This paper explores the evidentiary standards
regarding the admissibility of alcohol test results
from the Smart Start SMART Mobile Device. Our
research establishes that the test results are
admissible as evidence of alcohol use in a probation
violation proceeding.
Probationers do have a diminished set of
constitutional rights dependent upon the
observance of special conditions. As a result, there
have been no successful constitutional challenges
to alcohol and other drug testing and abstinence
requirements when set as a reasonable term of
probation.
The more generally accepted legal rule regarding
scientific testing and expert opinion is provided
in FRE 702 as interpreted by Frye v. United States,
293 F. 1013 (D.C. Cir. 1923) and Daubert v. Merrell
Dow Pharmaceuticals, 509 U.S. 579 (1993). These
cases provide guidelines for determining the
admissibility ofexpert witnesses’testimony.
In People v. Bohrer, 37 Misc 3rd 370, (July 13, 2012)
the court held, “In New York, the admissibility of
scientific evidence is governed by the Frye rule”
which it noted “is that expert testimony based
on scientific principles is admissible but only
after a principle or procedure has gained general
acceptance in its specified field.” The court
then held that the relevant scientific community
generally accepts the Smart Start ignition interlock
device as reliable, and therefore, a Frye hearing was
unnecessary before accepting it into evidence.
As the Bohrer court noted, the Smart Start ignition
interlock device meets the National Highway
Traffic Safety Administration (NHTSA) standards
established for evidentiary and non-evidentiary BAC
testing devices. NHTSA has tested the Smart Start
technology and found it exceeds their standards.
The Smart Start SMART Mobile Device is identical
to the equipment contained in the Smart Start
ignition interlock, but in a different format. It is
a portable, handheld unit that is lightweight and
easy to use with a 120-hour battery life and it has
an alcohol-specific fuel cell that delivers accuracy
at a level that meets the 2013 NHTSA standards. It
can be used to monitor all risk-levels of participants
based on the number of test windows (customized
and/or random), and it is camera-equipped for
facial detection. It will also provide a GPS location
at the time of the test.
Our research conclusively establishes that the test
results of the Smart Start SMART Mobile Device,
is generally accepted as reliable by the relevant
scientific community, and therefore no hearing
under FRE 702 or related court decisions is necessary
for the admission of those results in a probation
violation hearing.
The admissibility of alcohol test results from the
Smart Start SMART Mobile Device in Probation
Violation Hearings
October 2017
Marc Picker, Esq., Judge peggy Hora (Ret.), David Wallace, Esq., and Judge Brian MacKenzie (ret.)
Executive Summary
Introduction
T
his paper explores the evidentiary
standards regarding the admissibility
of alcohol tests results from the
Smart Start SMART Mobile Device. Our
research establishes that these test results
are admissible as evidence of alcohol use in a
probation violation proceeding.
In recent years illegal alcohol and other
drug use has become a long term national
epidemic.
1
The well-established connection
between drug use and crime and the costly
failure of incarceration as a solution to such
crime, created a demand for a more effective
approach.
2
In response, the criminal justice system has
developed a number of new approaches to the
supervision of individuals who are suffering
from substance use disorders.
3
One of the
core principles of all of these approaches has
been the use of the technological advances
in alcohol and other drug testing.
4
One of
these technological advances is in the form
of portable alcohol testing devices such as
the Smart Start SMART Mobile Device.
Probationers do have basic constitutional
rights and therefore are entitled to
constitutional protection. However, theirs
is a diminished set of constitutional rights
dependent upon the observance of special
conditions, Morrisey v. Brewer, 408 U.S. 471,
480 (1972). As a result, there have been
no successful constitutional challenges
to alcohol and other drug testing and
abstinence requirements when ordered as a
reasonable term of probation.
Legal Standards of
Admissibility
In the absence of any constitutional
prohibitions, the only remaining issue is
evidentiary. What legal standard applies
to the admission of the results of the Smart
Start SMART Mobile Device?
In utilizing scientific evidence or testimony,
almost every state relies upon either a
duplicate or a derivative of the requirements
provided in the Federal Rules of Evidence
(FRE).
5
The general rule of admissibility of opinion
testimony is provided in FRE 701. A lay
opinion must be:
• Rationally based on the perception of
the witness;
• Helpful to clearly understand testimony
or determination of a fact in issue; and,
• Not based on scientific, technical or
specialized knowledge.
The general rule on admissibility of expert
opinion testimony is provided in FRE 702,
which provides:
If scientific, technical or other specialized
knowledge will help the trier of fact to
determine a fact in issue and:
• The testimony is based on sufficient
facts or data;
• The testimony is the product of reliable
principles and methods; and,
• The expert has reliably applied the
principles and methods to the facts of
the case.
The Smart Start SMART Mobile
Device test results are admissible
as evidence of alcohol use in a
probation violation proceeding.
Page 2
The Courts have struggled with these Rules,
and have examined them by looking at the
forum where the evidence is being provided.
This has led to two distinctly different and
competing ways to analyze such testimony.
The Frye Standard
The first standard comes from Frye v.
United States, 293 F. 1013 (D.C. Cir. 1923), a
case almost a century old discussing the
admissibility ofpolygraphtests as evidence.
The Court in Frye held that expert testimony
must be based on scientific methods that
are sufficiently established and accepted.
Just when a scientific principle or discovery
crosses the line between the experimental
and demonstrable stages is difficult to
define. Somewhere in this twilight zone
the evidential force of the principle must
be recognized, and while the courts will
go a long way in admitting experimental
testimony deduced from a well-recognized
scientific principle or discovery, the thing
from which the deduction is made must
be sufficiently established to have gained
general acceptancein the particular field in
which it belongs.
States still following Frye include:
California, Illinois, Maryland, Minnesota,
New Jersey, New York, Pennsylvania, and
Washington.
6
Florida adheres to the Frye standard to
the extent it is procedural in nature.
7
In
2013, the Florida Legislature passed House
Bill 7015, and Governor Rick Scott signed
it into law. Florida Statutes Chapter 107
(2013) amends Florida’s evidence code to
conform to Rule 702 of the Federal Rules of
Evidence and the principles applicable in
federal court under Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993),
with respect to the admissibility of expert
testimony. On February 16, 2017, the Florida
Supreme Court declined to adopt the
Legislature’s “Daubert Amendment” to the
extent such amendment was procedural,
because of “grave concerns about the
constitutionality of the amendment.”
8
In the remaining states theFrye standard has
been superseded by the Daubertstandard.
The Daubert Standard
The majority of states accept the rule
regarding scientific testing and expert
opinion as provided in Daubert, and the
cases interpreting it; these cases provide
guidelines for determining the admissibility
ofexpert witnesses’testimony. The Daubert
Standard is used by trial courts to make
an initial determination regarding the
admissibility of an expert’s scientific
opinion. The determination rests upon
whether the proposed testimony is
based on reasoning or methodology that
is scientifically valid and can properly
be applied to the facts at issue. The
Daubert factors include: (1) whether the
theory or technique in question can be and
has been tested; (2) whether it has been
subjected to peer review and publication;
(3)its known or potential error rate; (4)the
existence and maintenance of standards
controlling its operation; and (5) whether
it has attracted widespread acceptance
within a relevant scientific community.
“The Daubert Trilogy”
The so-called “Daubert trilogy” refers to
the three U.S. Supreme Court cases that
articulated the Daubert standard.
1. The Daubert case which held that FRE
Rule 702did not incorporate theFrye
“general acceptance” test as the sole
basis for assessing the admissibility
Page 3
of scientific expert testimony, but
instead the rule incorporated a flexible
reliability standard.
2. General Electric Co. v. Joiner,522 U.S. 136
(1997), which held that a district court
judge may exclude expert testimony
when there are gaps between the
evidence relied on by an expert and
the conclusion, and, that an “abuse of
discretion” standard of review is the
proper one for appellate courts to use
in reviewing a trial court’s decision
of whether it should admit expert
testimony.
3. Kumho Tire Co. v. Carmichael, 526 U.S.
137 (1999), which held that the judge’s
“gatekeeping function” identified
in Daubert applies to all expert
testimony, including non-scientific
expert testimony.
Daubert set the following guidelines for
admitting scientific expert testimony:
• Judge is gatekeeper: Under Rule 702,
the task of “gatekeeping,” or assuring
that scientific expert testimony truly
proceeds from “scientific knowledge”,
rests on the trial judge.
• Relevance and reliability: The trial
judge must determine that the expert’s
testimony is “relevant to the task at
hand” and that it rests “on a reliable
foundation.” Concerns about expert
testimony cannot be simply referred to
the jury as a question of weight; it goes
to the heart of admissibility, the task for
the judge. Furthermore, Rule 104(a), not
Rule 104(b), governs the admissibility
of expert testimony; thus, the Judge
must find it more likely than not that
the expert’s methods are reliable and
reliably applied to the facts at hand.
• Scientific knowledge = scientific
method/methodology: A conclusion
will qualify as scientific knowledge if
the proponent can demonstrate
that it is the product of sound
“scientific methodology” derived from
thescientific method.
• Illustrative Factors:The Court defined
“scientific methodology” as the process
of formulating hypotheses and then
conducting experiments to prove or
falsify the hypothesis, and provided
a set of illustrative factors (i.e., not a
“test”) in determining whether these
criteria are met:
1. Whether the theory or technique
employed by the expert is
generally accepted in the scientific
community;
2. Whether it has been subjected to
peer review and publication;
3. Whether it can be and has been
tested;
4. Whether the known or potential
rate of error is acceptable; and
5. Whether the research was
conducted independent of the
particular litigation or dependent
on an intention to provide the
proposed testimony.
In 2000, Rule 702 was amended in an
attempt to codify and structure elements
embodied in the “Dauberttrilogy.”
9
In 2011,
Rule 702 was again amended to make the
language clearer.
10
The current version of
the Rule is provided above. While some
federal courts still rely on pre-2000 opinions
in determining the scope of Daubert, as a
technical legal matter, any earlier judicial
rulings that conflict with the language
Page 4
of amended Rule 702 are no longer good
precedent.
11
When seeking to admit test results
without its author giving testimony, other
significant U.S. Supreme Court decisions
that must be considered include:
• Crawford v. Washington, 541 U.S. 36
(2004), where the Court determined
that “[I]n all criminal prosecutions, the
accused shall enjoy the right … to be
confronted with the witnesses against
him.” As well, the Court held that if
evidence is “testimonial” and apparent
it would likely be used to prosecute, the
defendant must have opportunity for
cross examination.
• In Melendez-Diaz v. Massachusetts, 557
U.S. 305 (2009), the Court held that
a forensic lab report is “testimonial”
and its author is therefore subject to
cross-examination. A strongly worded
dissent argued that the majority
had cavalierly dispensed “with the
long held rule that scientific analysis
could be introduced into evidence
without testimony from the analyst
who produced it.” The dissent further
argued that a lab report is not a
“witness” and therefore not subject to
cross-examination.
• Subsequently, in Bullcoming v. New
Mexico, 564 U.S. 647 (2011) the Court
held that a blood analysis report is
“testimonial.” And so, a defendant
has a “[right] to be confronted with
the witnesses against him” and
“[s]urrogate testimony” is not good
enough.
Based on the current status of the law, it
appears that the following are admissible,
as they are not “testimonial:”
• Blood Alcohol Content log books;
• Calibration records;
• Quality control reports;
• Operators’ certification record;
• Certification of compliance in a blood
test kit; and,
• 911 calls (with some exceptions for
reporting impaired drivers on the
road).
Of value to our analysis is a 2012 decision
from the Justice Court of Town of Penfield,
Monroe County, New York. In People v.
Bohrer, 37 Misc 3rd 370 (July 13, 2012), the
court analyzed the state of the law regarding
the use of non-evidentiary testing devices
in probation violation hearings. In that
case, a violation was alleged based upon
results from a Smart Start ignition interlock
installed in the probationer’s vehicle. After
a reported positive alcohol test, the court
scheduled a hearing to determine whether
the probationer violated an abstinence
condition of his sentence. He contended
that the test results from the ignition
interlock device were inadmissible unless
the scientific reliability of the device was
first established at a Frye hearing. The
prosecution contended that Frye inquiries
are unwarranted in the context of a
probation violation hearing.
As the Bohrer court held, “In New York,
the admissibility of scientific evidence is
governed by the Frye rule” which it noted
The reliability of breath alcohol
detection instruments in general
is well established.
Page 5
“is that expert testimony based on scientific
principles is admissible but only after a
principle or procedure has gained general
acceptance in its specified field.”
The Bohrer court held that the relevant
scientific community generally accepts the
Smart Start ignition interlock device as
reliable, and therefore, a Frye hearing was
unnecessary. As the court there held, a court
“need not hold a Frye hearing where it can
rely upon previous rulings in other court
proceedings as an aid in determining the
admissibility of the proffered testimony.”
The Bohrer court explored the issue further,
holding that “[a]n ignition interlock is
a blood alcohol concentration (BAC)
measuring device connected to a motor
vehicle ignition system that requires the
operator to provide a deep-lung breath
sample to determine the operator’s BAC
level before the vehicle can be started. …If
the operator’s BAC exceeds the calibrated
setting on the device, the vehicle will not
start and a failed test report is sent to the
monitoring agency.” Although no New York
judicial opinions had previously addressed
the validity of test results from ignition
interlock devices, the court found that
the reliability of breath alcohol detection
machines in general is well established.
The Bohrer court further noted that
the National Highway Traffic Safety
Administration (NHTSA) has established
standards for both evidentiary and non-
evidentiary BAC testing devices. In New
York, the Department of Highways (DOH)
certifies such devices, which must meet or
exceed NHTSA standards. The court noted
that the New York DOH had included
the Smart Start ignition interlock device
on its list of accepted devices. Further,
the New York Office of Probation and
Correctional Alternatives had included the
Smart Start
ignition interlock device
on its list of Qualified
Ignition Interlock
Device Manufacturers. The Smart Start
ignition interlock device is included on
the published list for all regions which
further supports a finding that the relevant
scientific community has accepted the
device’s reliability.
The SMART Mobile Device
The Smart Start SMART Mobile Device is
identical to the equipment contained in
the Smart Start ignition interlock, but in a
handheld format.
12
The SMART Mobile Device is a portable,
handheld unit that is lightweight and easy
to use with a 120-hour battery life. It has
an alcohol-specific fuel cell that delivers
accuracy at a level that meets the 2013
NHTSA standards. Just like the Smart Start
ignition interlock device, it can be used to
monitor all risk levels of participants based
on a number of test windows (customized
and/or random), and is camera-equipped
for facial detection. It also will give a GPS
test location. It has a client test alert and
provides immediate violation notification.
13
If a violation occurs (BrAC
14
level at .02 or
greater) there is a temporary pause and the
device does not accept another test during
the two minutes it takes for the fuel cell to
clear.
15
To ensure accurate results, a positive
BrAC test requires two default re-tests.
For the violation re-test, wait time clears
the alcohol reading for next test and, after
The Smart Start SMART Device
is identical to the equipment
contained in the Smart Start
ignition interlock.
Page 6
wait time, SMART Mobile requests a new
re-test which allows for re-tests to validate
the original test.
16
Re-tests allow clients to
rinse their mouth if the previous result was
environmental based and retake test.
17
The
re-test loop ends after second re-test with a
pass, skip, or fail.
18
The SMART Mobile uploads data after
each test window closes and all relevant
information is uploaded
19
as are photographs
and GPS data via a cellular connection.
20
To ensure accountability, the SMART Mobile
detects the person’s face during testing and
requires a re-test if SMART Mobile does not
detect a face.
21
The Client must pass before
any breath test is officially completed.
22
This device is designed to be more accurate
than EtG testing, and the results are
available immediately.
23
SMART Mobile
features a display for viewing accurate
results.
24
Additional features include “USB
charging capabilities, 120 hours of battery
life, GPS, and removable mouth piece.”
25
Probation Violation
Hearings
For the purposes of probation violation
hearings, the standard of proof and the type
of evidence allowed are more limited than
in a criminal trial.
26
Unlike a criminal trial
where the prosecutor must prove the case
beyond a reasonable doubt, the prosecutor
in a probation revocation hearing only
needs to prove by a preponderance
of the evidence that the probationer
violated conditions.
27
This means that the
prosecution only needs to prove that it is
“more likely than not” or just over a 50%
likelihood that a violation occurred.
28
As well, at a violation hearing, hearsay
testimony
29
is admissible as long as it
is reliable.
30
Courts may consider any
information “so long as it has ‘sufficient
indicia of reliability to support its probable
accuracy’,” thus specifically permitting
consideration of reliable hearsay. United
States v. Waters, 158 F.3d 933 (6th Cir. 1998)
31
Furthermore, the use of reliable hearsay is
not barred by Rule 32.1(a)(2)(D)). Thus, the
rationale underlying Crawford, et al. has no
bearing on the admissibility of test results.
32
Courts may thus consider test results
“so long as they have ‘sufficient indicia
of reliability to support their probable
accuracy’,” thus specifically permitting
consideration of reliable hearsay. The court
must also consider the reliability of the
evidence. See United States v. McCormick,
54 F.3d 214 (5th Cir. 1995), United States
v. Kindred, 918 F.2d 485 (5th Cir. 1990)
(defendant’s confrontation rights were
not violated by admission of urinalysis test
through the testimony of probation officer).
As the court in Bohrer wrote: “to determine
whether a defendant has violated a
condition of his sentence, ‘the court may
receive any relevant evidence not legally
privileged.’ To be relevant, evidence must
have a tendency to make the existence of a
material fact ‘more probable or less probable
than it would be without the evidence’.”
33
Thus, hearsay evidence that is scientifically
accepted is admissible without a prolonged
foundational hearing.
Page 7
Whether a state follows Frye,
Daubert or a hybrid of the two, it
is clear that testing device results
are admissible for the purposes of
probation violation hearings or to
determine violations.
There is a growing need for reliable testing
to ensure court participants are complying
with court orders designed to prevent
alcohol use. These testing device results
must meet the minimum legal standards
for admissibility in a probation violation
hearing.
Our research conclusively establishes
that the test results of the Smart Start
SMART Mobile Device, is generally accepted
as reliable by the relevant scientific
community, and therefore no hearing
under FRE 702 or related court decisions is
necessary for the admission of those results
in a probation violation hearing.
Conclusion
Whether a state follows Frye, Daubert or
a hybrid of the two, it is clear that testing
device results are admissible for the
purposes of probation violation hearings
or to determine violations. Testing devices
approved by NHTSA for evidentiary
purposes can have their results used for the
purpose of determining guilt in a trial and
therefore it is clear that these same results
should be accepted in violation hearings.
34
There is a level of reliability and accuracy
guaranteed by the testing device’s ability to
meet or exceed NHTSA standards, and the
courts have relied upon those standards.
The technology used in the Smart Start
SMART Mobile Device meets NHTSA
standards.
35
Page 8
Endnotes
1. Chaiken, J.M. and M.R. Chaiken. Varieties of Criminal Behavior: Summary and Policy
Implications. Santa Monica, CA: Rand Corporation (1982).
2. Recidivism of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010, U.S.
Department of Justice Office of Justice Programs Bureau of Justice Statistics.
3. https://www.drugabuse.gov/publications/drugfacts/treatment-approaches-drug-addiction
2016.
4. Cone Edward J., “The Power of Drug Testing” Problems of Forensic Sciences, vol. XLII, 2000,
http://www.forensicscience.pl/pfs/42_cone.pdf.
5. The Federal Rules of Evidence are a set of rules that govern the introduction of evidence at
civil and criminal trials in Federal trial courts. Congress initially passed the current rules in
1975 after several years of drafting by the Supreme Court.
6. Morgenstern, Michael, “Daubert v. Frye – A State-by-State Comparison” The Expert Institute
2017 https://www.theexpertinstitute.com/daubert-v-frye-a-state-by-state-comparison/
7. See generally “Florida Supreme Court Rejects Procedural Aspects of Daubert Based on ‘Grave
Constitutional Concerns’,” Greenberg Taurig (Feb. 21, 2017) https://www.gtlaw.com/en/
insights/2017/2/florida-supreme-court-rejects-procedural-aspects-of-daubert-based-on-
grave.
8. See In re Amends. to the Fla. Evid. Code, No. SC16-181, 2017 WL 633770 (Fla. Feb. 16, 2017).
9. See Legal Information Institute, Cornell University School of Law, https://www.aw.cornell.
edu/rules/fre/rule_702.
10. Id.
11. Id.
12. https://www.smartstartinc.com/smart-mobile/
13. Id.
14. Breath Alcohol Concentration (BrAC)
15. Id. at Endnote 12
16. Id.
17. Id.
18. Id.
19. Id.
20. Id.
21. Id.
22. Id.
23. Id.
24. Id.
25. Id.
26. https://www.law.cornell.edu/rules/frcrmp/rule_32.1
27. https://www.avvo.com/legal-guides/ugc/probationparole-revocation-burden-of-
proof-general--not-state-specific
28. https://www.avvo.com/legal-guides/ugc/probationparole-revocation-burden-of-
proof-general--not-state-specific
29. Hearsay evidence is any statement, offered for its truth, that is not made by a
witness testifying at the hearing. Massachusetts Court Systems, Rule 6, Conduct of
Probation Violation Hearings, http://www.mass.gov/courts/case-legal-res/rules-of-
Page 9
court/district-muni/probation/rule6.html; Marquis L. Bell, Jr., v. State of Florida,
No. 5D14–1569 (October 09, 2015).
30. See United States v. Stephenson, 928 F.2d 728 (6th Cir. 1991); United States v. Pratt,
52 F.3d 671 (7th Cir. 1995); United States v. Burkhalter, 588F.2d604 (8th Cir.1978);
United States v. Miller, 514 F.2d 41 (9th Cir. 1975); cf. U.S.S.G. § 6A1.3, comment.
31. See also United States v. O’Meara, 33 F.3d 20 (8th Cir. 1994); United States v. Reynolds,
49 F.3d 423 (8th Cir 1995); United States v. Walker, 117 F.3d 417 (9th Cir. 1997); United
States v. Frazier, 26 F.3d 110 (11th Cir. 1994).
32. See United States v. Martin, 382 F.3d 840, 844 n.4 (8th Cir. 2004); United States v.
Barraza, 318 F. Supp. 2d 1031 (S.D. Cal. 2004); see also United States v. Taveras, 380
F.3d 532 (1st Cir. 2004).
33. People v. Bohrer, 37 Misc 3rd 370 (July 13, 2012).
34. Overview Of Probation And Probation Revocation Law Revised And Updated By
Kathryn Seligman, Kimberly Fitzgerald, And Gabriel Tames October 2003 First
District Appellate Project,http://www.fdap.org/downloads/seminar-criminal/
probation-revocation.pdf; Understanding Evidentiary Issues At A Probation
Surrender Hearing, https://www.avvo.com/legal-guides/ugc/understanding-
evidentiary-issues-at-a-probation-surrender-hearing.
35. Federal Register Vol. 78 No. 89 2013 tests
Page 10
Primary Author: JSI Associate Marc Picker, Esquire. Edited by JSI President Judge Peggy Hora (Ret.),
JSI Vice President David Wallace, Esquire, and JSI Chief Financial Officer Judge Brian MacKenzie
(Ret.)
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