DUI BLOG

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”. The officer fully expects to hear slurred speech in a person he suspects is intoxicated, particularly after smelling alcohol on the breath, and it is a psychological fact that we tend to “hear” what we expect to hear. And “hearing” slurred speech supplies the officer with corroboration of his suspicions.

Even assuming the accuracy of the officer’s peerception 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).

As any experienced criminal attorney knows, you will never see a DUI police report that does not say the arrestee had “an odor of alcohol on his breath” — usually further characterized as either a “moderate” or “strong” odor of alcohol. If the report does not mention an alcoholic breath, you can be sure the later breath test at the station came back clean — and the arrest has been “revised” from DUI alcohol to DUI drugs.

Criminal attorneys also know the reality of drunk driving investigations: after stopping a car late at night, the officer approaches the driver’s window predisposed to finding a drunk driver behind the wheel. It is a psychological fact that we tend to see what we expect to see. And the first thing the officer will be looking for to corroborate his expectations is an odor of alcohol. Once he smells alcohol, the arrest is a foregone conclusion; the field sobriety tests are mere formalities, the subjective “pass-fail” decision made by the already-convinced officer.

Of course, as I indicated in an earlier post, “The Suspect Had a Strong Odor of Alcohol on his Breath“, alcohol itself actually has little if any odor.

I have received queries after this post as to whether there are any scientific studies to back up my claim that breath alcohol odor is largely irrelevant yet disproportionately weighted as “evidence” of intoxication. Yes, there is such a study…

In 1999, the same scientists whose federally-contracted studies became the basis of the so-called “standardized” battery of field sobriety tests conducted another study on the effectiveness of alochol odor in detecting intoxication.These researchers used 20 experienced officers working with 14 subjects who were tested at blood-alcohol concentrations (BACs) ranging from zero to .13 percent. Over a four-hour period, the officers smelled the subject’s breath odor under optimal conditions, with the subjects hidden rom view.

The conclusions of the study: Odor strength estimates were unrelated to BAC levels. In fact, estimates of BAC levels failed to rise above random guesses. Further, officers were unable to recognize whether the alcohol beverage was beer, wine, bourbon or vodka. According to the scientists, these results demonstrate that even under the best of conditions, breath odor detection is unreliable. Moscowittz, Burns & Furgeson, “Police Officers’ Detection of Breath Odors from Alcohol Ingestion”, 31(3) Accident Analysis and Prevention 175 (May 1999).

Yes.

Man Blames Chewing Tobacco for DUI Charge

Naticoke, Penn.  March 6  –  Could chewing tobacco make a man legally drunk?

John Daniel Drury Sr. thinks so.

Drury, who faces a drunken driving charge, told Nanticoke police that the brand of chewing tobacco he uses, Red Man Select, contains Tennessee Whiskey.

Police said Drury, 42, of Pine Street in the Hanover Section of Nanticoke, failed a series of field sobriety tests. A breath test Drury took showed an alcohol level of 0.144 percent, police said.

Mr. Drury is right.  But how can a tiny amount of Tennessee Whiskey in a wad of chewing tobacco cause a 0.144% reading, you ask?

Mouth alcohol. 

These breath machines aren’t terribly bright.  To obtain the percentage of alcohol in the blood, they are basically programmed to multiply the amount by 2100 times (called the partition ratio) to get the equivalent amount in the blood.  This is because the alcohol in the lung air (called  alveolar air) has been greatly attenuated in the process of being transferred from the blood into the lungs.  In other words, the machine is programmed to assume that the sample is alveolar air.  If the alcohol has not passed through the body and into the lungs, however, but is still in the mouth, the machine is multiplying alcohol 2100 times when it should not be multiplying it at all.  And it doesn’t take much alcohol to get a high reading if it’s being multiplied 2100 times.

For a further discussion, see my earlier posts, “The Mouth Alcohol Problem” and “What About Mouth Alcohol Detectors?”. 

Interesting review concluding that certain common prescription drugs are causing a craving for alcohol and, possibly, alcoholism: 

Alcohol Cravings Induced via Increased Serotonin

There is an alarming connection between alcoholism and the various prescription drugs that increase serotonin. The most popular of those drugs are: PROZAC, ZOLOFT, PAXIL, LUVOX, SERZONE, EFFEXOR, ANAFRANIL, and the new diet pills, FEN-PHEN and REDUX. For seven years numerous reports have been made by reformed alcoholics (some for 15 years and longer) who are being “driven” to alcohol again after being prescribed one of these drugs. And many other patients who had no previous history of alcoholism have continued to report an “overwhelming compulsion” to drink while using these drugs…

For some time we did not have specific medical documentation to help us understand why this was happening. Could it be that Prozac, Zoloft, Paxil, etc., being mood altering substances, were removing the inhibitions that individuals had placed upon themselves to stop their additions? But beyond this mood altering effect of Prozac, etc., there seemed to be a physiological cause for this alcoholic obsession as well. There were reports of people who rarely drank before Prozac, etc., consuming excessive amounts of alcohol after starting usage of these various drugs.

In November of 1994 Yale published a study that gave us one answer to the alcohol cravings associated with these drugs. The study demonstrated that an increase in brain levels of either of two neurotransmitters (brain hormones), serotonin or noradrenalin, produces: #1 a craving for alcohol, #2 anger, #3 anxiety. They found this to be especially true for those who have a history of alcoholism…

The Yale study mentioned is Specificity of Ethanol-like Effects Elicited in Serotonergic and Noradrenergic Mechanisms,” ARCHIVES OF GENERAL PSYCHIATRY, Vol. 51, Issue 11, pgs 898-911.

(Thanks to William C. Head.)

If you are arrested for DUI and a breath test shows a blood alcohol concentration (BAC) of .08% or higher, you are presumed guilty. It does not matter, of course, whether you are a man or a women: the laws do not discriminate. Maybe they should…

Researchers at the University School of Medicine in Trieste, Italy, found that the stomach lining contains an enzyme called gastric alcohol dehydrogenase that breaks down alcohol, and that women have less than men. To determine the relative effects of the enzyme, they gave alcohol both orally and intravenously to groups of alcoholic and non-alcoholic men and women. They found that women reached the same levels of blood alcohol as men after drinking only half as much; with weight differences taken into account, they found that women reached BAC levels illegal in a DUI case after drinking 20 to 30 percent less alcohol than men.

The scientists’ conclusion: legislatures may need to consider sex differences in drunk driving laws when defining safe levels of drinking for driving motor vehicles. Frezza and Lieber, “High Blood Alcohol Levels in Women: The Role of Decreased Gastric Alcohol Dehydrogenase Activity and First-Pass Metabolism”, 322(2) New England Journal of Medicine 95 (1990).

Another study has found that women have lower partition ratios of blood to breath. What kind of ratios? Well, all breath machines in DUI cases measure the amount of alcohol in a person’s breath. But the what we really want to know is the amount of alcohol in the person’s blood. So how do we get that? Simple: essentially, a small computer in the breath machine  multiplies the amount of alcohol it detects in the breath sample by 2100 times. This is based upon the theory that, on average, there are 2100 units of alcohol in the blood for every unit of alcohol in the breath. (Note: that’s an average — but it varies from person to person.) According to the study, women have a significantly lower partition ratio. Jones, “Determination of Liquid/Air Partition Coefficients for Dilute Solutions of Ethanol in Water, Whole Blood and Plasma”, Analytical Toxicology 193 (July/August 1983). And the lower the ratio, the higher the reading — even though the true BAC does not vary. Example: a woman with a true BAC of .06% and a ratio of 1500:1 (rather than the presumed 2100:1) will get a reading on the machine of .09% — above the legal limit.

Put another way, the breath machine will show an average man accused of drunk driving to be innocent — but a woman with the same blood alcohol level to be guilty.

And then there’s the problem of birth control….

Scientists in Canada have found that “women taking oral contraceptive steroids (O.C.S.) appeared to eliminate ethanol significantly faster than women not taking O.C.S.” Papple, “The Effects of Oral Contraceptive Steroids on the Rate of Post-Absorptive Phase Decline of Blood Alcohol Concentration in the Adult Woman”, 15(1) Canadian Society of Forensic Science Journal 17 (1982). That means that women will reach peak BAC faster, and return to lower levels more quickly. This, of course, can create serious problems in a DUI case when attempting to estimate BAC at the time of driving based upon a breath test administered one hour later.

Making the problem worse, researchers have also discovered that women who were taking birth control pills or who were pregnant had higher levels of acetaldehyde on their breath, due to the decreased ability to metabolize the enzyme as the level of sex steroids increases. So what? Well, most breath machines use infrared analysis in measuring the breath sample of a DUI suspect. But these machines don’t really measure alcohol, rather they measure any compound which contains the methyl group in its molecular structure. And acetaldehyde is one of these compounds. Result: a higher “blood alcohol” reading on the Breathalyzer. Jeavons and Zeiner, “Effects of Elevated Female Sex Steroids on Ethanol and Acetaldehyde Metabolism in Humans”, 8(4) Alcoholism: Clinical and Experimental Research 352 (1984).

It’s always a problem when the law, in its infinite wisdom, assumes that all of us are exactly the same.

A few days ago I posted about a gentleman in Montana who was arrested for drunk driving, but claimed that he was not driving — a Unicorn was.

Update:  yet another foul-up by prosecutors at a defendant’s expense.  It seems that the gentleman had explained to the officer that a woman in the car had been driving.  Later, a prosecutor who was familiar with the case emailed the prosecutor who was to appear for the arraignment that the defendant was going to use the “SEDI defense” (somebody-else-did-it).  He jokingly referred to it as “the Unicorn defense”, suggesting that some mythical being was driving. 

Unfortunately, the prosecutor at the arraignment apparently did not understand the humor, and at the arraignment asked the judge for high bail, explaining that the defendant had claimed a unicorn was driving. 

(Thanks to Bob Battle.)

Similar DUI fatality cases, but one is charged as vehicular manslaughter, the other as murder.  Why?

Inconsistency in DUI Death Verdicts?

Sacramento, Calif.  Mar. 14  –  The cases are very similar. In one, a drunk driver kills a police officer. In the other the drunk driver is a police officer. But the outcomes, and the penalties, are very different.

In fact, after a Placer County jury found Eric Dungan, 27, guilty of second degree murder Tuesday in the death of Rocklin police officer Matt Redding, Dungan’s family raised the question. Dungan’s aunt brought up a similar case in which off-duty Sacramento police officer Jason March was drunk when he struck and killed 13-year-old Michael Ramirez in Elk Grove.

“Broad daylight … he got vehicular manslaughter. He was a police officer. Eric’s second degree,” said Dungan’s aunt, Liz Brooke. “Does that make sense to anyone? It doesn’t make sense to us.”

The March and Dungan incidents both happened in 2005, but they have similarities. Both had blood alcohol levels around .16 to .18 — twice the legal limit. Both drove away after hitting the victim. Neither was speeding nor driving recklessly, other than being intoxicated, before or during the crash. Neither had criminal records, nor any prior DUI convictions.

Yet there are key differences in the cases. March hit Ramirez during the afternoon on a residential street. Dungan hit Redding in the early morning hours on Highway 65. Dungan took full responsibility and expressed remorse on the stand. March never did…

On a separate issue, this again raises the question of just how far are we going with with the emerging murder approach to DUI fatality cases? See my earlier posts:

From Manslaughter to Murder in 5 Easy Steps
DUI + Fatality = Murder?
MADD: Murder for DUI
The Death Penalty for DUI?

Actually, a variation on the old “some other dude” defense:

‘The Unicorn Was Driving’

Billings, Mont.  May 14 – A man accused of drunken driving and crashing his truck into a lamp-post told police a unicorn had been at the wheel when it careered off the road, reported local media on Wednesday…  

Phillip Holliday, 42, pleaded not guilty to felony charges of criminal endangerment and drunken driving when he appeared before a court in the western state of Montana on Tuesday, reported the Billings Gazette.

Holliday insisted a unicorn was driving when he slammed into the street lighting, shortly after jumping a red light.