Archive for March, 2007

Slurred Speech: Evidence of DUI?

Friday, March 30th, 2007

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 perception 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).


Alcohol on the Breath: Evidence of DUI?

Wednesday, March 28th, 2007

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).


Can Chewing Tobacco Cause High Breath Results?

Monday, March 26th, 2007


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?". 


Prescription Drugs Cause Craving for Alcohol

Saturday, March 24th, 2007

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.)


Do DUI Laws Discriminate Against Women?

Thursday, March 22nd, 2007

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.