Comments for Georgia DUI Blog http://gaduiblog.com A Guide for Everything Related to DUI in Georgia Sat, 04 Feb 2012 06:12:33 +0000 http://wordpress.org/?v=2.2.1 Comment on MADD SAYS .14 DOES NOT JUSTIFY DUI ARREST! by A Swig and A Miss : Delaware Liberal http://gaduiblog.com/2007/01/16/madd-says-14-does-not-justify-dui-arrest/#comment-53205 A Swig and A Miss : Delaware Liberal Sat, 02 Jan 2010 13:30:35 +0000 http://gaduiblog.com/2007/01/16/madd-says-14-does-not-justify-dui-arrest/#comment-53205 [...] to one of the main reasons why we felt MADD’s demise in the Delmarva was justified — their pig-headed response to the drunk driving incident of Delaware State Representative John Atkins in Ocean City, Maryland [...] […] to one of the main reasons why we felt MADD’s demise in the Delmarva was justified — their pig-headed response to the drunk driving incident of Delaware State Representative John Atkins in Ocean City, Maryland […]

]]> Comment on Blood Alcohol Tests: The Hematocrit Conundrum by justin@themcshanefirm.com http://gaduiblog.com/2009/10/08/blood-alcohol-tests-the-hematocrit-conundrum/#comment-52887 justin@themcshanefirm.com Thu, 22 Oct 2009 15:30:17 +0000 http://gaduiblog.com/2009/10/08/blood-alcohol-tests-the-hematocrit-conundrum/#comment-52887 Great post. I would like to take it one step further. These are, of course, things that you know as you and I have spoken about it many a time. But the other issue is the validation of the science and whether or not it meets a Frye/Daubert challenge. Hospital blood is, of course, a colormetic spectrophometric enzyme reagent reaction test (the hospital blood plasma or blood serum test). Preamble: As long as you see this following chart in the insert , then the argument infra is sound Ethyl Alcohol+ NAD+ ----> Acetaldehyde+NADH+H+ PART ONE: The answer is there is no answer… First, there is absolutely no consensus in the scientific community as to the proper conversion factor. There is no number. Therefore, as there is no scientific agreement, then no number should be used by the Courts. It is a basic Daubert/Frye matter. The government as the proponent of the evidence has the burden to prove it is reliable and based on sound science. The very fact that there are studies that go as low as 1.10 overstatement to as high was 1.59 make it so. That is a 69% swing. Come on. The conversion factor depends on hematocrit (packed cell volume) entirely (well almost entirely, but for the sake of brevity it is the most important part). Serum or plasma (almost-one article had a statistical artifact) always over estimates BAC. Plasma actually more so. If I am forced to use a conversion factor AND THAT IS A BIG IF. I go with Professor Rainey and 1.49 which is the highest peer reviewed article that I could find as the presumption of innocence demands that we give all benefit to the accused. Also Dr. Citron has published a peer reviewed article on it. PART TWO: The answer is the science, the defense is the truth. Here is my logic proof… 1. If you accept as true that these Hospitals perform tests on less than [whole] blood 2. If you accept that these hospitals perform tests on blood plasma Then, would not the following be true… 3. Plasma blood and serum blood are more or less the same (or best case scenario for the defense the conversion is 1:1.04 serum:plasma) according to: Distribution of ethanol and water between plasma and whole blood; inter- and intra- individual variations after administration of ethanol by intravenous infusion Jones, A.W., Hahn, R.G., Stalberg, H.P.(1990),Scandanavian Journal of Clinical and Laboratory Investigation, 50(7), Nov. 775-780. Comparison of plasma, serum, and whole blood ethanol concentrations Winek, C.L., Carfagna, M. (1987), Journal of Analytical Toxicology, 11(6), 267-8. 4. If you accept Rainey’s assertion in Relation between Serum and Whole-Blood Ethanol Concentrations; Petrie M. Rainey: Clinical Chemistry, Vol. 39, No. 11, 1993. (pg 2288-2292) In that study (peer reviewed, scientifically reliable), Rainey studies the relationship between hospital (serum) blood test results and contemporaneous whole blood results. He finds that the median ratio for adjusting serum to whole blood is 1.15. The high of the range was 1.59. 1.49 for the central 99% (or 2 standard deviations) and 1.40 for the central 95%. Therefore, I like to use 1.49. 6. The combination of 1:1.04 serum:plasma and then 1:1.49 whole blood:serum, then mathematically 1.5496 if you really want to stretch. That is EXCLUDING the machine’s in-built range of analytical error, control run specific drift errors, pippetting errors, etc. It also presumes no exogenous alcohol production and perfect collection, inversion, transportation, storage, preparation and analysis. You cannot presume all of those things. There is only one presumption and that is the presumption of innocence. Just a lazy thought on a Thursday mid-morning. Thanks for the post. This blog is a wonderful resource. Justin J. McShane, Esquire http://www.paduiblog.com Great post. I would like to take it one step further. These are, of course, things that you know as you and I have spoken about it many a time.

But the other issue is the validation of the science and whether or not it meets a Frye/Daubert challenge. Hospital blood is, of course, a colormetic spectrophometric enzyme reagent reaction test (the hospital blood plasma or blood serum test).

Preamble: As long as you see this following chart in the insert , then the argument infra is sound

Ethyl Alcohol+ NAD+ —-> Acetaldehyde+NADH+H+

PART ONE: The answer is there is no answer…

First, there is absolutely no consensus in the scientific community as to the proper conversion factor. There is no number. Therefore, as there is no scientific agreement, then no number should be used by the Courts. It is a basic Daubert/Frye matter. The government as the proponent of the evidence has the burden to prove it is reliable and based on sound science. The very fact that there are studies that go as low as 1.10 overstatement to as high was 1.59 make it so. That is a 69% swing. Come on.

The conversion factor depends on hematocrit (packed cell volume) entirely (well almost entirely, but for the sake of brevity it is the most important part). Serum or plasma (almost-one article had a statistical artifact) always over estimates BAC. Plasma actually more so. If I am forced to use a conversion factor AND THAT IS A BIG IF. I go with Professor Rainey and 1.49 which is the highest peer reviewed article that I could find as the presumption of innocence demands that we give all benefit to the accused. Also Dr. Citron has published a peer reviewed article on it.

PART TWO: The answer is the science, the defense is the truth.

Here is my logic proof…

1. If you accept as true that these Hospitals perform tests on less than [whole] blood
2. If you accept that these hospitals perform tests on blood plasma

Then, would not the following be true…

3. Plasma blood and serum blood are more or less the same (or best case scenario for the defense the conversion is 1:1.04 serum:plasma) according to:

Distribution of ethanol and water between plasma and whole blood; inter- and intra- individual variations after administration of ethanol by intravenous infusion
Jones, A.W., Hahn, R.G., Stalberg, H.P.(1990),Scandanavian Journal of Clinical and Laboratory Investigation, 50(7), Nov. 775-780.

Comparison of plasma, serum, and whole blood ethanol concentrations
Winek, C.L., Carfagna, M. (1987), Journal of Analytical Toxicology, 11(6), 267-8.

4. If you accept Rainey’s assertion in Relation between Serum and Whole-Blood Ethanol Concentrations; Petrie M. Rainey: Clinical Chemistry, Vol. 39, No. 11, 1993. (pg 2288-2292)

In that study (peer reviewed, scientifically reliable), Rainey studies the relationship between hospital (serum) blood test results and contemporaneous whole blood results. He finds that the median ratio for adjusting serum to whole blood is 1.15. The high of the range was 1.59. 1.49 for the central 99% (or 2 standard deviations) and 1.40 for the central 95%. Therefore, I like to use 1.49.
6. The combination of 1:1.04 serum:plasma and then 1:1.49 whole blood:serum, then mathematically 1.5496 if you really want to stretch.

That is EXCLUDING the machine’s in-built range of analytical error, control run specific drift errors, pippetting errors, etc. It also presumes no exogenous alcohol production and perfect collection, inversion, transportation, storage, preparation and analysis. You cannot presume all of those things. There is only one presumption and that is the presumption of innocence.

Just a lazy thought on a Thursday mid-morning. Thanks for the post. This blog is a wonderful resource.

Justin J. McShane, Esquire
http://www.paduiblog.com

]]> Comment on Blood Alcohol Tests: Collecting the Blood by Blood Alcohol DUI Tests: Blood Alcohol Tests: Collecting the Blood | Drunk Driving DUI Law http://gaduiblog.com/2009/03/23/blood-alcohol-tests-collecting-the-blood/#comment-52000 Blood Alcohol DUI Tests: Blood Alcohol Tests: Collecting the Blood | Drunk Driving DUI Law Sat, 18 Apr 2009 23:37:49 +0000 http://gaduiblog.com/2009/03/23/blood-alcohol-tests-collecting-the-blood/#comment-52000 [...] 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. Source [...] […] 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. Source […]

]]> Comment on Alcohol is not Always Ethanol by rmvlawyer.com http://gaduiblog.com/2009/03/11/alcohol-is-not-always-ethanol/#comment-51992 rmvlawyer.com Sun, 12 Apr 2009 14:41:01 +0000 http://gaduiblog.com/2009/03/11/alcohol-is-not-always-ethanol/#comment-51992 Users of <a href="http://www.rmvlawyer.com/mass-dui-ignition-inerlock-violations.asp" rel="nofollow">Ignition Interlock Devices</a> should be aware that alcohol readings are not always caused by alcohol in the user's bloodstream, this is only one of three possible causes. Alcohol readings can also be caused by a malfunction of the interlock device or the device mistaking another substance for ethyl alcohol in the user's bloodstream. In my practice as a Massachusetts Interlock Device Defense Lawyer, I have personally seen common products such as hand sanitizer, power bars, chewing gum, windshield washer fluid, anti-freeze, baked goods, and flavored coffee all be mistaken by interlock devices as alcohol. Interlock users should be aware of the possibility of contamination by these and other sources. All interlock users should take steps to protect themselves from <a href="http://www.rmvlawyer.com/mass-dui-lawyers-inerlock-defense.asp" rel="nofollow">false positive interlock readings</a>. These steps include documenting any unusual occurrences with the IID, immediately reporting <a href="http://www.rmvlawyer.com/mass-dui-interlock-device-problems.asp" rel="nofollow">false interlock device readings</a>, and not ingesting anything except water before or during interlock usage. One of the best things you can do when you get a false positive reading is to immediately go to a police station or hospital to get a comparison blood alcohol test. Following these steps may prevent you from facing a license suspension as a result of an interlock violation. Users of Ignition Interlock Devices should be aware that alcohol readings are not
always caused by alcohol in the user’s bloodstream, this is only one of three possible causes. Alcohol readings can also be caused by a malfunction of the interlock device or the device mistaking another substance for ethyl alcohol in the user’s bloodstream. In my practice as a Massachusetts Interlock Device Defense Lawyer, I have personally seen common products such as hand sanitizer,
power bars, chewing gum, windshield washer fluid, anti-freeze, baked goods, and flavored coffee all be mistaken by interlock devices as alcohol. Interlock users
should be aware of the possibility of contamination by these and other sources. All interlock users should take steps to protect themselves from false positive interlock readings. These steps include documenting any unusual occurrences with the IID, immediately reporting false interlock device readings, and not ingesting anything except water before or during interlock usage. One of the best things you can do when you get a false positive reading is to immediately go to a police station or hospital to get a comparison blood alcohol test. Following these steps may prevent you from facing a license suspension as a result of an interlock violation.

]]> Comment on Gastric Bypass Surgery by weightloss http://gaduiblog.com/2006/08/04/gastric-bypass-surgery/#comment-51863 weightloss Tue, 24 Feb 2009 20:00:13 +0000 http://gaduiblog.com/2006/08/04/gastric-bypass-surgery/#comment-51863 <p>Gastric bypass surgery raising alcohol levels in the blood was talked about on the Oprah Winfrey show. For those weight loss surgery patients out there that take a drink every now and then, it is important that you know about this. It could save your life. </p> <p>- Chris<br /> < Gastric bypass surgery raising alcohol levels in the blood was talked about on the Oprah Winfrey show. For those weight loss surgery patients out there that take a drink every now and then, it is important that you know about this. It could save your life.

- Chris
<

]]> Comment on Gastric Bypass Surgery by heartlandrose http://gaduiblog.com/2006/08/04/gastric-bypass-surgery/#comment-50733 heartlandrose Sun, 13 Apr 2008 20:51:20 +0000 http://gaduiblog.com/2006/08/04/gastric-bypass-surgery/#comment-50733 Is this really due to what they cut away or is it possibly due to the overuse of antibiotics? What if there is an infection at the time of the accident? Isn't OWI due to intent? What if you did not know this was going on in your body due to the dysbiosis in your colon? My guess is there is some more health issues. People do not understand that one person can metabolize way more than someone that is not aware that they may have a medical condition in there body that can possibly cause them to constantly carry a blood alcohol level even though they do not drink at all. The court system does not care!!! They just call you a lier. They are putting away inocent people all the time. This is what my son is in the middle of right now. We need to get these people together and change some laws that these people get screened when they have accidents! Is this really due to what they cut away or is it possibly due to the overuse of antibiotics? What if there is an infection at the time of the accident? Isn’t OWI due to intent? What if you did not know this was going on in your body due to the dysbiosis in your colon? My guess is there is some more health issues. People do not understand that one person can metabolize way more than someone that is not aware that they may have a medical condition in there body that can possibly cause them to constantly carry a blood alcohol level even though they do not drink at all. The court system does not care!!! They just call you a lier. They are putting away inocent people all the time. This is what my son is in the middle of right now. We need to get these people together and change some laws that these people get screened when they have accidents!

]]> Comment on Gastric Bypass Surgery by heartlandrose http://gaduiblog.com/2006/08/04/gastric-bypass-surgery/#comment-50732 heartlandrose Sun, 13 Apr 2008 20:50:17 +0000 http://gaduiblog.com/2006/08/04/gastric-bypass-surgery/#comment-50732 Is this really due to what they cut away or is it possibly due to the overuse of antibiotics? What if there is an infection at the time of the accident? Isn't OWI due to intent? What if you did not know this was going on in your body due to the dysbiosis in your colon? My guess is there is some more health issues. People do not understand that one person can metabolize way more than someone that is not aware that they may have a medical condition in there body that can possibly cause them to constantly carry a blood alcohol level even though they do not drink at all. The court system does not care!!! They just call you a lier. They are putting inocent people all the time. This is what my son is in the middle of right now. We need to get these people together and change some laws that these people get screened when they have accidents! Is this really due to what they cut away or is it possibly due to the overuse of antibiotics? What if there is an infection at the time of the accident? Isn’t OWI due to intent? What if you did not know this was going on in your body due to the dysbiosis in your colon? My guess is there is some more health issues. People do not understand that one person can metabolize way more than someone that is not aware that they may have a medical condition in there body that can possibly cause them to constantly carry a blood alcohol level even though they do not drink at all. The court system does not care!!! They just call you a lier. They are putting inocent people all the time. This is what my son is in the middle of right now. We need to get these people together and change some laws that these people get screened when they have accidents!

]]> Comment on Gastric Bypass Surgery by heartlandrose http://gaduiblog.com/2006/08/04/gastric-bypass-surgery/#comment-50728 heartlandrose Sat, 12 Apr 2008 16:11:17 +0000 http://gaduiblog.com/2006/08/04/gastric-bypass-surgery/#comment-50728 Too add to this dysbiosis thing further, over use of antibiotics contributes to this greatly. This is what has happened to my son. Because of his heart condition he has to take antibiotics every time he gets touched in his mouth or any blood will be worked with. Another factor to look at is mercury poisoning in the body or at least heavy metals. I seen the remark about the dental pain. This person obsviously has some major things going on in there body and I truly believe what she says to be true. There is innocent people getting arrested for this reason all the time. We need to find an attorney that can help with this matter. Too add to this dysbiosis thing further, over use of antibiotics contributes to this greatly. This is what has happened to my son. Because of his heart condition he has to take antibiotics every time he gets touched in his mouth or any blood will be worked with. Another factor to look at is mercury poisoning in the body or at least heavy metals. I seen the remark about the dental pain. This person obsviously has some major things going on in there body and I truly believe what she says to be true. There is innocent people getting arrested for this reason all the time. We need to find an attorney that can help with this matter.

]]> Comment on Gastric Bypass Surgery by heartlandrose http://gaduiblog.com/2006/08/04/gastric-bypass-surgery/#comment-50727 heartlandrose Sat, 12 Apr 2008 16:05:51 +0000 http://gaduiblog.com/2006/08/04/gastric-bypass-surgery/#comment-50727 Or is this a possibility of gut fermentation (dysbiosis) of which this person new nothing about? This is happening across the country and people do not know how to defend against this craziness! Doctors love to cut away at the colon and not really treat what is truly going on. Gut fermentation needs to be screened at the time of the DUI arrest. For some reason DOT seems to think they are really getting a justified arrest by doing this. Furthermore, most people even the ones on medication should be evaluated at the time of the accident for there lack in metabolizing alcohol! This is discusting. The reason I say this is because dysbiosis nearly shuts down your metabolism unknowingly! The US government is trying there damndest to keep people from getting this to go through! They are covering it all up! It is a very hard thing to defend against in the court! This is a case of guilt by innocence according to the law. Now, isn't DUI suppose to be about the intent of the individual and knowing that they had too much to drink. My son had the same thing happen when he was tested 5 hours later and he had a high blood alcohol level due to dysbiosis. You tell me that this is normal!!!!!!!!!!!!!!! Or is this a possibility of gut fermentation (dysbiosis) of which this person new nothing about? This is happening across the country and people do not know how to defend against this craziness! Doctors love to cut away at the colon and not really treat what is truly going on. Gut fermentation needs to be screened at the time of the DUI arrest. For some reason DOT seems to think they are really getting a justified arrest by doing this. Furthermore, most people even the ones on medication should be evaluated at the time of the accident for there lack in metabolizing alcohol! This is discusting. The reason I say this is because dysbiosis nearly shuts down your metabolism unknowingly! The US government is trying there damndest to keep people from getting this to go through! They are covering it all up! It is a very hard thing to defend against in the court! This is a case of guilt by innocence according to the law. Now, isn’t DUI suppose to be about the intent of the individual and knowing that they had too much to drink. My son had the same thing happen when he was tested 5 hours later and he had a high blood alcohol level due to dysbiosis. You tell me that this is normal!!!!!!!!!!!!!!!

]]> Comment on Gastric Bypass Surgery by erblaw http://gaduiblog.com/2006/08/04/gastric-bypass-surgery/#comment-50600 erblaw Sat, 23 Feb 2008 02:24:41 +0000 http://gaduiblog.com/2006/08/04/gastric-bypass-surgery/#comment-50600 What this says is that people who have had gastric bypass surgery get intoxicated faster and stay intoxicated longer. I think some folks think that this makes them less succeptible to a DUI, because they are less blameworthy. Perhaps that is true at sentencing, but that would be wrong. People who are impaired by presription drugs prescribed by their doctors and who are taking the prescription drugs as they were told by their doctors get DUIs all the time. The fact that they were taking their prescription drugs properly means nothing (at least in the guilt phase). So just because people with Gastric Bypass surgery get drunk faster and stay drunk longer does not help regarding whether someone is guilty of a DUI or not. What it does mean is that people who have the surgery need to not drink as much and wait much longer before driving. What this says is that people who have had gastric bypass surgery get intoxicated faster and stay intoxicated longer. I think some folks think that this makes them less succeptible to a DUI, because they are less blameworthy. Perhaps that is true at sentencing, but that would be wrong. People who are impaired by presription drugs prescribed by their doctors and who are taking the prescription drugs as they were told by their doctors get DUIs all the time. The fact that they were taking their prescription drugs properly means nothing (at least in the guilt phase). So just because people with Gastric Bypass surgery get drunk faster and stay drunk longer does not help regarding whether someone is guilty of a DUI or not. What it does mean is that people who have the surgery need to not drink as much and wait much longer before driving.

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