Mixing Energy Drinks with Alcohol Increases the Risk of Drunk Driving

Posted by Jon Ibanez on July 21st, 2014

I always preferred a cold beer to other drinks. This was true even back in my college partying days. But for many college students nowadays, an increasing trend is mixing alcohol with energy drinks. Popular combinations include vodka and Redbull, vodka and Rockstar, and Jagerbombs (dropping a shot of Jagermeister into half a pint of Rebull).

Several mistaken beliefs have given rise to the trend of mixing alcohol and energy drinks, some of which includes being able to drink more, stay up later to continue drinking, staying alert to drive home.

Unfortunately, the mixing of alcohol and energy drinks actually increases the risk of over intoxication and drunk driving.

A recent study conducted by the Center for Research on Aging, Health and Well-Being at the Australian National University in Canberra found that mixing alcohol with energy drinks increases the urge to drink more alcohol.

Participants were given either a mixture of vodka and Redbull or a mixture of vodka with soda water. Pineapple juice was added to both cocktails so that the participants would not know whether their drink contained an energy drink. The participants were asked to complete an “Alcohol Urge Questionnaire” 20 minutes before and after drinking their respective mixtures to indicate how strong their desire was to continue drinking.

The participants who drank the mixture of alcohol and energy drink reported a greater urge to continue drinking alcohol than those participants who drank the cocktail without the energy drink.

Energy drinks contain stimulants like caffeine, taurine, and ginseng. Alcohol, on the other hand, is a depressant. While drinkers might think that the effect from stimulants might counterbalance the depressant effects of the alcohol, the combination of stimulants and depressants is actually sending the body mixed signals.

This is supported by a 2010 study which found that college students who mix energy drinks with alcohol are also more likely to engage in risky behaviors including driving drunk or accepting a ride from someone who was drunk. According to Dr. Mary Claire O’Brien of Wake Forest University, who conducted the study, “Students whose motor skills, visual reaction times, and judgment are impaired by alcohol may not perceive that they are intoxicated as readily when they’re also ingesting a stimulant. Only the symptoms of drunkenness are reduced – but not the drunkenness. They can’t tell if they’re drunk; they can’t tell if someone else is drunk.”

Therefore, if people are less likely to tell if they are drunk, they are more likely to think they are sober enough to drive or someone whom they accept a ride from is sober enough to drive. This is particularly troubling when coupled with the findings that energy drinks increase the urge to drink more alcohol.

If you enjoy mixing alcohol with energy drinks, regardless of why, be aware of a few things: you are more likely to over drink, you are probably drunker than you think you are, and you are more likely to mistakenly believe that you’re ok to drive home.  

Murder Conviction for a DUI Fatality

Posted by Jon Ibanez on July 14th, 2014

A Southern California man was sentenced to 34 years to life in a California State prison last week for a 2012 DUI that led to the death of two Caltrans workers. Amongst other charges, Yocio Jonathan Gomez was convicted of second degree murder.

Gomez, 25, was driving a Ford Explorer 90 miles an hour through a construction zone in Torrance in the early morning hours of July 22, 2012. According to the Los Angeles County District Attorney’s Office, Gomez lost control of his vehicle which struck another SUV. The SUV spun out of control striking Caltrans workers, Ricardo Zamora, 58, and Ramon Lopez, 56, killing both. A third worker was also injured.

It was later determined that Gomez’s blood alcohol content was 0.21 percent. Gomez was charged with and subsequently convicted of second degree murder.

A conviction of second degree murder for a DUI related fatality such Gomez’s always raises questions, especially amongst students of mine. How can someone, who doesn’t intend to kill anyone, be charged with murder?

Gomez’s conviction of second degree murder turned on one very significant fact: it wasn’t his first DUI.

Prior to 1981, a person who killed another in the course of driving under the influence could not be charged and convicted of murder. However, the landmark case of People v. Watson (1981) 30 Cal.3d 290, changed all of that.

California Penal Code section 187(a) provides that “Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.” Section 188 provides that malice can either be expressed or implied and implied malice is present “when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.”

What does that mean?

According to People v. Phillips, (1966) 64 Cal.2d 574, 587, second degree murder based on implied malice has been committed when a person does “an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.”

With this foundation, the Watson court found that if the facts surrounding the DUI support a finding of “implied malice,” second degree murder can be charged. If the facts surrounding the DUI only support a finding of “gross negligence,” only vehicular manslaughter may be charged.  

The difference between implied malice and gross negligence is wafer thin. Gross negligence occurs when a person acts in a reckless way that creates a high risk of death or great bodily injury and a reasonable person would have known that acting in that way would create such a risk.

How does the prosecutor prove that a person acted with implied malice rather than gross negligence?

Since Watson, courts began expressly advising convicted DUI defendants that it is extremely dangerous to human life to drive while under the influence of alcohol or drugs or both and if the defendant continues to do so and, as a result of their driving, someone is killed, they can be charged with murder.

In other words, it’s the court’s way of telling someone, “You’ve done it once, now consider yourself warned. If you do it again, it’s no longer reckless, it’s a conscious disregard for human life.”

Is Blood-Alcohol Analysis at a Hospital Accurate?

Posted by Lawrence Taylor on July 11th, 2014

If you are arrested for drunk driving, you will usually be given either a breath or a blood test.  

The breath test is far more commonly given in DUI cases in most jurisdictions; it is quick, cheap, easy and gives immediate results.  In many cases, however, a blood sample will be withdrawn – typically at the police station if a phlebotomist is available, at a law enforcement crime laboratory, or at a private lab contracting with law enforcement.  This may be because a breath machine is unavailable, because the suspect is being treated at a hospital for injuries from an auto accident, or – increasingly – blood is forcefully taken where the suspect refuses to breathe into the machine.  

Generally speaking, the blood test is more accurate than the breath test.  See, for example, How Breathlayzers Work (and Why They Don't).  But blood testing in DUI cases has its own sources of inaccuracy.  See, for example, Fermentation in Blood Samples Produce…Alcohol and Can Coagulation of the Blood Sample Raise the Alcohol Level?  

One source of error in blood testing, however, is encountered in the situation mentioned where the DUI suspect has been involved in an automobile accident and has been taken to a medical facility for treatment.  A blood sample may be withdrawn for diagonostic reasons — during which blood-alcohol levels may be determined and given to law enforcement. Or the arresting officer accompanying the drunk driving suspect may direct hospital personnel to extract a blood sample for alcohol analysis at the hospital.  In either case, there exists a built-in source of error — which may lead to the conviction of an innocent citizen.

From my book Drunk Driving Defense (7th edition):

Blood samples obtained in drunk driving cases are generally — but not always — analyzed as whole blood (sometimes called "legal blood").  If the sample is analyzed for medical purposes, however, the test will probably be done with serum (often referred to as "medical blood").  Serum is the clear yellowish fluid obtained from separating whole blood into its solid and liquid components (usually by centrifuging the sample); the liquid portion of the blood is called plasma, which is similar to serum.  A third method involves precipitating proteins from the blood sample and centrifuging it; the result is a clear liquid called supernatant which is then analyzed.

Will analysis of serum/plasma or supernatant result in the same blood-alcohol readings as analysis of the whole blood?  In a study entitled "Distribution of Ethanol: Plasma to Whole Blood Ratios" (Hodgson and Shajani, 18 Forensic Science Journal 73, 1985), scientists attempted to determine the answer to this very question.  The conclusion:  Blood-alcohol concentrations in plasma were approximately 11 percent higher than that of whole blood, and those in supernatant were about 5 percent higher….

For a study that found that serum-alcohol concentration can be up to 20 percent higher than blood-alcohol concentration, see Frajola, "Blood Alcohol Testing in the Clinical laboratories: Problems and Suggested Remedies", 39(3) Clinical Chemistry 377 (1993).

Bottom line:  Any method of analyzing the amount of alcohol in a DUI case is subject to wide-ranging sources of error.

Turning Away from a California DUI Checkpoint

Posted by Jon Ibanez on July 7th, 2014

With the amount of law enforcement and checkpoints out on the streets this past weekend, it was inevitable that I would be asked questions at the party I attended for the 4th of July. Over the years, I’ve gotten used to being the go-to person for legal questions even on my days off. In discussing checkpoints with another guest of the party, they were surprised to learn that they were legally allowed to turn away from a checkpoint. They reacted like most do when learning that it is, in fact, completely legal to turn away from DUI checkpoints.

The United States Supreme Court, in the landmark case of Michigan Department of State Police vs. Sitz, held that, unlike a normal “seizure” which requires probable cause, checkpoints need not have such probable cause. The Court reasoned that the slight intrusion into the motorist’s privacy rights was outweighed by the government’s interest in keeping drunk drivers off the road.

The California Supreme Court held in Ingersoll v. Palmer that random sobriety checkpoints are “administrative procedures” rather than “criminal investigations” and, as such, are akin to agricultural checkpoints and airport screenings.  The Court went on to say that there are factors which must be weighed to help determine the constitutionality of the checkpoint:

1.) The location of the checkpoint should be made at the supervisory level.

2.) The selection of vehicles stopped should be based on a neutral mathematical formula (such as every third car) rather than officer discretion.

3.) The checkpoint must be safe with proper lighting and signs.

4.) The checkpoint must be visible to oncoming motorists.

5.) The location of the checkpoint must be reasonable and in area most likely to yield DUI arrests.

6.) The time and duration of the checkpoint should minimize intrusiveness and maximize effectiveness.

7.) The length of the detention of motorists should be no longer than necessary to determine if a person is driving drunk.

8.) Law enforcement should publicize the checkpoint to minimize intrusiveness and maximize the deterrent effect of the checkpoint.  In 1993, the California Supreme Court, in People v. Banks, stated that although publicity is not a requirement of checkpoints, it helps.

In addition to these factors, the Court stated that motorists who seek to avoid the checkpoint must be allowed to do so. Most checkpoints have officers waiting in idle patrol cars ready to chase after motorists who attempt to leave. It goes without saying that if an officer sees a motorize attempt to avoid a checkpoint, they’re automatically suspicious that the person is driving drunk.

But here’s the catch: They cannot pull someone over unless they have probable cause to believe the motorist committed a crime or a traffic violation.

Merely avoiding a checkpoint does not give them that probable cause.

Making an illegal U-turn does. Driving improperly does. A malfunctioning break light does. And it doesn’t matter that the officer has the ulterior motive of investigating for a DUI as long as the officer has the probable cause to pull someone over independent of the motorist’s avoidance of the checkpoint. But you can be sure that if the officer does pull someone over, they’ll be looking for the telltale signs of a drunk driver: bloodshot eyes, smell of alcohol, slurred speech, etc.

In fact the Court in Ingersoll said, “A sign announcing the checkpoint was posted sufficiently in advance of the checkpoint location to permit motorists to turn aside, and under the operational guidelines no motorist was to be stopped merely for choosing to avoid the checkpoint.”

So if you decide to avoid a DUI checkpoint, make sure that you do so legally and know that even if you do, law enforcement will be watching you and waiting for you to slip up.

The Untouchable Black Box

Posted by Lawrence Taylor on July 3rd, 2014

I posted a few days ago about a new U.S. Supreme Court decision that basically affirmed the unntouchable sanctity of breathalyzers in DUI cases.  See U.S. Supreme Court Bans Scientific Evidence of Breathalyzer Inaccuracy.  The Court let stand a California Supreme Court ruling that these machines were foolproof:  the devices had been approved by state bureaucrats and therefore those accused of drunk driving were not permitted to produce scientific evidence that contradicted these sacred devices.  

Essentially, the Court banned scientific evidence — testimony of top scientists in the field — that questioned the general reliability or accuracy of governmentally-aaproved breath machines.  As a result, innocent citizens will continue to be convicted by these untouchable black boxes.

An excellent discussion of this entire fiasco can be found at the criminal justice blog, "Simple Justice".  In a post entitled "We'll Never Know What's Behind the Curtain", Scott H. Greenfield writes at length about this very distrubing issue…a small portion of which follows:

Ask an engineer and he may be happy to explain the theory behind the little magic black box, whose digital readout is, standing alone, sufficient to put a person in prison.  When the Breathalyzer 5000 was accepted as proof of drunk driving, it became a fixture of the law.  There aren’t many bank robbers, but there are a ton of drunk drivers. We know because the box says so.

In time, the magic science of the box became the subject of scrutiny.  Experts questioned its accuracy, both internally and theoretically.  After all, it purported to measure the alcohol in a person’s breath, while the salient information was the alcohol in a person’s blood.  It gave a number, which conclusively proved a crime notwithstanding the absence of evidence that the number, at first .10 BAC and then lower and lower, as MADD gained influence and legislators had fewer criminal dragons to slay, that condemned people without regard to any real harm.

Prohibition may have failed, but we’ve never really gotten over the moralist’s hatred of evil intoxicating beverages.  And this black box made it easy-peasy to nail the culprits.

And then there was the question of why the digital readout number was a real number in any event.  Courts blindly relied on the integrity of the magic box, because it seemed very sciency and lawyers love science, even if we know nothing about it. It removes the dilemma of having to think too hard about evidence. Thinking too hard gives people headaches. So does booze. Headaches are bad. Stop the headaches…

Greenfield then talked about the Supreme Court's decision:

But there was a chance, a tiny crack, that we could revisit the efficacy of the beloved black box when a petition for a writ of certiorari was submitted to the Supreme Court of the United States in the case of Terry Vangelder out of San Diego.

The case comes from San Diego County, where Terry Vangelder was stopped by a highway patrolman in December 2007 after driving his pickup truck at speeds of more than 125 mph. With Vangelder’s consent, the officer administered two breath tests that registered .095 and .086 percent.

At Vangelder’s trial, the defense offered testimony by Michael Hlastala, a University of Washington professor of medicine and physiology. He said breath-testing machines are unreliable because they measure the content of exhaled air, which can be affected by the rate of breathing and other variables, rather than air that is deep in the lungs and closer to the bloodstream.

Vangelder’s lawyer, Charles Sevilla, argued that the California ruling was “unduly trusting in the infallibility of government testing of these machines.”   Unduly, as in the box was handed down to Moses on Mt. Sinai…

That argument was, as we now know, rejected by the Court.  Thus, the black box continues to be immune to question.  Or, as Greenfield writes, "No peeking behind that curtain. The black box retains its magic."  

Unchallenged, the box will continue to send innocent citizens to jail.