update 07/28/10See also: Calvin Rayburn
Civil Trial
See also: Calvin Rayburn
Criminal Trial
Page 3
1 CALVIN M. RAYBURN,
2 being produced, sworn as hereinafter certified and
3 examined on behalf of the Defendant, testified as
4 follows:
5 EXAMINATION BY MR. CORRELL:
6 Q. Will you state your name, please?
7 A. Calvin M. Rayburn.
8 Q. And where are you employed, sir?
9 A. I'm a criminalist with the Iowa
10 Department of Public Safety crime laboratory in
11 Des Moines, Iowa.
12 Q. And Mr. Rayburn, how long have you been
13 with the BCI or the former DCI?
14 A. It used to be the BCI; now it's the
15 DCI -- "division" instead of "bureau." I've been
16 with the crime laboratory division for 23-1/2
17 years.
18 Q. Is there any particular responsibility
19 that you have with that lab?
20 A. Yes, there are.
21 Q. And would you describe that for me,
22 please?
23 A. Basically my job is alcohol testing.
24 This involves mostly the direct breath testing with
25 the Intoxilyzers throughout the State of Iowa. I'm
Page 4
1 involved with that, with the certification and
2 maintenance of the instruments, training of the
3 officers, certification, testimony in regard to the
4 Intoxilyzers.
5 I'm also doing the blood samples that
6 are submitted to the crime laboratory for alcohol
7 analysis, and occasionally I'm sent on crime scene
8 duty. I've done a few other things in the
9 laboratory, like drugs and paints, but mostly I've
10 been involved with alcohol testing.
11 Q. And I guess you and I have probably
12 known each other for over 20 years in varying
13 degrees.
14 A. About that, yes.
15 Q. And it's my recollection that you were
16 always in the laboratory, is that correct?
17 A. Yes.
18 Q. Tell me how long you have been involved
19 primarily in the blood analysis type of work --
20 blood-alcohol.
21 A. I was hired to do the blood samples and
22 urine samples that were being submitted to the
23 crime laboratory back in November of 1973, so
24 basically I've spent my entire career in the
25 laboratory, working with alcohol testing; mostly
Page 5
1 with bloods, but also with urines and breath
2 samples.
3 Q. Do you do some blood testing that has
4 substances other than alcohol?
5 A. Not at the present, no. If you mean
6 toxicology, like other drugs, no, I don't get
7 involved in that. I don't have time.
8 Q. Do you do any typing anymore for any
9 types of crime scene analysis?
10 A. No, I've never done that.
11 Q. Okay. In the last 10 years, what
12 percentage of your time would you say is
13 attributable exclusively to blood-alcohol analysis?
14 A. Just bloods, probably 10 percent.
15 Alcohol is 100 percent, but bloods alone would be
16 about 10 percent, 15 percent, something like that.
17 Q. And what percent of the rest of it would
18 be Breathalyzer -- breath machine alcohol testing?
19 A. Most all of the rest of it would be
20 involved with breath-alcohol testing.
21 Q. And do you ever get involved very much
22 with urine testing for alcohol?
23 A. On occasion, but not extensively. I
24 have done a number of urine samples in the past; at
25 the present time, not too often.
Page 6
1 Q. Am I correct that there's still
2 basically three tests to determine alcohol? The
3 most common is the Breathalyzer, and then blood and
4 then urine?
5 A. Yes, that is correct.
6 Q. There are no other ways to test for
7 blood-alcohol?
8 A. Not under normal circumstances. Now, we
9 do do a number of other kinds of cases, but these
10 would be such things as medical examiner cases,
11 things such as vitreous, the fluid from the eyes,
12 being sent in. Occasionally we do things such as
13 bile, stomach contents.
14 Q. Are those for date-of-death or
15 time-of-death-type analyses, or --
16 A. Somewhat, but also sometimes the blood
17 sample's either contaminated or not available,
18 depending upon the circumstances. Some of the
19 doctors, the medical examines are sending in
20 vitreous, normally, especially somebody like Tom
21 Bennett, the state medical examiner. I don't know
22 what all he's doing with it. We're doing it for
23 alcohol, things such as SIDS death. We are also
24 checking for things such as aspirin, salicylic
25 acid, other things for the medical examiners, but
Page 7
1 that's normally just for the medical examiners.
2 Q. Can you tell me, say in 1996, how many
3 body fluid or Breathilyzer tests did you do for
4 alcohol?
5 A. The Breathilyzer tests, I normally don't
6 run. I train the officers, so I'm not really
7 running those kind of tests myself. Blood tests,
8 I'd have to go back and check, but it would be
9 somewhere around 13 to 14 hundred, probably.
10 Q. In the calendar year?
11 A. In 1996.
12 Q. And how many urine tests, a ballpark
13 count?
14 A. Last year, I don't believe I did any
15 urines.
16 Q. This 1300, would that be a ballpark
17 number for, say, the last 10 years, or has it gone
18 up or down?
19 A. It went down for a while as we were
20 putting more Intoxilyzers out in the field. The
21 last few years, it's been going up again, due to
22 we're getting more samples in from accidents and
23 fatalities. So it went down for a few years; now
24 it's going back up again.
25 Q. Can you tell me what you've done in
Page 8
1 preparation for me taking your deposition today?
2 A. I made copies of the lab report and the
3 receipt form and talked to Kasey once or twice on
4 this over the past month or so. Nothing extensive.
5 Q. Did you review your notes or the lab
6 notes regarding this case?
7 A. Yes, I did.
8 Q. And did you bring those with you?
9 A. The notes I reviewed is the laboratory
10 report, a copy of which I have with me; also a copy
11 of the receipt form that was submitted with the
12 sample, that was brought in by Bob Kramer. I also
13 looked at the chromatogram that I had analyzed --
14 when I analyzed the sample.
15 Q. We could maybe turn to your report, and
16 I have a copy of your report. It has the date of
17 October 30, 1996, up in the right-hand corner.
18 A. Case No. L96-10980, yes, sir.
19 Q. So I think we both have the same
20 document.
21 A. Yes, sir.
22 (Brief pause.)
23 A. Yes, sir they are the same.
24 Q. The bottom portion of that report
25 indicates that the item that was received was
Page 9
1 received through Cedar Falls Police Officer Robert
2 Kramer, who must have delivered it in person on
3 October 17 at approximately 9:15 a.m. to the lab,
4 would that be fair to say?
5 A. Yes, sir.
6 Q. And did you personally receipt for that,
7 or I believe I see somebody else in the minutes
8 actually took the item from Mr. Kramer.
9 A. Yes, that is correct. I normally do not
10 receive the evidence. The evidence technicians
11 receive the evidence. In this particular case, it
12 was Bev Schmeling that received the evidence from
13 Bob Kramer.
14 Q. Is this the only lab report that has
15 been done regarding your analysis of this blood
16 specimen?
17 A. As far as I know, yes, sir, it is. It's
18 the only report in the file that we have.
19 Q. And can were go through this a little bit
20 so I make sure I can understand it. It's my
21 understating, in the first part, which is kind of
22 the narrative report, it indicates that the blood
23 sample, Item A., came labeled with the name of Tracy
24 Rokes, and it was found to contain 0.087 grams of
25 alcohol in 100 ml, or milliliters, of blood, is
Page 10
1 that right so far?
2 A. Yes, sir, it is.
3 Q. And is that a sentence that is
4 standardly used, except -- I mean, you obviously
5 put in the person's name and the item number, and
6 then you put in the right amount of whatever the
7 test shows, but is that generally the standard
8 introductory sentence?
9 A. Yes, sir, it is. This whole paragraph
10 and the one below it, too, is the normal thing for
11 samples like this.
12 Q. So would it be fair to say the only
13 thing that's unique about this paragraph that we're
14 talking about, this narrative paragraph, is it has
15 the name of the person and the identifying Item A
16 and the result of the test?
17 A. Yes, sir.
18 Q. Go ahead. I didn't mean to interrupt
19 you.
20 A. Most of them would be Item A.
21 Occasionally we'll get some with an Item B or Item
22 C, but most of our alcohol reports are a single
23 item, so that would most often be Item A.
24 Q. And Item A is your designation.
25 whatever the hospital or police designated it, you
Page 11
1 give it your own lettering system, don't you, as
2 opposed to a numbering system?
3 A. Yes, sir. The number is the laboratory
4 case number, which is up in the top right-hand
5 corner. Then we start out with Item A, Item B,
6 Item C, depending on how many items are bring
7 submitted under that particular case. It there's
8 one, it would be Item A.
9 Q. It's been a while, but -- and then you
10 go to double As and so forth?
11 A. Yes.
12 Q. Now, when it says "Blood anticoagulant
13 substances do not interfere with the alcohol test
14 method employed in preparing this report," what
15 does that mean in lay language?
16 A. Basically in the tubes that most
17 hospitals use, there is a substance in there to
18 preserve the sample and to keep it from coagulating
19 or clotting. Those substances do not interfere
20 with the type of test that I do at the laboratory.
21 Q. Now, it's my recollection, from being in
22 the lab years ago, that the receiving technician,
23 who in his case is Miss Schmeling?
24 A. Mrs. Schmeling.
25 Q. Would she have received it from
Page 12
1 Mr. Kramer and then taken it and locked it up in
2 like a safety deposit box until you examined it?
3 A. No, sir. The lab is kept locked up.
4 The entire lab is locked up. It's placed -- after
5 the evidence technician receives it, does the
6 paperwork, fills out the receipt form, puts the
7 case number on it and so forth, they then place it
8 in a walk-in cooler. All our biological samples
9 are stored in a biological-safe area, which is a
10 larger cooler. So she would place that in the
11 cooler with the rest of the samples that had been
12 received during that time period for analysis.
13 Q. And would it have stayed in there until
14 you would have taken it out for purposes of your
15 analysis?
16 A. Yes, it would.
17 Q. Does this report indicate when it was
18 that you would have taken it out?
19 A. The date of the report was October 30th,
20 and I probably analyzed it the day before, on
21 October 29th.
22 Q. Do you keep your notes regarding this
23 test procedure back at the BCI?
24 A. Not the procedure itself. Basically
25 what I use for notes is a paragraph very similar to
Page 13
1 this, that has blanks for the item, the case
2 number, the case name and the amount of alcohol.
3 Then I just go in and fill in the blanks, keep that
4 note and the chromatogram that is gotten off of the
5 instrument.
6 Q. So the chromatogram printout is
7 available someplace?
8 A. Yes, it is.
9 Q. And that would show this 0.087, is that
10 correct?
11 A. That would be one of the results on that
12 chromatogram.
13 Q. With regard to this third sentence, it
14 says "The margin of error for this alcohol
15 concentration is plus or minus 0.004 or .5 or
16 better, whichever is greater."
17 A. Yes, sir.
18 Q. Now, let me ask you, what does that
19 mean?
20 A. Basically what that means is the result
21 that I give out is accurate within plus or minus
22 004 or within five percent of the actual value,
23 whichever is greater. In this case, on a .087,
24 it's within five percent of the actual value of
25 that alcohol in that sample.
Page 14
1 Q. So then, would I be doing this right if
2 I would say you would multiply .87 by five percent?
3 A. Easier way to do it would be multiply if
4 by .95 and 1.05 to get the plus or minus margin.
5 Q. And I understand that would be easier,
6 but the result would be the same, wouldn't it, if
7 you multiply it by .5?
8 A. No.
9 Q. Okay.
10 A. Five percent would be .05.
11 Q. So it would 87 times 95?
12 A. .95.
13 Q. And do you have a calculator with you?
14 A. That would be about plus or minus 4, To
15 make it easier, round off, puss or minus 4 would be
16 five percent. You're very close to it.
17 Q. So when I had it calculated, I had it
18 calculated at whatever that actually comes on the
19 high side. It might be another .4, so it could be
20 somewhere in the vicinity of .091?
21 A. Yes, sir.
22 Q. And on the lower side, it could be in
23 the vicinity of .083?
24 A. Yes, sir.
25 Q. And is there anything that leads you to
Page 15
1 believe that that results is inaccurate?
2 A. No, sir, there is nothing in this report
3 or when I ran the sample that would indicate that
4 this report is wrong.
5 Q. Is one of the things that you're
6 concerned with when you start your examination, are
7 you the person that looks at the bottle and -- did
8 you see the receiving receptacle bottle, too?
9 A. Yes, I did.
10 Q. And do you look at that for the purpose
11 to see if it's the right kind of a container and if
12 it has the right type of seal on it?
13 A. There is no such thing as a right kind
14 of container. The method I use, I can use almost
15 any kind of blood sample. I look at the box to
16 make sure that the sample is sealed, it has the
17 proper name, case number on it and so forth, and a
18 visual examination that there has been no tampering
19 with the particular sample.
20 Q. Was there ever any indication to you
21 that there was any tampering or any contamination
22 with this particular sample?
23 A. There was nothing on the sample or in
24 the box that would indicate any tampering or
25 contamination of that sample. If it would have
Page 16
1 been, it would have been noted in my report.
2 Q. When it was delivered by Mr. Kramer, did
3 you have any conversation with Mr. Kramer, that you
4 can recall?
5 A. I have had a number of conversations
6 with Bob Kramer, but not this particular time,
7 because when that was brought in, I was on
8 vacation. I was somewhere out west, so no, I
9 didn't on this particular case.
10 Q. You just know him as a lab officer from
11 a relatively medium-sized city, who you've had
12 previous work with?
13 A. I've worked with Bob and have known Bob
14 for a number of years, yes.
15 Q. So when this report indicates that the
16 test -- or your report is dated October 30, and you
17 probably tested it, to the best of your
18 recollection, October 29. Would there have been
19 anything in the delay that would have caused any
20 type of change in that blood-alcohol reading?
21 A. Not much. There might be a slight loss
22 of blood -- of alcohol in that little bit of time,
23 but not a great deal. Depending on the
24 circumstances, the alcohol concentration will
25 slowly drop after it's drawn for a while, for maybe
Page 17
1 a week to two weeks, and then it will level off.
2 So depending on the circumstances, it could have
3 been a little bit lower, but not a great deal.
4 Q. And when you say that, to what extent do
5 you think?
6 A. Normally, in my experience, I'm talking
7 samples that I have analyzed three to six months
8 after they've been drawn. If the sample is
9 analyzed within the first two or three days, and I
10 analyze the sample three to six months later, it
11 will normally read about a .02 lower, depending on
12 the circumstances. I've seen it as low as a .01
13 and as high as a .03, but most of them run about
14 a .02.
15 Q. It's my understanding of the literature
16 that up to 30 days there is generally not any
17 significant change in alcohol. Do you agree with
18 that?
19 A. Well, significant -- depending on how
20 you define "significant." I have seen a slight
21 loss in 30 days, and then it will level out after
22 that. That's what my experience has been in the
23 crime laboratory, is that it drops for about 30
24 days and then levels off.
25 Q. Do you have any particular literature
Page 18
1 that you're basing that on, or is it based on what
2 you observed?
3 A. Based on what I have observed. Now, I
4 did read one report a number of years ago -- and I
5 don't even remember the name of the article or
6 where it was published or anything else. I think
7 it was one of the scientific journals. Basically
8 what they had stated was that the enzyme in the
9 body that metabolizes alcohol, that breaks down the
10 alcohol in the body, is also present in the blood.
11 So as long as that blood is in a tube, that enzyme
12 is there, also, but since it's not activated, it
13 doesn't work very fast. It takes a long time for
14 it to really work on the alcohol. So that's one of
15 the reasons that I believe there's a slight loss of
16 alcohol over 30 days or more. There is also --
17 Mike Rehberg likes to think that in that length of
18 time, in the head space, the alcohol evaporates
19 from the blood, and when you open the tube, you
20 lose some alcohol that way, too. I don't know. It
21 may be a combination of both.
22 Q. So is it possible that in some
23 circumstances, there is no change whatsoever if it
24 is less than 30 days?
25 A. I would expect not significant changes
Page 19
1 in 30 days.
2 Q. And so I make sure I have this
3 understanding, what would you think, applying the
4 maximum number? And then I'm going to ask you the
5 minimum number. Would it change? Like before, we
6 talked the high number would have been .091. Would
7 it be .092 or --
8 A. How long are we talking? First of all,
9 since I don't know what the time period is, I
10 really can't answer the question. I don't know
11 that the time period is at all.
12 Q. In this situation, we're talking less
13 than 30 days. We're taking approximately -- I
14 believe the blood was withdrawn on October 4th.
15 A. In that length of time, I would not
16 expect a significant change. I would expect the
17 alcohol to have been slightly higher than I got if
18 I had analyzed it immediately, by .01 at the most.
19 Q. Just so I understand that, instead of it
20 being .087, you think it might be .088?
21 A. No, sir; .097 -- up to that. It could
22 be. Again, that would depend on how soon after the
23 sample is drawn the first analysis was done and the
24 second analysis, so it would depend a little bit
25 the time period and all that, how long the sample
Page 20
1 was stored. But I wouldn't expect a great deal of
2 loss; maybe a .01 to the most.
3 Q. Have you told anybody that prior to
4 telling me that today?
5 A. It's been brought up in court a number
6 of times over the last 20-some years.
7 Q. Have you told Mr. Wadding that?
8 A. I don't remember if I did or not.
9 THE WITNESS: Have I? I don't believe
10 so.
11 MR. WADDING: I don't think so.
12 A. I don't believe I did.
13 Q. And would you agree that it could also
14 be exactly at the .087?
15 A. Yes, sir.
16 Q. If it was going to be a significant
17 amount, and it's a situation where you're on
18 vacation, wouldn't there have been somebody else
19 who could have done it right away?
20 A. There could have been, yes, sir.
21 Q. And what I'm assuming, that if that is a
22 real concern, that blood wouldn't be left in
23 storage for 13 days?
24 A. It's not a major problem. We really
25 don't worry about it. The reason this was not
Page 21
1 analyzed by somebody else sooner was that they were
2 busy doing other things and didn't have time, so
3 they got piled up until I came back off of
4 vacation.
5 Q. With regard to the tube that you had, as
6 I understand it, it shows it came in on 10-17, is
7 that correct?
8 A. Yes, sir.
9 Q. And the report is that one-page report
10 that shows the test was 10-30? Your report is
11 dated October 30?
12 A. October 30, yes, sir.
13 Q. Are you aware of any other tests that
14 have been done?
15 A. Yes, sir.
16 Q. And how did you become aware of those
17 tests?
18 A. Through Mr. Wadding.
19 Q. And when did you first become aware of
20 those tests?
21 A. A month or two ago, when I was up here
22 in court.
23 Q. And up here in court on another case?
24 A. A. Yes, sir.
25 Q. And how was that brought to your
Page 22
1 attention?
2 A. I believe we were in Kasey's office, and
3 he asked me about it and asked me about the
4 differences between that results that Sartori
5 Hospital got and what I got.
6 Q. And what was your understanding form
7 Mr. Wadding as the result that Sartori got?
8 A. I believe he stated it was about a .12
9 grams per hundred.
10 Q. And what did you tell him is what you
11 thought the difference could be?
12 A. At that time, I said I wasn't sure what
13 the difference would be, but many hospitals are not
14 doing a good job of alcohol testing. They are more
15 interested in getting an alcohol analysis done fast
16 rather than accurate, because they need that to
17 treat their patient. That would be one
18 explanation. I don't know how Sartori does their
19 testing. I don't know what kind of quality
20 controls they have, what kind of performance
21 standards they do, what kind of proficiencies they
22 perform. So without knowing anything more than
23 that, I really can't comment on Sartori's method,
24 because I don't know.
25 Q. Okay. With regards to the method that
Page 23
1 you have, is that a gas chromatography method that
2 you use.
3 A. Yes, it is.
4 Q. And I think that's spelled
5 c-h-r-o-m-a-t-o-g-r-a-p-h-y, is that correct?
6 A. That's correct.
7 Q. Would you explain to me how that system
8 works?
9 A. You want the whole procedure from the
10 time that I get the blood out and go through the
11 whole procedures on the gas chromatograph?
12 Q. Yeah.
13 A. Okay. After I get a number of samples
14 to run, I get them out of the big walk-in cooler
15 where they are stored. I take them back to a room
16 that is set aside for working toxicology cases,
17 blood and urine and other alcohol and other drugs.
18 I take the case, take the tubes out of the box.
19 check it over. I take out two samples of that
20 blood and place them in two small vials. I then
21 add another compound called an internal standard to
22 each of the vials. I then seal the vials. I do
23 this with all the cases that I happen to be working
24 that day.
25 After the blood and the internal
Page 24
1 standards are place in the vials, they're then
2 placed in a gas chromatograph. The gas
3 chromatograph then samples the vapors above the
4 blood. It takes that vapor and injects it into the
5 gas chromatograph. The gas chromatograph then
6 separates out the various components in that
7 vaporing and identifies and quantifies each of the
8 samples.
9 After the entire sample -- batch of
10 samples is run, I then write the reports. I also
11 run a known standard before the samples and a known
12 standard after the samples to make sure that the
13 gas chromatograph is working properly and is still
14 calibrated to give out the proper readings. I do
15 that every time I use the instrument to analyze
16 blood samples.
17 Q. With regard in this case, how many
18 samples did you run?
19 A. I don't know; probably somewhere between
20 eight and 16.
21 Q. And is the -- and I'm going to call it
22 87. We understand it's .087.
23 A. It's easier, yes, sir.
24 Q. And when we're talking about the 98, did
25 all of those tests, whether it's eight or 16 --
Page 25
1 would they have all come out 87, or would that have
2 been an average?
3 A. No, sir. The 87 is for this particular
4 sample. All the other samples had their own
5 results, depending on what the sample was. It
6 could have been zero, it could have been .4. So
7 they were eight to 16 different cases that I was
8 working, so they'd be different samples.
9 Q. That's where we got off. I
10 misunderstood you. Did you run more than one
11 sample of what was represented to be Mr. Rokes'
12 blood?
13 A. Yes, I did.
14 Q. And how many of those samples did you
15 run?
16 A. I ran two.
17 Q. And what were those two results?
18 A. I ran the two samples. I ran each on
19 of those twice, so the results on those four
20 examples were .087, .089, .089 and .091. Those are
21 the four results I got. Our policy is to report
22 out the lowest, so I reported out the .087.
23 Q. Now, with regard to the test, did it
24 come from two vials?
25 A. No, sir. I took both samples out of
Page 26
1 one.
2 Q. Were there two vials that came to you?
3 A. Yes, sir.
4 Q. And is there a reason why you took it
5 out of only one?
6 A. Yes, sir.
7 Q. And why is that?
8 A. Over the years, I have analyzed both
9 vials when they've been sent in. The first 12 or
10 13 years after I was working there, I analyzed both
11 samples and never found any difference between the
12 two samples. About that time, I had a complaint
13 from a defense attorney -- or several defense
14 attorneys, in fact, complaining that I did not
15 leave one of the tubes sealed for their own use if
16 they wanted to have an independent analysis. At
17 that time, I decided since I've never seen any
18 difference between the two vials, and some defense
19 attorneys were complaining, I would just take one
20 vial, analyze it, and leave the other vial sealed.
21 Q. Would it be fair to say, Cal, when you
22 talked to Mr. Wadding and it was brought to your
23 attention this discrepancy, at that point in time
24 you didn't mention anything to him about any
25 possible evaporation, am I correct in that?
Page 27
1 A. I don't believe I did. I don't believe
2 I did.
3 Q. And is the comment that you made about
4 the hospital testing, is that based primarily on
5 the fact of what you've observed over the last 23
6 years with various hospitals through the state?
7 A. Not only observing, but talking to a
8 number of doctors and nurses in the laboratories in
9 these hospitals, yes, sir.
10 Q. And do I understand your testimony, that
11 that is in part because their function is not a law
12 enforcement function; it's a medical treatment
13 function, and they are not primarily geared to do
14 this specialized testing?
15 A. Yes, sir.
16 Q. And is that in part you have people in
17 labs who you observed, who are doing different
18 types of analyses other than just blood-alcohol?
19 A. I don't understand your question,
20 Mr. Correll.
21 Q. They aren't limited. They aren't
22 experts at just one area in a lab, typically, are
23 they -- in a hospital lab?
24 A. Normally it would be a laboratory
25 technician. They would be doing a number of
Page 28
1 different kinds of tests for the hospital on blood
2 samples. It could be a number of different blood
3 cell counts, hematocrit, hemoglobin and many
4 others.
5 Q. And do you think that is part of what
6 you believe historically has caused you to be less
7 confident in theirs than yours?
8 A. Yes, sir.
9 Q. Are you a hundred percent confident in
10 the results that you have reported here for
11 Mr. Rokes?
12 A. I am confident, yes, sir.
13 Q. In addition to the training, is there a
14 difference, typically, in the type of machinery
15 that they utilize?
16 A. A hospital?
17 Q. Yes, sir.
18 A. Yes, sir. Normally they do not use a
19 gas chromatograph. Depending on the hospitals,
20 there's a couple other different kinds of methods
21 that they could use. Not too many hospitals that
22 I'm aware of use gas chromatography.
23 Q. The BCI -- you're not the BCI now?
24 A. D, "division."
25 Q. That shows how old I am. Your
Page 29
1 division -- is that the only law enforcement agency
2 in the State of Iowa that has a gas chromatography
3 machine available to them for this purpose, that
4 you're aware of?
5 A. As far as I know, we are. Now, some of
6 the local hospital labs may have a gas
7 chromatograph that I'm not aware of. There are a
8 few that I've heard of that do use gas
9 chromatography, but not too many.
10 Q. And is that like in Iowa City?
11 A. Well, actually the one I know about's in
12 Des Moines.
13 Q. Are the only two gas chromatograph
14 devices that you're aware of both in Des Moines?
15 A. That I know of. Now, I know there's
16 ours, and I know Methodist Hospital has one. Now,
17 there may be other hospitals or other labs around
18 the state, such as Corning Labs -- I believe
19 Corning Labs is still in operation out here.
20 Weland Labs over in Cedar Rapids/Marion, they may
21 have a GC, but they're not using it for alcohol
22 analysis. Medical Associates' lab in Dubuque -- I
23 don't believe they're using a GC, either. There's
24 a lab in Ottumwa. I don't think they are. The
25 ones I know of are not, but there may be others
Page 30
1 that I'm not aware of that might.
2 Q. The only two that you're aware of are
3 the one in your office and the one at Methodist
4 Hospital in Des Moines?
5 A. That's the only one I know of right now,
6 yes, sir.
7 Q. It's my understanding that gas
8 chromatography is referred to in your business as
9 the gold standard. Have you ever heard of that
10 phrase?
11 A. I've heard that said, because it can be
12 used for a number of different things. In my
13 opinion, there are three or four different methods
14 for alcohol analysis. If the proper procedures are
15 followed and care is taken, they're all equally as
16 good. The gas chromatograph does have a number of
17 advantages. No. 1, it will identify not only ethyl
18 alcohol, but anything else that's in the sample.
19 It is something that can be use for a variety of
20 different kinds of samples. Most hospital
21 laboratories, the methods there are using fresh,
22 whole blood. The method I use, I can get by with
23 some pretty crappy blood from autopsies and
24 fatalities and like, and still analyze for
25 alcohol. That would cause hospitals some
Page 31
1 problems.
2 This is one that can also be audited
3 fairly easily, so I can run a number of cases that
4 we receive at the laboratory every year. So there
5 are some advantages, but any other method can be
6 just as good if the proper care is taken.
7 Q. Are you familiar with an enzymatic assay
8 analysis?
9 A. I am briefly familiar with it. I'm no
10 expert on it. I have not run it for many, many
11 years.
12 Q. And I think that's spelled
13 e-n-z-y-m-a-t-i-c a-s-s-a-y?
14 A. Yes, that's correct.
15 Q. And is that a more antiquated method?
16 A. No, it's not more antiquated. Actually,
17 it's a little bit newer.
18 Q. Are you familiar with how that system
19 works?
20 A. Basically, but I wouldn't claim to be an
21 expert on every detail on it.
22 Q. Which of those machines cost more, if
23 you're aware?
24 A. That I don't know.
25 Q. How much is the machine that you have,
Page 32
1 the gas chromatograph machine, ballpark? How much
2 is a new one of those?
3 A. If we were to replace it today, it would
4 probably cost us somewhere around 30,000 to 40,000
5 dollars.
6 Q. With the enzymatic assay method, am I
7 correct that that is a system where the substance
8 is spun?
9 A. Not that I'm aware of.
10 Q. It's my understanding that that's a
11 situation where it spins out the components.
12 A. They may be spinning that out to get rid
13 of the red blood cells. The enzymatic methods works
14 better with serum or plasma rather than the red
15 blood cell. So they would start out with fresh,
16 whole blood and get rid of the red blood cells,
17 because they're measuring the absorption of
18 ultraviolet light, I believe it is, by the
19 breakdown products on the enzyme.
20 Q. Isn't it true that the literature
21 indicates that the blood-alcohol of serum tests
22 higher than the blood-alcohol test for whole blood?
23 A. Refer to just alcohol concentrations,
24 Mr. Correll. It would be easier. The alcohol
25 concentrations of blood would be slightly lower than
Page 33
1 just plain serum, yes, sir, by about 10 percent.
2 Q. If I told you that the literature that
3 I've read indicated that the blood-alcohol
4 concentration determined from serum is
5 approximately 12 to 20 percent higher than the
6 blood-alcohol concentration of whole blood from the
7 same sample, would you agree or disagree with that?
8 A. I wouldn't disagree. I don't think it's
9 quite that high, but 12 percent would be what I
10 would think would be about correct, yes.
11 Q. And apparently some other people that
12 you aren't familiar with -- have you read that some
13 people think it's as high as 20 percent?
14 A. I have not seen that myself, no.
15 Q. Are you aware that it is generally
16 considered that that type of test for alcohol
17 concentration in serum produces a higher result
18 than does the test of whole blood?
19 A. Oh, absolutely. That's been a
20 well-known fact for many years.
21 Q. And isn't that one of the things that
22 happens sometimes in the hospitals; that their
23 testing is centered or uses the serum as opposed to
24 the whole blood?
25 A. That may very well be. They should, if
Page 34
1 they follow the method correctly, compensate for
2 that, but they may not.
3 Q. As we sit here today, is it your best
4 opinion, Mr. Rayburn, that the sample attributed to
5 Mr. Rokes is .087, with a five-percent plus or
6 minus deviation therefrom?
7 A. Yes, sir, it is.
8 Q. With regard to the Sartori proceedings,
9 have you been provided any documentation regarding
10 Sartori's testing?
11 A. No, sir, I haven't.
12 Q. Are you aware of the type of testing
13 that they did?
14 A. I don't believe -- I don't remember if
15 Kasey mentioned that or not. I don't think he did
16 until -- I hadn't heard anything about it until
17 this afternoon, so no, sir, I don't have any
18 knowledge of their method or anything else.
19 Q. And so, as we sit here today, do you
20 know what their method is?
21 A. I believe it's an enzymatic assay, but
22 other than that -- there are several different
23 instruments that use similar procedures, so no, I'm
24 not actually aware of what they're doing.
25 Q. I know you haven't seen it, but is it
Page 35
1 your understanding from Mr. Wadding, as opposed to
2 me, that they're using the enzymatic assay method?
3 A. I don't recall if I heard that from
4 Kasey or from you.
5 Q. Can you tell me, if you know, why is the
6 test of the blood-alcohol in serum higher than the
7 blood-alcohol in whole blood?
8 A. Because when serum is made, they remove
9 the red blood cells, and that contains a lot of the
10 solid material, so that makes up the difference.
11 There's more solid material in blood than there is
12 in serum.
13 Q. Is it also because the alcohol
14 distributes into the water, and serum contains more
15 water than whole blood?
16 A. Since you're removing the red blood
17 cells, yes, sir. That's exactly the same reason.
18 That's the same thing, yes.
19 Q. Knowing that another lab has a test
20 result which I guess is basically 33 points
21 different from yours, does that cause you in any
22 way to question or doubt the accuracy of yours?
23 A. I have been basically running this
24 method for 23-1/2 years. I understand it. I make
25 sure that the samples I run are under control. We
Page 36
1 use standards. We do proficiency tests. We are a
2 reference laboratory for a number of other states,
3 so all of this experience and working with these
4 instruments makes me believe that my method is as
5 good as it comes.
6 Q. And would you agree that the difference
7 between the 87 and 120 is too large a difference;
8 that somebody has made a mistake here?
9 A. In my opinion, most likely. I won't
10 make any blame, but most likely.
11 Q. And what would be your opinion as to the
12 mistake that got made?
13 A. Again, going back to the hospital
14 laboratories, in my experience, hospital
15 laboratories mostly are not known for their
16 accuracy in blood-alcohol testing, because they are
17 more interested in speed and not accuracy. So it's
18 been my experience that laboratories working in
19 hospitals are not as accurate as I am. They do not
20 claim to be.
21 Q. And even though there's hospitals all
22 around the State of Iowa, you still do about four
23 of these a day?
24 A. Somewhere around that, yes, sir.
25 Q. With regard to your laboratory and your
Page 37
1 testing, is it not accurate to say, then, that when
2 you come in and testify in this case, that your
3 testimony will be, based on this sheet here, that
4 Mr. Rokes' blood-alcohol was .087, plus or minus
5 five percent?
6 A. Yes, sir, it is.
7 Q. And you wouldn't try to speculate
8 whether that has been increased or decreased by
9 evaporation?
10 A. No, sir. That may be part of it, but I
11 would not be willing to say that that is the
12 difference. It may be part of the difference, but
13 I really don't know exactly how much or really
14 whether or not it occurred, so --
15 Q. And that's how your lab has retained its
16 integrity, isn't it?
17 A. Over many, many years, yes, sir.
18 Q. And when you -- I can't recall the exact
19 name, but there are -- I guess I'm going to call
20 them like blind tests for proficiency tests that
21 your lab goes through on a periodic basis, is that
22 correct?
23 A. Yes, it is.
24 Q. And how has the Iowa lab done in that
25 proficiency testing?
Page 38
1 A. Very, very well. We perform proficiency
2 testing from the National DOT -- their National
3 Highway Traffic Safety Administration four time a
4 year. We run those samples, and then we turn the
5 results over to the DOT in Cambridge
6 Massachusetts. That way we can compare our results
7 to what is being sent out so we know how our method
8 is working. We are also a reference laboratory for
9 three other states for blood sample testing.
10 Q. What does that mean?
11 A. The three states are Florida,
12 Pennsylvania and Minnesota. Now, in those three
13 states, the state labs license or certify the local
14 hospitals for doing legal alcohols for law
15 enforcement purposes. To be certified, they have
16 to meet certain standards, and these standards
17 include analyzing blood samples and getting the
18 correct results. These are normally sent out to
19 these three states four times a year. They make up
20 these samples and submit them to their local
21 laboratories in state. To check themselves, then,
22 they send those same samples to an out-of-state lab
23 to see whether or not the state is doing it
24 properly.
25 So we are a reference laboratory for
Page 39
1 these three other states, so we can also check our
2 instruments and our method by comparing our results
3 with these other states. So we do check ourselves
4 quite often.
5 Q. Has the DCI lab, over the years, been
6 rated as one of the most accurate labs in state law
7 enforcement?
8 A. In Iowa, yes, sir.
9 Q. And nationwide?
10 A. Nationwide, we are recognized as being a
11 good laboratory. We've done work with several
12 other states in some research that we have been
13 involved in in the last four or five years which
14 involved alcohol testing.
15 Q. In addition to your 23 years of
16 experience, can you tell us Mr. Rayburn, what your
17 educational background is, sir?
18 A. I have a Bachelor of Science Degree in
19 chemistry from Iowa State University over in Ames.
20 Q. And you have spoken to various law
21 enforcement groups over your career, is that
22 accurate?
23 A. Yes, sir.
24 Q. And presented papers or outlines in
25 conjunction with those?
Page 40
1 A. Depending on what the subject was, but
3 yes, sir.
3 Q. And have those subjects included
4 blood-alcohol analysis?
5 A. Not within the State of Iowa. Usually
6 when I'm talking law enforcement or county
7 attorneys or judges, things like that, we are not
8 getting into any detail; we're just telling that we
9 do them. The detail comes in when I go into court
10 to testify on them, when that happens.
11 I have talked to a number of other
12 states and discussed the program and talked about
13 alcohol testing with a number of other people in
14 other states through an organization I belong to,
15 called the International Association for Chemical
16 Testing.
17 Q. Do you have a curriculum vitae that has
18 been prepared, or a resume?
19 A. Yes, sir -- not with me, but I do have
20 one at home.
21 Q. Would it be possible that you could send
22 one to Mr. Wadding and myself?
23 A. Yes.
24 Q. Do you have any objection to that?
25 A. No.
Page 41
1 Q. I'm just about done. I'm assuming
2 you're going to go back home tonight.
3 A. Yes.
4 Q. Regarding you machine in Des Moines,
5 the gas --
6 A. Call it GC.
7 Q. Thank you. You should have helped me
8 out earlier. With that machine, is that calibrated
9 on a regular basis or a scheduled basis, or do you
10 run values to determine if it needs to be
11 calibrated?
12 A. We run calibration every time we use the
13 instrument. So every time it gets run, it gets
14 calibrated both before and after a series of
15 tests. So anybody, whether it's myself or any
16 other criminalist in the laboratory, we always
17 correct it before we start a batch of samples, and
18 we always check it afterwards, so that's done
19 regularly.
20 Q. Is it not true that sometimes in
21 hospitals, that they only periodically calibrate
22 their machines?
23 A. That could be. I wouldn't want to
24 testify on that, because I don't know. But that's
25 possible.
Page 42
1 Q. Do you think that by calibrating your
2 machine before every test, that that helps assure
3 the reliability and integrity of that run?
4 A. In my opinion, that is an absolute
5 necessity.
6 Q. And why is that?
7 A. To make sure that that batch of samples
8 is as accurate as I can get them. So I check it
9 before and after, because if I'm going to go to
10 court to testify on it, I want to make sure that
11 they are as accurate as I can get them.
12 Q. You don't want to have it said that you
13 checked it, calibrated it January 1.
14 A. No, sir.
15 Q. If you could give me just a moment, sir,
16 I may be close to done.
17 (Brief pause.)
18 Q. Do you in the DCI have a protocol that
19 you send to hospitals for blood analysis?
20 A. No, sir. In the State of Iowa, there is
21 no regulation or rule that says that anybody can
22 certify or to control the hospital laboratories.
23 That's up to themselves.
24 Q. Are you familiar with the so-called
25 preliminary breath test machine?
Page 43
1 A. PBTs?
2 Q. Yes.
3 A. Yes, sir, I am.
4 Q. Are those calibrated?
5 A. According to the administrative rules,
6 they should be calibrated at least every 30 days.
7 Q. And what is your understanding of the
8 purpose of that machine?
9 A. The preliminary breath test or PBT is a
10 screening device to help the officer determine
11 whether or not alcohol is present and the
12 approximate amount, so it should be part of the
13 officer's probable cause to ask for a chemical test
14 such as a blood, breath or a urine. It's part of
15 the officer's probable cause.
16 Q. And is there a plus or minus factor that
17 is associated with the readings that those give?
18 A. That's a little bit hard. The
19 instruments themselves, in the rules, should read
20 within plus or minus 20 percent. In the actual,
21 under laboratory conditions, under controlled
22 conditions, they are much much better than that,
23 but out in the field, there's too many variables
24 that I can't control, so I would like to see them
25 plus or minus 20 percent of the actual value, but I
Page 44
1 cannot guarantee it.
2 It also depends on the officer, how good
3 the breath sample is delivered to it by the subject
4 being tested, does the officer wait until the last
5 bit of breath to collect a sample, does he leave
6 the reading on until the maximum alcohol sample is
7 reached. So there's too many variables that I
8 can't control to give you any degree of accuracy on
9 a particular test.
10 Q. Do any of the preliminary breath test
11 machines in Iowa produce a physical piece of paper
12 printout, or do they just digitally show the
13 number?
14 A. We do no want a printout, so they're
15 just a digital display on the front of the unit.
16 All they are intended to be is a preliminary
17 screening test to say yes, there is alcohol present
18 and approximately how much there is. That's all
19 they're intended to do.
20 Q. Mr. Rayburn, I think I'm basically done;
21 but so I don't become surprised, assuming we have a
22 trial in this case, it is my understanding that
23 when you come into court, you will be testifying
24 that Mr. Rokes' blood was found to contain 0.087
25 grams of alcohol in a milliliter of blood, and that
Page 45
1 that alcohol concentration is approximately five
2 percent higher or lower than that, am I correct?
3 A. Yes, sir.
4 Q. You do not intend, and it's beyond your
5 area of expertise, to attempt to say how a person
6 might be affected at that level?
7 A. I would guess that I would be asked
8 that, and I plan on testifying if asked about the
9 affects of alcohol.
10 Q. Okay. Why don't you tell me what it is
11 that you would anticipate that you would testify as
12 to the effects of alcohol.
13 A. Normally I'm asked of the studies that I
14 have participated in and done and whether or not I
15 have an opinion as to when a person becomes
16 intoxicated and whether or not a person with a
17 given alcohol concentration would be under the
18 influence. So it would depend upon the
19 circumstances and the question that's asked of me,
20 but my basic testimony is that in the studies that
21 I have done and participated in, we have found
22 measurable impairment due to alcohol starting
23 at .04 to a .05 alcohol concentration.
24 As the alcohol concentration increases,
25 this impairment just becomes more and more
Page 46
1 measurable and more and more noticeable, and in my
2 opinion, a person of .087 is impaired by alcohol.
3 In my opinion, yes, most definitely they are.
4 Q. And you understand, though, that
5 obviously in Iowa, that a person is not, per se,
6 presumed to be under the influence of alcohol until
7 it is 100?
8 A. No, sir, that is not correct.
9 Q. Okay. And tell me why you think I'm
10 incorrect.
11 A. In Iowa, it is illegal to drive with an
12 alcohol concentration of a .10 or more, or under
13 the influence of alcohol and/or drugs. So the .10
14 is just a, per se, level which the state says it is
15 illegal to drive with a .10 or more, but there's
16 two ways to commit the crime of OWI --with an
17 alcohol concentration of .10 or more, or while
18 under the influence of alcohol.
19 Q. Okay. Let me just read your minute here
20 a second.
21 (Brief pause.)
22 MR. CORRELL: Let me just talk to my
23 client. I may be done.
24 (The deposition was recessed briefly.)
25 MR. CORRELL: Mr. Rayburn, I don't have
Page 47
1 any more questions. I do appreciate your time,
2 sir.
3 (The deposition was concluded at 3:20 p.m.,
4 March 26, 1997,)
update 07/28/10