Archive for December, 2004

“Slurred Speech”: Evidence of DUI?

Sunday, December 19th, 2004

As with the odor of alcohol on the breath, few police reports will fail to include an observation by the arresting officer that the arrestee exhibited "slurred speech". (See my earlier post, "Alcohol on the Breath: Evidence of DUI?"). The officer fully expects to hear slurred speech in a person he suspects is intoxicated, particularly after smelling alcohol on the breath, and we tend to "hear" what we expect to hear. And hearing it supplies the officer with corroboration of his suspicions.

Even assuming the honesty of the officer that the defendant’s speech was slurred, there is little evidence that this is symptomatic of intoxication. Impairment of speech is, for example, a common — and sober — reaction to the stress, fear and nervousness that a police investigation would be expected to engender; fatigue is another well-known cause. However, consider the following excerpt from Discover magazine:

"Bartenders, police officers and hospital workers routinely identify drunks by their slurred speech. Several investigative groups judged the captain of the Exxon Valdez oil tanker to be intoxicated based solely on the sound of his voice in his radio transmissions. But a team led by Harry Holien, a phonetician at the University of Florida, has found that even self-proclaimed experts are pretty bad at estimating people’s alcohol levels by the way they talk."

Hollien asked clinicians who treat chemical dependency, along with a group of everyday people, to listen to recordings made by volunteers when they were sober, then mildly intoxicated, legally impaired, and finally, completely smashed. Listeners consistently overestimated the drunkeness of mildly intoxicated subjects. Conversely, they underestimated the alcohol levels of those who were most inebriated. Professionals were little better at perceiving the truth than the ordinary Joes…. "

He thinks his research could encourage police to be more wary of making snap judgments: Mild drinkers might come under needless suspicion…" Saunders, "News of Science, Medicine and Technology: Straight Talk", 21(1) Discover (Oct. 2000).

Share

Asthma Inhalers Cause High Breathalyzer Results

Thursday, December 16th, 2004

If you use asthma inhalers and are ever arrested for DUI, you should perhaps think twice about taking a breath test. Most inhalers operate primarily by injecting a mist containing a substantial quantity of alcohol into the lungs. As an example, one of the most commonly used inhalers, Primatene Mist, contains 34 percent alcohol. This alcohol does not pass into the blood stream, but remains in the alveolar lining of the lungs — from where it will be exhaled into the breath machine.

The problem is that "breathalyzers" are designed to assume that the breath sample contains alcohol which has been swallowed and then metabolized by the body before being diffused into the lungs. As I mentioned in an earlier post ("Breathalyzers — and Why They Don’t Work"), they are further designed to assume that there are 2100 units of alcohol in the blood for every unit measured on the breath. So the breathalyzer’s computer mistakenly multiplies the alcohol measured from the asthma inhaler 2100 times. In other words, a very tiny amount of alcohol in the lungs from the inhaler mist can have a very large effect on the machine’s reading.

Just to make things worse, scientists have found that some asthma inhalers can cause high readings on breath machines due, apparently, to the propellent gasses used in the aerosols, in particular, chlorofluorocarbons. See "Using Asthma Inhalers Can Give False Positive Results in Breath Tests", 324 British Medical Journal 756 (March, 2002). As I mentioned in another earlier post ("Why Breathalyzers Don’t Measure Alcohol"), one of the many design defects in breath machines is that they are non-specific — that is, they will falsely report thousands of different chemical compounds as being alcohol.

Share

How to Raise Your Blood-Alcohol with Rolaids

Wednesday, December 15th, 2004

One of my earlier posts, "Immaculate Intoxication", created considerable interest on the internet. Few of us realize that alcohol is actually produced within our bodies, independent of any drinking — a relatively common phenomenon scientists refer to as the "autobrewery syndrome". A common cause is fermentation created by the presence of yeast and glucose in the system.

Internally-produced alcohol can be caused by other things as well. If an individual was taking antacids such as Tums or Rolaids, for example, he may have created a situation in which his body was manufacturing alcohol internally. Scientific literature indicates that antacids change the gastric acidity in the stomach — which can lead to alcohol production by resident bacteria…. and elevated blood-alcohol readings in a DUI investigation. See "Effects of Cimetidine Treatments on Ethanol Formation in the Human Stomach", 19(6) Scandinavian Journal of Gastroenterology 853 (1984); and "Effects of Antacids on Alcohol’s Reaction", 5(5) Alcoholism 28 (1985).

Share

DUI Marijuana: Does Marijuana Impair Driving?

Tuesday, December 14th, 2004

It is against the law to drive while under the influence of marijuana. It has always been assumed that cannabis, like alcohol, impairs the perception, coordination, reflexes and judgment necessary for the safe operation of a motor vehicle. And, of course, there have been governmental studies addressing the question: Does marijuana impair driving?

Interestingly, however, the findings do not necessarily support popular opinion…. On the one hand, the California Department of Justice has found that marijuana undoubtedly impairs psychomotor abilities that are functionally related to driving and that driving skills may be impaired, particularly at high-dose levels or among inexperienced users. "Marijuana and Alcohol: A Driver Performance Study", California Office of Traffic Safety Project No. 087902 (Sept. 1986).

Contradicting these conclusions, however, are two federal studies. The U.S. Department of Transportation conducted research with a fully interactive simulator on the effects of alcohol and marijuana, alone and in combination, on driver-controlled behavior and performance. Although alcohol was found consistently and significantly to cause impairment, marijuana had only an occasional effect. Also, there was little evidence of interaction between alcohol and marijuana. Accidents and speeding tickets reliably increased with alcohol, but no marijuana or combined alcohol-marijuana influence was noted. "The Effects of Alcohol on Driver-Controlled Behavior in a Driving Simulator, Phase I", DOT-HS-806-414.

A more recent report entitled "Marijuana and Actual Performance", DOT-HS-808-078, noted that "THC is not a profoundly impairing drug….It apparently affects controlled information processing in a variety of laboratory tests, but not to the extent which is beyond the individual’s ability to control when he is motivated and permitted to do so in driving". The study concluded that:

"…An important practical objective of this study was to determine whether degrees of driving impairment can be actually predicted from either measured concentration of THC in plasma or performance measured in potential roadside "sobriety" tests of tracking ability or hand and posture stability. The results, like many reported before, indicated that none of these measures accurately predicts changes in actual performance under the influence of THC…".

The researchers found that it "appears not possible to conclude anything about a driver’s impairment on the basis of his/her plasma concentrations of THC and THC-COOH determined in a single sample".

Note: "THC" stands for Delta-9-tetrahydrocannabinol, which is the intoxicating ingredient in marijuana. THC is fairly quickly converted by the body into inert metabolites, which can stay in the body for hours or even days. It is these metabolites that police blood tests in DUI arrests detect and measure. In other words, (1) marijuna may not impair driving ability at all, and (2) the blood "evidence" only measures an inactive substance which may have been there for days.

Share

DUI Entrapment

Monday, December 13th, 2004

Suppose a police officer asks or orders an individual to drive a vehicle — and then arrests him for DUI when he complies? This situation comes up more often than you might think. Take, for example, the following case that eventually made its way to the New Jersey Supreme Court….

The defendant asked his brothers at a wedding reception to drive him home because he was too intoxicated to drive. In the parking lot, however, the brothers got into a fight, attracting the attention of local police. One of the officers struck a brother with his nightstick. The defendant asked the officer to quit hitting his brother. The officer replied by ordering him to leave the parking lot. When the defendant did not immediately comply, the officer repeated the order and then forcefully escorted him to his truck. The defendant obediently got into the vehicle, started the engine — and backed into a police car. He was arrested for drunk driving.

At trial, the judge ruled that the defendant had failed to prove entrapment or duress as a defense, and he was convicted. On appeal, however, the conviction was reversed on grounds of quasi-entrapment — that is, the defendant should have been acquitted if he could show that but for the officer’s order to leave in the vehicle he would not have driven. The prosecution appealed this reversal to the state’s supreme court.

Incredibly, the Supreme Court reversed the lower court and reinstated the conviction. Its reasoning? "Obviously," the court said, "if the law were to permit [drunk drivers] to offer as a defense that they drove only because they reasonably feared that telling the police that they were drunk might lead to arrest, the invitation to offer a pretext would be clear". The court continued its twisted logic: "No one ordered the defendant to get drunk and no one ordered defendant to drive drunk. The police did not coerce defendant into driving his vehicle through the use or threats of violence. The police officers merely ordered defendant to get in his truck and leave the scene of the fight…." (Emphasis added) State v. Fogarty, 607 A.2d 624 (N.J. 1992).

This "no win" scenario is fairly typical of what I have referred to in earlier posts as "the DUI exception to the Constitution".

Share