Georgia DUI Blog

     Whole blood is comprised of red and white blood cells, platelets and other clotting and cellular material, dissolved salts, amino acids, fats, and water.  Those solid materials are frequently referred to as “hematocrit.”  The hematocrit level is, therefore, the percentage of the total volume of blood taken up by the solid particles.  Determining a person’s hematocrit level at the time the blood is drawn is the only way to know what the correct conversion ratio is for the person who was tested at the time of the blood alcohol test.

     The average hematocrit for men is 47% with a “normal” range between 42% and 52%.  The average for women is 42% with a range from 37% to 47%.  Studies have shown, however, that over time an individual’s hematocrit can vary by up to 15%. 

     In general, the higher the hematocrit level, the higher the reported blood alcohol concentration in a serum or plasma test, which is the kind most frequently encountered in a hospital setting.  The higher someone’s hematocrit level, the less liquid we can expect to find in their blood.  Since the alcohol will migrate or remain with the liquid portion of the blood, a person with a higher hematocrit will have a higher blood alcohol test result when that blood alcohol test is a plasma or serum test performed in a hospital. 

The following news article was a story that I found on Yahoo.com on Sept. 13, 2009.  I predict that in the near future we will begin to see police officers trained to draw blood from DUI suspects that refuse to take chemical tests of their breath after being arrested for DUI.  Currently, if someone arrested for DUI refuses to take the test, they lose their license for one year with no work permit or provisional license of any kind.  Is that not enough?  Are we really ready to start straping down our citizens, forcing needles into their arms against their will and drawing their blood?  For what reason would we do this?  Their are already provisions in place where the police can go get search warrants from a Judge and have the blood drawn at a hospital.  This is routinely done on cases involving serious injuries and death.  So why do we need to do this for the guy that gets stopped for his tag light being out and then refuses testing?  Is it worth the risk to the police?  What risks are presented to the driver?  Here are a few that I can think of off the top of my head:

1. Injury
2. Infection
3. Lawsuits on the police
4. Battery
5. Officer Safety
6. Spread of disease
7. Fear of needles

One possible good result of this practice is that the Judges may start taking motions attacking a police officer’s probable cause a little more seriously.  It is becoming almost a rubber stamp with the courts deferring to the officer’s decision on the side of the road.

I think this is a can of worms that Georgia should be reluctant to open.  We have sufficient procedures in place to get a test when it is needed.  This is just going to get many drivers hurt and many officers sued.  Although, the medical malpractice lawyers are probably salivating at the idea of poorly trained officers sticking needles in folks.

BOISE, Idaho – When police officer Darryll Dowell is on patrol in the southwestern Idaho city of Nampa, he’ll pull up at a stoplight and usually start casing the vehicle. Nowadays, his eyes will also focus on the driver’s arms, as he tries to search for a plump, bouncy vein.

“I was looking at people’s arms and hands, thinking, ‘I could draw from that,’” Dowell said.

It’s all part of training he and a select cadre of officers in Idaho and Texas have received in recent months to draw blood from those suspected of drunken or drugged driving. The federal program’s aim is to determine if blood draws by cops can be an effective tool against drunk drivers and aid in their prosecution.

If the results seem promising after a year or two, the National Highway Traffic Safety Administration will encourage police nationwide to undergo similar training.

For years, defense attorneys in Idaho advised clients to always refuse breath tests, Ada County Deputy Prosecutor Christine Starr said. When the state toughened the penalties for refusing the tests a few years ago, the problem lessened, but it’s still the main reason that drunk driving cases go to trial in the Boise region, Starr said.

Idaho had a 20 percent breath test refusal rate in 2005, compared with 22 percent nationally, according to an NHTSA study.

Starr hopes the new system will cut down on the number of drunken driving trials. Officers can’t hold down a suspect and force them to breath into a tube, she noted, but they can forcefully take blood — a practice that’s been upheld by Idaho’s Supreme Court and the U.S. Supreme Court.

The nation’s highest court ruled in 1966 that police could have blood tests forcibly done on a drunk driving suspect without a warrant, as long as the draw was based on a reasonable suspicion that a suspect was intoxicated, that it was done after an arrest and carried out in a medically approved manner.

The practice of cops drawing blood, implemented first in 1995 in Arizona, has also raised concerns about safety and the credibility of the evidence.

“I would imagine that a lot of people would be wary of having their blood drawn by an officer on the hood of their police vehicle,” said Steve Oberman, chair of the National Association of Criminal Defense Lawyers’ DUI Committee.

The officer phlebotomists are generally trained under the same program as their state’s hospital or clinical phlebotomists, but they do it under a highly compressed schedule, and some of the curriculum is cut.

That’s because officers don’t need to know how to draw blood from a foot or other difficult sites, or from an infant or medically fragile patient, said Nicole Watson, the College of Western Idaho phlebotomy instructor teaching the Idaho officers.

Instead, they are trained on the elbow crease, the forearm and the back of the hand. If none are accessible, they’ll take the suspect to the hospital for testing.

In a nondescript Boise office building where the Nampa officers were trained, Dowell scanned his subject and prepared to draw blood. Chase Abston, an officer taking his turn playing a suspect, recoiled a bit, pressing his back deeper into the gray pleather chair.

Dowell slid a fine-gauge needle into the back of Abston’s hand. Abston, who had been holding his breath, slowly exhaled as his blood began to flow.

All the officers seemed like they’d be more comfortable if their colleagues were wielding sidearms instead of syringes. But halfway through the second day of training, with about 10 venipunctures each under their belts, they relaxed enough to trade barbs alongside needle jabs.

They’re making quick progress, Watson said. Their training will be complete after they have logged 75 successful blood draws.

Once they’re back on patrol, they will draw blood of any suspected drunk driver who refuses a breath test. They’ll use force if they need to, such as getting help from another officer to pin down a suspect and potentially strap them down, Watson said.

Though most legal experts agree blood tests measure blood alcohol more accurately than breath tests, Oberman said the tests can be fraught with problems, too.

Vials can be mixed up, preservative levels in the tubes used to collect the blood can be off, or the blood can be stored improperly, causing it to ferment and boosting the alcohol content.

Oberman said law enforcement agencies should also be concerned “about possible malpractice cases over somebody who was not properly trained.”

Alan Haywood, Arizona’s law enforcement phlebotomy coordinator who is directing the training programs in Idaho and Texas, said officers are exposed to some extra on-the-job risk if they draw blood, but that any concern is mitigated by good training and safe practices.

“If we can’t get the evidence safely, we’re not going to endanger the officers or the public to collect that evidence,” he said.

The Phoenix Police Department only uses blood tests for impaired driving cases. Detective Kemp Layden, who oversees drug recognition, phlebotomy and field sobriety, said the city now has about 120 officers certified to draw blood. Typically, a suspect is brought to a precinct or mobile booking van for the blood draw.

Under the state’s implied consent law, drivers who refuse to voluntarily submit to the test lose their license for a year, so most comply. For the approximately 5 percent who refuse, the officer obtains a search warrant from an on-call judge and the suspect can be restrained if needed to obtain a sample, Layden said.

Between 300 to 400 blood tests are done in an average month in the nation’s fifth-largest city.

During holiday months that number can rise to 500, said Layden, who reviews each case to make sure legal procedures were followed.

Outside of Arizona, some law enforcement agencies in Utah have officer phlebotomists, and police in Dalworthington Gardens, Texas are cross-trained as paramedics and have been drawing blood for about three years. The NHTSA is in talks with Houston, Texas about doing the phlebotomy training there, he said.

They’re all attracted by Arizona’s anecdotal evidence.

“What we found was that the refusal rates of chemical testing lowered significantly since this program began,” Haywood said. “Arizona we had about a 20 percent refusal rate in 1995, and today we see about an 8 to 9 percent refusal rate.”

     As far back as the 1930’s it was recognized that re-eqilibration of the alcohol and breath occurs at the lower temperature (as opposed to core body temperature) of the upper respiratory tract during expiration in such a manner that temperature controls the alcohol content of the expired alveolar air.  In the earliest “drunk-o-meter” invented by Professor Rolla Harger of Indiana University it was assumed that 61.5% of the collected breath sample was alveolar air and that 2100:1 was the appropriate partition ratio.  Partition ratio in this instance refers to the amount of alcohol in the blood compared to the amount in the breath.

     During a twenty-year period he and his colleagues conducted numerous experiments, which confirmed that the partition ratio varies at different temperatures.  In other words, breath alcohol test results will be different at different temperatures.  During all of this testing it was assumed that the average expired breath temperature was 34 degrees centigrade (Celsius), which in turn led to the conclusion that the average blood:breath partition ratio for breath alcohol testing is 2100:1.  The National Safety Council adopted this number in 1952, and so it has become engraved in the statutes of the several states over the last half century. 

     Researchers have questioned the use of a constant breath temperature and partition ratio since at least 1975.  Beginning in that year leader experts in the field began to question whether airway alcohol exchange played a bigger role in breath alcohol testing than was previously recognized.  More and more research has proven that the average expired breath temperature is closer to 35 degrees Celsius, including the German study of 1995 and a similar study sponsored by the Alabama Department of Public Safety three years later.

     As a result of the Alabama study that state adopted the Draeger 7110, which makes an adjustment for an elevated breath temperature.  In fact, the Alabama testing sequence includes two breath samples (like Georgia), two methods of analysis for every breath test, specifically infrared and fuel cell (unlike Georgia), breath temperature monitoring and correction for each breath test (unlike Georgia), and two calibration checks at .02 and .08 at the time of each breath test (unlike Georgia).  In addition, a comprehensive data collection package including breath exhalation profiles was included in the software designed for Alabama DPS (unlike Georgia).  The downloaded data includes a total review of all breath tests in the State (unlike Georgia).   This enables the state to identify and address both instrumental and operational problems.  In Georgia there is a handwritten log on which officers may make entries, but nobody knows how often it is used or how often it is ignored. 

     The Alabama program is truly a model program other states should emulate.  Before switching to the Draeger, Alabama (like Georgia) used the Inoxilyzer 5000.  That makes me wonder: If it’s not good enough for Alabama, why are we still using it?

     Linearity is determined by testing known samples of various concentrations, which should ensure that the tests of other samples of unknown concentrations should yield accurate results.  Linearity enables an analyst to have confidence in the results of a particular test based on the results of other tests.  For example, if a known alcohol concentration of .10 is determined to be .10 and a known concentration of .20 is determined to be .20, this greatly increases the likelihood that a reading of .15 is accurate.

     In most cases the linearity of a gas chromatograph is checked at the beginning of each set of tests (a “run”) by injecting calibrators of varying amounts in the GC.  By plotting the amount of each calibrator versus their relative instrument responses, a linear relationship may be established.  The concept of linearity is associated with the “range” of the instrument, which is the interval between the highest and lowest concentrations that have been determined to be not only linear but accurate and precise.  Accuracy means that the testing device has correctly determined the true result, while precision is the ability of the instrument to replicate the test result.

     It is generally agreed that good laboratory practice requires the use of six calibrators spanning the range of 50 to 150% of the expected range of results the analyst expects to encounter in typical cases.   In other words, the concentration of the calibrators should be such that they bracket the anticipated concentration of the specimen.   The Laboratory Guidelines of the Society of Forensic Toxicologists recommends “at least three calibrators.”  If any result exceeds the range, the substance being tested should be diluted and retested.  If the concentration of the specimen is less than that of the lowest calibrator, in most cases an additional calibrator below the expected range of the analyte in the sample should be set up. 

Melendez-Diaz v. Massachusetts was decided today by the United States Supreme Court.  This much anticipated opinion clears up the debate about whether certificates prepared by a lab technician or similar person are admissible against a defendant in trial without the witness being present to actually testify about what the certificate says.It is very clear that lab reports are produced in anticipation of trial and they are in fact “testimonial” as defined by Crawford v. Washington and Davis v. Alaska.  Those cases hold that the defendant has the right to confront the witnesses against him and that testimonial evidence shall not be admissible unless the witness is “unavailable” and the defendant has previously had the right to cross-examine the witness.Justice Scalia delivered the opinion of the court and was joined by Stevens, Souter, Thomas and Ginsburg.  Justice Kennedy wrote the dissent and was joined by Roberts, Alito, and Breyer.  The dissent argues that these reports should be exempt from the confrontation because they are not normal witnesses, they are neutral scientists.  Justice Scalia does a masterful job of demonstrating what a bunch of garbage that is.

 “Nor is it evident that what respondent calls “neutral scientific testing” is as neutral or as reliable as respondent suggests. Forensic evidence is not uniquely immune from the risk of manipulation. According to a recent study conducted under the auspices of the National Academy of Sciences, “[t]he majority of [laboratories producing forensic evidence] are administered by law enforcement agencies, such as police departments, where the laboratory administrator reports to the head of the agency.” National Research Council of the National Academies, Strengthening Forensic Science in the United States: A Path Forward 6–1 (Prepublication Copy Feb. 2009) (hereinafter National Academy Report). And “[b]ecause forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, they sometimes face pressure to sacrifice appropriate methodology for the sake of expediency.”  A forensic analyst responding to a request from a law enforcement official may feel pressure—or have an incentive—to alter the evidence in a manner favorable to the prosecution.”

I really like the fact that Justice Scalia isn’t afraid to recognize that many times these “scientists” or other examiners are really playing for the home team.  Several other rationales for allowing this in without making the witnesses come were made by the dissent and all of them were shot down as well.  This really is simple…the defendant has the right to confront the witnesses against him so the prosecutor needs to bring them to court.Where do we go from here?  The court gave it’s blessing to two different ways to handle these witnesses.  Some states can require them in every case.  Some states have laws that makes the prosecutor give notice of intent to introduce the certificates and then the defendant has to object.  Either way will pass constitutional muster.As it relates to DUI cases, all blood and urine cases will need to have the witnesses from the lab there at trial.  Additionally, I believe that this case invalidates OCGA 40-6-392 (e) (1-3) and (f).  These statutes all deal with testimonial evidence that the defendant has the right to confront.The State had better bring the area supervisor to testify in their next breath test case if they want to get those certificates in.  All lawyers need to read this case and be able to articulate the proper objections.

     If there is no anti-clotting agent in a tube used to collect blood, the blood will clot (due to the presence of fibrinogen in the blood). Upon centrifugation of the tube, the clear yellow liquid at the top is called serum and contains little or no fibrinogen because the fibrinogen has been used up in the clotting of the blood cells. A sample of the serum can then be removed for analysis of its serum alcohol concentration.

     If there is an anti-clotting agent in the tube, the blood should not clot if properly mixed (tube inverted a few times). The tube can then be either shaken and a sample of the whole blood can be then be removed for analysis of its blood alcohol concentration, or the tube can be centrifuged. Upon centrifugation of the tube, the clear yellow liquid at the top is call plasma and contains about 0.34 grams of fibrinogen per 100 mL of plasma. A sample of the plasma can then be removed for analysis of its plasma alcohol concentration.

     Because serum and plasma only differ by the absence or the presence of a trace amount of the fibrinogen protein, the serum alcohol concentration and the plasma alcohol concentration should be essentially identical. However, due to their higher water content than whole blood, the alcohol concentration in either serum or plasma should be about 18% greater on average than the actual whole blood alcohol concentration.No lab would try to measure the alcohol concentration in a blood clot which, because of its relatively low water content, would theoretically be relatively low in alcohol concentration compared to the whole blood alcohol concentration.

     The first step in the blood collection process is decontamination of the area where the blood will be drawn.  In clinical use a prepackaged 70% isopropyl alcohol pad is the preferred antiseptic.  However, Betadine (povidone-iodine) is the swab of choice for forensic blood draws.  If Betadine is used, it must be allowed to dry prior to the puncture.  Studies have shown that sloppy swabbing of an injection site will increase a blood alcohol concentration.

     Most forensic laboratories purchase 10 milliliter gray top tubes containing 100 mg. sodium floride, a preservative, and 20 mg. potassium oxalate, an anti-coagulant.  Therefore, when 10 ml. of blood is drawn, the concentration of preservative is one percent.  A tube with an anti-coagulant should be inverted at least eight times (eight to ten is usually recommended).  If this is not done, the anti-coagulant will not properly mix, resulting in a low concentration, which in turn can lead to microclotting and an inaccurate result.

     Urine samples are usually tested for drugs by using a screening test followed by gas chromatography-mass spectroscopy (GCMS).  The screening test is normally an enzymatic method of analysis that determines if the “signal strength” is at or above a cut-off level.  These tests employ reagents that interact with several different but related compounds (e.g., metabolites) and measure the total “signal strength” of all those compounds. 

     GCMS should be able to identify both the parent drug and any metabolite(s).  If a parent drug is identified, the metabolite should also be present.  For example, if a urine sample is positive for methamphetamine, it should also be positive for amphetamine. 

     In order for a test result to be reported as positive the amount of a compound should equal or exceed the cut-off level.  If the cut-off limit for the GCMS is not met, the result should be reported as negative.   In other words, sound science dictates that reports reading “lower than the lowest calibrator” should not be reported as positive.

     One final word about metabolites: Most metabolites are less psychoactive than the parent drug or are inactive, which means that they have no impact on the person.  If only an inactive metabolite such as carboxy THC is found in a urine sample, the metabolite did not affect driving. 

     We are seeing more arrests for DUI where the breath alcohol concentration is not consistent with the manifestations of impairment described in the arrest report or captured on video.  In some, but not all of these cases, the culprit is detected by a blood test, and that culprit is some drug other than alcohol that the client has consumed.  As more and more people take selective serotonin reuptake inhibitors (SSRI’s) such as Paxil and Prozac, we will see more and more of these cases.

     Alcohol and many drugs do not simply have an additive effect; they have a synergistic effect.  That is to say that the effects of the two substances are not merely added together but are essentially multiplied.  When even an adult dose of acetaminophen may produce impairment equivalent to a BAC of .05, it is not difficult to understand how prescription medications combined with alcohol can cause serious impairment. 

     One of the other commonly abused drugs is oxycodone.  It is the narcotic found in Percoset (with acetaminophen) and Percodan (with aspirin).  It is a synthetic opioid and like its natural cousins can cause addiction and then withdrawal symptoms. 

     When we represent an individual with these drugs in his or her system at the time of arrest, it is almost always necessary to retain a pharmacologist or toxicologist.  Otherwise, an employee of the state crime lab will be the only “expert” in the courtroom, and that employee’s testimony, if unrefuted, will seal the defendant’s fate. 

     One of the assumptions upon which breath alcohol testing has rested since the 1950’s is the belief that the instruments measure “deep lung” or alveolar air.  This outdated assumption has been eroded as research over the past two decades has yielded a greater understanding of the exchange of highly soluble gases by the lungs.  No longer can it be assumed that alveolar air is in equilibrium with blood alcohol simply because the breath test reading reaches a plateau. 

     The findings of Dr. Michael Hlastala of the University of Washington confirm that during inspiration the relatively cool and dry air being inhaled becomes warmer and absorbs liquid in the airways.  This air also absorbs soluble gas dissolved in the airway tissue.  During exhalation the air is cooled and dehumified.   The alcohol present in a breath sample comes entirely from the lining of the airways.  This mucus and tissue, not the blood in the lower part of the lungs, is the source of “breath alcohol concentrations.”

     Further research has shown that breath alcohol concentration continues to rise as a person exhales until he or she cannot exhale any longer, which causes the flattening or plateau of the breath alcohol concentration.   It has also been confirmed that the average directly measured partition coefficient for alcohol in blood at 98.6 degrees Fahrenheit is 1756:1, not  2100:1 as asssumed by the Intoxilyzer 5000.   Also of significance is the discovery that an increase in exhaled volume beyond the minimum required by a breath testing instrument results in an increased breath alcohol reading and a decreased blood to breath partition ratio.  For those with smaller lung capacity, these findings also have negative consequences because a greater portion of their vital capacity (maximum volume of air that can be inhaled and exhaled) is necessary in order to generate a printed result.  On the other hand, those with larger lungs will benefit from an unfair advantage. 

     Ethanol or ethyl alcohol contains two carbon atoms linked to hydrogen atoms (methyl groups) and one oxygen atom linked to a hydrogen atom (hydroxyl group).  Most infrared breath testing devices rely upon the absorption of light at the 3.39 and 3.48 micron wavelengths, which are characteristic of the carbon-hydrogen bond,  for the determination of breath alcohol concentration.   However, at these wavelengths the infrared energy will be absorbed by many organic molecules containing carbon atoms bonded to hydrogen atoms, including hexane, toluene, and methyl ethyl ketone. 

     Experiments have shown that the Intoxilyzer 5000 will report these substances as ethyl alcohol and will print what purports to be a breath alcohol concentration.  In other words, the results for substances other than ethyl alcohol are reported as alcohol.  The research leaves little doubt that the instrument simply cannot distinguish the different alcohols from each other.   The numerical results are always reported as grams of alcohol per 210 liters of breath even when there is no ethanol in the breath sample.  

     The results for these interfering substances once again demonstrate the non-specificity of the Intoxilyzer 5000 and any other breath analyzer that relies on the the absorption of energy by the carbon-hydrogen bond in the 3.39 and 3.48 micron range.   

Here are my top complaints with Georgia’s breath testing program.  It is one of the primary reasons that I tell most people to refuse the breath test.  If you are close to the legal limit, given the problems discussed below, it is hard to have confidence in the test results.  There are license consequences for such a refusal, so if possible, consult with a lawyer.

1.  Georgia uses antiquated technology.  Georgia uses the Intoxilyzer 5000.  Alabama and many other states stopped using this machine years ago.  There is much better technology on the market that uses two different points on the spectrum for measurement.  Some use fuel cell and infrared spectrometry.  I don’t have the time or space here to discuss all of the problems associated with this machine, but think Pong on the old Atari’s, not Playstation 3.

2. Georgia fails to check the calibration frequently enough.  Georgia only requires that the area supervisor check the machine for calibration once every quarter.  Some states require a calibration check in between the two blow.  Most do it before every test.  If you search for images of the Intoxilyzer online, the device to the right of the machine with the beaker and tubing, is the simulator.  It runs a solution through the machine and the Intoxilyzer checks it. When there is a problem discovered, what happens to all of the people that blew into the machine in the four month period between check?  They are not even told when this happens.

3. Georgia hides the data that the Intox 5000 has the capability of recording.  This data is called COBRA data.  One of the standard features on the Intox 5000 is memory and a modem that records much of the data from each breath sample given on the machine.  It has the ability to transmit this data via modem to a central server for review later.  In Georgia, this functionality has been removed from the machine.  Since we don’t preserve it, the data cannot be reviewed for accuracy, trends, testing errors and officer errors/misconduct.

4. Georgia fails to preserve the breath sample for independent testing.  There is a port on the back of the machine where the expired breath can be expelled to and preserved for later testing.  This is not used in Georgia.

5.Georgia fails to require officers to document machine failures. Georgia only requires officers to document all tests in a log book that sits next to the machines.  The COBRA data is not preserved so these logs cannot be checked for accuracy.  I have clients tell me ALL THE TIME that they blew in the machine 3, 4, 5, 6 times.  Yet the come into my office with one printout showing two blows.  Nine times out of ten, when you get the log, it only shows the last test that they are using to try to convict my client.  What was going on with those other tests?  Was it a problem with the machine?  Was it a problem with the testing environment?

     A major issue with infrared breath testing devices is that they not only detect the ethyl alcohol found in alcoholic beverages but also in other substances that have a similar molecular structure. Stated differently, these devices identify any compound containing the methyl group molecular structure. And the issue with this is that more than one hundred compounds can be found in a human’s breath at any one time and 70% to 80% of these compounds contain the methyl group molecular structure. The consequence of this is that these methyl group molecular structures will be incorrectly identified and labeled as ethyl alcohol. Interestingly, the more ethyl group substances the breathalyzer detects, the higher the false blood alcohol content estimate will be.

     The National Highway Traffic Safety Administration (NHTSA) has found that people who are diabetics or dieters can have acetone levels that are hundreds, if not a thousand of times higher than people who are not diabetics or dieters. The key issue here is that acetone is one of the many substances that can be falsely detected as ethyl alcohol by some breathalyzers.

     There’s also a variety of products found in the environment that can lead to erroneous BAC results with these machines. Some of these products include substances or compounds found in cleaning fluids, celluloid, gasoline, paint removers, and in lacquers. Other common substances that can result in false BAC levels are alcohol, vomit, or blood in the person’s mouth. False BAC readings can also be caused from electrical interference, dirt, smoke, cell phones, police radios, moisture, and tobacco smoke.

     Infrared breath testing devices can be very sensitive to temperature and will result in false readings if they are not adjusted or recalibrated to compensate for ambient or surrounding air temperatures. Moreover, the temperature of the person being tested is also significant. More specifically, each degree (in Centigrade) in the subject’s body temperature above 34 C (98.6 Fahrenheit)  can result in a relatively large elevation (about 8.6%) in apparent BAC.

Your hematocrit level is the ratio of aqueous portions and solid portions of your blood.  When alcohol enters your bloodstream it is carried in the plasma (liquid portion).  Alcohol does not get absorbed into the red blood cells and other solid material in your blood  Someone with a higher hematocrit level will have more solid parts in their blood and therefore will have less space for the alcohol to disperse in the liquid portion of the blood.  Normal hematocrit differences can elevate a BAC by 10% to 14%.

“Push the green button.”

I am not joking…that’s all it takes.  Police officers love to get on the stand and tell you about all of their great training on how to operate the Intoxilyzer 5000 and how they are certified by the GBI to run it.  When he tell you how he set up the machine properly, ran a diagnostic check and tested the ambient air conditions to make sure nothing was going to interfere with the test…consider this.

“Officer, you could train a monkey to give this test couldn’t you?”

He is likely to respond that a monkey couldn’t set up the machine.  What he is referring to is typing in your client’s name, arrest date, license number etc..  If you can hunt and peck on a typewriter, you can run this machine.

Try to explore what the officer know about breath testing and the “science” behind it.  The officers are trained to say that they are not familar with the inner workings of the machine.  Somebody told them that the machine worked, that is it.  Very few actually understand the principles in play with breath testing, they are just drinking the Kool Aid.

When the police arrest an individual for DUI and arrange for blood to be drawn by a nurse, phlebotomist or other qualified individual, it should in all cases in Georgia be taken from the suspect via a vacutainer.  Two vacutainers (vials with a seal or septum at the top) are included in each blood alcohol testing kit provided to police agencies in Georgia.  Each of these vials should contain two substances -sodium flouride, the  preservative, and potassium oxalate, an anticoagulent.  Each of these tubes will be  vacuum sealed, which explains why they are called vacutainers .

The vacutainers also have an expiration date, after which the vacuum seal is no longer warrantied.  The expiration date will be printed on the outside of the blood testing kit, which is basically a small cardboard box.  The truth is that only a very small handful of  phlebotomists or police officers ever pay any attention to the expiration date, because they are rarely challenged on the issue.  In addition, state crime lab personnel don’t confirm the the expiration date.

The manufacturer’s quality control procedures only require that one out of every four thousand vials be checked.  The bottome line is that there are at least three possible defects in the state’s blood test:

1. A failed septum (or seal) on one or both of the vials, which cannot be detected after the blood in a tube has been tested, because that vial has been opened.

2. Improper amount of sodium flouride in one or both of the tubes.  Since the vacutainers are rarely if ever refrigerated before being dropped off at the the Division of Forensic Sciences, the proper amount of preservative is critical. Either too much or too little can lead to a false high test result. 

3. Improper amount of potassium oxalate in either of the tubes. 

In the case of a defective seal organisms from the environment, such as candida albicans, can get in.  Unless there is enough sodium flouride in the vial, the organisms that may be in your client’s blood will grow. The most common of these is candida albicans, a yeastlike organism that has proven to be highly resistant to sodium floride. When candida albicans is in close proximity to glucose and a source of heat, it will create ethyl alcohol via fermentation.

Too much sodium flouride may cause “salting out”, which will also lead to a false high test result with headspace gas chromatography. This can occur even if there is no problem with the vacutainer, but the phlebotomist draws too little blood.

If there is not enough potassium oxalate, the blood can coagulate or “micro-coagulate” which is almost completly undectable. Because this changes the ratio of liquid to solid in the substance that is tested, and ethanol is water soluble, it can lead to a false high test result.

It can be virtually guaranteed that in any case involving a blood test the lab did not test for the presence of Candida Albicans, the lab did not check the vial seal, and the lab did not check the amount of sodium flouride or potassium oxalate in the tube.

If any of these occurred, you will in all likelihood have a false high blood alcohol concentration reported by the lab.

The following post is from Chuck Laroue (Who gives credit to Larry Taylor).

CMI did a study using the Digtal Corp.Nov.  29 1983 and they exposed the Intox 5000 to Freq form .5 Mhz to 1000Mhz  and there was several frequencies where the detector gave no response, all frequencies above 625 Mhz registered no response, RF inhibit was documented from 15 to 120; 130- 175, 185 to 295; 310-315; 370; 575; 595 to 615 all other tested frequncies exhibited no response.

The test results were included in the 1984 CMI Operator’s manual.

I am not aware of any modifications or upgrades to the RF detector.

There have been other studies:

National Bureau of Standards, under contract with the National Highway Traffic Safety Administration to conduct accuracy testing on breath machines (referred to in the report as “Evidential Breath Testing” devices, or “EBTs”):
“The Washington D.C. Metropolitan Police Department reported to NHTSA that EBTs were found to display erroneous BAC [blood-alcohol content] readings in the presence of electromagnetic fields from radio transmission….Representatives of NHTSA and NBS were given a demonstration by police officers who routinely conduct breath testing using an EBT in a mobile van. One police officer operated his handheld radio within 1 foot of the EBT and demonstrated that the electromagnetic field could severely affect the analysis of alcohol samples.”

In 1983, the National Bureau of Standards quietly prepared a preliminary report on tests performed on the various breath testing devices used by police agencies nationwide (Effects for the Electromagnetic Fields on Evidential Breath Testers). Each of the 16 models tested were subjected to four different frequencies typically present in the standard police environment. Of the 16 units tested, 6 showed minimal interference; 10 of the 16 showed substantial susceptibility on at least one frequency.
The report characterized the potential effect of RFI on the testing of alcohol as “severe”.
Those conducting the study noted that the local Washington D.C. Metropolitan Police Department was complaining that breathalyzers were giving erroneous breath alcohol readings in the presence of radio transmissions. In a field demonstration of the RFI problem for representatives of NBS and the National Highway Traffic Safety Administration, D.C. officers using a breathalyzer in a mobi! le van showed how handheld radios radically affected the analysis of breath samples

“These results show that EMI is a potential problem with many of the EBT units currently in use….The states may have to take interim measures to determine the extent of their individual problems with EMI affecting EBTs.”

The reaction by the federal government to this report was, perhaps, predictable. Afraid that it would undermine public confidence in law enforcement methods, the government classified the document and then buried it. However, it was later resurrected by a Minneapolis DUI law firm’s “Freedom of Information Act” lawsuit. Most manufacturers of breath machines today quietly offer an “RFI detector” as an option in their products. Unfortunately, these “detectors” are unreliable and, in any event, are rarely purchased by law enforcement agencies.

Other RFI studies:

Andre Moenssens, et al., Scientific Evidence in Civil and Criminal Cases ‘ 3.09 at 204 (4th ed. 1995). This interference describes the effect of an electronic instrument on a radio wave or current that it is not designed to pick up. If a particular Breathalyzer as an electronic instrument were susceptible to RFI, then the measurement of light distance obtained when the operator balances the meter might not be an accurate indication of the amount of alcohol in the breath sample. Instead, the light distance might reflect, in part, a deflection in the meter needle caused by a stray current induced by radio waves in the surrounding environment

A Cherokee County Magistrate Judge filling in for a State Court Judge granted a defendant’s Motion for “Full Information “pursuant to O.C.G.A. 40-6-392. Specifically, the defense is requesting the source code for CMI’s Intoxilyzer 5000. Ralph Villani, the defendant’s lawyer, is to submit the Order to the Judge for signature within 7 days. The Judge has indicated that he will grant the State’s interlocutory appeal making this Georgia’s test case on the matter. The same litigation has already taken place in Florida and it ended with the legislature enacting a law that limited the information the defense is entitled to. Check back for more information.

Substances that cause False Positive Drug Test Results

THC - Substances or Conditions which can cause false positives
Dronabinol (Marinol)
Ibuprofen; (Advil, Nuprin, Motrin, Excedrin IB etc)
Ketoprofen (Orudis KT)
Kidney infection (Kidney disease, diabetes) Liver Disease
Naproxen (Aleve)
Promethazine (Phenergan, Promethegan)
Riboflavin (B2, Hempseed Oil)

Amphetamines - Substances or Conditions which can cause false positives
Ephedrine, pseudoephedrine, propylephedrine, phenylephrine, or desoxyephedrine
(Nyquil, Contact, Sudafed, Allerest, Tavist-D, Dimetapp, etc)
Phenegan-D, Robitussin Cold and Flu, Vicks Nyquil
Over-the-counter diet aids with phenylpropanolamine (Dexatrim, Accutrim)
Over-the-counter nasal sprays (Vicks inhaler, Afrin)
Asthma medications (Marax, Bronkaid tablets, Primatine Tablets)
Prescription medications (Amfepramone, Cathne, Etafediabe, Morazone,phendimetrazine, phenmetrazine, benzphetamine, fenfluramine, dexfenfluramine,dexdenfluramine,Redux, mephentermine, Mesocarb, methoxyphenamine, phentermine,amineptine, Pholedrine, hydroymethamphetamine, Dexedrine, amifepramone, clobenzorex,fenproyorex, mefenorex, fenelylline, Didrex, dextroamphetamine, methphenidate, Ritalin,pemoline, Cylert, selegiline, Deprenyl, Eldepryl, Famprofazone) Kidney infection, kidney disease, Liver disease, diabetes

Opiates - Substances or Conditions which can cause false positives
Poppy Seeds
Tylenol with codeine
Most prescription pain medications
Cough suppressants with Dextromethorphan (DXM)
Nyquil
Kidney infection, Kidney Disease
Diabetes, Liver Disease

Ecstacy - Substances or Conditions which can cause false positives
Ephedrine, pseudoephedrine, propylephedrine, phenylephrine, or desoxyephedrine
(Nyquil, Contact, Sudafed, Allerest, Tavist-D, Dimetapp, etc)
Phenegan-D, Robitussin Cold and Flu, Vicks Nyquil
Over-the-counter diet aids with phenylpropanolamine (Dexatrim, Accutrim)
Over-the-counter nasal sprays (Vicks inhaler, Afrin)
Asthma medications (Marax, Bronkaid tablets, Primatine Tablets)
Prescription medications (Amfepramone, Cathne, Etafediabe, Morazone,phendimetrazine, phenmetrazine, benzphetamine, fenfluramine, dexfenfluramine, dexdenfluramine,Redux, mephentermine, Mesocarb, methoxyphenamine, phentermine, amineptine, Pholedrine, hydroymethamphetamine, Dexedrine, amifepramone, clobenzorex, fenproyorex, mefenorex, fenelylline, Didrex, dextroamphetamine, methphenidate, Ritalin, pemoline, Cylert, selegiline, Deprenyl, Eldepryl, Famprofazone) Kidney infection, kidney disease
Liver disease, diabetes

Cocaine - Substances or Conditions which can cause false positives
Kidney infection (kidney disease)
Liver infection (liver disease)
Amoxicillin, tonic water

     If a person has taken methamphetamine, that individual should also have its metabolite amphetamine in his or her system. In other words, levels of both methamphetamine and amphetamine should be detected in both the blood and urine. Some GC/MS assays can falsely yield positive methamphetamine levels when high concentrations of ephedrine or pseudoephedrine are present in the specimen. Depending on the temperature of the injection port, the ephedrine or pseudoephedrine can be converted (or cooked) to methamphetamine. Therefore, sound scientific practice requires a negative report for methamphetamine if only methamphetamine is found in blood or urine. The absence of amphetamine means that the person had not consumed methamphetamine, which would in the ordinary course of metabolism would produce amphetamine. Therefore, in a case where only methamphetamine is found in the blood or urine the person probably had a cold and taken cold medicine containing ephedrine or pseudoephedrine.