DRUNK DRIVING DEFENSES

"Know your enemy." The Art of War, Sun-Tzu


See also: Dr. Richard Jensen in State of Iowa v Tracy Allen Rokes
See also: Dr. Richard Jensen deposition in Kleinheksel v Rokes v Farrell
See also: Dr. Richard Jensen Ph.D.
See also: Dr. Kurt M. Dubowski flawed research and data on blood and breath alcohol levels used by expert witnesses, flaws and ways of lying are exposed.
See also: Alcohol Bibliography
See also: Alcohol Impairment
See also: Alcohol Impairment Charts
See also: Blood Alcohol
See also: Breath Alcohol
See also: Definition of a Heavy Drinker
See also: National .08 BAC
See also: National .05 BAC
See also: NIAAA--NATIONAL INSTITUTE ON ALCOHOL ABUSE AND ALCOHOLISM
See also: Red Light Running and Red Light Cameras
See also: Toxicological Expert Witness Truths and Untruths
See also: WIDMARKS AND/OR BACK CALCULATION

Drunk Driving Defenses

"For some unexplained, and physiologically improbable reason, the alcohol ingested during the evening remained unabsorbed in the stomach until the person decided to leave for home or dive to the next bar. Shortly after driving the person is either involved in an accident or pulled over by the police because of a moving traffic offense, and in this connection is arrested for DUI. The defendant then claims that between the time of being apprehended and the time of taking the blood or breath-alcohol test, the alcohol in the stomach has become absorbed into the blood bringing the person over the legal limit.

"Obviously, this scenario is unreasonable because alcohol, unlike many other drugs, starts to become absorbed from the stomach immediately following ingestion. Gastric emptying accelerates this process and leads to a rapid onset of the effects of alcohol on the brain. Indeed, people indulge in drinking primarily to experience alcohol's enjoyable pharmacological effects such as euphoria, relaxation and diminished social inhibitions. In order for this to happen, the alcohol must become absorbed into the blood and transported to the brain. The intoxicating effects of alcohol are more pronounced during the rising limb of the BAC profile, and people would surely be surprised if they had been consuming drinks for several hours without experiencing any effect! Unfortunately, only a handful of studies have looked at the pharmacokinetics of alcohol under real world drinking conditions to establish, for a large number of subjects, the degree of rise in BAC and the time needed to reach the peak after the last drink, Jones, A. W.; "DUI defenses" ; In: Steven B. Karch, Ed.; Drug Abuse Handbook, CRC Press, 1998, 1138p.

"In the United States and elsewhere, a blood/breath facto of 2,100:1 was approved for legal purposed with the understanding that this give a margin of safety (about 10%) to the accused. Indeed, more recent research suggests that blood/breath factor should be 2300:1 for closer agreement between direct BAC and the result derived fro BrAC, " Jones, A. W.; "Blood alcohol concentration measures of"; In: Jaffe, J. H.; Encyclopedia of Drugs and Alcohol, New York, Macmillan Library Reference USA, 1995, p. 166-7.

Steepling--"An important challenge to the forensic issue of breath alcohol analysis is the so called "steepling effect", large positive and negative excursions in short time intervals over the course of an individual's breath alcohol concentration (BrAC) time curve, (Mason and Dubowski, 1976). Concentration time curves appear noisy, with peaks and valleys (hence, the term "steeping") over time. The steepling phenomenon must be attributable to combined analytical and biological components inherent in breath alcohol sampling and measurement. Moreover, when discussing the issue of steepling, one should always provide a numerical estimate of its magnitude, such as RSS or Sy/x. Interpreting the phenomena as originating from some other biological cause (e.g. pyloric spasms, etc.) is cautioned against unless total analytical variability is accounted for," (Gullberg, 1994, p. 321).

Head, William C.; "Defense of driving under the influence cases"; In: Garriott, James C., ed.; Medicolegal aspects of alcohol, 3rd ed., Lawyers & Judges Publishing Company, Inc., c1996, 526p. Include: "failure to follow the state testing or blood collection regulations; individual drawing blood not properly qualified; procedures set out in state stature not followed; failure to use regulation blood kit; introduction of ethanol in the specimen vis the operator (perfume or lotion on hands may introduce error; subject's arm swabbed with disinfectant containing alcohol; were intravenous IV fluids running at the time of the blood draw; blood sample left to sit for any significant period of time; blood sample not refrigerated or treated with preservatives; expired blood drawing equipment or vials; improper vial used for collection of blood sample ( re: top/gray top); omissions or discrepancies in the medical record; equipment used to draw blood was not sterile; state unable to account for the chain of custody of the blood; disease or condition altering results of blood alcohol levels; medication interference with blood alcohol levels; incorrect component of blood testes (whole blood/serum/plasma); state unable to produce all required witness at trial; officer or hospital personnel obtaining or attempting to obtain a written waiver or patient's permission sheet when implied consent law does not require same; inaccurate, coercive or misleading implied consent warnings cause results or refusal to be excluded from evidence at trial," (page 421).

Iffland, R.; Jones, A. W.; "Evaluating alleged drinking after driving--the hip-flask defense. Part 1. Double blood samples and urine-to-blood alcohol relationship. MEDICINE, SCIENCE, AND THE LAW (2002), 42 (3): 207-24. This two-part article examines the strengths and weaknesses of various ways of investigating claims of drinking alcohol after driving, commonly known as the hip-flask or glove-compartment defense. In many countries the onus of proof in hip-flask cases rests on the prosecution. With good co-operation from the police and timely sampling of bodily fluids, such as blood and urine for forensic analysis of ethanol, useful evidence cam be mustered to support or challenge the truthfulness of alleged drinking after driving. The person's blood-alcohol concentration (BAC) can be compared with values expected on the basis of amount of alcohol consumed after driving, according to theoretical Widmark calculations. The actual BAC measured is the adjusted for the additional amount of alcohol consumed in the after-drink. Double blood samples, that is, taking two specimens of venous blood about 30-60 minutes apart and looking at the magnitude and direction of change in BAC provides little or no more information than a single blood specimen. However, the relationship between alcohol in blood and urine is very useful in hip-flask cases whereby the concentration expected in the primary urine is compare with the concentration in the bladder urine voided. The concentration of alcohol determined in a second urine sample collected 30-60 min later gives ethanol concentrations in blood and urine as a function of time provides a robust and practical review, congener analysis is presented, which entails comparing the concentrations of n-propanol and occasionally other congeners in the alcohol beverage allegedly consumed after driving with the volatiles present in the suspect's blood and urine determined by headspace gas chromatography.

Iffland, R.; Jones, A. W.; "Evaluating alleged drinking after driving--the hip-flask defense. Part 2. Congener analysis:, MEDICINE, SCIENCE, AND THE LAW (2003), 43 (1): 39-68. The second part of this review describes the principles and practices of forensic congener analysis as an alternative way to evaluate claims of drinking alcohol after driving. Congener analysis was developed, perfected and practiced in Germany as a way to evaluate the hip-flask defenses. This kind of defense challenged arises frequently when the drunk driving suspect is not apprehended at the wheel and especially after hit-and-run incidents. Besides ethanol and water, alcoholic beverages contain trace amounts of many other low-molecular substances, known collectively as congeners, which impart the characteristic smell and taste to the drink. Importantly, the congener profile can be used to identify a particular kind of alcoholic beverage. Forensic congener analysis entails making a qualitative and quantitative analysis of ethanol, methanol, n-propanol and the isomers of butanol in blood and urine from the apprehended driver and comparing the results with the know congener profile of the alcoholic beverage allegedly consumed after driving. Interpreting the results of congener analysis requires knowledge about the absorption, distribution and elimination pattern of the congener alcohols, including their oxidation and conjugation reactions, and any metabolic interactions with ethanol. Complications arise if drinks are with widely different congener profiles are consumed or if the same beverage was ingested both before and after driving. Despite these limitations, congener analysis can furnish compelling evidence to challenge or support claims of drinking alcohol after driving.

Jones, A. W.; "Evidence-based survey of the elimination rates of ethanol from blood with applications in forensic casework", FORENSIC SCIENCE INTERNATIONAL (2010), 200 (1-3: 1-20. "Reliable information about the elimination rate of alcohol (ethanol) from blood is often needed in forensic science and legal medicine when alcohol-related crimes, such as drunken driving or drug-related sexual assault are investigated. A blood sample for forensic analysis might not be taken until several hours after an offense was committed. The courts usually want to know the suspect's blood-alcohol concentration (BAC) at some earlier time, such as the time of driving. Making these back calculations or retrograde extrapolations of BAC in criminal cases has many proponents and critics. Ethanol is eliminated from the body mainly by oxidative metabolism inn the liver by Class I isoenzymes of alcohol dehydrogenase (ADH). Ethanol is an example of a drug for which the Michaelis-Menten pharmacokinetic model applies and the Michaelis constant (k(m)) for Class I ADH is at BAC of 2-10mg/100mL. This means that the enzyme is saturated with substrate after the first few drinks and that zero-order kinetics is adequate to describe the declining phase of the BAC profile in most forensic situations (BAC >20 mg/100mL) After drinking on an empty stomach, the elimination rate of ethanol from blood falls within the range 10-15 mg/l00mL/h. In non-fasted subjects the rate of elimination tends to be in the rage 15-20mg/100mL/h. In alcoholics during detoxification, because activity of microsomal enzyme (CYP2E1) is boosted, the ethanol elimination rate might be 25-35 mg/100mL/h. the slope of the BAC declining phase is slightly steeper in women compared with men, which seems to be related to gender difference in liver weight in relation to lean body mass. The present evidence-based review suggests that the physiological range of ethanol elimination rates from blood if from 10 to 35mg/100mL/h. In moderate drinkers 15 mg/100mL/h remains a good average value for the population, whereas in apprehended drivers 19 mg/100mL/h is more appropriate, since many of these individuals are binge drinkers or alcoholics. In preparing this article, a large number of peer-reviewed publications were scrutinized. Only those meeting certain standards in experimental design, dose of alcohol and blood-sampling protocol use used. The results presented can hopefully serve as best-practice guidelines when question arise in criminal and civil litigation about the elimination rate of ethanol from blood in humans.

Jones, A. W., Kugelberg, F. C.; "Relationship between blood and urine alcohol concentrations in apprehended drivers who claimed consumption of alcohol after driving with and without supporting evidence", FORENSIC SCIENCE INTERNATIONAL (2010), 194 (1-3): 97-102. "The routine practice of sampling and measuring the concentration of alcohol in blood (BAC and urine (UAC) and calculating urine/blood rations (UAC/BAC) and the changes in UAC between two successive voids furnishes useful information to support or challenge drinking after driving. We present here a retrospective case series of DUIA offenders (N=40) in half of which there was supporting evidence of an afer-drink (eye witness or police reports) and in the other half no such evidence existed apart from the suspect's admission. When there was supporting evidence of an after-drink, the UAC/BAC ratio for the first void was close to or less than unity (mean 1.04, median 1.08, range 0.54-1.21) and the UAC increased by 0.21- g/L (range 0.02-0.57) between the two voids. Without any supporting evidence of post-offense drinking the mean UAC/BAC ration was 1.46 (range 1.35-1.94) for the first void, verifying that absorption and distribution of alcohol in all body fluids and tissues was complete. In these cases, the UAC between successive voids decreased by 0.25 g/: on average (range 0.14-0.49), indicating the post-absorptive phase of the BAC curve. Long experience from investigating claims of post-of fence drinking leases us to conclude that in the vast majority of cases this lacks any substance and is simply a last resort by DUIA offenders to evade justice. Unless supporting evidence exists (eye witness, police reports, etc.) of post-of fence drinking the courts are encouraged to ignore this defense argument.

Jones, A. W., "Top ten defense challenges among drinking drivers in Sweden." MEDICINE, SCIENCE AND THE LAW (1991), 31 (3): 229-238. In order of occurrence the top defense challenges are: (1) drinking after the offense--the hip-flask defense; (2) laced drinks; (3) inhalation of ethanol vapors from the work environment; (4) pathological condition or trauma; (5) use of skin antiseptics containing ethanol; (6) alleged mix-up of blood specimen; (7) post-sampling formation of alcohols; (8) drug-alcohol interactions; (9) consumption of elixirs or health tonics containing alcohol; and (10) infusion of blood or other liquids during surgical emergency.

Jones A. W, Hylen L, Svensson E, Helander A., "Storage of specimens at 4 degrees C or addition of sodium fluoride (1%) prevents formation of ethanol in urine inoculated with Candida albicans", JOURNAL OF ANALYTICAL TOXICOLOGY (1999), 23(5) : 333-6.

Tyndall Effect--air bag dust particles inhaled effect the reading of the breath alcohol testing equipment. An explanation of this effect is found at address:
Address: http://www.acs.ucalgary.ca/~schramm/centrif.html

Candida albicans contaminated the specimen and produced a higher BAC, Dr. Jones "auto brewery". Address: http://www.cwchealth.com/ or http://www.candidaprogram.com/ for its effect on the human body.

Cell phones--the magnet field disrupts the functioning of breath alcohol testing equipment.

IV's (intravenous fluids or blood) used on the subject increased the BAC before or while being tested see Jones, Drug Abuse Handbook (1998) p1020. One cannot increase BAC unless more alcohol is consumed. An IV does not draw alcohol from the elsewhere in the body to the blood.

Radio Waves-- the magnet field disrupts the reading of breath alcohol testing equipment.

Jones, A. W.; "DUI defenses" ; In: Steven B. Karch, Ed.; Drug Abuse Handbook, CRC Press, 1998, 1138p. Include: drinking after the offense; laced drinks; rising blood alcohol concentrations; pathological states and ethanol pharmacokinetics; drug-alcohol interactions; gastric alcohol dehydrogenase; endogenous ethanol and the auto brewery syndrome; urine samples; blood samples--use of alcohol swabs and disinfectants, trauma and intravenous fluids (sample should be taken above the IV site), blood-water content and hematocrit (serum or plasma and whole blood); breath-alcohol analysis--mouth alcohol and the use of mouthwash preparations; regurgitation and gastro esophageal reflux disease; dentures and denture adhesives; alleged interfering substances in breath; variability in blood/breath alcohol ratio; pulmonary function; breathing pattern and hypo- and hyperthermia.

Logan, B. K.; Jones, A. W.; "Endogenous ethanol 'auto-brewery syndrome' as a drunk-driving defense challenge." MEDICINE SCIENCE AND LAW (2000), 40 (3): 206-15. "Other reports of finding abnormally high concentrations of ethanol in body fluids fro ostensibly healthy subjects suffer from deficiencies in study design and lack suitable control experiments or use nonspecific analytical methods. With reliable gas chromatographic methods of analysis, the concentrations of endogenous ethanol in peripheral venous blood of healthy individuals, as well as those suffering from various metabolic disorders (diabetes, hepatitis, cirrhosis) ranged from 0-0.08 mg/dl. These concentrations are far too low to have any forensic or medical significance. The notion that a motorist's state of intoxication was cause by endogenously produced ethanol lacks merit."

Kechagias, S.; Jonsson, K.; Jones, A. W.; ""Breath tests for alcohol in gatroesophageal reflux disease (letter to the editor)," ANNALS OF INTERNAL MEDICINE (1999), 130 (4, part 1), 328-9. ("the blood-alcohol concentration always exceeded the breath-alcohol concentration. This can be explained by an arterial-venous difference in ethanol concentrations, mainly seen during the absorption phase. Although several participants has symptoms of gastric reflux during these experiments, no widely aberrant breath-alcohol readings were observed compared with the concentrations in venous blood. We conclude that the probability of a breath-alcohol test being invalidated because of alcohol refluxing from the stomach into the mouth in patients with GERD is very small."

Kechagias, S.; Jonsson, K.; Franzen, T.; Andersson, L.; Jones, A. W., "Reliability of breath-alcohol analysis in individuals with gatroesophageal reflux disease," JOURNAL OF FORENSIC SCIENCES (1999), 44 (4): 814-818. During the absorption phase of alcohol, which occurred during the first 90 minutes after the start of drinking, BrAC (mg/210L) tended t be the same or higher than venous BAC (mg/dL). In the post-peak phase, the BAC always exceeded BrAC. Four of the 10 subjects definitely experienced gastric reflux during the study although this did not result in widely deviant BrAC readings compared with BAC when sampling occurred at 5-min intervals. We conclude that the risk of alcohol erupting from the stomach into the mouth owing to gastric reflux, and falsely increasing the result of an evidential breath-alcohol test is highly improbable.)

Taylor, Lawrence E.; Oberman, Steven, "Drund driving defense", Aspen Publisher for the latest edition. (Check it out on Amzon.com search books and Lawrence Taylor Drunk driving).

Williams, P. M.; "Analytical and physiological specificity issues in breath alcohol analysis," ALCOHOL, DRUGS, AND TRAFFIC SAFETY, Proceedings of the 13th International Conference on Alcohol, Drugs and Traffic Safety, ICADTSA-T95; (Widmarks used in Wales and British Courts. "In most cases the defendant will claim they had consumed, prior to driving, alcohol only in such quantity as to give rise to a reading not more than half the legal limit, which creates an impossible gap to be accounted for by the alleged interferant." The driver's own account of pre-driving consumption which, as one British judge so aptly put it is "so often the subject of dubious testimony.")

National College of DUI Defense: Articles. For information on several drunk driving defenses dealing with breath alcohol.

In Lawrence Taylor's, DRUNK DRIVING DEFENSE, he makes note of an effective ploy for showing just how much alcohol a person might drink. The attorney has a bucket or tank of some sort and pours in the amount of alcoholic beverage the defendant was accused of drinking. The defense attorneys show the gross amount of alcohol and the length of drinking time appears to be discounted. The jury is left with the impression that no one can possibly consume such an amount of alcohol. IF ONE REMOVES ONE DRINK PER HOUR OF CONSUMPTION YOU MIGHT GET A BETTER IDEA OF HOW MUCH THE CRIMINAL HAD TO DRINK. Address: http://seamless.com/ncdd/seminar.html and check out this book on Amazon.com it is in its sixth edition.

Validation of Standardized Field Sobriety Tests
http://www.drugdetection.net/NHTSA%20docs/Burns%20Validation%20of%20SFST%20at%20BAC%20below%200.10%20percent%20San%20Diego.pdf

From the Iowa Court of Appeals comes the case of the State of Iowa v. Eugene Frances Bruno. Bruno was originally arrested for DWI with a BAC in excess of .179. Bruno's attorney , with the help of an expert witness, tried to make a case that because of dentures he was wearing,, the breathalyzer test result was unreliable. Fortunately, the court denied his appeal and his license revocation was lengthened because of a prior conviction of operating while intoxicated.

In Jensen's co-authored book, Dunahoo, Kermit L.; Nichols, Donald L.; Jensen Richard E.; Defending the drunk driving charge in Iowa, Professional Education Systems, Inc., Eau Claire, Wisconsin, 1985, 198p., Jensen gives the advise of circling the defendant with a group of friends who can testify to the defendant's condition prior to the collision.

Note: What does the research say? Check the reliability of the statements. Can the testimony be verified? Has the statement or research been tested with similar conclusions? Who agrees with the expert? For an excellent chapter on crackpots and junk science read:
Foster, K. R.; Huber, P. W.; Judging science: scientific knowledge and the federal courts, MIT Press, Cambridge, MA, c1997.

VISION
Nawrot, Mark:, EUROPEAN SOCIETY OF CATARACT AND REFRACTIVE SURGERY, April, 2005 and also in PSYCHOLOGICAL SCIENCE, December 2004. Nine males and six females were among volunteers, who first were tested in a sober state to establish that they had normal vision abilities in areas including depth perception and eye movements necessary for tracking motion. Volunteers also were screened to make sure they had no family history of alcoholism, and that they themselves were not problem drinkers. After a baseline of normal vision skills was established, tests were repeated after volunteers began drinking alcohol. The study found that depth perception is harmed even in individuals who had below the .08% legal limit for blood alcohol levels for drivers in the United States and other countries.

 

updated 12/15/16