Georgia DUI Blog

     The problems with mouth alcohol in breath testing are well known.  The screening devices used at roadside by police officers in Georgia are incapable of detecting mouth alcohol since they are not even programmed with slope detection capabilities.  Supposedly, the Intoxilyzer 5000, which is used for evidential breath alcohol tests in Georgia, is different.

     In cases where dental appliances are not removed from a subject’s mouth before breath testing, a small amount of alcohol can remain under the dentures or other device.  If food particles are trapped, it is also possible that some of the alcohol will be absorbed into the food particles.  In either case the elimination of this alcohol during the twenty minute observation period (which is only a suggestion in Georgia) will not be complete and will cause an elevated reading on the Intoxilyzer 5000. 

     In one experiment a man with both upper and lower dentures registered a BrAC of .00 when the experiment began.  After swishing with alcohol and waiting for 20 minutes, the tests were indeed flagged as “invalid samples,” which means that the machine detected mouth alcohol.  Both the dentures and mouth were then rinsed with water.  Approximately sixteen minutes later he was tested again using the same protocol, and the results were .029 and .021.  After rinsing the mouth and dentures yet again and then submitting to another sequence of breath tests, the results were .038 and .17 less than one minute apart.  At the beginning of each testing sequence a baseline BrAC of .00 was obtained before swishing the alcohol.

     Additional testing has confirmed these findings.  Elevated breath alcohol results were consistently reported without the detection of mouth alcohol when people talked and breathed normally during the “observation period.”  Most significantly, there was no decrease between the two test results in the sequence as would be expected with mouth alcohol.  These observations make it fairly certain that breath alcohol tests results may be inflated when an individual has dentures or other significant dental work, such as a bridge, in his or her mouth.

 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

    

     Linearity is determined by testing known samples of various concentrations, which should ensure that the tests of other samples of unknown concentrations should yield accurate results.  Linearity enables an analyst to have confidence in the results of a particular test based on the results of other tests.  For example, if a known alcohol concentration of .10 is determined to be .10 and a known concentration of .20 is determined to be .20, this greatly increases the likelihood that a reading of .15 is accurate.

     In most cases the linearity of a gas chromatograph is checked at the beginning of each set of tests (a “run”) by injecting calibrators of varying amounts in the GC.  By plotting the amount of each calibrator versus their relative instrument responses, a linear relationship may be established.  The concept of linearity is associated with the “range” of the instrument, which is the interval between the highest and lowest concentrations that have been determined to be not only linear but accurate and precise.  Accuracy means that the testing device has correctly determined the true result, while precision is the ability of the instrument to replicate the test result.

     It is generally agreed that good laboratory practice requires the use of six calibrators spanning the range of 50 to 150% of the expected range of results the analyst expects to encounter in typical cases.   In other words, the concentration of the calibrators should be such that they bracket the anticipated concentration of the specimen.   The Laboratory Guidelines of the Society of Forensic Toxicologists recommends “at least three calibrators.”  If any result exceeds the range, the substance being tested should be diluted and retested.  If the concentration of the specimen is less than that of the lowest calibrator, in most cases an additional calibrator below the expected range of the analyte in the sample should be set up. 

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

Melendez-Diaz v. Massachusetts was decided today by the United States Supreme Court.  This much anticipated opinion clears up the debate about whether certificates prepared by a lab technician or similar person are admissible against a defendant in trial without the witness being present to actually testify about what the certificate says.It is very clear that lab reports are produced in anticipation of trial and they are in fact “testimonial” as defined by Crawford v. Washington and Davis v. Alaska.  Those cases hold that the defendant has the right to confront the witnesses against him and that testimonial evidence shall not be admissible unless the witness is “unavailable” and the defendant has previously had the right to cross-examine the witness.Justice Scalia delivered the opinion of the court and was joined by Stevens, Souter, Thomas and Ginsburg.  Justice Kennedy wrote the dissent and was joined by Roberts, Alito, and Breyer.  The dissent argues that these reports should be exempt from the confrontation because they are not normal witnesses, they are neutral scientists.  Justice Scalia does a masterful job of demonstrating what a bunch of garbage that is.

 “Nor is it evident that what respondent calls “neutral scientific testing” is as neutral or as reliable as respondent suggests. Forensic evidence is not uniquely immune from the risk of manipulation. According to a recent study conducted under the auspices of the National Academy of Sciences, “[t]he majority of [laboratories producing forensic evidence] are administered by law enforcement agencies, such as police departments, where the laboratory administrator reports to the head of the agency.” National Research Council of the National Academies, Strengthening Forensic Science in the United States: A Path Forward 6–1 (Prepublication Copy Feb. 2009) (hereinafter National Academy Report). And “[b]ecause forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, they sometimes face pressure to sacrifice appropriate methodology for the sake of expediency.”  A forensic analyst responding to a request from a law enforcement official may feel pressure—or have an incentive—to alter the evidence in a manner favorable to the prosecution.”

I really like the fact that Justice Scalia isn’t afraid to recognize that many times these “scientists” or other examiners are really playing for the home team.  Several other rationales for allowing this in without making the witnesses come were made by the dissent and all of them were shot down as well.  This really is simple…the defendant has the right to confront the witnesses against him so the prosecutor needs to bring them to court.Where do we go from here?  The court gave it’s blessing to two different ways to handle these witnesses.  Some states can require them in every case.  Some states have laws that makes the prosecutor give notice of intent to introduce the certificates and then the defendant has to object.  Either way will pass constitutional muster.As it relates to DUI cases, all blood and urine cases will need to have the witnesses from the lab there at trial.  Additionally, I believe that this case invalidates OCGA 40-6-392 (e) (1-3) and (f).  These statutes all deal with testimonial evidence that the defendant has the right to confront.The State had better bring the area supervisor to testify in their next breath test case if they want to get those certificates in.  All lawyers need to read this case and be able to articulate the proper objections.

Donte Stallworth who was arrested March 14, 2009 for DUI manslaughter in Miami has pled Guilty to the charges against him.  This brings closure to the victim’s family and they have been kept in the loop and given their blessing to the sentence.  Mr. Stallworth will receive the following:

1. 30 days of jailtime
2. A LIFETIME license suspension
3. 2 years of house arrest
4. 8 years of probation
5. 1000 hours of community service
6. Alcohol and Drug Counseling

This may sound like a light sentence for the charge, but it is actually quite serious and very much is an appropriate sentence fashioned by people that know the facts of the case much better than of the talking heads on TV or MADD.  There was a lot of mitigation that I am sure played a big part in the outcome.

1. He stopped immediately.
2. He called the police.
3. He admitted he hit the man.
4. He cooperated with the investigation.
5. He took full responsibility.
6. He has compensated the family saving them the long drawn out civil case.
7. The man ran out in front of him apparently trying to catch a bus.
8. The man was not in a crosswalk.
9. He has no criminal history.

The simple truth is that the prosecution may not have been able to prove causation in this case.  Simply put, they had a strong DUI case, but couldn’t necessarily prove that the DUI was the cause of death.  A sober driver in that same spot may have killed him too.  The strength of the case is one of the primary factors considered in plea negotiations and I suspect it weighed heavily here too.

If the prosecutor had insisted on years in jail, then the case would have most certainly gone to trial.  This would have caused more harm to the family and potentially more harm to Donte Stallworth.  The prosecutor would have been between a rock and a hard place, with a mediocre case at best.  That kind of “all or nothing” situation is rarely good for anyone.  I think they did the right thing in the nature of a compromise.

From a public relations standpoint, Donte Stallworth and his lawyers have done a marvelous job  putting this to rest in just a few short months. He has been suspended from the NFL and may never play again, we will see.  It’s a sad case.  There are no winners here.  There is no celebrity treatment here.  However, all these folks that think they know to best run the legal system, need to go to lawschool, sit for the bar exam, then go out and change the world.  Until then, I wish they would leave the legal business to those that know it best…the prosecutor, the defense lawyer and the judge.

Today, the Georgia Supreme Court issued this opinion striking down Georgia’s statute on improper left turns.  Since the statute is vague and can be read in two opposing ways, it fails to give fair warning of what conduct is illegal.

My friend Mark Stevens in New Hampshire writes this timely post before Memorial Day weekend.

Hello everyone.

Your chances of having an unwanted encounter with the police this Memorial Day weekend are higher than ever before. That is because the government has issued massive money for roadblocks and saturation patrols. The problem with that strategy is that roadblocks do not usually lead to many real DWI arrests. Typically, the police have to stop about 100 cars to hope to find one person who they even SUSPECT of DWI. What they end up citing though are lots of other motor vehicle arrests, people with warrants and the like so they can report “SIX ARRESTED AT DWI CHECKPOINT”, etc. If you peel back the onion you will find that only one or two were DWI arrests, and the rest were a flotsam and jetsam of sundry motor vehicle code offenses or benign inspection violations. Some points that might be helpful to bear in mind if you drive at night over this weekend are:

1. Make Sure Your Inspection Stickers and Registrations Are Valid. An important reminder if you are driving this weekend is to make sure that your car has a valid inspection sticker, as well as a valid registration. When you drive into a roadblock, or even drive by the police this weekend without a valid inspection sticker you can count on being stopped and hassled. Like all the motor vehicle code, the police often co-opt this to see if you have been drinking or have drugs in your car. The penalty for a violation of this section of the motor vehicle code is $60, but the real penalty is when the police smell alcohol or suspect that you have been drinking after stopping you for the lack of an inspection sticker. Many drivers who are initially stopped for this minor violation end up charged with DWI, DUI or OUI. AVOID one potential for this by making sure your inspection stickers are up to date.

2. Make Sure Your Plate Lights and Other Lights Work. Everyone driving at night should check their brake lights, plate lights, and other lighting, as well as their inspection stickers and license plates, to avoid some unwanted interaction with police. The cheesiest of motor vehicle stops begin with a passive equipment violation such as those I’ve just mentioned. In these types of stops, the driver is not exhibiting any signs of impairment. The driver may be obeying the speed limit, maintaining appropriate lane control, and otherwise following every rule of the road, but he finds himself in the flashing blue glow of police lighting wondering why he was stopped.

This high number of stops for equipment violations in recent years is not because the police have taken a sudden interest in the functioning of plate lights, or their concern for whether drivers are using turn signals late at night when there is no one else on the road to signal. Rather, the police have a broader goal: the police have co-opted the motor vehicle code to fight the war on drugs, and many DWI arrests ensue after these stops when the police can’t find any drugs after the stop.

Avoid giving the police some of these chances to legally stop you by making sure that all your lights are functioning, your registration and inspection stickers are up to date, and your license is valid.

PREPARATION FOR THIS WORST CASE SCENARIO. It is not a bad idea to prepare for this event. Have your license and registration in an easy place to find and an easy place to quickly and effortlessly produce upon demand. Don’t put your license in a difficult spot to pull it out quickly when you need to. Practice taking your license out of your wallet in the safety of your home. CONSIDER GETTING A REGISTRATION HOLDER TO KEEP YOUR VEHICLE REGISTRATION IN. If you do not have one send me an email with your mailing address and I will send you a registration holder for every one of your vehicles free of charge. Then practice producing your license and registration fairly frequently. It will make it easier to do if you ever have to produce them under a pressurized roadside situation.

Have a safe weekend,

Mark Stevens

http://www.ByeByeDWI.com

“Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.”

U.S. v. Wade, 388 U.S. 218, at 256-258 (1967), Justice White, concurring and dissenting.

Rob Leonard is DUI lawyer practicing in Cobb County, Georgia. He is certified as a field sobriety testing instructor and as an evidentiary breath alcohol technician. Visit Rob's Website

     If there is no anti-clotting agent in a tube used to collect blood, the blood will clot (due to the presence of fibrinogen in the blood). Upon centrifugation of the tube, the clear yellow liquid at the top is called serum and contains little or no fibrinogen because the fibrinogen has been used up in the clotting of the blood cells. A sample of the serum can then be removed for analysis of its serum alcohol concentration.

     If there is an anti-clotting agent in the tube, the blood should not clot if properly mixed (tube inverted a few times). The tube can then be either shaken and a sample of the whole blood can be then be removed for analysis of its blood alcohol concentration, or the tube can be centrifuged. Upon centrifugation of the tube, the clear yellow liquid at the top is call plasma and contains about 0.34 grams of fibrinogen per 100 mL of plasma. A sample of the plasma can then be removed for analysis of its plasma alcohol concentration.

     Because serum and plasma only differ by the absence or the presence of a trace amount of the fibrinogen protein, the serum alcohol concentration and the plasma alcohol concentration should be essentially identical. However, due to their higher water content than whole blood, the alcohol concentration in either serum or plasma should be about 18% greater on average than the actual whole blood alcohol concentration.No lab would try to measure the alcohol concentration in a blood clot which, because of its relatively low water content, would theoretically be relatively low in alcohol concentration compared to the whole blood alcohol concentration.

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

     Infrared breath testing devices such as the Intoxilyzer 5000 rely on certain assumptions.   Since a report of the National Safety Council in 1952 it has been assumed that there is a constant 2100:1 ratio between the amount of alcohol in the blood versus the amount in a person’s breath.  Similarly, it has been assumed that the average temperature of expelled human breath is 34 degrees centigrade.

World class researchers such as A.W. Jones have consistently found that breath temperature variability affects test results.  The Fox and Hayward study published in he Journal of Forensic Sciences demonstrated that for every one degree increase in core body temperature a person’s breath alcohol concentration would increase by 8.6 percent.  In the mid-1990’s three studies of hundreds of individuals found that the average breath temperature was 35, 35.1, and 34.9 degrees respectively, for an overall average of 35 degrees.  Therefore, it appears that an “average” person whose breath  measured by an Inotoxilyzer 5000 is .087 has, according to these studies,  a blood alcohol concentration of .079, even if you ignore every other confounding factor except breath temperature.

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

     The Minnesota Supreme Court issued a “split decision” in two Intoxilyzer source code cases today. However, the minimal showing required for disclosure of the source code augurs well for future defense efforts.

     In State v. Underdahl the Supreme Court ruled that the district court abused its discretion in finding the source code relevant and related to his guilt or innocence. Underdahl made no threshold evidentiary showing whatsoever; while he argued that challenging the validity of the Intoxilyzer was the only way for him to dispute the charges against him, he failed to demonstrate how the source code would help him do so. He advanced no theories on how the source code “could be related to [his] defense or why the [source code] was reasonably likely to contain information related to the case.”

     State v. Brunner, however, yielded a different result. This defendant submitted source code definitions, written testimony of a computer science professor that explained issues surrounding the source codes and their disclosure, and an example of a breath test machine analysis and its potential defects. Brunner’s submissions showed that an analysis of the source code may reveal deficiencies that could challenge the reliability of the Intoxilyzer and, in turn, would relate to his guilt or innocence. Therefore, the Supreme Court held that the district court in Brunner’s case did not abuse its discretion in concluding that the source code may relate to his guilt or innocence.

     The Court also considered whether the district courts’ findings that the State had possession or control of the source code were clearly erroneous. The Minnesota Rules of Criminal Procedure require prosecuting attorneys to assist the defendant in seeking access to matters that are within the “possession or control” of the State. Both district courts had found that the State is the owner of the source code for the Minnesota model of the Intoxilyzer 5000EN, relying on the request for proposal (RFP) issued by the State when replacing the previous version of its breath-test instrument. The Supreme Court found that the source code was effectively in the possession or control of the state.

     As the law now stands in Minnesota, the defendant must make a minimal showing in order to obtain an order requiring the State to produce the source code. The remedy in per se cases, including the Minnesota version of “extreme DUI”, will be dismissal, with suppression the likely remedy in “less safe” cases. Will the State comply? Will CMI cooperate? Stay tuned.

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

Arizona v. Gant - Click here to read the full opinion.Today the U.S. Supreme Court limited the circumstances under which officers may search the passenger compartment of a vehicle after it’s driver had been arrested.  The Court ruled that an officer can only search a vehicle if it is for officer safety or if there is reason to believe that there is evidence in the car that relates to the crime which the driver was arrested for.The searches that we are talking about here are called searches incident to arrest.  Don’t confuse this with an inventory search, which is done whenever a vehicle is impounded.The practical application of this case will be moderate, but this isn’t a huge opinion for most people that get arrested.  People that have a sober passenger to drive the car, can turn the car over to them and avoid the inventory search.  If there is somebody that can come pick up the vehicle, that would work too.If the officers want to get around this, all they have to do is start towing every vehicle and do inventory searches instead of searches incident to arrest.  I guess I am a cynic.

SPRING HILL - Authorities made several DUI arrests over the weekend, including a woman who bared her chest to a deputy and a suspect who crashed head-on into a parked car.

The weekend started around 9 p.m. Friday when a deputy was sent to the intersection of Cortez Boulevard and Commercial Way to investigate multiple reports of a reckless driver.

On arrival, the deputy saw traffic driving around a black Mercedes stopped at the intersection. The car was pulled over at Commercial Way and Country Lane and as the deputy stepped out of his cruiser, he noticed the Mercedes was in reverse gear.

Despite the deputy’s shouts to “stop,” the Mercedes continued its path into the cruiser’s front bumper. As the car’s driver, Tina Lopez, 49, stepped out of the car, she grabbed the deputy’s arm multiple times to keep her balance, according to a report.

Lopez showed other signs of intoxication, so she was asked to perform field sobriety tests, which she reportedly failed. The suspect was arrested on suspicion of DUI and, while the deputy waited for backup, “felt it necessary” to expose her chest, a report states.

She was taken to the county jail on charges of DUI and DUI with property damage, where she reportedly supplied a blood alcohol level of .111 and .108. Florida law presumes intoxication at .08.

On Saturday, shortly before 1 a.m., a deputy performing an off duty detail pulled over a car on Commercial Way for reportedly traveling 83 mph in a 60 mph zone.

A traffic deputy performed field sobriety tests on the car’s driver, Janice Adcock, 49, which indicated she was impaired, according to a report.

Adcock was taken to jail on suspicion of DUI, where she reportedly provided a blood alcohol level of .169 and .165.

Two hours later, in Brooksville, a resident of Oak Street was startled awake when a motorist crashed into a parked car. The witness stepped outside to find the driver, later identified by police as Ian Darby, passed out behind the wheel.

Police determined that Darby had driven west instead of east on the one-way street at the time of the collision, which caused “major” damage.

Darby, 26, was arrested on a charge of DUI with property damage.

http://news.yahoo.com/s/ap/20090331/ap_on_fe_st/odd_bar_stool_dui;_ylt=At0Y0×70vCM4zD6ouscmhMHtiBIF

Authorities in Ohio say a man has been charged with drunken driving after crashing his motorized bar stool. Police inNewark, 30 miles east of Columbus, say when they responded to a report of a crash with injuries on March 4, they found a man who had wrecked a bar stool powered by a deconstructed lawn mower.

Twenty-eight-year Kile Wygle was hospitalized for minor injuries. Police say he was charged with operating a vehicle while intoxicated after he told an officer at the hospital that he had consumed 15 beers. Wygle told police his motorized bar stool can go up to 38 mph.

Wygle has pleaded not guilty and has requested a jury trial.

     The first step in the blood collection process is decontamination of the area where the blood will be drawn.  In clinical use a prepackaged 70% isopropyl alcohol pad is the preferred antiseptic.  However, Betadine (povidone-iodine) is the swab of choice for forensic blood draws.  If Betadine is used, it must be allowed to dry prior to the puncture.  Studies have shown that sloppy swabbing of an injection site will increase a blood alcohol concentration.

     Most forensic laboratories purchase 10 milliliter gray top tubes containing 100 mg. sodium floride, a preservative, and 20 mg. potassium oxalate, an anti-coagulant.  Therefore, when 10 ml. of blood is drawn, the concentration of preservative is one percent.  A tube with an anti-coagulant should be inverted at least eight times (eight to ten is usually recommended).  If this is not done, the anti-coagulant will not properly mix, resulting in a low concentration, which in turn can lead to microclotting and an inaccurate result.

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

    

   

Since January 14, 2009 when the Georgia Court of Appeals decided State v. Rish (A08A1922), Prosecutors have been jumping for joy and defense lawyers have felt like the sky is falling.

 

The sky is not falling, chicken little, but DUI defense has been dealt a blow as it relates to Motions to Suppress for lack of probable cause.  However, this case has been a bit over exaggerated by those that have not read it closely.

 

Background:

The trial court granted Rish’s Motion to Suppress for lack of probable cause and the State Appealed.  The Court of Appeals then affirmed the trial court’s ruling as it relates to the DUI less safe count, but went on to find that there was probable cause for a DUI per se arrest.

 

The Facts:

On June, 24 2007, the Early County 911 call center received a call about a customer that smelled of alcohol and was behaving erratically.  This customer was leaving a Subway restaurant and the caller gave a description of the car he was driving as well as the boat he was towing and his license plate number.

 

Deputy Morgan arrived at the restaurant and observed the vehicle in question and began to follow it down the road.  The deputy initiated a traffic stop approximately five minutes later for Failure to Maintain Lane after he observed the car “weave within its lane” and after the trailer’s right tire ran off the road.

 

Rish admitted to the deputy that he had consumed 3 to 4 alcoholic beverages earlier, with the last one being 30 minutes before the traffic stop.  The deputy asked Mr. Rish to take an alco-sensor, which is a brand of preliminary breath testing device.  He took the test and was arrested for DUI.

 

The Ruling:

The three-Judge panel of the Court of Appeals (Miller, Blackburn and Ellington) reversed the trial court’s ruling and found that there was probable cause to support an arrest for DUI Per Se (a BAC of over .08 grams).  Specifically, the court mentions that the two alco-sensor tests on the side of the road “were over .08” and that can be considered by police officers to determine if there is probable cause.

 

Some Important Things to point out:

1. This case DOES NOT hold that alco-sensor numerical results are admissible for any purpose.
2. This opinion does not mention how or why the record reflects that the results of the alco-sensor “were over .08.”  State v. Holler (224 Ga. App. 66) is still good law as far as I can tell.  The lawyer should always object to any mention of the results of the alco-sensor that goes beyond whether or not it was positive or negative for the presence of alcohol.  I suspect the lawyer did not object to the statements regarding the alco-sensor.
3. The numbers mentioned in Footnote 1 are Intoxilyzer results, NOT alco-sensor results.
4. The Court cites Kellogg v. State, 288 Ga. App. 265, 270 (2007), for the proposition that in determining whether or not probable cause exists for a DUI per se case, the factors to be considered may include the suspect’s admission to drinking and the results of an alco-sensor.  HOWEVER, the Kellogg case DID NOT admit the numerical results the alco-sensor, only that it was positive for the presence of alcohol.  It should also be noted that they were dealing with the lower per se limit of .02 in that case since Mr. Kellogg was under 21.

 

Summing up:

I think it is pretty clear that Rish is wrongly decided and this panel’s reliance on Kellogg is misplaced.  The Court completely ignored well settled law on alco-sensors, which are very unreliable to begin with.  ALWAYS object to the numerical results of an alco-sensor.  Always object to any statement about the results that goes beyond positive or negative.  A statement that says it was “high” or “over .08” is also objectionable.

 

Note:  I have it on good authority that a motion for reconsideration on these issues has been filed.  I will keep you informed of what happens.

 

 

Rob Leonard is DUI lawyer practicing in Cobb County, Georgia. He is certified as a field sobriety testing instructor and as an evidentiary breath alcohol technician. Visit Rob's Website

     Urine samples are usually tested for drugs by using a screening test followed by gas chromatography-mass spectroscopy (GCMS).  The screening test is normally an enzymatic method of analysis that determines if the “signal strength” is at or above a cut-off level.  These tests employ reagents that interact with several different but related compounds (e.g., metabolites) and measure the total “signal strength” of all those compounds. 

     GCMS should be able to identify both the parent drug and any metabolite(s).  If a parent drug is identified, the metabolite should also be present.  For example, if a urine sample is positive for methamphetamine, it should also be positive for amphetamine. 

     In order for a test result to be reported as positive the amount of a compound should equal or exceed the cut-off level.  If the cut-off limit for the GCMS is not met, the result should be reported as negative.   In other words, sound science dictates that reports reading “lower than the lowest calibrator” should not be reported as positive.

     One final word about metabolites: Most metabolites are less psychoactive than the parent drug or are inactive, which means that they have no impact on the person.  If only an inactive metabolite such as carboxy THC is found in a urine sample, the metabolite did not affect driving. 

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

     We are seeing more arrests for DUI where the breath alcohol concentration is not consistent with the manifestations of impairment described in the arrest report or captured on video.  In some, but not all of these cases, the culprit is detected by a blood test, and that culprit is some drug other than alcohol that the client has consumed.  As more and more people take selective serotonin reuptake inhibitors (SSRI’s) such as Paxil and Prozac, we will see more and more of these cases.

     Alcohol and many drugs do not simply have an additive effect; they have a synergistic effect.  That is to say that the effects of the two substances are not merely added together but are essentially multiplied.  When even an adult dose of acetaminophen may produce impairment equivalent to a BAC of .05, it is not difficult to understand how prescription medications combined with alcohol can cause serious impairment. 

     One of the other commonly abused drugs is oxycodone.  It is the narcotic found in Percoset (with acetaminophen) and Percodan (with aspirin).  It is a synthetic opioid and like its natural cousins can cause addiction and then withdrawal symptoms. 

     When we represent an individual with these drugs in his or her system at the time of arrest, it is almost always necessary to retain a pharmacologist or toxicologist.  Otherwise, an employee of the state crime lab will be the only “expert” in the courtroom, and that employee’s testimony, if unrefuted, will seal the defendant’s fate. 

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

     One of the assumptions upon which breath alcohol testing has rested since the 1950’s is the belief that the instruments measure “deep lung” or alveolar air.  This outdated assumption has been eroded as research over the past two decades has yielded a greater understanding of the exchange of highly soluble gases by the lungs.  No longer can it be assumed that alveolar air is in equilibrium with blood alcohol simply because the breath test reading reaches a plateau. 

     The findings of Dr. Michael Hlastala of the University of Washington confirm that during inspiration the relatively cool and dry air being inhaled becomes warmer and absorbs liquid in the airways.  This air also absorbs soluble gas dissolved in the airway tissue.  During exhalation the air is cooled and dehumified.   The alcohol present in a breath sample comes entirely from the lining of the airways.  This mucus and tissue, not the blood in the lower part of the lungs, is the source of “breath alcohol concentrations.”

     Further research has shown that breath alcohol concentration continues to rise as a person exhales until he or she cannot exhale any longer, which causes the flattening or plateau of the breath alcohol concentration.   It has also been confirmed that the average directly measured partition coefficient for alcohol in blood at 98.6 degrees Fahrenheit is 1756:1, not  2100:1 as asssumed by the Intoxilyzer 5000.   Also of significance is the discovery that an increase in exhaled volume beyond the minimum required by a breath testing instrument results in an increased breath alcohol reading and a decreased blood to breath partition ratio.  For those with smaller lung capacity, these findings also have negative consequences because a greater portion of their vital capacity (maximum volume of air that can be inhaled and exhaled) is necessary in order to generate a printed result.  On the other hand, those with larger lungs will benefit from an unfair advantage. 

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

     Ethanol or ethyl alcohol contains two carbon atoms linked to hydrogen atoms (methyl groups) and one oxygen atom linked to a hydrogen atom (hydroxyl group).  Most infrared breath testing devices rely upon the absorption of light at the 3.39 and 3.48 micron wavelengths, which are characteristic of the carbon-hydrogen bond,  for the determination of breath alcohol concentration.   However, at these wavelengths the infrared energy will be absorbed by many organic molecules containing carbon atoms bonded to hydrogen atoms, including hexane, toluene, and methyl ethyl ketone. 

     Experiments have shown that the Intoxilyzer 5000 will report these substances as ethyl alcohol and will print what purports to be a breath alcohol concentration.  In other words, the results for substances other than ethyl alcohol are reported as alcohol.  The research leaves little doubt that the instrument simply cannot distinguish the different alcohols from each other.   The numerical results are always reported as grams of alcohol per 210 liters of breath even when there is no ethanol in the breath sample.  

     The results for these interfering substances once again demonstrate the non-specificity of the Intoxilyzer 5000 and any other breath analyzer that relies on the the absorption of energy by the carbon-hydrogen bond in the 3.39 and 3.48 micron range.   

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

CHICAGO – Motorists convicted of driving drunk will have to install breath-monitoring gadgets in their cars under new laws taking effect in six states this week.

The ignition interlocks prevent engines from starting until drivers blow into the alcohol detectors to prove they’re sober.

Alaska, Colorado, Illinois, Nebraska and Washington state began Jan. 1 requiring the devices on all motorists convicted of first-time drunken driving. South Carolina began Thursday requiring them for repeat offenders.

Mothers Against Drunk Driving has been conducting a nationwide campaign to mandate ignition locks for anyone convicted of drunken driving, claiming doing so would save thousands of lives. But critics say interlocks could lead to measures that restrict alcohol policies too much.

Users must pay for the fist-sized devices, which in Illinois cost around $80 to install on dashboards and $80 a month to rent; there’s also a $30 monthly state fee. They also require periodic retesting while the car is running.

“It’s amazingly inconvenient,” said David Malham, of the Illinois chapter of MADD. “But the flip side of the inconvenience is death.”

Other states with similar laws include New Mexico, Arizona and Louisiana. Most other states give judges the option of forcing convicted drunk drivers to use the devices. In practice though, they are rarely ordered unless laws mandate them, according to MADD.

Until now, that’s been true in Illinois, said MADD national CEO Chuck Hurley.

“Illinois has excellent law enforcement,” he said. “But the judicial system leaks like a sieve. This law will change the catch and release system to one where people are at least caught and tagged.”

In Illinois, the interlocks are mandated only for the five to 11 months licenses are suspended with a first DUI. Drivers can opt not to install them, but then would be banned from driving at all during the suspension period.

Motorists in Colorado get a similar choice — install the devices or get a longer suspension.

The law taking effect in Washington state actually relaxes penalties on drunk drivers, allowing them to avoid a previously mandatory license suspension by getting an interlock. The bill’s author, Rep. Roger Goodman, said too many motorists were driving with suspended licenses.

Motorists could try skirt the devices by, say, having someone else blow into detector or driving someone else’s car. But if caught trying to circumvent the interlocks, they could go to jail.

Within a year, up to 30,000 first-time offenders in Illinois could be using them, state officials estimate.

New Mexico was the first state to mandate the devices in 2005. Since then, according to MADD, that state has seen its drunk-driving deaths fall 20 percent.

Hurley said other states could see the same percentage decline within a few years.

DUI deaths nationally have plummeted to around 15,000 from around 30,000 annually in the early 1980s.

Malham, who supports the technology, said in the future even more advanced technology will enable cars to effectively sniff car cabins, scan faces and eyes of drivers or even test sweat on steering wheels to assess sobriety before engines start.

Not everyone is as enthusiastic.

One of the staunchest critics of interlock laws for first-time offenders is the Washington, D.C.-based American Beverage Institute, a trade association representing restaurants and retailers.

ABI managing director Sarah Longwell said the group backs interlock laws targeting repeat offenders and those arrested with high blood-alcohol levels.

But she said laws advocated by MADD don’t allow judges to distinguish between those who have a few drinks and go just over the 0.08 blood-alcohol legal limit and those who go way over.

“We want sensible alcohol policies,” she said. “We want 10 people to be able to come in and have one drink and not one person to come in and have 10.”

She said current interlock laws could lead to more draconian measures.

“We foresee is a country in which you’re no longer able to have a glass of wine, drink a beer at a ball game or enjoy a champagne toast at a wedding,” she said. “There will be a de facto zero tolerance policy imposed on people by their cars.”

She argued that MADD puts too much emphasis on links between alcohol and traffic deaths, giving too little regard to the roles excessive speed and driver cell-phone use in deadly accidents.

Proponents of interlock laws say studies back their approach. They cite a 2008 study by the Pacific Institute for Research and Evaluation that found interlock devices in New Mexico helped decrease repeat offenses by approximately two-thirds.

MADD also points to figures showing one-third of all drunk drivers have a prior DUI conviction.

The American Beverage Institute questions studies cited by advocates, saying they other factors, like education programs, also account for the declines.

Malham concedes Illinois’ new law isn’t perfect. For one, it only applies to drivers during relatively short license-suspension periods.

“But perfection can’t be the enemy of the good, to quote (18th century philosopher) Voltaire,” he said. “I’d like to see more teeth in the law in the future. But this is a start.”