Georgia DUI Blog

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.

Blood drawn for a forensic blood test will in almost all cases be taken from the suspect via a vacutainer, which should contain two substances -sodium flouride, a preservative, and potassium oxalate, an anticoagulent. Further, they are vacuum sealed, which explains why they are called vacutainers .

Most vacutainers in use are made by Becton Dickinson. They also have an expiration date, after which the vacuum seal is no longer warrantied. BUT, very few phlebotomists, police officers, or state crime lab personnel pay any attention to the expiration date. Simply stated, nobody checks.

Becton Dickinson only checks one out of every four thousand vials for quality control. There are at least three possible defects in the state’s blood test:

1. A bad seal on the vacutainer, which is impossible to detect after the test, because it has been opened.

2. Improper amount of sodium flouride in the vial. Since vials are routinely nor refrigerated prior to their delivery to the crime lab, the proper amount of sodium flouride is critical. Either too much or too little can lead to a false high test result and

3. Improper amount of potassium oxalate. In the case of a bad 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. One such organism is the ubiquitous candida albicans, which is is a yeastlike organism that is resistant to sodium floride. In the presence of glucose and warmth, it will excrete ethanol 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 their 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.

Palmaka II (Palmaka v. State - A06A1060) was published on July 27, 2006 by the Court of Appeals.  It is a bad case for the defense on the issues presented on appeal.  We will go into the substance of that later.  However, the last paragraph may contain a little gold nugget that defense lawyers need to help with attacks on the Intox 5000 in jury trials.  It may make a good jury charge.

“We further note that OCGA 40-6-392(a)(1)(A) provides only for the admissibility of the test results.  A defendant remains freee to challenge the weight and credibility of that evidence before the jury.”

Hmmm…that might be helpful.  Thanks to Jeremy Citron, the eternal optimist, for pointing that out.

Hospital laboratory testing of serum alcohol involves use of the enzymatic method. The enzyme kits do not measure alcohol directly. They oxidize alcohol to acetaldehyde by the reduction of NAD+ to NADH. The amount of NADH produced
is therefore a function of the amount of alcohol present in the sample, and the amount of NADH produced is measured via a color reaction. However, if the blood also contains high levels of lactate (lactic acid) from either the administration of Ringer’s Lactate or the release of lactate from damaged tissues and also high levels of LDH (lactate dehydrogenase) enzyme from damaged tissues, then it is possible that the NAD+ from the enzyme kits will also oxidize of lactate to pyruvate, thereby also producing NADH which would appear as “alcohol” in the test results. Therefore, it may be possible to have falsely high alcohol test results from serum alcohol tests using these hospital enzyme kits if both lactate and LDH are in high concentrations in the blood.

     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 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.

Lawrence Taylor’s DUI blog has a great post on this subject.  If you practice in this area and have never seen his blog, leave and go there now.

To see the study in the journal Digestive Disease Week, click here.

The general idea is that artificial sweetners do not cause the pyloric valve to stay closed as long and for the drink to be trapped in the stomach where only approximately 20% of alcohol gets absorbed into the bloodstream.  Consequently, the gastic emptying takes less time to occur and the drink gets passed into the intestine and absorbed there more quickly.  BAC’s on the test subjects were .05 for the artificial sweetners and .03 for the sucrose sweetners.