Quick Look at Continuing Breath Alcohol Test Problems

April 10th, 2014 Allen Trapp Posted in Breath Tests, Intox 5000, Chemical Test | No Comments »

It is now well established that a subject’s manner and mode of breathing just prior to providing breath for analysis can significantly alter the concentration of alcohol in the breath sample.  Hyperventilation has been shown to lower the breath alcohol concentration by as much as 20%.  Holding your breath for a short time (20 seconds) before exhalation increases the alcohol concentration in exhaled air by as much as 15%. Be on the lookout for forced agreement between the two breath samples. An officer can watch the BrAC rise on the second sample. When it gets close to the reading of the first sample, he can tell the subject to stop blowing, to ensure that the two samples are not more than .02 apart.

Since at least 1950 34°C has been the accepted breath temperature used for breath testing purposes. Professor Harger made this decision in 1950 after examining six subjects whose recorded range was between 31°C and 35°C. However in 1996, a much larger study of 700 subjects concluded that the average was 35°C-a full degree higher than Harger’s adopted temperature. Fox & Hayward compared the effects of hyperthermia and hypothermia on breath alcohol results. They found that average increase in Breath Alcohol Concentration over Blood Alcohol Concentration was 8.6°C for each degree Celsius increase in deep-core body temperature.

These are just two of the more basic issues we encounter in DUI defense. Although some lawyers think “anyone can do DUI,” the odds are that those lawyers are not familiar with these issues and will not invest the work required to gain the knowledge. No matter where you are, if you interview a lawyer and he or she cannot discuss these matters, keep looking.

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Roadside Saliva Tests for Drugs- Coming Soon

April 9th, 2014 Allen Trapp Posted in Driving under the Influence of Drugs, Chemical Test | No Comments »

The Federal Government is stepping up its focus on drugged driving and the use of roadside tests of saliva to screen for drugs. The Office of National Drug Control Policy working with the Department of Transportation have taken steps to address drugged driving, and several studies have been published. The National Roadside Survey of Alcohol and Drug Use by Drivers, published in 2007, concluded that about one in eight nighttime drivers on the weekend tested positive for illicit drugs.

Drug Testing and Drug-involved Driving of Fatally Injured Drivers in the United States: 2005-2009, found that roughly one in four of fatally injured drivers who tested positive for drugs were under the age of 25.  In 2009, narcotics and cannabinoids accounted for almost half of all positive results. In that same year, eighteen percent of all fatally injured drivers’ nationwide tested positive for drugs at the time of the crash. In addition, The Institute for Behavior and Health published Drugged Driving Research: A White Paper. That paper concluded that drugged driving was a significant domestic and international problem.

Also, there are many drugs with potential impairing effects being prescribed at a rate higher than at any time in our history. The number of narcotic analgesics (e.g., hydrocodone, oxycodone) prescribed over the past decade has skyrocketed. Part of his increase is attributable to an aging population, but many of these drugs find their way into the hands of younger drivers.

Accordingly, drug impaired driving has been thrust into the spotlight of law enforcement, talk show hosts, and lobbyists. Moreover, federal agencies under the name “National Drug Control Strategy” announced their goal is not only to reduce drugged driving by ten percent by 2015, but also to put the prevention of drugged driving on the same level with drunk driving prevention. Included in their strategy was the development of “standard screening methodologies for drukg testing labs to use in detecting the presence of drugs.” This means the roadside saliva tests for drugs, which are already in use in 14 states, will be coming to a roadway near you soon.


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More on Hospital Blood Tests for Alcohol

April 5th, 2014 Allen Trapp Posted in Blood Test | No Comments »

In an enzymatic test, the type customarily performed when a patient is brought into the emergency room at a hospital, the analysis for alcohol concentration is typically performed on serum or plasma samples, so it is important that you do not assume that the test was performed on whole blood. To measure the alcohol concentration through an enzymatic assay test, the serum or plasma is combined with an enzyme, alcohol dehydrogenase, to form acetaldehyde. Coincidentally, acetaldehyde is the first and most important metabolite of ethyl alcohol.

During this process, nicotinamide adenine dinucleotide (NAD) is converted to NADH. The concentration of NADH is measured to determine the alcohol concentration. Plasma and serum are quite different and have different water content levels. Because alcohol distributes to the different components of the blood according to the water content, the relative water content level of plasma and serum is an important consideration.

Plasma and serum have nearly the same ratio of water to blood and should produce similar alcohol concentrations. The ratio of serum to whole blood varies widely, with at least one study showing the ifference can be as great as 49%. However, a statistical average of about 1.18 seems to be indicated.

The serum or plasma alcohol test is indirect. The amount of NADH, which is an enzyme, is measured spectroscopically at the 340 nanometer wavelength. The amount of NADH present is supposed to be proportionate to the amount of alcohol converted by ADH to acetaldehyde. However, when lactic acid is produced due to stress on muscles resulting from an injury or when ringers lactate is administered by paramedics, LAD will also react with ADH and be read as ethyl alcohol by the enzymatic tests.

In most cases these hospital reports will have “Not for Legal Purposes” written or stamped across the front. However, do not be surprised if zealous prosecutors attempt to use them, and at least in Georgia, they will usually be admissible. Therefore, defense counsel must be prepared to deal with them.

Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website
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Accident Cases: The EDR is Crucial

March 16th, 2014 Allen Trapp Posted in Current Events, Defense Experts, Hiring a Lawyer | No Comments »

An item that should be obtained as quickly as possible in an accident case – especially one involving death or serious injury – is the event data recorder (EDR). These devices can store data including engine speed, vehicle speed, airbag deployment, seatbelt use, and the state of the brakes before and during a crash. While these devices have aided insurance adjusters and researchers, they have also served as electronic witnesses that have sent drivers to jail. By the mid-1990’s when all automobiles had an airbag, microprocessors, solid state memory, and in-car networks gave designers all the tools they needed for capturing system performance and driver reaction data during a crash. One of GM’s early data recorders was responsible for the recall of more than 850,000 Chevrolet Cavaliers and Pontiac Sunfires for inadvertent airbag deployment. The early EDR’s captured data for approximately five seconds before a collision. However, the newer models record data for forty to fifty seconds before impact.

To read this information special equipment is needed, and manufacturers have not adopted the same stance vis-?-vis the ease with which the data from their automobiles may be downloaded. GM, for example, will not share information about a crash event except: (1) With the consent of the vehicle owner or lessee; (2) In response to an official request of police or similar government office; (3) As part of GM’s defense of litigation through the discovery process; (4) As otherwise required by law. Mercedes and BMW have designed their EDR’s so they cannot be deciphered unless the manufacturers cooperate in a particular case.

Documenting driver digressions is the most controversial application of the crash data recorders. A recorder can, for example, reveal if a driver was speeding or braking before an accident. Although it is generally agreed that the recorded information belongs to the vehicle owner, that does not mean it can always be easily concealed. Many motorists do not even know that their vehicles have the recorders and that disclosure of information from the recorder may be an invasion of privacy. Nevertheless, insurance companies and lawyers have frequently been successful in their attempts to obtain court orders to extract data after an accident. One of the most popular pieces of information is the crash pulse information from the onboard accelerometers that activate airbags. Information about this change in velocity and direction of force may indicate the cause of the crash or the severity of injuries.

Vetronix Corporation was one of the first vendors to offer a CDR (crash data retrieval) system that downloaded pre-crash and crash data from the air bag module of most GM and Ford models to a laptop computer. This CDR system included hardware and Windows based software to present crash data in graphs and tables. Depending on the make and model of the vehicle, the CDR program retrieved vehicle speed, engine speed, brake status, throttle position, seatbelt usage, whether the passenger side airbag was enabled, and other data. Bosch offered a competitive product and acquired Vetronix several years ago.

The attorney should exert every effort to ensure that the client’s vehicle is secure. The data may be lost due to an inadvertent police “error” such as starting the car, connecting it to a power source, or improperly downloading the data. Any of these events can “erase” the EDR’s memory, and with that erasure may go your  chances for an acquittal. The data may be downloaded from one of three points on a large number of models, including the DLC (data link connector or direct link connector) plug under the dash, the airbag control module, or the PCM (primary control module). Although the “black box” can be removed without necessarily damaging the instrument, most engineers see no need for removal and perform their downloads with the EDR still in the automobile.

Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website
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Justin Bieber - The Crime Lab Clears Him

January 24th, 2014 Allen Trapp Posted in Top 50 DUI Arrests of All-Time, DUI Arrests That Made the News | No Comments »

 On January 23, 2014, the internet and television were ablaze with stories about Justin Bieber’s DUI arrest in south Florida. The 19-year-old was driving a rented Lamborghini when he was pulled over at 4:09 a.m. for drag racing. He performed one or more field sobriety tests, which realistically have little influence on a DUI arrest decision for an underage driver. The odor of alcohol or an admission of drinking is enough. Bieber was also charged with resisting arrest and driving with an expired driver’s license.

Later in the day a police spokesman reported that the singer told officers he had been drinking, smoking marijuana, and taking prescription pills before the traffic stop. The police also claim that Bieber was “belligerent” when police stopped him for driving 55 to 60 in a 30 miles per hour zone in Miami Beach, using several choice words. The arrest report states he dropped the F-bomb several times.

However, when his blood test results became available less than a week later, the crime lab reported he had no drugs in his system, and his blood alcohol level was .014.  About 45 of the 50 states, including Florida, have a per se limit of .02 for underage drivers.

Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website
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More on the New Intoxilyzer 9000

January 13th, 2014 Allen Trapp Posted in Breath Tests | No Comments »

     The COBRA system (Complete Online BReath Archives) is a CMI manufactured data storage and management program for the Intoxilyzers. Every test or attempt at operation is, in theory, stored within the individual machine’s computer memory and retrieved to be stored and used by the COBRA (or other database) system.  When complete and intact, the database can be an invaluable tool for evaluating the overall performance of a specific Intoxilyzer.  With accuracy verifications conducted as part of each individual test the COBRA system can be used to monitor the readings over time and address issues before they become problems.  Completed tests vs. tests with non-numeric results can be assessed as can incidences of non-numeric results vs. refusals with at least one breath sample.Demographic data can be collected and assessed along with the alcohol testing. Pretty charts and graphs can be generated for individual agencies showing the numbers of their arrests and time of day, age of arrestee and/or gender.  The individual officers can be assessed for the number of tests or arrests they are involved in and the alcohol concentrations of the subjects being tested. The refusal rate per department can be compared to the refusal rate statewide or the refusal rate of the individual officer. The downloaded data can also be used for assessing the training needs of the operators - both individual operators as well as statewide operators. If an operator makes frequent typographical errors that are hand-corrected later it could be the operator doesn’t know how to correct it during the data entry mode of testing. If large numbers of officers are running tests, without a new observation, after a mouth alcohol is detected the instructors and program managers will need to consider adding more information or revising how the training is currently being conducted. The DOFS will be able to generate control charts for the individual machines using the alcohol control tests (the dry gas samples run with each subject test) or they could program in weekly (remote) checks and downloads.

Remote checks meaning the DOFS can run tests such as diagnostics, DVM checks and control sample tests (simulator vapors or dry gas, whichever is connected) using the phone lines or high-speed connections. Remote troubleshooting becomes a reality. Updating driver’s records with breath-alcohol results and sending off necessary documentation to the courts and hearing officers can also be handled if the DOFS writes these functions into the programming. The COBRA system could be used to upload information to a virtual library for access by attorneys and others. Maintenances, inspections and repairs would be part of the database. Every test, in theory, should be there.  The availability of the database information to the defense community is an issue that has been fought time and again across the country and continues today. States that do not feel the breath alcohol program has anything to hide will post the database and certification pages for use in trial (Washington and South Carolina) while other states, like North Carolina, will fight sharing any of the data.

One of the most contentious issues in DUI defense over the past five years has been whether, and to what extent, the source code must be made available to the defense. The source code is that form of the software that can be read by a human programmer, as well as able to be processed by special programs that convert the source code into machine code. The full complement of source code is all of the electronic materials required to convert from the source code to the machine code. The conversion from source code to machine code is a one way process, that is, the machine code can always be reconstructed from the source code, but the source code cannot be reconstructed from the machine code. There are utilities that will convert machine code into a form that resembles source code. These utilities are called disassemblers and decompilers. While they generate text files that resemble the original source code, the text files generated in this fashion are not considered suitable for analyzing what the software does. Text files generated in this fashion are devoid of meaningful labels and comments, which were present in the original source code, and provide context for why the software operates the way it does. These comments and context are removed because they are not used by the computer when step by step instructions are created to instruct the computer. The source code is so named because all of the machine code can be traced to material present in the source code. One of the requirements imposed by DOFS requires CMI to disclose - on a very limited basis- its source code. A protective order and non-disclosure agreement acceptable to CMI must be in place. Furthermore, viewing of the source code must be done at CMI’s location. Why a non-disclosure agreement and protective order are necessary is difficult to explain - so long as you don’t think that hiding the source code is a legitimate exercise. The machine is patented, so there are no trade secrets involved. And requiring that the defense expert physically appear in Owensboro, Kentucky accomplishes little except making it more difficult and expensive for a defendant to obtain the source code. After all, one of these source codes can be sent halfway around the world in a zip file via e-mail.

In conclusion, it appears as if there will be an overall improvement in Georgia’s breath testing program. A control test with every subject test, downloading data, printing breath volumes, and reducing the number of potential interfering substances are all welcome developments. However, the refusal to adjust readings to reflect exhaled breath temperatures reflects a certain stubborn blindness, and the refusal to make the source code readily available perpetuates the tradition of secrecy cloaking breath alcohol testing. We had hoped for more transparency, but we are not surprised by what is coming our way soon.
Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

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New Breath Testing Device, Intoxilyzer 9000, Coming to Georgia

December 14th, 2013 Allen Trapp Posted in Breath Tests, Chemical Test | No Comments »

     Between now and the end of 2015 every Intoxilyzer 5000 in Georgia will be replaced by the Intoxilyzer 9000.  The Division of Forensic Sciences claims the new breath testing instrument is very accurate; however, the handful of “experiments” done during the evaluation period does not support DOFS claims. Their initial experiment on February 15, 2012, was limited to three drinking subjects who were tested at different time intervals and asked to provide both a “minimum exhalation” (instructed to stop blowing when the delivered sample volume was between 1.1 and 1.5 liters) and a “maximum exhalation” (blow, blow, blow). The only female subject was tested 15 minutes after her last drink, and her results were .063 and .073. One of the young male subjects, tested at 30 minutes after he stopped drinking, registered .042 and .045. The last young man, tested 24 minutes after his last drink, blew a .056 followed by a .064. Clearly, neither the first nor the last subject’s test results were within 5 percent of the mean. DOFS seems to have ignored their own requirements, but these results certainly justify encouraging subjects to blow until they cannot blow any longer if your objective is to obtain convictions.

Unlike the Intoxilyzer 5000-EN the new device will print a breath volume for each test. When the 5000-EN was first delivered to DOFS in 1998, it did the same. However, Jim Panter, head of the Implied Consent section at the time, ordered that this capability be disengaged when a person provided an adequate sample because it was “confusing.” Therefore, the 5000-EN only printed a breath volume (in theory) when it reported an insufficient sample. The 9000, as currently configured, will print a breath volume for all cases. The Operator’s Manual instructs officers to encourage subjects to provide a maximum exhalation, because “the longer you blow, the higher you go.

The Division of Forensic Sciences maintains that a person’s breath alcohol concentration is ultimately the product of a continual exchange of ethanol between the blood and breath that occurs in the pulmonary alveoli. DOFS acknowledges that some (”a substantial amount of”) alcohol can be lost to the cooler airway surfaces as the breath moves through the respiratory tract. What they do not acknowledge is the work of Dr. Michael Hlastala, which establishes the alcohol is also “picked up” as a breath sample travels up the respiratory system. He has also demonstrated that true alveolar air cannot be obtained, contrary to assumptions made by chemists sixty years ago, but those assumptions continue to dominate the world of breath alcohol testing.

      Another crucial area examined by DOFS during the evaluation phase was the potential for other volatile organic chemicals to interfere with test results. Few of the experiments were conducted when ethanol was present along with the other chemical. Nevertheless, there some notable findings. Acetaldehyde did not trigger an interferent message until it was present in a concentration of .06g/dl. However, at a concentration of .05, it generated a BrAC of .007.  Acetone did not generate a BrAC reading but was also not detected as an interferent until it was present in a concentration .10g/ml. Other substances such as ethylacetate, toluene, and isobutanol triggered error messages in concentrations as law a .01, while methanol was detected at .02. On the other hand, MEK did not trigger either a reading or an error message at concentrations lower than .10g / ml, once again in the absence of alcohol. Methylene chloride did not produce a reading or an error message at levels up to and including .10g/ml. 

       A number of other experiments were performed. One that caught our attention was the linear range test conducted on February 10, 2012. With a Guth simulator solution heated to 33.9 degrees Celsius, twenty tests were conducted, with an expected value of .08. Only two returned readings under 08, six readings were exactly at .08, and twelve were in excess of .08. Since this machine, like every CMI product on the market, assumes a breath temperature of 34 degrees, these results could be invaluable for a breath temperature defense at low readings. As an aside, the limit of detection shown by the one experiment shows that the lowest number detected was a .013, which was reported as .010.

       A number of states (e.g., South Carolina, Oklahoma) have been downloading breath test data to a central repository for years. DOFS has insisted that the handwritten logs maintained by the individual departments was sufficient, despite obvious omissions a number of us have encountered. One of the criteria for approval of the new Georgia breath testing device was the capability of the device to download data. The Georgia Breath Test Transition Implementation Plan dated June 15, 2012, states that the Division of Forensic Sciences will obtain the COBRA instrument database system for data retrieval from field instruments and seat licenses for each of the Area Supervisors. How this database will be employed remains to be seen, but if done properly it will enable us to detect ongoing problems with particular machines that are currently very difficult to identify. We do know that all Intoxilyzer 9000’s must be connected to the DOFS network through a LAN or data connection by July, 2015. Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

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Warrantless Blood Draws: Supreme Court Has Doubts.

April 18th, 2013 Allen Trapp Posted in Case Law Update, Blood Test | No Comments »

Just this week the U.S. Supreme Court decided the case of Missouri v. McNeely.  The Court held that the mere passage of time (resulting in the metabolism of alcohol) did not justify a warrantless blood draw.  The Court did not outlaw all non-consensual warrantless blood testing in DUI cases, but they should now be rare across the country.  The Court disagreed with the State of Missouri, which argued that the passage of time created an “exigency” which justified the failure to obtain a warrant.  Georgia law did not purport to allow forced blood testing without a warrant, but some aspects of our implied consent law may now be called into question. 
Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

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At Least One Court Insists on Valid Blood Tests

April 18th, 2013 Allen Trapp Posted in Case Law Update, Blood Test | No Comments »

Hunter v. State, 55 A.3d 360. Del. Supr., (2012).

The Supreme Court of Delaware found that the admission of a test result that was not in compliance with the manufacturer’s requirements.? Furthermore, this error jeopardized the fairness of the trial.? Specifically in this case, using the expired vacutainer tubes in the blood test kit was in direct contravention of the manufacturer’s specification sheet for the vacutainer tubes. The same was true of shaking the tubes vigorously, which was also in direct violation of the manufacturer’s instructions for use of the kit.
Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

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Do Breath Tests Measure Deep Lung Air?

April 8th, 2013 Allen Trapp Posted in Breath Tests | No Comments »

Alcohol reaches the surface of airways by diffusing from the bronchial circulation. When a person inhales, alcohol is taken from the airway surface and the inhaled breath becomes saturated with alcohol before just as it reaches the alveoli, where “deep lung air” is found. In the alveoli alcohol in the breath is in equilibrium with alcohol in the pulmonary capillary blood. Even though ethyl alcohol may exchange with the blood in the alveoli, since there is no partial pressure difference, there is no net change. The exchange in the airways will happend even though the bronchial blood flow is only about 1% of the total cardiac output because of alcohol’s extremely high solubility.

When a person exhales, the alcohol in the air passing from the alveoli to the mouth re-deposits alcohol onto the surface of the airways. In the meantime, some alcohol has re-entered the blood stream by way of the bronchial circulation. So the airways have been partially recharged with alcohol.

But there is still a net partial pressure driving force toward the airway tissue. With an average exhalation the exhaled air loses about 20% of the alcohol that it had in the alveoli. If a person takes a full and complete inhalation and exhalation, they would lose less alcohol and the measured alcohol in the breath would be higher than it should be. If a short exhalation occurs, then the alcohol measured in the breath will be lower than expected.
Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

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Blood in the Mouth - Effect on Breath Tests

April 8th, 2013 Allen Trapp Posted in Breath Tests | No Comments »

     A study published by the Journal of Clinical Forensic Medicine concludes that, although it my might an effect, blood in the mouth will not significantly alter the affects of a breath alcohol test.  There are detractors, who point out the issue is one of saliva and the unmistakeable reduction in BrAC that occurs when rinsing the mouth is permitted before a breath test. 

     This study found some statistically significant changes in breath alcohol concentration, but they were usually confined to third digit.  On the other hand, rinsing the mouth with water routinely leads to reductions of .03 to .04.  This is an issue where both scientists and attorneys who usually are employed by the defense have differences of opinion.
Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website    

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October 24th, 2012 Allen Trapp Posted in Top 50 DUI Arrests of All-Time, DUI Arrests That Made the News | No Comments »

Carlton Fisk, who made baseball history when he hit a 12th inning home run to win Game Six of the 1975 World Series, was charged with DUI and related traffic offenses on October 22, 2012.  He was found asleep in his truck in a cornfield in New Lenox, which is about 35 miles southwest of downtown Chicago.  Police reports indicate that officers found Fisk behind the wheel late that evening with an open bottle of vodka on the truck’s floor. 
Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

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Ambien Sleep Driving: Suggested Defenses

February 10th, 2012 Allen Trapp Posted in Driving under the Influence of Drugs, Health Issues | No Comments »

Voluntary intoxication is not a defense. However, in most jurisdictions involuntary intoxication is a defense to most offenses. In some jurisdictions, involuntary intoxication is treated as an affirmative defense, which means that the prosecution must disprove it beyond a reasonable doubt. In other places, it is simply not available as a defense to a DUI.

A Texas appeals court has which held that involuntary intoxication is not a defense in a DWI case involving both alcohol and Ambien. This same appellate court approved a defense that would be characterized as involuntary intoxication in most jurisdictions in a case of the mistaken pill. The Defendant meant to take Soma and Ultram in the morning. He had taken Ultram for about seven years, and in order to encourage him to take his medication his wife put out the pills for him. On the date of his arrest she apparently put out an Ambien, and he took it believing it to be something else.

The trial court rejected the defense of accident or involuntary intoxication, and the court of appeals agreed. However, the judges found that the defense of “involuntary act” was available if the Defendant introduced evidence that an independent event, such as the conduct of a third party, that could have precipitated the incident. If, for example, a third party slips a “mickie” in a drink or forces a person to consume an intoxicant and get behind the wheel, then the voluntary conduct defense is available. Although the Defendant voluntarily took the pills his wife laid out for him, he involuntarily took the Ambien because of his wife’s act.

Many courts have concluded that the most difficult cases to decide involve those where a defendant knowingly ingested a prescription drug. There is an Illinois case that stands for the proposition that the unexpected and unwarned adverse effect of a drug taken on doctor’s orders is involuntary. California also has case law holding that intoxication caused by knowingly ingesting prescription medication can be either voluntary or involuntary, depending on whether the defendant had reason to know he/she would become intoxicated.

The best known Georgia case involving Ambien sleep driving is Myers v. State, 302 Ga. App. 753 (2010). In this case the lady had taken two Ambien, her regular daily dose of Xanax, and had a couple of glasses of wine before bedtime. The jury charge instructed the jury that, “The criminal intent element …is simply the intent to do the act which results in the violation of the law, not the intent to commit the crime itself. Consequently, to the extent that the defendant here argues inability to form an intent to commit the crime for which she is charged, it is immaterial, which means it should not be considered. While proof of criminal intent is required to convict the defendant of the crimes with which she is prosecuted, the state is not required to prove that the defendant intended to drive under the influence of alcohol in violation of the law or on the wrong side of the road. Rather, it is required to prove beyond a reasonable doubt only that while intoxicated she drove and drove crossing over…the right line, intending such acts.”

Relying on earlier Georgia case law, the Court of Appeals upheld the conviction. Those older cases had held that the criminal intent required for a conviction is simply the intention to commit the act which results in the violation of the law, not the intent to commit the crime itself. In other words, the Court relied on language that is included in most jury instructions in Georgia DUI cases, which basically instructs the jury that DUI is a crime of general intent and not specific intent. Therefore, and the record is not clear, perhaps trial counsel should have argued that his client lacked the intent to drive as opposed to the intent to commit the crime. Both the jury instruction approved in this case and the older cases do require the intent to drive; however, in this decision the Court of Appeals seemed to emphasize that the Appellant had intentionally ingested Xanax, Ambien, and alcohol, and then drove in an intoxicated state. What is overlooked (or perhaps assumed) is the language from several older cases and the jury instruction in this case - “that she intended to drive.” Therefore, even when faced with a generally hostile jury instruction, the lack of general intent may still be argued.

Despite some slivers of hope and some very narrow openings the courts have left us when considering, and usually rejecting, other defenses, there is really a dearth of case law regarding actus reus in the context of Ambien sleep driving defenses. Georgia has a number of criminal cases stating that it is a requirement but not defining the term. Nevertheless, even the Texas appeals court has recognized that a voluntary act (actus reus) is required, and that may be the best approach of all.

A state may make an offense a “strict liability” offense or a crime of general intent, thus eliminating the need to prove mens rea (intention to commit a crime). But the State must still prove that there was a voluntary act - the actus reus. Sleep driving by its very nature is not a conscious, much less voluntary, act.

The Model Penal Code Section 2.01 lends support to this position.

1) A person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act or omission to perform an act of which he is physically capable.

2) The following are not voluntary acts within the meaning of this Section:

a) a reflex or convulsion.

b) a bodily movement during unconsciousness or sleep.

Similarly, in Colorado the applicable statute, C.R.S. 18-1-502 provides that, “The minimum requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which he is physically capable of performing.” If a culpable mental state is not required, Colorado law characterizes the offense as a “strict liability” offense. Nevertheless, a voluntary act or actus reus is still necessary to obtain a conviction.

In a non-DUI case the Washington Court of Appeals has held that, although the legislature has the authority to create a crime without a mens rea element, a minimal mental element is required to establish the actus reus, and that is the element of volition. State v. Deer, 244 P.3d 965 (Wn. App. 2010). As a matter of Federal constitutional law the State bears the burden of proving beyond a reasonable doubt that a defendant committed a volitional act. This argument should certainly be made in any case where a judge is not inclined to recognize the actus reus requirement; if is not merely common law in origin but has become Constitutionally mandated by virtue of the 14th Amendment. While we understand that there are genuine cases of otherwise innocent people sleep driving, we can expect continued hostility from prosecutors (one of whom recently characterized the defense as a “fad”) and skepticism from thebench. Nevertheless, thorough research of the legal precedents applicable in a particular case, and in the event they are sparse, from around the country should yield at least one viable defense theory that even the worst judge will not reject, or face reversal.
Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

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Ambien Sleep Driving: The Problem

January 25th, 2012 Allen Trapp Posted in Driving under the Influence of Drugs, Health Issues | No Comments »

     Zolpidem Tartrate, sold under the brand name Ambien, is a non-benzodiazepine sedative hypnotic. The non-benzodiazepines are a class of psychoactive drugs that have pharmacological characteristics similar to the benzodiazepines, with similar benefits, side effects, and risks, although they have dissimilar chemical structures. A sedative hypnotic is a drug that depresses the activity of the central nervous system and is used chiefly to induce sleep and to allay anxiety.

     Barbiturates, benzodiazepines, and other sedative-hypnotics have diverse chemical and pharmacologic properties that share the ability to depress the activity of all excitable tissue, especially the arousal center in the brainstem. Sedative-hypnotics are used in the treatment of insomnia, acute convulsive conditions, and anxiety states and to facilitate the induction of anesthesia. Although sedative-hypnotics are generally sleep inducing, they may also interfere with rapid eye movement (REM) sleep that is associated with dreaming. It has also been noted that when administered to patients with fever some of these drugs may act paradoxically and cause excitement rather than relaxation.

Sedative hypnotics may interfere with temperature regulation, depress oxygen consumption in various tissues, and produce nausea and skin rashes. In elderly patients they may cause dizziness, confusion, and ataxia. Drugs in this group have a high potential for abuse that may cause physical and psychological dependence. Treatment of dependence involves gradual reduction of the dosage because abrupt withdrawal frequently causes serious disorders, including convulsions. Buspirone and zolpidem are among the newer non-barbiturate non-benzodiazepine sedative hypnotics.

     Zolpidem is a benzodiazepine receptor agonist with high binding affinity for the GABA receptor. It was developed as a drug with a structure different from the benzodiazepines in order to provide it with an affinity for only a subset of the benzodiazepine receptors resulting in hypnotic properties without significant anti-convulsant, anti-anxiety, or muscle relaxant properties associated with the various benzodiazepines. Therefore, Zolpidem may be said to “compete” with the benzo’s for the attention of only some of the same receptors.

     Zolpidem has been available in this country since 1993, and for several years has also been available in a time release formula. It is available in both a five milligram and ten milligram tablet. The manufacturer recommends that it only be taken when a person has eight hours available for uninterrupted sleep. The peak concentration of the drug usually appears in the bloodstream between one and a half to two and a half hours. Therapeutic levels are reported as 29 to 113 ng/ml following a 5 mg. dose and 58 to 272 ng/ml following a 10 mg. dose according to the package insert.

     By around 2005 reports of parasomnias began surfacing. These are undesirable motor, verbal, or experiential events that occur during sleep. One of the more common was uncontrolled sleep eating. Raw eggs, uncooked rice, loaves of bread - they were all fair game. Cooking - and we are not talking about dishes that are particularly appetizing - was also reported, as well as sleep walking and sleep driving.

     Initially the manufacturer, Sanofi-Aventis, took the position that four percent of the population already suffered from somnambulism, and that while “events of sleepwalking have occurred during treatment with Ambien, these instances cannot be systemically linked to the product.”

     Finally, in March of 2007 there were two important developments. First, the Food and Drug Administration demanded that the makers of thirteen sedative hypnotic drugs include warnings about possible unusual behavior including sleep driving and recommended that the manufacturers conduct clinical studies to investigate the frequency with which sleep driving and other parasomnias occur in association with each product. Second, the manufacturers notified health care providers (i.e, the doctors prescribing the stuff) that the precautions were being revised to warn patients about the possibility of sleep driving and that such “complex behaviors” had been reported. Sanofi Aventis conceded that these events could occur in sedative hypnotic naive as well as sedative hypnotic experienced persons. Ambien (Zolpidem) was not the only drug affected. The others included Butisol Sodium, Carbrital, Dalmane, Doral, Halcion, Lunesta, Placidyl, Prosom, Restoril, Rozerem, Seconal, and Sonata. While Ambien related sleep driving cases have been encountered by all DUI defense attorneys, cases involving the other drugs are rare. Nevertheless, these drugs are on the same list as Ambien, so if a defense is viable for Ambien, it should be viable for these other medications as well.

     The question remains why would someone who has taken Ambien get out of bed and eat unappetizing food, cook stranger things, drive their cars into telephone poles, and have no memory of the event? A possible explanation for zolpidem induced nocturnal behavior is that after a person is aroused from sleep, he or she will walk, drive, or eat, and subsequently not recall the event after returning to sleep because of the sedation-mediated amnesic properties of zolpidem. Another possibility is that an arousal occurred out of deep sleep with the parasomnia occurring in this electroencephalographically verifiable stage of sleep. The author believes that at least in some cases the latter has been experienced, because the drivers’ interaction with police and other individuals was extremely incoherent, their behavior was “zombie-like”, and they stared blankly at the police as if looking through them.
Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

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Son of Famous American Televangelist Arrested

January 25th, 2012 Allen Trapp Posted in Top 50 DUI Arrests of All-Time, DUI Arrests That Made the News | No Comments »

     Richard Roberts, former president of Tulsa’s Oral Roberts University and son of the the man who founded the school and spoke to millions on his Sunday morning program for decdades, was arrested early on morning of January 24, 2012, on suspicion of DUI and speeding, officials told The Times.

     Shortly after midnight an Oklahoma Highway Patrol officer stopped Roberts, who was reportedly driving a black 2006 Mercedes at 93 mph in a 65 mph zone on a highway west of U.S. 169, according to the arrest report.  After stopping Roberts, 63, the trooper noted that he smelled strongly of alcohol.  Roberts allegedly failed two coordination tests and his breath test result was .11.  Roberts was booked into the Tulsa jail and released a few hours later on $1,100 bail, officials told The Times.

     He resigned as president of Oral Roberts Universityin 2007 after he and his family were accused of abusing university and ministry assets.  Later he was named President Emeritus.  All ORU employees are required to sign a pledge to avoid consuming any alcoholic beverages.
Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

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Braves Star Arrested for DUI

April 30th, 2011 Allen Trapp Posted in Top 50 DUI Arrests of All-Time, Current Events, DUI Arrests That Made the News, Uncategorized | No Comments »

      Braves pitcher Derek Lowe was charged with driving under the influence of alcohol within days after pitching coach Roger McDowell was accused of making anti-homosexual comments before a game in San Francisco last weekend.  Gordy Wright, a spokesman for the Georgia State Patrol, said a trooper stopped Lowe’s vehicle about 10 p.m. on Thursday, April 28th, on an Atlanta street. The trooper detected an odor of an alcoholic beverage and administered a “field sobriety test,” which resulted in Lowe’s arrest.  Initial reports failed to identify the nature of this test, but additional information should be forthcoming. 

     The 37-year-old right-hander was charged with DUI, reckless driving and improper lane change, according to the Georgia State Patrol.  Lowe declined to take a breath test before he was released, and the officer did not attempt to obtain a search warrant for a blood best, although he could have done so under state law.  The Atlanta Journal-Constitution has reported that Lowe was allegedly racing another vehicle when he was pulled over.

Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website
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Flawed Breath Tests in California

April 21st, 2011 Allen Trapp Posted in Current Events, Breath Tests | No Comments »

     Hundreds of drunk driving convictions in Ventura County could be tossed out because a defect in some of the handheld Breathalyzer machines purchased earlier this year is causing inaccurate blood-alcohol readings. The Ventura County District Attorney’s Office has sent memos to local attorneys saying that eight Intoximeter Alco-Sensor V breathalyzers have shown “erratic results” in blood-alcohol tests taken between January 20th and March 31st, according to Kevin Drescher, the supervising attorney with the felony unit.

     The county purchased 128 of the devices, paying about $4,800 for each one. Drescher said he didn’t know how many people charged with DUI were tested with the Alco-Sensor V during that time. “I don’t have the actual numbers,” he said, adding that the office was still looking into the matter. “Obviously, we are trying to do what’s right in this situation.” He added the information on who used the eight defective devices should be easy to obtain since it is data entered into the machine. Drescher said law enforcement has stopped using all Alco-Sensor V devices.Assistant Sheriff Gary Pentis said Alco-Sensor V had a defective mouthpiece resulting in “irregular readings.” He said the defective machines will be fixed, tested and returned to the county in about three months. The department will use the older model, Alco-Sensor IV in the meantime. He said every law enforcement agency in the county uses the device.

     The District Attorney’s Office sent the memo to the Public Defender’s Office on April 15th, said Chief Deputy Public Defender Monica Cummins. She said about 160 clients who were either convicted of DUI during this time or have cases pending, will be contacted by the office. “Some cases are still open,” she said. Cummins said the defective machines had “no evidentiary value” that could be used in court, but could have resulted in people getting convicted or pleading guilty to drunk driving based on erroneous Breathalyzer tests results.Drescher said his office will check on a “case by case” basis where defective devices were used to determine the appropriate thing to do.

     Attorney Robert Sandbach said a client’s arraignment for drunk driving was postponed because he needs more information about the Alco-Sensor V. He and his client went to the Department of Motor Vehicles Tuesday to request a postponement on a hearing to suspend the client’s license. He said his client was “alarmed and shocked” after finding out the machine was unreliable and possibly inaccurate. Sandbach said he is aware of two other clients who were arrested for DUI and were tested by the Alco-Sensor V. 

     Sandbach said on top of the jail time, fines and fees, and getting a license suspended, there is another toll for the wrongly accused. “The embarrassment of going through the process only to find out that the evidence was not reliable,” said Sandbach.

     During a news conference in January, Ventura County Sheriff Geoff Dean said the use of the microphone-sized instrument would improve safety in the community, providing instant reading of a motorist’s blood-alcohol level. The devices were funded through a grant from the California Office of Traffic Safety through the National Highway Traffic Safety Administration. Officers were given about four hours of training on the devices before being sent out into the field.

     Attorney Mindy McQueen, who specializes in DUI cases, said Breathalyzer devices have never been infallible. She said the technology to make the devices faster, smaller and more economical has resulted in manufacturer design flaws.”These machines have never been infallible and that’s something that defense attorneys have tried to point out for years,” said McQueen, a member of the California DUI Attorneys Association.

     Pentis said the machines passed stringent testing before they were put to use. He said an officer in the field discovered the problem, reported it immediately, and the machines were pulled out and tested. Apparently temperature played a part in the false readings. Pentis said the only way the sheriff’s crime laboratory could duplicate the flaw in the Alco-Sensor V was to put it into a freezer. Pentis said the Alco-Sensor must be 100 percent accurate before it will be used by law enforcement. He did not explain why it was put into use when it was clearly not 100 percent accurate.

     Cummins said the Public Defender’s Office will move to have the convictions dismissed in cases where there may have been blood-alcohol errors. But some people who were found guilty or pleaded guilty as a result of these false readings have already served jail time, paid thousands of dollars in fines and have done community service as part of the conviction, Cummins noted. Also, harsher penalties are meted out to motorists who blow a .15 percent blood-alcohol level, said Cummins. In California, a blood-alcohol reading of .08 is considered the benchmark for being legally intoxicated.

Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website
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Former MADD president charged with DUI

April 4th, 2011 Richard Blevins Posted in Uncategorized | No Comments »

A former MADD chapter president in Gainesville, FL was charged with DUI, see news article.  Debra Oberlin, 48, was arrested around 1:00 a.m. February 18 after police say the car she was driving was swerving on Northwest 39th Street. According to the arrest report she was given two breathalyzer tests and measured .234 and .239. The limit in Florida is .08.  Written by Richard N. Blevins, Jr.

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Driving While under the Influence of Drugs

March 27th, 2011 Richard Blevins Posted in Driving under the Influence of Drugs, Field Sobriety Tests | No Comments »

In Georgia you can be arrested and prosecuted for driving a motor vehicle under the influence of drugs.  Some law enforcement officers have completed the Advanced Roadside Impaired Driving Enforcement (A.R.I.D.E.) course and are trained to conduct additional tests to determine if someone should be arrested for operating a vehicle under the influence of drugs.  I just completed the course, the same one that law enforcement officer complete in their training.  I learned about the three additional tests that are used on the roadside to determine if someone is under the influence of a drug.  Drugs are broken down into seven categories:  CNS Depressants, CNS Stimulants, Hallucinogens, Dissociative Anesthetics, Narcotic Analgesics, Inhalants, and Cannabis.To test for a subject for operating a vehicle DUI-Drugs, the look at general indicators and place them into a matrix to determine what drug you are under the influence of.   They are required to administer the Horizontal Gaze Nystagmus (HGN), Vertical Gaze Nystagmus (VGN), Walk and Turn and One Leg Stand tests.  Next they perform three more evaluations:  Pupil Size Observation, Lack of Convergence and the Romberg Balance Test.  Written by Richard N. Blevins, visit my website.

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Hundreds of Breath Tests Tossed in Philadelphia

March 12th, 2011 Allen Trapp Posted in Current Events, Breath Tests | No Comments »

Dozens of DUI cases in Philadelphia will be re-tried because of a bad breathalyzer, officials announced on March 9th.  Prosecutors have conceded that at least one of the breath testing devices used in the city was showing incorrect blood alcohol levels.

The district attorney’s office has agreed that in cases where people were found guilty solely because of the test (sounds like only guilty pleas to us), they will get a new trial.  In cases where other evidence was obtained, such as witness testimony (any case that ever went to trial?) or a blood test, the defendants would not be affected by this development.  The problem could affect about 200 convictions.

As of this date we have not been able to determine the exact nature of the problem with Philadelphia’s breath testing device.  We will update this post if more details come to our attention. 
Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

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