Georgia DUI Blog

     Something we are seeing more frequently in gas chromatograms, the charts that show how much of certain substances were found in a person’s blood by the state crime lab, is the presence of acetone.  Sometimes, the crime lab actually reports the amount of acetone in their two-page summary, which is all that most prosecutors or defense attorneys ever see, but more often than not they don’t.  We have also seen a number of tests with isopropyl alcohol present in the blood.

When acetone and isopropyl alcohol are present, it means that the person is probably an uncontrolled diabetic.  Acetone alone is also indicative of this problem.  So what impact does diabetes have on a blood test?  It means that the person has an elvated glucose (sugar) level in the blood, and that sugar with just a little help from an organism known as candida albicans will be fermented into alcohol.  In other words, the sugar in the blood of an uncontrolled (and sometimes undiagnosed) diabetic will be converted to alcohol, which will result in an erroneously high result.  The blood alcohol level reported will not be adjusted to reflect the incrcrease in the amount of alcohol in the blood caused by the endogenous production of alcohol.

The bottom line is that innocent people will be convicted.  An attorney who knows what to look for and a highly qualified forensic toxicologist who knows how to find it are your best protection.
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

     Whole blood is comprised of red and white blood cells, platelets and other clotting and cellular material, dissolved salts, amino acids, fats, and water.  Those solid materials are frequently referred to as “hematocrit.”  The hematocrit level is, therefore, the percentage of the total volume of blood taken up by the solid particles.  Determining a person’s hematocrit level at the time the blood is drawn is the only way to know what the correct conversion ratio is for the person who was tested at the time of the blood alcohol test.

     The average hematocrit for men is 47% with a “normal” range between 42% and 52%.  The average for women is 42% with a range from 37% to 47%.  Studies have shown, however, that over time an individual’s hematocrit can vary by up to 15%. 

     In general, the higher the hematocrit level, the higher the reported blood alcohol concentration in a serum or plasma test, which is the kind most frequently encountered in a hospital setting.  The higher someone’s hematocrit level, the less liquid we can expect to find in their blood.  Since the alcohol will migrate or remain with the liquid portion of the blood, a person with a higher hematocrit will have a higher blood alcohol test result when that blood alcohol test is a plasma or serum test performed in a hospital. 

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

     As far back as the 1930’s it was recognized that re-eqilibration of the alcohol and breath occurs at the lower temperature (as opposed to core body temperature) of the upper respiratory tract during expiration in such a manner that temperature controls the alcohol content of the expired alveolar air.  In the earliest “drunk-o-meter” invented by Professor Rolla Harger of Indiana University it was assumed that 61.5% of the collected breath sample was alveolar air and that 2100:1 was the appropriate partition ratio.  Partition ratio in this instance refers to the amount of alcohol in the blood compared to the amount in the breath.

     During a twenty-year period he and his colleagues conducted numerous experiments, which confirmed that the partition ratio varies at different temperatures.  In other words, breath alcohol test results will be different at different temperatures.  During all of this testing it was assumed that the average expired breath temperature was 34 degrees centigrade (Celsius), which in turn led to the conclusion that the average blood:breath partition ratio for breath alcohol testing is 2100:1.  The National Safety Council adopted this number in 1952, and so it has become engraved in the statutes of the several states over the last half century. 

     Researchers have questioned the use of a constant breath temperature and partition ratio since at least 1975.  Beginning in that year leader experts in the field began to question whether airway alcohol exchange played a bigger role in breath alcohol testing than was previously recognized.  More and more research has proven that the average expired breath temperature is closer to 35 degrees Celsius, including the German study of 1995 and a similar study sponsored by the Alabama Department of Public Safety three years later.

     As a result of the Alabama study that state adopted the Draeger 7110, which makes an adjustment for an elevated breath temperature.  In fact, the Alabama testing sequence includes two breath samples (like Georgia), two methods of analysis for every breath test, specifically infrared and fuel cell (unlike Georgia), breath temperature monitoring and correction for each breath test (unlike Georgia), and two calibration checks at .02 and .08 at the time of each breath test (unlike Georgia).  In addition, a comprehensive data collection package including breath exhalation profiles was included in the software designed for Alabama DPS (unlike Georgia).  The downloaded data includes a total review of all breath tests in the State (unlike Georgia).   This enables the state to identify and address both instrumental and operational problems.  In Georgia there is a handwritten log on which officers may make entries, but nobody knows how often it is used or how often it is ignored. 

     The Alabama program is truly a model program other states should emulate.  Before switching to the Draeger, Alabama (like Georgia) used the Inoxilyzer 5000.  That makes me wonder: If it’s not good enough for Alabama, why are we still using it?

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 blood alcohol 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.  Therefore, even if a blood alcohol test is “precise,” that merely means that the testing instrument has printed the same result more than once.   As defense attorneys we concentrate on accuracy - whether it can be proven that a blood alcohol test result has determined the correct 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

     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 forensic testing laboratory would try to measure the alcohol concentration in a blood clot which, because of its relatively low water content, would 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

     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.  This is not just the wishful thinking of a defense attorney but is included in the instructions issued by the manufacturer of the blood alcohol collection tubes used in Georgia. 

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

    

   

     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

     A major issue with infrared breath testing devices is that they not only detect the ethyl alcohol found in alcoholic beverages but also in other substances that have a similar molecular structure. Stated differently, these devices identify any compound containing the methyl group molecular structure. And the issue with this is that more than one hundred compounds can be found in a human’s breath at any one time and 70% to 80% of these compounds contain the methyl group molecular structure. The consequence of this is that these methyl group molecular structures will be incorrectly identified and labeled as ethyl alcohol. Interestingly, the more ethyl group substances the breathalyzer detects, the higher the false blood alcohol content estimate will be.

     The National Highway Traffic Safety Administration (NHTSA) has found that people who are diabetics or dieters can have acetone levels that are hundreds, if not a thousand of times higher than people who are not diabetics or dieters. The key issue here is that acetone is one of the many substances that can be falsely detected as ethyl alcohol by some breathalyzers.

     There’s also a variety of products found in the environment that can lead to erroneous BAC results with these machines. Some of these products include substances or compounds found in cleaning fluids, celluloid, gasoline, paint removers, and in lacquers. Other common substances that can result in false BAC levels are alcohol, vomit, or blood in the person’s mouth. False BAC readings can also be caused from electrical interference, dirt, smoke, cell phones, police radios, moisture, and tobacco smoke.

     Infrared breath testing devices can be very sensitive to temperature and will result in false readings if they are not adjusted or recalibrated to compensate for ambient or surrounding air temperatures. Moreover, the temperature of the person being tested is also significant. More specifically, each degree (in Centigrade) in the subject’s body temperature above 34 C (98.6 Fahrenheit)  can result in a relatively large elevation (about 8.6%) in apparent BAC.

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

When the police arrest an individual for DUI and arrange for blood to be drawn by a nurse, phlebotomist or other qualified individual, it should in all cases in Georgia be taken from the suspect via a vacutainer.  Two vacutainers (vials with a seal or septum at the top) are included in each blood alcohol testing kit provided to police agencies in Georgia.  Each of these vials should contain two substances -sodium flouride, the  preservative, and potassium oxalate, an anticoagulent.  Each of these tubes will be  vacuum sealed, which explains why they are called vacutainers .

The vacutainers also have an expiration date, after which the vacuum seal is no longer warrantied.  The expiration date will be printed on the outside of the blood testing kit, which is basically a small cardboard box.  The truth is that only a very small handful of  phlebotomists or police officers ever pay any attention to the expiration date, because they are rarely challenged on the issue.  In addition, state crime lab personnel don’t confirm the the expiration date.

The manufacturer’s quality control procedures only require that one out of every four thousand vials be checked.  The bottome line is that there are at least three possible defects in the state’s blood test:

1. A failed septum (or seal) on one or both of the vials, which cannot be detected after the blood in a tube has been tested, because that vial has been opened.

2. Improper amount of sodium flouride in one or both of the tubes.  Since the vacutainers are rarely if ever refrigerated before being dropped off at the the Division of Forensic Sciences, the proper amount of preservative is critical. Either too much or too little can lead to a false high test result. 

3. Improper amount of potassium oxalate in either of the tubes. 

In the case of a defective seal organisms from the environment, such as candida albicans, can get in.  Unless there is enough sodium flouride in the vial, the organisms that may be in your client’s blood will grow. The most common of these is candida albicans, a yeastlike organism that has proven to be highly resistant to sodium floride. When candida albicans is in close proximity to glucose and a source of heat, it will create ethyl alcohol via fermentation.

Too much sodium flouride may cause “salting out”, which will also lead to a false high test result with headspace gas chromatography. This can occur even if there is no problem with the vacutainer, but the phlebotomist draws too little blood.

If there is not enough potassium oxalate, the blood can coagulate or “micro-coagulate” which is almost completly undectable. Because this changes the ratio of liquid to solid in the substance that is tested, and ethanol is water soluble, it can lead to a false high test result.

It can be virtually guaranteed that in any case involving a blood test the lab did not test for the presence of Candida Albicans, the lab did not check the vial seal, and the lab did not check the amount of sodium flouride or potassium oxalate in the tube.

If any of these occurred, you will in all likelihood have a false high blood alcohol concentration reported by the lab.

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

Substances that cause False Positive Drug Test Results

THC - Substances or Conditions which can cause false positives
Dronabinol (Marinol)
Ibuprofen; (Advil, Nuprin, Motrin, Excedrin IB etc)
Ketoprofen (Orudis KT)
Kidney infection (Kidney disease, diabetes) Liver Disease
Naproxen (Aleve)
Promethazine (Phenergan, Promethegan)
Riboflavin (B2, Hempseed Oil)

Amphetamines - Substances or Conditions which can cause false positives
Ephedrine, pseudoephedrine, propylephedrine, phenylephrine, or desoxyephedrine
(Nyquil, Contact, Sudafed, Allerest, Tavist-D, Dimetapp, etc)
Phenegan-D, Robitussin Cold and Flu, Vicks Nyquil
Over-the-counter diet aids with phenylpropanolamine (Dexatrim, Accutrim)
Over-the-counter nasal sprays (Vicks inhaler, Afrin)
Asthma medications (Marax, Bronkaid tablets, Primatine Tablets)
Prescription medications (Amfepramone, Cathne, Etafediabe, Morazone,phendimetrazine, phenmetrazine, benzphetamine, fenfluramine, dexfenfluramine,dexdenfluramine,Redux, mephentermine, Mesocarb, methoxyphenamine, phentermine,amineptine, Pholedrine, hydroymethamphetamine, Dexedrine, amifepramone, clobenzorex,fenproyorex, mefenorex, fenelylline, Didrex, dextroamphetamine, methphenidate, Ritalin,pemoline, Cylert, selegiline, Deprenyl, Eldepryl, Famprofazone) Kidney infection, kidney disease, Liver disease, diabetes

Opiates - Substances or Conditions which can cause false positives
Poppy Seeds
Tylenol with codeine
Most prescription pain medications
Cough suppressants with Dextromethorphan (DXM)
Nyquil
Kidney infection, Kidney Disease
Diabetes, Liver Disease

Ecstacy - Substances or Conditions which can cause false positives
Ephedrine, pseudoephedrine, propylephedrine, phenylephrine, or desoxyephedrine
(Nyquil, Contact, Sudafed, Allerest, Tavist-D, Dimetapp, etc)
Phenegan-D, Robitussin Cold and Flu, Vicks Nyquil
Over-the-counter diet aids with phenylpropanolamine (Dexatrim, Accutrim)
Over-the-counter nasal sprays (Vicks inhaler, Afrin)
Asthma medications (Marax, Bronkaid tablets, Primatine Tablets)
Prescription medications (Amfepramone, Cathne, Etafediabe, Morazone,phendimetrazine, phenmetrazine, benzphetamine, fenfluramine, dexfenfluramine, dexdenfluramine,Redux, mephentermine, Mesocarb, methoxyphenamine, phentermine, amineptine, Pholedrine, hydroymethamphetamine, Dexedrine, amifepramone, clobenzorex, fenproyorex, mefenorex, fenelylline, Didrex, dextroamphetamine, methphenidate, Ritalin, pemoline, Cylert, selegiline, Deprenyl, Eldepryl, Famprofazone) Kidney infection, kidney disease
Liver disease, diabetes

Cocaine - Substances or Conditions which can cause false positives
Kidney infection (kidney disease)
Liver infection (liver disease)
Amoxicillin, tonic water

     If a person has taken methamphetamine, that individual should also have its metabolite amphetamine in his or her system. In other words, levels of both methamphetamine and amphetamine should be detected in both the blood and urine. Some GC/MS assays can falsely yield positive methamphetamine levels when high concentrations of ephedrine or pseudoephedrine are present in the specimen. Depending on the temperature of the injection port, the ephedrine or pseudoephedrine can be converted (or cooked) to methamphetamine. Therefore, sound scientific practice requires a negative report for methamphetamine if only methamphetamine is found in blood or urine. The absence of amphetamine means that the person had not consumed methamphetamine, which would in the ordinary course of metabolism would produce amphetamine. Therefore, in a case where only methamphetamine is found in the blood or urine the person probably had a cold and taken cold medicine containing ephedrine or pseudoephedrine.

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

Hospital laboratory testing of serum alcohol involves use of the enzymatic method. The enzyme kits do not measure alcohol directly. They oxidize alcohol to acetaldehyde by the reduction of NAD+ to NADH. The amount of NADH produced
is therefore a function of the amount of alcohol present in the sample, and the amount of NADH produced is measured via a color reaction. However, if the blood also contains high levels of lactate (lactic acid) from either the administration of Ringer’s Lactate or the release of lactate from damaged tissues and also high levels of LDH (lactate dehydrogenase) enzyme from damaged tissues, then it is possible that the NAD+ from the enzyme kits will also oxidize lactate to pyruvate, thereby also producing NADH which would appear as “alcohol” in the test results. Therefore, it may be possible to have falsely high alcohol test results from serum alcohol tests using these hospital enzyme kits if both lactate and LDH are in high concentrations in the blood.

Most cases with only a hospital blood test are homicide by vehicle or serious injury by vehicle cases, and either of these charges carries up to fifteen years in prison.  Therefore, someone in this situation needs to understand that an expert such as a professor of toxicology must be on your team.  Otherwise, the State will introduce unrefuted evidence that your blood alcohol concentration was at a certain level, and you will be on your way to prison.  Don’t cut corners when your life and liberty are endangered; make the investment. 

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