Monthly Archives: July 2006
Can alcohol be created by the human body itself — without any drinking? Apparently so.
In an interesting scientific article, two physicians at Union Memorial Hospital in Baltimore reported that they detected the odor of beer in three of their patients. This was in an isolated hospital setting; there was no access to alcoholic beverages. The doctors had urine samples taken and analyzed by gas chromatography. Result? All three showed the presence of alcohol in their systems. Two of these were then tested for actual blood-alcohol concentration (BAC). One showed a BAC of .043%. The other was .121% — or 1 1/2 times the legal limit for DUI!
The presence of alcohol in human specimens containing glucose and yeast should come as no surprise. Several have made this observation. Under normal circumstances trace amounts of alcohol may be found in the blood; the alcohol is then channeled into an energy pathway by hepatic alcohol dehydrogenase…
The Japanese report the “auto brewery syndrome” in which they have seen middle aged patients with bowel abnormalities, most often after surgery, who have yeast overgrowth, usually candida, in the G.I. tract and who ferment ingested carbohydrates, producing enough alcohol to result in drunkeness.
Mullholland and Townsend, “Bladder Beer – A New Clinical Observation”, 95 Transactions of the American Clinical Climatological Association 34 (1983).
In other words, the body is manufacturing alcohol by itself — in some cases, enough to become legally intoxicated. This has been confirmed by other studies. Swedish researchers, for example, have found that:
Increasing evidence has emerged to show that endogenous ethanol does exist, the the concentrations seen have large inter-individual variations. Our results show a markedly skewed distribution of values…The reason for the wide inter-individual variation in healthy abstaining individuals is hard to explain.
Jones et al., “Determination of Endogenous Ethanol in Blood and Breath By Gas Chromatography, 18 Pharmacology, Biochemistry and Behavior 267 (1983).
How many folks, with “immaculately conceived” alcohol in their systems, have been arrested and convicted for DUI? These people were innocent, right?
Wrong. In the rush to convict drunk drivers (and with federal pushing), 49 states have now passed so-called “per se” laws: driving with a BAC of .08% or more. Neither intent, negligence or even knowledge is required. The crime consists of simply having the alcohol in your body. Even if you’ve had nothing to drink.
I’ve argued in past posts that the criminal justice system’s punitive approach to the drunk driving problem has proven ineffective (see “MADDness”). Pushed to come up with a better approach, I later suggested that the primary danger is not the social drinker but the recidivist/alcoholic — and that throwing him in jail accomplishes nothing (see “Time for a Change”). The punitive model does not work with the alcoholic; the rehabilitative model is the only one that makes sense.
I was reading an email today from a very sharp DUI attorney (and friend and fellow Berkeley alum) in Arizona, Jeffrey Siirtola. Jeff suggested that requiring DUI suspects with physical infirmities to perform field sobriety tests was a violation of the Americans with Disabilities Act of 1990. Similarly, punishing a person with impaired lung capacity for being unable to breath hard enough to provide a breath sample.
Makes sense. Later, I asked myself: What about alcoholics? Isn’t alcoholism a disease or condition — and aren’t they being discriminated against by being thrown in jail because of their condition?
No, I argued back, they are being thrown in jail because of their condition and choosing to drive a vehicle.
But wait a minute, isn’t that a Catch-22? We outlaw DUI because mental and physical facilities are impaired, so wouldn’t the decision to drive be impaired by the alcohol to which the alcoholic is addicted?
Now, before you decide I’ve finally lost it, consider….
1. Alcoholism is a recognized disease.
2. The Americans with Disabilities Act applies to alcoholics: “…alcoholics are individuals with disabilities, subject to the protections of the statute.” (28 CFR Part 35, Sec. 35.13, Department of Justice, Offices of the Attorney General)
3. The provisions of the ADA apply to “any State or local government; any department, agency, special purpose district, or other instrumentality of a State or States or local government” (supra) – and, thus, to police, prosecutors and courts.
4. The criminal justice system presently does not distinguish between alcoholics and those who do not suffer from the disability.
5. Thus, the ADA requires that cops, prosecutors, judges make reasonable accomodation for this disability….unless this would create a “direct threat” to the safety of the public.
Ahhh, public safety…There goes the ADA argument, right?
No. It would be difficult to argue that attempting to rehabilitate chronic drunk drivers constituted a “direct threat” to public safety. In any event, the Act provides that this reservation applies only if the threat “…cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services”. And can it be eliminated by modification of policies, etc.? Yes: modify the sentencing by “provision of auxiliary aids or services” — i.e., rehabilitative services rather than jail. “Direct risk” to the public is further minimized by temporarily depriving the alcoholic of driving privileges, as is already done in DUI cases.
Thus, the present method of dealing with alcoholics charged with DUI may well be a violation of the Americans with Disabilities Act — with the attendant possibilities of very large civil law suits.
The bottom line, however, is that society would be better off — safer — if the problem of alcoholics who drink too much and drive was addressed by a rehabilitative approach rather than a punitive one.
What if you are wrongly convicted because of an inaccurate breathalyzer: Can you sue the manufacturer, police agency or government?
Inaccurate Breath Testers Prompt Consumer Refunds
Salinas, CA. July 8 – If you’ve been depending on a breath analyzer from Sharper Image to tell you if you’re too drunk to drive, your trust has been misplaced — but you may be in for some money.
Monterey County District Attorney Dean Flippo announced Friday that his office has reached a settlement with the Sharper Image Corp. for falsely advertising the accuracy of a line of breath analyzers. Under the terms of the settlement, the corporation will pay a $100,000 penalty and reimburse consumers who purchased the devices, a restitution that could amount to $1.2 million…
So what about the breathalyzers used by law enforcement? As I’ve posted numerous times before, the various models of breath testing devices used by law enforcement are clearly unreliable and inaccurate (see "How Breathalyzers Work — and Why They Don’t"). If you can sue for just buying an inaccurate breath testing device, why can’t citizens wrongly convicted and sentenced to jail, fines and license suspensions because of false test results sue the government or manufacturer?
(Thanks for the news article to William C. Head, Esq., of Atlanta.)
Utah’s Top DUI Cop Cited for DUI
Commander of Highway Patrol drunken driving unit reportedly blows 0.12
Salt Lake City, AP – The commander of the Utah Highway Patrol’s drunken driving unit has been cited for driving under the influence of alcohol after crashing his cruiser into a concrete barrier, authorities said… (Lt. Fred) Swain said he fell asleep at the wheel, but officers suspected he had been drinking, said Draper police Sgt. Scott Peck. Swain refused to submit to a breathalyzer test until two patrol captains talked to him, Peck said. The test showed that Swain’s blood-alcohol level was nearly 0.12 percent, Peck said. Utah’s legal limit is 0.08 percent…
New Cell Phone Has Built-in Breathalyzer
New York (UPI) — A cell phone with a built-in alcohol breath analyzer is headed to the United States from South Korea, where more than 200,000 of the devices have already been sold.South Korean manufacturer LG will introduce the LP4100 to the U.S. market later this year, ABC News reported.
Users blow into a small spot on the phone, and of nothing happens they are theoretically safe to drive. But if the user has had too much to drink, the $400 phone displays the image of a weaving car on the screen…
Hopefully more accurate then the ones used by law enforcement.