARCIA: I did, yes. 10 MS. KOEHLER: Okay. Mr. Vosk? 11 MR. VOSK: No objection. 12 MS. KOEHLER: All right. Exhibit 60 is admitted. 13 (Whereupon, the Computing the Simulator Solution 14 Summary Statistics report was marked Exhibit 60 for 15 identification.) 16 Q. I'm showing you another document entitled 17 "Examples of Problems Observed in Toxicology Laboratory 18 Simulator Solution Records." Did you prepare this document? 19 A. Yes, I did. 20 Q. Okay. And what is the purpose of this document? 21 A. I just wanted to summarize the examples of some of 22 the issues we observed in going through all of these 23 solution records to outline the types of problems, just to 24 document it. 25 Q. All right. And I notice that you came to a 43 1 conclusion on the second page of that. 2 A. Yes. 3 Q. What was your conclusion? 4 A. Well, that these errors in my opinion really 5 represented scribble type of errors, just lack of character 6 detail, but not any analytical errors, anything that gave 7 any concern regarding analytical reliability or credibility. 8 Q. Okay. No further questions at this time. Thank 9 you. 10 MS. BARTON: Are you offering that? 11 MR. GARCIA: I am, Your Honor. I apologize. 12 MS. KOEHLER: All right. Then the Examples of 13 Problems Observed in Toxicology Laboratory Simulator 14 Solution Records is marked as Exhibit 61. Mr. Vosk, do you 15 have any objections? Exhibit 61 is admitted. 16 (Whereupon, the Examples of Problems Observed in 17 Toxicology Laboratory Simulator Solution Records was marked 18 Exhibit 61 for identification.) 19 MS. KOEHLER: Mr. Vosk? 20 MR. VOSK: Just a second, Your Honor. I'd like to 21 take a break so I can discuss with my expert the testimony 22 that we just heard. 23 MS. KOEHLER: Yes, it's about 2:05. Let's take a 24 15-minute break and we'll reconvene at 2:20. 25 MR. VOSK: Thank you. 44 1 (Whereupon, proceedings recessed until 2:25 p.m.) 2 MS. KOEHLER: Mr. Vosk, are you ready to proceed 3 with cross-examination? 4 MR. VOSK: That's another question. 5 MS. KOEHLER: Mr. Vosk -- let me rephrase that. 6 Mr. Vosk, please proceed with cross-examination. 7 MR. VOSK: Thank you, Your Honor. Your Honor, 8 could I have this marked. This is the previous -- one of 9 the previous exhibits we had. This is the one I tried to 10 draw your attention to, which -- 07010. It included only 11 some of the -- some of the documents that are contained 12 online. We wanted to include the complete records so if you 13 could mark that and I'll get it in through either Mr. Garcia 14 or I'll get it through Sergeant Gullberg. 15 MR. GARCIA: As long as the defense is 16 representing that's the entire record as downloaded from the 17 database and that our records are as the defense represents 18 after reliable copies of the database. 19 MR. BIANCHI: George Bianchi on behalf of Mr. 20 Arnston. This is the complete record that I ran for 21 solution number 07010 from the state patrol breath test 22 website. That includes all the pages that my printer put 23 out from my computer for this stuff for the simulator 24 solution. 25 MR. GARCIA: No objection to admissibility. 45 1 MS. KOEHLER: All right. I am marking this 2 document as Exhibit 33C and 33C is submitted. 3 (Whereupon, a Notice of Simulator Solution File 4 Review was marked Exhibit 33C for identification.) 5 MR. VOSK: Thank you, Your Honor. 6 CROSS-EXAMINATION 7 BY MR. VOSK: 8 Q. Should I -- I'm going to ask the witness for 9 clarity's sake, would you like to be referred to as Sergeant 10 Gullberg or-- 11 A. As Mr. Gullberg. 12 Q. Mr. Gullberg, okay. 13 A. That would be correct. 14 Q. Thank you. And Mr. Gullberg, did we speak last 15 week? 16 A. Yes, we did. 17 Q. And at that time did we have a similar 18 conversation as to what I was to call you? 19 A. Yes. 20 Q. And at that time did you tell me you were an 21 independent consultant, that you were retired? 22 A. I said I was retired from the commission side of 23 the state patrol and was rehired as a civilian in the state 24 patrol breath test program. 25 Q. Okay. So at that time did you indicate to me that 46 1 you were a full-time -- that you were an employee per se of 2 the WSP? 3 A. I believe so. 4 Q. Okay. At that time did you indicate to me that 5 you were represented by counsel? 6 A. No. 7 Q. Okay. 8 A. I don't believe I did. 9 Q. Do you know who posts these records to the 10 website? 11 A. An employee within the state toxicology laboratory 12 scans them and puts them on the web, yes. 13 Q. Okay. And do you know who that employee is? 14 A. Yes. 15 Q. Who is that employee? 16 A. Eric Schaller. 17 Q. Eric Shaller? 18 A. Schaller, S-c-h-a-l-l-e-r. 19 Q. And is Mr. Schaller a toxicologist? 20 A. No. 21 Q. Do you know what position Mr. Schaller holds? 22 A. Computer analyst of some type. That's a general 23 description. I don't know his official title but he works 24 with the computer systems within the laboratory. 25 Q. So the IT person? 47 1 A. Yes, yes. 2 Q. Okay. And do you know whether or not he checks 3 any of these documents for accuracy before he posts them? 4 A. I don't believe so. 5 Q. You indicated at one point that you rely on these 6 documents when doing QAPs over at the breath test lab? 7 A. Yes, that's right. 8 Q. And so the breath test technicians when they 9 receive these documents are relying on their accuracy when 10 they report results on their sheet? 11 A. Yes. 12 Q. When you were asked -- how were you asked to 13 review these documents or all of the certifications? 14 A. How was I asked? 15 Q. Yes, what were you asked to do? 16 A. Well, as I testified earlier I was asked to 17 compare the results upon the data entry sheet, the one 18 exhibit already entered, with the chromatograms to make sure 19 that all the data had been copied correctly. And to correct 20 those where it was not. Then also to compute the statistics 21 again, and then check for dates, signatures, completeness of 22 the document, completeness of the file because it also 23 includes affidavits from the -- for each one of these who's 24 signatures appear there. And review those as well. 25 Q. So you didn't retest the solutions? 48 1 A. No, no. Right. 2 Q. Do you have a blood analyst permit? 3 A. No. 4 Q. You spoke about your background in statistics. 5 Does Trooper Denton have a background in statistics? 6 A. Not a degree but I -- I don't know his total 7 educational background. 8 Q. Okay. Who -- who is the one who did this 9 statistical analysis on these -- on these worksheets? 10 A. I did. 11 Q. Trooper Denton didn't? 12 A. No. I don't believe that he did, no. I had it on 13 my laptop and I did the computations. 14 Q. Okay. What did Trooper Denton do? 15 A. Well, we were at a table like this. He would go 16 through the chromatograms and I would go through the 17 one-page data entry sheet. And I would read off, okay, 18 analyst number one might have Asa Louis. Okay. The date 19 was whatever date it was. And then we would check to make 20 sure that date was correct. If it wasn't, then we would 21 make a note that that needed to be corrected. Then I would 22 read off the data entry sheet .101, .100, as he turned the 23 chromatogram pages. And if it was all fine he would tell 24 me, "That's correct," or "No, this number three was 25 incorrect." So then if it was we'd read it again, make sure 49 1 we read it properly. And so it was a team effort in 2 ensuring the correctness of the entered data. 3 Q. Do you know if Trooper Denton went back and 4 rechecked any of the calculations you did? 5 A. I don't believe that he did, although perhaps when 6 I wasn't there he may have. I don't recall. 7 Q. The algorithms that you pointed out on your 8 Computing the Simulator Solution Summary Statistics, I 9 forget what that's marked, where did you get those 10 algorithms from? 11 A. From someone in the toxicology laboratory who 12 developed a spreadsheet for the data entry form because I 13 wanted to know that I was calculating the same way they had 14 in preparing that document. 15 Q. Okay. So they didn't ask you to take a look at it 16 and determine whether or not the algorithms they were 17 actually using were the correct ones to use? 18 A. That was not the intent. It was more to be sure 19 the data was correctly entered there and then to recalculate 20 the results because I knew ahead of time that certain values 21 of data would be missing when the initial assumption was 22 only 12 analysts were recalculated and 13 or 14 or 15 may 23 have done the reports. So I knew that that was going to 24 lead to some discrepancies. So that's why I recalculated 25 all the data to be sure. And where it didn't agree that's 50 1 where I made the correction. 2 Q. So the -- and I'm going to re ask the question. 3 So then they did not ask you to go back -- to make sure the 4 methodology they were using was correct-- 5 A. No, not to confirm it. No. 6 Q. So then your correction was just going back 7 through and using the exact same algorithms they started 8 with and just saying, this is what your algorithms should 9 have spitted out? 10 A. Well, I wanted to know because -- I wanted to know 11 what algorithm they were using with regard to a number of 12 significant figures. For example, were they rounded to 13 which digit, because certainly that will make a difference. 14 If they're rounding to six and I am to two, or something 15 like that. So that's why I wanted to know what they did so 16 I did the same thing. And that's what -- why I put that 17 document together to spell out what was done. 18 Q. Okay. So it really was to determine at some point 19 in time that what they were doing was the incorrect 20 methodology. You didn't fix that? 21 A. By "incorrect" how do you mean? 22 Q. Assuming that their -- the statistical methods 23 that they were using were not the correct methods to use, 24 you didn't make any -- you didn't change what they were 25 doing? 51 1 MR. GULLBERG: In the sense that they were missing 2 data, like beyond analyst 12. 3 MR. VOSK: But that's not my question. 4 MR. GULLBERG: Oh, okay. 5 MR. VOSK: My question is, if the methodology they 6 were using was incorrect, you did not correct it? And I 7 don't -- I understand why you're answering the way you're 8 answering. Setting aside the correction of data entry and 9 things like that, if in principle their methodology in 10 determining the mean, the standard deviation, and the CV 11 were incorrect, you didn't correct it? 12 A. These are very elementary computations, finding 13 the mean, the standard deviation, the CV. The only area of 14 discrepancy would have been number of significant figures in 15 the standard deviation. I wanted to be sure they were 16 divided by A minus one, which is standard. So I really 17 didn't think that that was a problem in their algorithms. 18 Q. Okay. So then, I'm just trying to get a yes or 19 no. I'm not trying to badger you, I promise. If the 20 methodology was incorrect, you did not correct it? 21 A. I didn't need to. No, I didn't. 22 Q. Okay. 23 A. I felt that what they were doing was a sound 24 approach and I wanted to replicate that so that I could 25 confirm their values. 52 1 Q. Okay. We'll get back to that in a second. Now 2 when we take a look at -- can I get the last exhibit you 3 marked, Your Honor, the thick one? 4 MS. KOEHLER: You're referring to Exhibit 33C? 5 MR. VOSK: Yes, I believe I am, Your Honor. Thank 6 you. 7 Q. I'm going to hand you 33C and that should be the 8 worksheet you had before. 9 A. Yes. 10 Q. Now when you made your corrections, when you 11 recalculated the statistics, was there a change in the mean? 12 A. There was on this example, yes. 13 Q. Okay. And what was that change? 14 A. It went from 0.1015 grams per 100 milliliter to 15 0.0 -- 0.1014, a change in the fourth decimal place by one 16 unit. 17 Q. Okay. And you indicated that -- now what do you 18 think about that error? 19 A. It's insignificant. 20 Q. Okay. So at the tenth thousandth place you're 21 indicating that the -- an error at that point is 22 insignificant for purposes of breath testing? 23 A. Yes. 24 Q. Okay. And if I can take that back. I'm going to 25 hand you what's been marked as Exhibit A. 53 1 MR. BIANCHI: I think we have it A1, page seven. 2 Q. A1, page seven. Does that -- without commenting 3 on the specific issue, does that look familiar to you? 4 A. Yes. The print out as a breath test document, 5 yes. 6 Q. Okay. And does it identify a particular machine 7 on there? 8 A. It does, serial number 140051. 9 Q. Okay. 10 MR. VOSK: Your Honor, may I have this marked, 11 please? 12 MR. BIANCHI: That's been marked already. That's 13 been marked as Exhibit 55. 14 Q. Okay, I'm going to hand you what's been marked as 15 Exhibit 55. Does that -- without commenting on the specific 16 machine, does that look familiar to you? 17 A. Yes. 18 Q. And what is -- what is that document? If you can 19 identify it for the Court. 20 A. It's a photocopy of the quality assurance 21 procedure performed on instrument 140051 on August 9th, 22 2006. 23 Q. So for the machine used in the test indicated on 24 Exhibit A, page seven? 25 A. Yes. 54 1 Q. Your Honor, at this time we'd like to admit that. 2 MS. KOEHLER: Mr. Garcia, any objections? 3 MR. GARCIA: Which exhibit are we talking about? 4 MS. KOEHLER: 55. 5 MR. GARCIA: Oh, got it. No objection. 6 MS. KOEHLER: All right, Exhibit 55 is admitted. 7 (Whereupon, a Quality Assurance Procedure form was 8 marked Exhibit 55 for identification.) 9 MR. VOSK: If I could have that back. Thank you. 10 Q. Okay, I'm going to hand you what's been marked as 11 Exhibit 56. Can you look at the -- the second page of that 12 exhibit? 13 A. Yes. 14 Q. Okay. And is -- is that packet of exhibits, is 15 that something that you would recognize, without commenting 16 on a specific machine? 17 A. Yes. 18 Q. And what is that? What is the-- 19 A. It's the data entry form from the toxicology 20 laboratory for the results of measuring this simulator 21 solution batch. 22 Q. Okay. And did you make any -- how many analysts 23 measured that solution? 24 A. Three. 25 Q. And did you make any corrections to that? 55 1 A. Yes. 2 Q. And what corrections did you make? 3 A. There was one. Of the 13 values entered, one of 4 them was incorrect in the third decimal place. And that is 5 noted as -- the correct value is noted here. 6 Q. Okay. Since there were only three analysts there, 7 that's -- that's not one of the certifications that should 8 have been affected by the 12th -- plus 12? 9 A. No, that's right. 10 Q. Okay. And so what caused you to have to make 11 corrections to that certification? 12 A. This change in the one measurement value also 13 resulted in a change in the mean standard deviation range, 14 CV, and equivalent ethanol vapor concentration. 15 MS. KOEHLER: Mr. Vosk, I'm sorry to interrupt. 16 Is the witness referring to an exhibit? 17 MR. VOSK: Yes, Your Honor. I'm sorry. I tried 18 to identify this. It's exhibit No. 56. 19 MS. KOEHLER: Thank you. 20 Q. Now, what is the difference between the original 21 mean and the corrected mean? 22 A. The original mean was 0.0492 grams per hundred 23 milliliter. The corrected is 0.0493 grams per hundred 24 milliliter. 25 Q. So at what decimal place is the correction made? 56 1 A. Fourth, or ten thousandth. 2 Q. Ten thousandth? 3 A. Yes. 4 Q. And looking -- I'm going to hand you back Exhibit 5 55. Is -- what is the -- what is the solution number 6 represented in Exhibit 56? 7 A. It's batch number 06015. 8 Q. And is that one of the ones that was used in the 9 QAP of this machine? 10 A. Yes. 11 Q. Okay. I'm going to hand you what's been marked as 12 Exhibit 57. Can you identify that for the record, please? 13 A. This is -- it's entitled the Simulator Solution 14 Data Entry Review Form. It's the form that we prepared in 15 order for myself and Trooper Ken Denton to review these 16 records. And it's basically a check-off sheet to be sure we 17 checked the data entry dates, things of this sort. 18 Q. Okay. And is the second page of that a worksheet 19 as well? 20 A. Yes, it is. A data entry sheet from the 21 toxicology lab. 22 Q. And does it identify the machine that -- or the 23 solution, that one? 24 A. Yes, 06014. 25 Q. And was that used in the QAP of this machine? 57 1 A. Yes, it was. 2 Q. I'm going to hand you what has been marked as 3 Exhibit 58. Is that another one of the type of documents we 4 just spoke about? 5 A. Yes. 6 Q. And does the second page of that have a worksheet? 7 A. Yes. 8 Q. And what solution is it referring to? 9 A. 06012. 10 Q. And is that also one of the solutions used in the 11 QAP of this machine? 12 A. Yes. 13 MR. VOSK: Your Honor, at this point we move to 14 admit Exhibits 56 through 58, the simulator solutions that 15 were used in the QAP of the machine used for this matter. 16 MS. KOEHLER: Exhibit 56, 57, and 58? 17 MR. VOSK: Yes. 18 MS. KOEHLER: All right, Mr. Garcia, do you have 19 any objections? 20 MR. GARCIA: No objections. 21 MS. KOEHLER: All right. Exhibit 56, 57, and 58 22 are admitted. 23 (Whereupon, three Data Entry Review Forms were 24 marked Exhibits 56, 57, and 58 for identification.) 25 Q. Okay. And I will presume that you believe that 58 1 the error in the QAP certification that was in the one ten 2 thousandths place was also insignificant, it doesn't matter? 3 A. Yes. 4 Q. Now why is that? 5 A. Well, we could recalculate this reference value. 6 The QAP for this instrument showed it based on the initial 7 recorded result reference value to be biased high by 1.75 8 percent. We could make that change in the fourth decimal 9 place and recalculate that. And we have a reference -- we 10 have a limit of plus or minus five percent. And so that was 11 well within that. 12 Q. Okay, so when you say -- when you say it doesn't 13 matter and if you want to recalculate you can, I'm not going 14 to quiz you through that you. If you don't want to go 15 through it. It's your call. 16 A. It doesn't matter. 17 Q. When you say, it doesn't matter, it doesn't make 18 any difference, that's because it still would have been what 19 you're looking for in your QAP procedure with respect to 20 your own relative standard deviation, the CV? 21 A. No, this is -- this is not the CV that I was 22 talking about, our bias. 23 Q. Oh, I see. 24 A. The bias, the accuracy. On the QAP form we 25 measure both accuracy and CV. The CV would not be affected 59 1 either. But the accuracy would not be importantly affected 2 either. 3 Q. Okay. And so that's the -- that's the entire 4 basis for your assessment that the error in the ten 5 thousandth place doesn't matter-- 6 A. Right, right. 7 Q. --simply because it still happens to fit within 8 the parameters of your protocol? 9 A. Yes, it's still what I would say fit the purpose. 10 Q. Could you explain that to me a little bit? 11 A. Fit the purpose? 12 Q. Please. 13 A. That a measurement context fits and is designed 14 and appropriate for the purposes to which the measurement 15 results are to be put or used, or decisions that are to be 16 made on them. If decisions -- for example constructing an 17 aircraft -- critical to life, you want to have a very high 18 standard of protocol, quality assurance, accuracy procedure, 19 so forth. If you're weighing yourself on the bathroom scale 20 in the morning you may not have the same level of standards. 21 So you don't do -- you don't weigh yourself five times and 22 take the average and the CV and all that. The fitness for a 23 purpose is different. And so you design your measurement 24 protocol, procedure, equipment, records, calibrations, 25 certification, all of that is designed because you know the 60 1 intent of the measurement result. 2 Q. And what's the purpose or intent of the use of the 3 simulator solution? 4 A. It's to ensure accuracy and precision of breath 5 alcohol measuring instruments. 6 Q. Okay. And you intend it to be used in the context 7 of the criminal justice system? 8 A. Yes. 9 Q. And so I'm going to try to rephrase that a little 10 bit and you -- you disagree, you tell me. Its purpose is to 11 try to ensure that the evidence that's used against 12 individuals in court is accurate? 13 A. Yes. 14 Q. So that people aren't deprived of liberties or 15 their license inappropriately? 16 A. That's right. 17 Q. Now, you had made a comment earlier that the mean 18 is something that's simple to compute and you talk about an 19 arithmetic mean. 20 A. Yes. 21 Q. Can you explain why you say the mean is simple to 22 compute? 23 A. It's simply an addition of all the measurement 24 results divided by ten, the number of measurements we 25 performed. It gives equal weight to all measurements, the 61 1 arithmetic mean ones. There's different types of means but 2 the arithmetic is a very straightforward, descriptive 3 statistic. 4 Q. Can you explain some of those other means, because 5 I think most of us probably just -- and before I have you do 6 that let me ask another follow-up question. So the 7 arithmetic mean would be something that -- I'm a freshman in 8 college and I'm taking my first math course and they threw a 9 bunch of numbers at me. Without knowing anything else, I 10 could calculate an arithmetic mean? 11 A. Usually that's the first thing you learn, yes. 12 Q. So -- so the numbers don't have to relate to 13 anything? 14 A. That's right. 15 Q. Just be abstract numbers that I can pull out and 16 calculate? 17 A. Yes. 18 Q. Can you talk about some of those other means you 19 just mentioned? 20 A. Well, one's a weighted mean. 21 Q. Okay, can you -- can you explain that to us? 22 A. If you're trying to combine different mean 23 results, you measure some property by different methods, 24 each of these different methods may have had a different 25 number of N in each. Their variability might have been 62 1 different so their standard deviation or the variance is 2 different. You can weigh each mean according to that so 3 you -- you divide N by the variance. So the higher N is, 4 the higher the weight. The smaller the variance, which is 5 in the denominator, means the tighter -- the better the data 6 fit their mean. And that increases the weight as well. So 7 each of these weights is multiplied by the mean and then you 8 divide by the sum of the weights and you get a corrected -- 9 what's called a weighted mean. So in some contexts that 10 might be relevant. 11 Q. That's a little bit more complicated? 12 A. It is, yes. 13 Q. And are the arithmetic mean and the weighted mean 14 necessarily -- assuming a set of numbers. If I'm that 15 freshman student, the numbers could have come from a bunch 16 of different labs and a bunch of different places but if 17 it's put on my desk, I'm just going to compute the 18 arithmetic mean; correct? Probably? 19 A. Could be, right. 20 Q. But if I try to calculate this other mean, this 21 weighted mean, is it necessarily going to give me the same 22 answer? 23 A. It might or it might not. It depends on the N of 24 each group and the variance of each group. 25 Q. So it may very well give me a different number? 63 1 A. Yes, yes. 2 Q. And do we know how large that difference would be? 3 A. No. I mean, give me a set of data and we could 4 calculate what it is, but knowing just off hand I couldn't 5 say how much the difference would be. 6 Q. Now, when you redid or recomputed the values did 7 you do it by hand or I think you said you put them into your 8 computer? 9 A. Yes, laptop computer using Microsoft Excel. 10 Q. Okay. And is Excel the same program that is used 11 in the lab? 12 A. I can't answer that. I don't -- I've never used 13 their routines. 14 Q. Okay. 15 A. So I don't know if it's identical or not. 16 Q. When -- where are the copies? Do you have Exhibit 17 61? You have Exhibit 61 in front of you, Sergeant Gullberg? 18 A. Yes. 19 Q. Now you gave some examples of problems that you 20 observed? 21 A. Yes. 22 Q. One of the things you have here is standard 23 deviations incorrect due to them not using the result of 24 number four from analyst four? 25 A. Yes. 64 1 Q. What does -- what does that mean? I don't 2 understand that. 3 A. Okay. 4 Q. You can just give a general explanation. I don't 5 mean to make you go too much into it. 6 A. The one exhibit that showed the data entry form 7 from the toxicology lab-- 8 Q. The 07010? 9 A. Yes. 10 MR. BIANCHI: That's Exhibit 33. We just handed 11 it back. 12 A. Yes, this one. 13 Q. Okay. 14 A. Yeah. On -- on this exhibit if you look at 15 analyst number four and go down the column to measurement 16 number four, that was not included in calculating the 17 standard deviation initially. In writing the algorithm my 18 understanding was -- this was what was explained to me that 19 that was not included, just an oversight. The algorithm 20 that was written to calculate standard deviation, that was 21 not included. So I included that. And that's why in some 22 case our standard deviations differed. Sometimes it didn't 23 make a difference. 24 Q. Okay. 25 A. So that's what that note's referring to. 65 1 Q. Now what we just saw though is that with respect 2 to these 12 to 14, one of the errors you detected it was 3 also to the mean-- 4 A. Right. 5 Q. --solution concentration; correct? 6 A. Right, right. 7 Q. And is that in the -- in the ten thousandths 8 place? 9 A. In some cases it may not have affected -- may not 10 have changed and some it did. 11 Q. But in some it did. 12 A. Right. Right. 13 Q. So -- so that would be another example? 14 A. Yes. 15 Q. And as we saw with respect to that QAP solution 16 there were corrections you had to make that were completely 17 unrelated to that software problem. That also changed the 18 mean. 19 A. Yes. 20 Q. Is there a reason you didn't include a mean in 21 your examples here? 22 A. No, no. I don't know why I didn't. 23 Q. Did you prepare this document or the document -- 24 when did you prepare this document? 25 A. Well, this one's dated 10/15/2007. I started this 66 1 as we were going through and then as I would see new things 2 I would make a note and then update the document, just to 3 kind of summarize examples of what we were seeing. 4 Q. Okay. Have you -- I'm going to hand you what was 5 marked as Exhibit 14. And this is from the Skagit 6 proceedings, Your Honor. 7 MS. KOEHLER: Exhibit 14? 8 MR. VOSK: Exhibit 14, correct. 9 And I think you and I may have discussed this last week. 10 Please tell me when you're ready. 11 MS. KOEHLER: Yes, I'm ready. 12 Q. Can you identify that document? 13 A. Yes, I've seen this before. 14 Q. Okay. And can you identify it for the Court? 15 A. What it is? 16 Q. Yeah, yeah. 17 A. Well, I did not prepare this. I recall seeing it 18 in early August. I was on vacation and came back and was 19 given a copy of this document. And it basically 20 summarizes -- it was in early August that some of these 21 problems became apparent. And someone in our -- in the 22 state patrol developed this document to kind of summarize 23 it, the problems that were noted at that time. 24 Q. Okay. Would you hand that back to me for a 25 second? What I'd like to have you take a look at is the 67 1 entry in Table 1 referring to solution 05036. 2 A. Okay. 3 Q. And can you-- 4 MR. BIANCHI: Can you identify which page? 5 MR. VOSK: Oh, that is page three, Your Honor. 6 MS. KOEHLER: Page three. 7 MR. VOSK: Page three? 8 MS. KOEHLER: Page four, excuse me. Page four of 9 Exhibit 14. 10 MR. VOSK: Oh, I'm sorry. This, Your Honor, page 11 two. No, no, no, I apologize for not being clear. 12 MS. KOEHLER: All right, page two of Exhibit 14. 13 Q. Can you explain -- well, let me ask this. Out to 14 the tenth thousandth decimal place, what was the -- what was 15 the mean value they add to the simulator solution? 16 A. 0.0825. 17 Q. Okay. And when we report these values you round 18 them, don't we, when we're using them in the field? 19 A. When we're using them to calibrate an instrument 20 they must be rounded because the software instrument only 21 allows a three-digit result reference value to be entered. 22 Q. Okay. So what does 0825 round to? 23 A. It depends on the rounding rule. 24 Q. What does that table say it rounded to? 25 A. It says it rounds it to 0.0823. 68 1 Q. Okay. 2 A. Excuse me. 0.083. 3 Q. Okay. So with respect to this measurement the two 4 thousandth place actually affects the figure we report in 5 the thousandth place? 6 A. In this example it does, yes. 7 Q. Can you take a look at the next box over and tell 8 me was that the corrected or -- that was the original. Can 9 you tell me what the corrected up to four decimal places -- 10 the correct value? 11 A. 0.0824. 12 Q. Okay. And so they're different -- the difference 13 there is one ten thousandth of the percent? 14 A. Yes, yes. 15 Q. And what does that round to? 16 A. 0.082. 17 Q. Okay. So when we take a look at that, that 18 difference out there in the ten thousandth place actually 19 made a difference of a thousand in what was being utilized 20 during the QAP? 21 A. During the calibration, yes. 22 Q. Okay. And if the value were being used out in the 23 field it would be reported on our database that we all know 24 as a -- either as an 083 for the original number, or an 082? 25 A. Well, no. These values -- no. This is a value 69 1 that's entered at the time of calibration. So we receive a 2 solution that has a reference value determined by gas 3 chromatography by the toxicology lab. We get a four digit 4 number which these exhibits we've shown here, the mean and 5 the vapor ethanol equivalent is four digits. So we must 6 round that to three. It's a constraint that the DataMaster 7 instrument when you calibrate it says, I'm only accepting 8 three digits. So we round it to the third. And so that's 9 only where this affects is the value you put in. 10 Now if we turn around and confirm correct calibration by 11 running ten measurements on our quality assurance procedure 12 at four concentrations, that tells us whether our 13 calibration is acceptable or not. And this accuracy must be 14 no more than five percent. So we calculate and make sure 15 we're well within five percent here. And if we are, then 16 our calibration was sufficient, was correct, acceptable, fit 17 the purpose. 18 Q. Do you know whether or not that particular 19 solution is a QAP solution or a field solution? 20 A. I believe this was a QAP -- I'm sorry. No, I 21 don't know. I'd have to look up 05036 to see-- 22 Q. I'll give you that opportunity in a second. 23 A. Okay. 24 Q. Handing you that Exhibit 56, it was a QAP. 25 A. Yes. 70 1 Q. How do you -- how can you identify that on the 2 worksheet? Is there something on the column that says that? 3 A. Yes, right here. Quality Assurance Solution in 4 the top right corner, plus the fact that there's three 5 analysts. 6 Q. Okay. Now, would it -- would it surprise you if 7 it was claimed in the hearings we had in Skagit County that 8 only errors in the QAP solution will affect the results of 9 somebody's test out in the field? 10 A. I'm not sure if I understand that. 11 Q. Let me -- let me change the question. If our QAP 12 solutions were way off so that the calibration, everything 13 going on according to the QAP was skewed, would that affect 14 people's tests out in the field? 15 A. Well, it would have to get by the plus or minus 16 five percent accuracy criteria. It has to meet that. So if 17 they're, as you described, way off so that it affected that, 18 that would never go to the field. 19 Q. Okay. So you're saying that as long as something 20 is within that five percent it will never have any effect in 21 the field? 22 A. Well, not that it never has any effect. Like for 23 example, this one indicates a plus 1.75 percent bias at the 24 04 level, .37 percent at the 08 and so forth. There is a 25 non-zero bias there, but it's well within the limits, and 71 1 it's very acceptable. So I'm not saying that there's not a 2 hundred percent bias in someone's test. That's certainly 3 possible and it could be assessed. 4 Q. Okay. I'm going to have you take a look at 5 Exhibit 36. Can you identify that for me, please? 6 A. Yes, this is another data entry spreadsheet from 7 the state toxicology laboratory for batch 05036. 8 Q. And is that the one we were just discussing? 9 A. Yes, yes it was. 10 Q. And is that a field solution or a simulator? 11 A. That's a field -- there is a field solution in the 12 top right corner, Simulator External Standard Solution. 13 It's intended to be used in the field. 14 Q. Okay. Now let me ask you -- step back. Let me 15 step back to your question about bias. You've testified in 16 court before, right? 17 A. Yes. 18 Q. I've had you testify for me before, haven't I? 19 A. Yes. 20 Q. And when we testified -- or when we worked 21 together we had a test that had two BAC values that were 22 both over an 08; do you recall that on a ticket? 23 A. I don't recall the case. 24 Q. Okay. Do you remember doing calculations for me 25 showing that there was a greater than 50 percent 72 1 probability-- 2 A. I've done it many times and I know I've done them 3 for you. 4 Q. Okay. 5 A. Yeah. 6 Q. Okay. So a ticket could have two readings of an 7 08 high and still the correct value -- let me put this in 8 quotes, the "true" value, the most likely value is that 9 you're under an 08? 10 A. 080? Zero eight zero, is that what you're saying 11 when you say 08? You're saying 08. 12 Q. Yes, that's what I meant. 080, 081, something 13 right there, right near the line. 14 A. It's in the third digit report. 15 Q. Right, exactly. 16 A. Yes, you're correct. 17 Q. Okay. Now, an 05036 is the field solution where 18 we showed that the discrepancy was only in one ten 19 thousandth. Does it indicate there that the tests of four 20 individuals that came out at 080 should actually have been 21 reported as an 079? 22 A. I think it does say that in here. It's been 23 awhile since I read this. 24 Q. You need a moment? I think it's right there in 25 that box if you want to take a look. 73 1 MR. BIANCHI: For the record would you reference 2 which exhibit it is you're currently looking at? 3 MS. KOEHLER: Mr. Vosk. 4 MS. BARTON: Fourteen. 5 MR. VOSK: Thank you. Exhibit 14, Your Honor. 6 A. It makes the comment about subject's 080 results 7 should have been reported as 079. 8 Q. Okay. 9 A. It doesn't -- I don't see how many subjects. 10 Q. Okay. All right. That's fair enough. That's 11 pretty important isn't it? 12 A. It's always been a fair question to assess 13 accuracy, precision, confidence in the individual results in 14 what can be assessed. 15 Q. So that difference is pretty important? 16 A. That would be important, yes. 17 Q. Okay. Next box over does it indicate people that 18 had their BAC recordings of 148, 149 -- I apologize, Your 19 Honor, I've got something stuck in my throat. Instead of 20 reported as a 150, 151? 21 A. It does state that yes. 22 Q. It's pretty important too, isn't it? 23 A. Yes. 24 Q. So even though you indicated that the solution 25 there would still pass whatever protocol you signed off on 74 1 it when you corrected it, just because it passes those 2 protocols doesn't mean it doesn't have an impact on 3 somebody's life, does it? 4 A. That's true. 5 Q. So if our purpose is to try to ensure that 6 people's liberties or due process -- or, I'm sorry, ability 7 to drive are only affected when the evidence indicates that 8 it should be, by accurate reliable evidence, errors in the 9 mean out in the ten thousandths to the fourth decimal place 10 have a pretty serious impact; correct? 11 MR. GARCIA: Objection; asked and answered. In 12 addition, the QAP testimony we've heard before. It's 13 irrelevant to any issue before the Court. 14 MS. KOEHLER: I would also add argumentative. So 15 the objection is sustained. 16 MR. VOSK: Is it sustained on all counts or just 17 the argumentative that this has already been raised? 18 MS. KOEHLER: It's sustained on argumentative and 19 it's already been asked and answered. 20 MR. VOSK: If I may have just a minute, Your 21 Honor. 22 Q. Can you explain the difference between classical 23 and Bayesian statistics for me, Sergeant Gullberg? 24 A. In a nutshell? 25 MR. GARCIA: Objection; relevance. 75 1 MS. KOEHLER: Counsel? 2 MR. VOSK: Your Honor, I'll withdraw. I'll enter 3 that through our witness. 4 Q. In your -- in your sheet here commuting -- or 5 computing the simulator solution summary statistics, you 6 indicate that when you're computing the standard deviation 7 you're using all the available digits on the mean. 8 A. Yes. 9 Q. You're aware that the protocol calls for reporting 10 the mean to four significant figures; correct? 11 A. That's only reporting the mean. But in 12 calculating the standard deviation the protocol is to use 13 all available digits, and that was one of the things I 14 checked with. That's why I wanted to know their routines so 15 that I did it the same way. 16 Q. Which protocol are you referring to? 17 A. Well, it was my discussion with the people in the 18 toxicology lab who put this together, who were doing these 19 calculations. 20 Q. So you can't identify a particular protocol that 21 convinced you to use all these figures? 22 A. Right, it's not written. I don't recall it being 23 written in any place. 24 Q. Okay. 25 A. I think it's just been the protocol for solution 76 1 testing, just indicates standard deviation. I don't recall 2 that it specified number of digits. 3 Q. Why do we only to use four digits in the mean? 4 A. There's only three digits in the raw data. And 5 it's reasonable to use one extra digit in the mean. It's 6 more reliable than any individual measurement. It has one 7 additional significant figure, one additional decimal place. 8 Q. What are the numbers past that decimal place? 9 What significance do they have? 10 A. Past what? 11 Q. Past the fourth decimal place. 12 A. Not -- you know, they should be carried through 13 lengthy computations. You don't want to truncate around 14 until you get your final answer. If you have lengthy 15 computations, you're adding, subtracting, multiplying, 16 dividing, you don't want to lose significant figures. So 17 you shouldn't round it at any steps. Keep it all, and then 18 at the end we round to your appropriate value that's fit for 19 the intent of the measurement. So in practically speaking 20 they're probably not relevant at all, but you shouldn't drop 21 them until the end. 22 Q. Once your input data is loaded into the mean, how 23 many significant figures does it have? 24 A. It depends, two or three. It's to the third 25 decimal place. .085 has two significant figures, .105 has 77 1 three. 2 Q. So when they're entering -- when you get the data 3 from the -- from the gas chromatogram -- how the -- the 4 chromatogram, .101-- 5 A. Yes. 6 Q. You know, those kinds of things. 7 A. Right. 8 Q. We're going out to the thousandths place with all 9 that reporting data. 10 A. Yes, that's right. 11 Q. And so then when we try to combine them into a 12 mean we can take it out to one more? 13 A. One more, yes, in the mean. 14 Q. Are you testifying that it's valid to report any 15 further significant figures after that? 16 A. It would be meaningless to include five or six or 17 seven when your raw data is only three. 18 Q. Okay. 19 A. Your mean is more reliable. You're justified in 20 keeping one additional digit there. 21 Q. So then if we're only really justified in keeping 22 one additional digit there because the rest is, as you just 23 said meaningless, how does it suddenly gain meaning because 24 we want to perform a follow-up calculation? 25 A. In the standard -- in calculating the standard 78 1 deviation it's just a matter of preference or protocol. You 2 could do it either way and you'd get no relevant difference. 3 We're talking about the fifth decimal place in the standard 4 deviation that we carried it to. And so just as long as I 5 know what's being done the difference is, in my opinion, 6 meaningless whether you rounded and used the mean of four 7 digits in the standard deviation or all the digits. The 8 reason I used all was that's what the practice was in the 9 lab for calculating these values. And I wanted to do it the 10 same. 11 Q. Okay. You and I spoke on the phone. Remember 12 when I called and asked about this? 13 A. Right, right. Right