"Obviously, if the three sets of numbers are not in agreement, the IR5000 is not operating properly, and the results are inadmissible," Girard said.

"It is vital for defense attorneys to have the "evidence cards" preserved so a machine’s operational history can be investigated," stated Girard.

Destroying "evidence cards" and/or not using them undermines the basis for keeping monthly calibration records, he said.

Worse still, not only are the "evidence cards" not being used, but evidence shows that before August 1997 PCL employees routinely falsely checked on the "P" calibration form that they used and retained the "evidence cards," Girard said.

Girard maintains this practice was a false entry on the form because the crime lab publicly certified it performed steps never undertaken.

PCL criminalist admitted initialing the "P" form where it called for insertion of the "evidence cards" even though they did not insert the cards, Girard said.

They falsely prepared public documents used by juries, judges, defendants, and lawyers in determining guilt or innocence, he said.

In both cases the state ignored the ADHS requirement set forth in the "P" form that "evidence cards" be used, retained, and available for future reference, he said. This ADHS requirement has not been modified.

Girard said the PCL procedures do not mirror the ADHS requirements for completion of the "P" calibration form. "N/A" is not the correct entry on a line that specifically calls for a mandated act on the part of the criminalist, he said.

Instead, such an entry effectively changes the ADHS requirements without authority, and without ADHS approval, said Girard.

It also violates the Arizona Administrative Code, which requires specific adoption of administrative rules and regulations, according to Girard.

Defending the entries of the PCL criminalist, city prosecutors argued to city judges that PCL employees merely followed the alternate "PP" calibration procedure. ADHS never drafted a "PP" calibration form, according to prosecutors.

Prosecutors argued the criminalist merely reported their findings on the ADHS approved "P" calibration form without telling anyone.

City prosecutors have successfully argued to some city judges that they can write their calibration findings on "toilet paper" if they want to, regardless of ADHS requirements.

Failure to follow ADHS regulations should preclude the state from using the so-called "statutory method" for admitting the breath test results at trial (See, A.R.S. §28-1323).

Consequently, the state must call an expert witness to "Deason-in" the breath test results. This requires testimony that the IR5000 breath test machine was working both accurately and properly at the time of the defendant’s test (See, Deason, 142 Ariz. 587, 691 P.2d 678 (1984)).

Once called before the jury, it will be "open season" on the city criminalist, said Girard.

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