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It may not surprise you to find out that alcoholics arrested for DUI will generally have higher blood-alcohol readings than most. It may surprise you, however, to learn that alcoholics will generally have higher blood-alcohol readings BECAUSE they are alcoholics….. That’s right. It’s because the physiology of alcoholics is different in some important respects.

One of those is that their bodies produce more acetaldehyde — far more. Acetaldehyde? That’s a compound produced in the liver in small amounts as a by-product in the metabolism of alcohol. Unfortunately, alcohol in the lungs has been found to metabolize there as well as in the liver — and to produce acetaldehyde there.

The amount of acetaldehyde produced in the lungs (to then be breathed into the breathalyzer) varies from person to person. "Origin of Breath Acetaldehyde During Ethanol Oxidation: Effect of Long-Term Cigarette Smoking", 100 Journal of Laboratory Clinical Medicine 908. But in a study focusing on alcoholics, researchers discovered that the amount of acetaldehyde in the breath and blood of alcoholics was 5 to 55 times higher than that in nonalcoholics. "Elevated Blood Acetaldehyde in Alcoholics and Accelerated Ethanol Elimination", 13 (Supp 1) Pharmacology, Biochemistry and Behavior 119.

End result: since breathalyzers can’t tell the difference between alcohol and acetaldehyde (see earlier post, "Why Breathalyzers Don’t Measure Alcohol"), alcoholics will usually have higher blood-alcohol readings.
 

DUI BLOG

Breathalyzer evidence is critical in any drunk driving case — and mandatory in a .08% charge.  Yet, as I've written repeatedly in the past, these machines are neither accurate nor reliable.  See, for example, How Breathalyzers Work — and Why They Don't, Inaccurate Breathalyzers Cast Doubt on 1,147 DUI Cases in Philadelphia and Report: Breathalyzers Outdated, Unstable, Unreliable.   

And in today's news:

JudgeThrows out Breath Machine Evidence

County judge in Pennsylvania rejects breath test machine as inaccurate beyond a certain range

Dauphin Co., PA.  Jan. 8 –A judge in Dauphin County, Pennsylvania last week delivered a bombshell decision finding evidence provided by breath machines to be inaccurate outside a narrow range. After hearing extensive testimony from expert witnesses, the Court of Common Pleas judge found it was not appropriate for charges of "high rate" driving under the influence of alcohol (DUI) be established by providing a printout from a machine displaying a high number. 

"The unvarnished facts of this case ultimately establish that the array of breath testing devices presently utilized in this commonwealth, and in particular the Intoxilyzer 5000EN device manufactured by CMI, Inc., as those devices are presently field calibrated and utilized in this commonwealth, are not capable of providing a legally acceptable Blood Alcohol Content (BAC) reading, which is derived from a defendant's breath, outside of the limited linear dynamic range of 0.05 percent to 0.15 percent," Judge Lawrence F. Clark Jr. ruled. 



In Pennsylvania, a separate "highest rate of alcohol" charge can be levied on a driver accused of having a BAC in excess of 0.16 percent. Enhanced penalties for this charge include a fine of up to 00 for a first offense and a minimum three-day stay in jail. A third offense carries a minimum one-year jail sentence.



Testimony offered at the hearing showed the manufacturer of the Intoxilyzer failed to follow state rules requiring the solutions used to calibrate the breath machines be certified by an independent lab. CMI creates its own samples in-house, according to CMI engineer Brian T. Faulkner.



"As a result of the evidence produced at the hearing, it is now extremely questionable as to whether or not any DUI prosecution which utilizes a reading from an Intoxilyzer 5000EN breath testing device could presently withstand scrutiny based upon the startling testimony of the commonwealth's own witness, Mr. Faulkner, at the hearing," Judge Clark wrote.



Since the machine did not follow state regulations, there was no way the court could determine whether the initial calibration of the machine was completed in a scientific and accurate manner. Moreover, the machine is only checked against samples of 0.05, 0.10 and 0.15 percent. 



"If you're calibrating from 0.05 to 0.15 and did these three points, you have the correlation coefficient, you've proven to me that your instrument works — definitely works between 0.05 percent and 0.15 percent. There's no data to say that it works at 0.16 percent. There's no data to say it works at 0.04 percent," Lee N. Polite, an expert in organic chemistry, testified.

Despite the unreliability of thse machines, they continue to constitute the main evidence against a citizen charged with DUI — and the only evidence when charged with having over .08% blood alcohol.
 

DUI BLOG

If you are arrested for DUI and a breath test shows a blood alcohol concentration (BAC) of .08% or higher, you are 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).

Yet 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: a small computer in the breathalyzer 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.
 

DUI BLOG

In most drunk driving cases, by far the most important evidence comes from a breath test.  Our DUI laws even provide that they are sufficient by themselves to warrant a conviction.  The accuracy of these devices is, therefore, critical.  And I’ve posted dozens of time on the inaccuracy and unreliability of breathalyzers.  See, for example, How Breathalyzers Work — and Why They Don’t, Attorney General Finds Widespread Breathalyzer Inaccuracies: Police Shut Down All Machines and More Massive Breathalyzer Failures.

Besides the inherent inaccuracies of breath-testing devices, they are also entirely dependent upon proper maintenance and calibration by the police making the arrest. Failure to properly calibrate one of these devices on a regular basis is going to result in false readings — and wrongful convictions.

Unfortunately, cops and police agencies are notoriously lazy or incompetent when it comes to these irritating "technical" tasks….

SFPD Breathalyzer Error Puts Hundreds of DUI Convictions in Doubt

San Francisco, CA.  March 5 – Hundreds, or even thousands, of drunk driving convictions could be overturned because the San Francisco Police Department has not tested its breathalyzers, officials said Monday.

For at least six years, the police officers in charge of testing the 20 breathalyzers used by the Police Department did not carry out any tests on the equipment.

Officers instead filled the test forms with numbers that matched the control sample, said Public Defender Jeff Adachi, throwing countless DUI convictions into doubt.

“We do expect that the cases will be in the hundreds. It’s possible that it could go into the thousands. The District Attorney’s Office is still investigating the scope of this,” Adachi said during a joint news conference with District Attorney George Gascon…

Amazing….no calibration tests in six years!  The cops just made up numbers to make the machines look accurate.

Even more amazing that a reading from one of these machines is legally considered proof beyond a reasonable doubt in a DUI case — and even triggers a legal presumption of guilt, forcing an accused citizen to prove his innocence.  See Whatever Happened to the Presumption of Innocence? and How to Overcome Scientific Facts: Pass a Law. 

(Thanks to Andre Campos and Murphy Mack.)
 

DUI BLOG

It may not surprise you to find out that alcoholics arrested for DUI will generally have higher blood-alcohol readings. It may surprise you, however, to learn that individuals having the disease of alcoholism will generally have higher blood-alcohol readings because they are alcoholics…..

That’s right. It’s because the physiology of alcoholics is different in some important respects. One of those is that their bodies produce more acetaldehyde — far more. Acetaldehyde? That’s a compound produced in the liver in small amounts as a by-product in the metabolism of alcohol. Unfortunately, alcohol in the lungs has been found to metabolize there as well as in the liver — and to produce acetaldehyde there.

The amount of acetaldehyde produced in the lungs (to then be breathed into the breathalyzer) varies from person to person. “Origin of Breath Acetaldehyde During Ethanol Oxidation: Effect of Long-Term Cigarette Smoking”, 100 Journal of Laboratory Clinical Medicine 908. But in a study focusing on alcoholics, researchers discovered that the amount of acetaldehyde in the breath and blood of alcoholics was 5 to 55 times higher than that in nonalcoholics. “Elevated Blood Acetaldehyde in Alcoholics and Accelerated Ethanol Elimination”, 13 (Supp 1) Pharmacology, Biochemistry and Behavior 119.

End result: since breathalyzers can’t tell the difference between alcohol and acetaldehyde (see earlier post, “Why Breathalyzers Don’t Measure Alcohol”), alcoholics will usually have falsely higher blood-alcohol readings.
 

DUI BLOG

The unavoidable fact is that breath-alcohol testing machines used by law enforcement are unreliable and inaccurate.  
See, for example, How Breathalyzers Work (and Why They Don’t), Why Breathalyzers Don’t Measure Alcohol and Report: Breathalyzers Outdated, Unstable, Unreliable.   In recent months, there seems to be an increasing recognition of this reality — and increasing instances of massive shut-downs of these machines.  Along with this is the uncomfortable reality of thousands of American citizens who have been (and are continuing to be) convicted of drunk driving based upon false evidence. 

A few examples from past posts:

400 Wrongly Convicted in Washington: Faulty Breathalyzers (last year)
Attorney General Finds Widespread Breathalyzer Inaccuracies; Police Shut Down All Machines (two months ago)
Inaccurate Breathalyzers Cast Doubt on 1,147 DUI Cases in Philadelphia (one month ago)
Defective Breathalyzers Could Lead to Tossing Out Hundreds of DUI Convictions (2 weeks ago)

And in  yesterday’s news….

Vermont’s DUI Breath Testing Program Under Fire

Montpelier, VT.  May 15 – A mistake in the software set-up on a breath analysis machine and whistleblowers’ complaints about unethical lab work threaten dozens of drunken-driving prosecutions in Vermont.

At issue are breath tests performed by a DataMaster DMT machine at a Vermont State Police barracks that authorities say wasn’t set up properly. Amid a broadening inquiry by two defense attorneys, dozens of criminal convictions could be reopened and a handful of civil license suspensions are being overturned.

Hundreds of other cases since 2008 could be in jeopardy because of problems with the state Department of Health’s maintenance of the machines that are used at police stations and barracks to test drivers arrested for suspected drunken driving…

(David) Sleigh and fellow defense attorney Frank Twarog obtained copies of complaint letters written last year by two Department of Health whistleblowers who said sloppy and unethical work by a lab colleague had been reported but unaddressed.

First reported on by the Burlington weekly Seven Days, the letters written by chemists Amanda Bolduc and Darcy Richardson were obtained by The Associated Press through a Public Records Act request.

The Health Department withheld from The AP 16 emails dealing with the DataMaster issue. Assistant Attorney General Margaret Vincent asserted attorney-client privilege or "attorney work product" as the reason.

The whistleblowers’ complaints allege that laboratory technician Steven Harnois tampered with DataMaster machines to get them to pass routine performance checks and kept records so badly that it compromised the chemists’ ability to testify in court about readings.

"I have concerns in his level of integrity and ethics," Bolduc said. "These concerns have been brought to the attention of the program chief on numerous occasions, and still the problem exists," she wrote. Whenever she raised concerns, her boss retaliated against her for it, she said.
 

From Wikipedia’s definition of "pseudoscience":  

Pseudoscience is a claim, belief, or practice which is presented as scientific, but which does not adhere to a valid scientific method, lacks supporting evidence or plausibility, cannot be reliably tested, or otherwise lacks scientific status.[1] Pseudoscience is often characterized by the use of vague, exaggerated or unprovable claims, an over-reliance on confirmation rather than rigorous attempts at refutation, a lack of openness to evaluation by other experts, and a general absence of systematic processes to rationally develop theories.

 

DUI BLOG

As regular readers of this blog are painfully aware, over the past 7 years I’ve posted ad nauseum about the inaccuracy and unreliability of breath machines used in drunk driving cases.  See, for example, How Breathalyzers Work – and Why They Don’t, Breath-Alcohol Testing: "State of the Art"?, Report: Breathalyzers Outdated, Unreliable, Unstable and "Close Enough for Government Work".  In fact, a few days ago I wrote about the Washington D.C. Attorney General throwing out dozens of DUI cases and investigating hundreds of others because of breathalyzer accuracy issues.  See Attorney General Finds Widespread Breathalyzer Inaccuracies; Police Shut Down All Machines.

For those doubters out there who thought this was just an isolated instance, consider today’s news:
  

Philadelphia To Review All Breathalyzer-DUI Cases From 15 Months 

Philadelphia, PA.  March 25 — A day after Philadelphia police announced that miscalibrated breathalyzers had compromised 1,147 drunken-driving cases, District Attorney Seth Williams  declared he would conduct a wholesale review of all DUI cases during the 15 months in question.

Philadelphia police file 8,000 to 10,000 drunken-driving cases each year, so the review announced Thursday by Williams’ office will involve a staggering amount of work that will take months to complete. 

Deputy District Attorney Edward McCann, chief of the Criminal Division, decided to launch the review, said Williams’ spokeswoman, Tasha Jamerson. Assistant District Attorney Lynn Nichols will lead a team of prosecutors and staff that will examine the cases from September 2009 to November 2010.

McCann is also implementing training on DUI cases for prosecutors that will emphasize recognizing potential problems with the Breathalyzer devices.

Finally, Jamerson said, the District Attorney’s Office will start doing its own calibration checks on Breathalyzers rather than depend solely on police certification.

The real bill will be some time in coming.

Besides the cost of reviewing thousands of DUI prosecutions and likely retrying some, the police and city could face civil lawsuits by people wrongly convicted – some of whom may have lost their driver’s license, their job, or their freedom.

Though police officials have a list of about 400 people affected by the miscalibrated machines, Jamerson said Williams had decided a full review was needed.

Though defense lawyers specializing in DUI cases said only two of the Police Department’s eight Breathalyzers had proved inaccurate, police said Wednesday that the total was four. Some court-system sources said that number was likely to increase.

Thousands of citizens are convicted every day of driving with a blood-alcohol level of .08% — based entirely upon the readings of these machines.  In a "trial by machine", the results of these devices legally establish a rebuttable presumption of guilt and are considered proof beyond a reasonable doubt.  See Whatever Happened to the Presumption of Innocence? and Trial by Machine. 

(Thanks to Ari Weiner.)
 

DUI BLOG

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, have found that the stomach lining contains an enzyme called gastric alcohol dehydrogenase that breaks down alcohol, and that women have less of this enzyme 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).

Yet 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: a small computer in the Breathalyzer 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.  Of course, that’s only an average:  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 partition ratio, the higher the reading — even though the true BAC does not vary. For example, a woman with a true BAC of .06% — below the legal limit — 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 or two hours 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 simply assumes that it is alcohol. 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.  (See How to Convict an Average Man)
 

DUI BLOG

In the wake of their recent success in requiring mandatory ignition interlock devices (IIDs) in the cars of drivers who have been convicted of drunk driving, Mothers Against Drunk Driving has been planning the next push: requiring IIDs in all cars. In other words, no car could be sold in the U.S. without devices which would require you to pass a breath test every time you wanted to start the vehicle.  See All U.S. Cars To Have Ignition Interlock Devices?

I’ve posted in the past about how such devices are, at best, inaccurate and problematic. See, for example, Will Ignition Interlock Devices End Drunk Driving?  These are not the expensive, constantly-calibrated high-tech machines used in police stations, but rather assembly-line equipment made by car manufacturers, subject to endless sources of false readings and failures — which can, ironically, cause accidents.  See Ignition Interlock Devices: Dangerous But Profitable.

And I’ve documented that 3 of MADD’s 6 biggest corporate contributors are auto manufacturers who stand to make big profits from mandatory IIDs (another of the 6 major contributors is MADD’s telemarketing company).  See The Truth About Ignition Interlock Devices..

MADD is now finally making their push for federal legislation.  And based upon past successes with legislators unwilling to oppose MADD, the their chances are good.  In today’s news:

MADD Lobbying for Device to Keep Cars From Starting in Driver is Intoxicated


Dallas, TX.  Nov. 15 — …Now in its 30th year, MADD has a new plan and wants to end drunken driving for good. The nonprofit is pushing for the development of alcohol-sensing technology that prevents cars from starting if the driver is intoxicated.

Some say the group is going too far. The million proposed federal legislation to develop the technology has led to the latest round of charges that the group is "neo-prohibitionist."…

And the American Beverage Institute, a restaurant industry group, criticized MADD’s fund-raising techniques this year. MADD relies heavily on expensive telemarketing, which led to poor marks from two charity watchdog groups…

MADD is lobbying Congress to pass an amendment to the Motor Vehicle Safety Act to provide the million needed over five years for the sensor technology. Cars would not start if the driver has a blood alcohol level above the legal limit, at .08 or higher…

MADD’s top critic, the American Beverage Institute in Washington, D.C., says the group is now going after social drinkers.

"They are no longer a mainstream organization," said Sarah Longwell, the institute’s managing director. "Many of their policies are extremely fringe at this point."

The institute fears the alcohol sensing technology will be used against people just having a drink or two.

"When they talk about alcohol sensing technologies, ultimately what it does, it eliminates people’s ability to drink anything before driving," Longwell said. "It’s not about drunk driving anymore, it’s about trying to demonize any drinking prior to driving."…

 
Would you trust Detroit to mass-manufacture sophisticated breathalyzer technology for your dashboard?
 

DUI BLOG