The Dirty Skin Defense

Posted by Jon Ibanez on September 15th, 2014

A few years ago, I assisted in a DUI trial where the jury acquitted the defendant partly because of the reasonable doubt raised by a defense expert who testified that the defendant’s “dirty skin” could have created a false positive blood test.

It would have been the defendant’s second California DUI conviction

Although I don’t remember the specifics of the stop or the DUI investigation, what I do remember is that the defendant opted for a blood test following his DUI arrest. When the results of the blood test came back, he was at a blood alcohol content level of 0.08 percent or slightly over.

The defendant took the case to trial.

Testimony at trial revealed that it took the prosecutor’s crime lab over a month to analyze the defendant’s blood. As the result of a backlog in cases, this is not an uncommon practice in Southern California county crime labs. This seemingly innocuous fact, opened the door for the defense to raise reasonable doubt that the defendant’s blood alcohol content was actually 0.08 percent or higher.

The defense introduced an expert witness to testify that, at the time the needle is injected into the arm to withdraw blood, it is possible that microorganisms located on the skin at the injection site can be extracted along with the blood sample into the vial. Although it is common practice for technicians who withdraw the blood to swab the injection site with hydrogen peroxide, contamination of the blood sample is still, nonetheless, possible. For obvious reasons, they don’t use rubbing alcohol to disinfect the injection site.

The expert further testified that, when analysis of the blood occurs a month or more after the blood is extracted, it is possible that the microorganisms which were extracted into the vial can cause the fermentation of glucose, which is a sugar, located in blood.

Simply put, fermentation occurs when microorganisms convert sugars into alcohol and carbon dioxide. I don’t need to tell you that this is the process by which people make the alcoholic beverages that we know and love.

Voila! The delay in crime lab’s testing of the blood allowed the stowaway microorganisms time to convert glucose in the blood sample into alcohol, thus producing falsely elevated blood alcohol content levels.

The prosecutor will argue that the blood vials contain a preservative, usually sodium fluoride, to preserve the integrity of the blood sample. However, studies have shown that sodium fluoride is ineffective against the most common microorganism, candida albicans.

Is the dirty skin defense enough to raise a reasonable doubt that a DUI suspect’s BAC was actually above a 0.08 percent?

While outcomes will vary on a case-by-case basis, it certainly was in the trial I assisted in.

Are Breathalyzers Accurate?

Posted by Lawrence Taylor on September 9th, 2014

Most states have two criminal charges relevant to "drunk driving".  The first is the original law, making it a crime to drive under the influence of alcohol or drugs — also known as "DUI".  In more recent years, and under pressure from the federal government, all 50 states passed the so-called "per se statute", making it a crime to drive with a blood alcohol concentration (BAC) of .08% or more — regardless of whether the driver was under the influence of alcohol or not.  In most states, both crimes can — and usually are — charged (assuming there was a blood alcohol test).

With the first offense, the prosecution can offer various kinds of evidence: erratic driving, flushed face, bloodshot eyes, slurred speech, poor balance and/or coordination, failing the "field sobriety tests", etc.  In addition, if the blood alcohol test indicated a BAC level of .08% or more, the judge would instruct the jury that the defendant was rebutably presumed to be under the influence — that is, he was presumed to be guilty, but could offer contradicting evidence of his own.

With the second offense, the blood alcohol level is the crime: regardless of intoxication or sobriety, it is a criminal offense to have .08% or more while driving.  Unless the defendant could prove that the breathalyzer was unreliable in some way — incorrectly maintained, calibrated or operated or otherwise defective —  the crime was proven.  

In other words, the machine is judge, jury and executioner.

So….just how accurate are these so-called breathalyzers?

Not very.  These machines are susceptible to hundreds of different problems.  To give you some idea, a good survey of the more common potential defects inherent in any breath alcohol test can be found on the website of my DUI defense firm,The Law Offices of Lawrence Taylor.  The 3-page discussion is located in the "Police Evidence" section, under the heading DUI Breathalyzer Accuracy.

The problem is that these defects can only be revealed through extensive investigation by an experienced DUI defense attorney, usually through the legal procedure known as discovery.  This is the use of subpoenas, motions in court, and other proceedings involving, among other things, the testing police officer’s operation, the individual machine’s data, law enforcement crime lab procedures and calibration records, machine usage logs, and even video cameras in the testing room.

In other words, it takes an experienced DUI attorney in this complex field who is prepared to devote the time and resources necessary to reveal the flaws.  And such attorneys don’t come cheap. So if you suddenly need a DUI attorney, ask yourself:  If I needed heart surgery, would I try to find the cheapest surgeon? 

Can Diet Pills Cause a Breathalyzer False-Positive?

Posted by Jon Ibanez on September 8th, 2014

Just because the summer is coming to an end doesn’t mean people aren’t dieting. And when the weather doesn’t permit running on the beach, dieters often turn to dieting pills. If a person happens to find themselves in the unfortunate position of blowing into a breathalyzer because law enforcement suspects them of driving drunk, can the diet pill affect the breathalyzer accuracy? Ask model and actress, Hayley Hasseloff.

The daughter of David Hasselhoff recently filed a writ of mandate to set aside a California DMV order suspending her license. The license suspension stemmed from a 2012 DUI arrest in Los Angeles.

Hasselhoff claimed that she only had one alcoholic drink more than two hour prior to taking a breathalyzer test. However, because she had taken the diet pill, Phentermine, the breathalyzer produced a false-positive.

Diet pills cause the body to burn stored fat. This process produces ketones. Ketones are water-soluble products of fat metabolism. Our bodies use ketones for energy. Whatever ketones the body doesn’t use, it releases in urine and through the lungs. Ketones which are released through the lungs can be detected in the breath.

When the ketones are released through the lungs, their chemical composition is similar isopropanol which is a type of alcohol.

This process, can occur when a person goes on a low carbohydrate diet and the body turns to ketones for energy rather than glucose produced by the carbohydrates.

Unfortunately, a breathalyzer cannot differentiate between isopropanol and ethyl alcohol, the alcohol found in beer, wine, and cocktails.

What’s more, when a person’s body is going through the early stages of the ketosis process, they may experience tiredness or fatigue, weakness, dizziness, nausea, and frequent urination. Sounds a lot like the symptoms of intoxication, doesn’t it?

I’m not a doctor and this is, of course, a very simplified version of the process. But to affirm the testimony of the expert that Hasselhoff introduced to explain this process, the answer is yes, a diet pill can cause a false-positive on a breathalyzer.

Which Is More Dangerous: DUI or Driving While Using a Cell Phone? What Are the Penalties?

Posted by Lawrence Taylor on September 4th, 2014

Question #1…..Is driving while using a cell phone more dangerous than driving while under the influence of alcohol (DUI)?

Well….A detailed study on the effects of cell phone use on driving was conducted by researchers at the University of Utah, and reported in a paper entitled Fatal Distraction? A Comparison of the Cell-Phone Driver and the Drunk Driver given at the Second International Driving Symposium on Human Factors in Driving Assessment, Training and Design. Using a simulator, the researchers measured how subjects reacted to vehicles braking in front of them.

Results? Drivers conversing on a cell phone were involved in more rear-end collisions, and their reactions were 8% slower relative to normal baseline; it also took them 15% longer to return to normal speed. By contrast, drivers who were at or above .08% blood-alcohol levels showed no higher accident rates than normal, nor did they exhibit significant variation from normal baselines for reaction times or return to normal speeds.

The conclusion of the researchers: Drivers on cell phones showed greater impairment, less responsive behavior and more accidents than "drunk" drivers.

Question #2…..What are the penalties for the two driving behaviors?

Using California as a fairly typical example, a first-offense DUI is punishable by up to 6 months in jail, license suspension of 5 months, fines of about $2000, and a 3-month DUI school. This does not include non-penalty consequences such as attorney’s fees, high insurance costs, possible loss of employment or professional licensing, loss of child custody, etc.

Again using California, driving while talking on a hand-held cell phone is punishable by….a $76 fine.       

Question #3…..Why?  

Can You Be Held Responsible for Serving a Drunk Driver Who Injures Someone?

Posted by Jon Ibanez on September 1st, 2014

Two friends who recently opened a wine bar asked me if they could be held responsible for an accident caused by a drunken patron who decided to get behind the wheel. The question is a legitimate one because we all know someone who works in the service industry as a server, bartender, or alcohol-serving establishment owner.

“Dram shop laws” are laws that hold establishments liable for damage caused by accidents, injuries, or deaths as a result of a customer’s drunk driving after they have left the establishment. The word “dram” is a British term of measurement for alcohol similar to a shot. In the United States the term “dram shop” refers to establishments that continue to serve alcohol to customers who are already clearly intoxicated.

While most states have some variation of dram shop laws, they differ as to how much liability, if any, is imposed on an alcohol-serving establishment who serves an intoxicated patron who later causes damage, injury, or death as a result of their drunk driving. Some states hold an establishment strictly liable if their drunk patron drives and causes damage, injury, or death. This means that the establishment’s service of the alcohol is deemed to be the proximate cause of any damage occurring after the intoxicated person leaves the establishment.

So what’s the law in California?

Fortunately for my entrepreneurial friends, California no longer follows the strict liability standard. California Civil Code section 1714 provides:

(b) It is the intent of the Legislature to . . . reinstate the prior judicial interpretation of this section as it relates to proximate cause for injuries incurred as a result of furnishing alcoholic beverages to an intoxicated person, namely that the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication, but rather the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person.

(c) Except as provided in subdivision (d), no social host who furnishes alcoholic beverages to any person may be held legally accountable for damages suffered by that person, or for injury to the person or property of, or death of, any third person, resulting from the consumption of those beverages.

(d) Nothing in subdivision (c) shall preclude a claim against a parent, guardian, or another adult who knowingly furnishes alcoholic beverages at his or her residence to a person under 21 years of age, in which case, notwithstanding subdivision (b), the furnishing of the alcoholic beverage may be found to be the proximate cause of resulting injuries or death.

Simply put, a person’s willful act of drinking and driving are the proximate cause of any damage caused by the drunk driving, not the service of the alcohol by the establishment. If, however, the establishment serves alcohol to a minor who drive drunk and causes causes damage, injury, or death, the establishment may be held liable.

While my friends might be shielded from civil liability if an intoxicated patron causes damage, injury, or death, they may be held criminally liable if they serve alcohol to an obviously intoxicate person.

California Business and Professions Code section 25602(a) states “Every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any habitual or common drunkard or to any obviously intoxicated person is guilty of a misdemeanor.”