Ambien Sleep Driving: Suggested Defenses

February 10th, 2012 Allen Trapp Posted in Driving under the Influence of Drugs, Health Issues No Comments »

Voluntary intoxication is not a defense. However, in most jurisdictions involuntary intoxication is a defense to most offenses. In some jurisdictions, involuntary intoxication is treated as an affirmative defense, which means that the prosecution must disprove it beyond a reasonable doubt. In other places, it is simply not available as a defense to a DUI.

A Texas appeals court has which held that involuntary intoxication is not a defense in a DWI case involving both alcohol and Ambien. This same appellate court approved a defense that would be characterized as involuntary intoxication in most jurisdictions in a case of the mistaken pill. The Defendant meant to take Soma and Ultram in the morning. He had taken Ultram for about seven years, and in order to encourage him to take his medication his wife put out the pills for him. On the date of his arrest she apparently put out an Ambien, and he took it believing it to be something else.

The trial court rejected the defense of accident or involuntary intoxication, and the court of appeals agreed. However, the judges found that the defense of “involuntary act” was available if the Defendant introduced evidence that an independent event, such as the conduct of a third party, that could have precipitated the incident. If, for example, a third party slips a “mickie” in a drink or forces a person to consume an intoxicant and get behind the wheel, then the voluntary conduct defense is available. Although the Defendant voluntarily took the pills his wife laid out for him, he involuntarily took the Ambien because of his wife’s act.

Many courts have concluded that the most difficult cases to decide involve those where a defendant knowingly ingested a prescription drug. There is an Illinois case that stands for the proposition that the unexpected and unwarned adverse effect of a drug taken on doctor’s orders is involuntary. California also has case law holding that intoxication caused by knowingly ingesting prescription medication can be either voluntary or involuntary, depending on whether the defendant had reason to know he/she would become intoxicated.

The best known Georgia case involving Ambien sleep driving is Myers v. State, 302 Ga. App. 753 (2010). In this case the lady had taken two Ambien, her regular daily dose of Xanax, and had a couple of glasses of wine before bedtime. The jury charge instructed the jury that, “The criminal intent element …is simply the intent to do the act which results in the violation of the law, not the intent to commit the crime itself. Consequently, to the extent that the defendant here argues inability to form an intent to commit the crime for which she is charged, it is immaterial, which means it should not be considered. While proof of criminal intent is required to convict the defendant of the crimes with which she is prosecuted, the state is not required to prove that the defendant intended to drive under the influence of alcohol in violation of the law or on the wrong side of the road. Rather, it is required to prove beyond a reasonable doubt only that while intoxicated she drove and drove crossing over…the right line, intending such acts.”

Relying on earlier Georgia case law, the Court of Appeals upheld the conviction. Those older cases had held that the criminal intent required for a conviction is simply the intention to commit the act which results in the violation of the law, not the intent to commit the crime itself. In other words, the Court relied on language that is included in most jury instructions in Georgia DUI cases, which basically instructs the jury that DUI is a crime of general intent and not specific intent. Therefore, and the record is not clear, perhaps trial counsel should have argued that his client lacked the intent to drive as opposed to the intent to commit the crime. Both the jury instruction approved in this case and the older cases do require the intent to drive; however, in this decision the Court of Appeals seemed to emphasize that the Appellant had intentionally ingested Xanax, Ambien, and alcohol, and then drove in an intoxicated state. What is overlooked (or perhaps assumed) is the language from several older cases and the jury instruction in this case – “that she intended to drive.” Therefore, even when faced with a generally hostile jury instruction, the lack of general intent may still be argued.

Despite some slivers of hope and some very narrow openings the courts have left us when considering, and usually rejecting, other defenses, there is really a dearth of case law regarding actus reus in the context of Ambien sleep driving defenses. Georgia has a number of criminal cases stating that it is a requirement but not defining the term. Nevertheless, even the Texas appeals court has recognized that a voluntary act (actus reus) is required, and that may be the best approach of all.

A state may make an offense a “strict liability” offense or a crime of general intent, thus eliminating the need to prove mens rea (intention to commit a crime). But the State must still prove that there was a voluntary act – the actus reus. Sleep driving by its very nature is not a conscious, much less voluntary, act.

The Model Penal Code Section 2.01 lends support to this position.

1) A person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act or omission to perform an act of which he is physically capable.

2) The following are not voluntary acts within the meaning of this Section:

a) a reflex or convulsion.

b) a bodily movement during unconsciousness or sleep.

Similarly, in Colorado the applicable statute, C.R.S. 18-1-502 provides that, “The minimum requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which he is physically capable of performing.” If a culpable mental state is not required, Colorado law characterizes the offense as a “strict liability” offense. Nevertheless, a voluntary act or actus reus is still necessary to obtain a conviction.

In a non-DUI case the Washington Court of Appeals has held that, although the legislature has the authority to create a crime without a mens rea element, a minimal mental element is required to establish the actus reus, and that is the element of volition. State v. Deer, 244 P.3d 965 (Wn. App. 2010). As a matter of Federal constitutional law the State bears the burden of proving beyond a reasonable doubt that a defendant committed a volitional act. This argument should certainly be made in any case where a judge is not inclined to recognize the actus reus requirement; if is not merely common law in origin but has become Constitutionally mandated by virtue of the 14th Amendment. While we understand that there are genuine cases of otherwise innocent people sleep driving, we can expect continued hostility from prosecutors (one of whom recently characterized the defense as a “fad”) and skepticism from thebench. Nevertheless, thorough research of the legal precedents applicable in a particular case, and in the event they are sparse, from around the country should yield at least one viable defense theory that even the worst judge will not reject, or face reversal.
Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

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Ambien Sleep Driving: The Problem

January 25th, 2012 Allen Trapp Posted in Driving under the Influence of Drugs, Health Issues No Comments »

     Zolpidem Tartrate, sold under the brand name Ambien, is a non-benzodiazepine sedative hypnotic. The non-benzodiazepines are a class of psychoactive drugs that have pharmacological characteristics similar to the benzodiazepines, with similar benefits, side effects, and risks, although they have dissimilar chemical structures. A sedative hypnotic is a drug that depresses the activity of the central nervous system and is used chiefly to induce sleep and to allay anxiety.

     Barbiturates, benzodiazepines, and other sedative-hypnotics have diverse chemical and pharmacologic properties that share the ability to depress the activity of all excitable tissue, especially the arousal center in the brainstem. Sedative-hypnotics are used in the treatment of insomnia, acute convulsive conditions, and anxiety states and to facilitate the induction of anesthesia. Although sedative-hypnotics are generally sleep inducing, they may also interfere with rapid eye movement (REM) sleep that is associated with dreaming. It has also been noted that when administered to patients with fever some of these drugs may act paradoxically and cause excitement rather than relaxation.

Sedative hypnotics may interfere with temperature regulation, depress oxygen consumption in various tissues, and produce nausea and skin rashes. In elderly patients they may cause dizziness, confusion, and ataxia. Drugs in this group have a high potential for abuse that may cause physical and psychological dependence. Treatment of dependence involves gradual reduction of the dosage because abrupt withdrawal frequently causes serious disorders, including convulsions. Buspirone and zolpidem are among the newer non-barbiturate non-benzodiazepine sedative hypnotics.

     Zolpidem is a benzodiazepine receptor agonist with high binding affinity for the GABA receptor. It was developed as a drug with a structure different from the benzodiazepines in order to provide it with an affinity for only a subset of the benzodiazepine receptors resulting in hypnotic properties without significant anti-convulsant, anti-anxiety, or muscle relaxant properties associated with the various benzodiazepines. Therefore, Zolpidem may be said to “compete” with the benzo’s for the attention of only some of the same receptors.

     Zolpidem has been available in this country since 1993, and for several years has also been available in a time release formula. It is available in both a five milligram and ten milligram tablet. The manufacturer recommends that it only be taken when a person has eight hours available for uninterrupted sleep. The peak concentration of the drug usually appears in the bloodstream between one and a half to two and a half hours. Therapeutic levels are reported as 29 to 113 ng/ml following a 5 mg. dose and 58 to 272 ng/ml following a 10 mg. dose according to the package insert.

     By around 2005 reports of parasomnias began surfacing. These are undesirable motor, verbal, or experiential events that occur during sleep. One of the more common was uncontrolled sleep eating. Raw eggs, uncooked rice, loaves of bread – they were all fair game. Cooking – and we are not talking about dishes that are particularly appetizing – was also reported, as well as sleep walking and sleep driving.

     Initially the manufacturer, Sanofi-Aventis, took the position that four percent of the population already suffered from somnambulism, and that while “events of sleepwalking have occurred during treatment with Ambien, these instances cannot be systemically linked to the product.”

     Finally, in March of 2007 there were two important developments. First, the Food and Drug Administration demanded that the makers of thirteen sedative hypnotic drugs include warnings about possible unusual behavior including sleep driving and recommended that the manufacturers conduct clinical studies to investigate the frequency with which sleep driving and other parasomnias occur in association with each product. Second, the manufacturers notified health care providers (i.e, the doctors prescribing the stuff) that the precautions were being revised to warn patients about the possibility of sleep driving and that such “complex behaviors” had been reported. Sanofi Aventis conceded that these events could occur in sedative hypnotic naive as well as sedative hypnotic experienced persons. Ambien (Zolpidem) was not the only drug affected. The others included Butisol Sodium, Carbrital, Dalmane, Doral, Halcion, Lunesta, Placidyl, Prosom, Restoril, Rozerem, Seconal, and Sonata. While Ambien related sleep driving cases have been encountered by all DUI defense attorneys, cases involving the other drugs are rare. Nevertheless, these drugs are on the same list as Ambien, so if a defense is viable for Ambien, it should be viable for these other medications as well.

     The question remains why would someone who has taken Ambien get out of bed and eat unappetizing food, cook stranger things, drive their cars into telephone poles, and have no memory of the event? A possible explanation for zolpidem induced nocturnal behavior is that after a person is aroused from sleep, he or she will walk, drive, or eat, and subsequently not recall the event after returning to sleep because of the sedation-mediated amnesic properties of zolpidem. Another possibility is that an arousal occurred out of deep sleep with the parasomnia occurring in this electroencephalographically verifiable stage of sleep. The author believes that at least in some cases the latter has been experienced, because the drivers’ interaction with police and other individuals was extremely incoherent, their behavior was “zombie-like”, and they stared blankly at the police as if looking through them.
Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

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GADUIBLOG AND OPRAH SPUR CALIFORNIA STUDY

June 19th, 2007 Allen Trapp Posted in Breath Tests, Health Issues No Comments »

Shortly after this blog was launched last year a producer from the “Oprah” show contacted me, because they were considering a segment on bariatric surgery and alcohol consumption.  She had found our last article on the subject while researching on the web and had several questions.  We talked for quite some time, and a few weeks later they aired their segment.  As a result of the publicity a doctor in California hurriedly put together an experiment.  The following story summarizes his findings.

SAN FRANCISCO (Associated Press, June 17, 2007)- People who had obesity surgery got drunk after just one glass of red wine, researchers reported in a small study that was inspired by an episode on “The Oprah Winfrey Show.”

“A lot of people think they can have one glass of wine and be OK,” said Dr. John Morton, assistant professor of surgery at Stanford University Medical Center, who is the study’s lead author. “The concern here is they really can’t.”

Morton has performed more than 1,000 gastric bypass, or stomach stapling, surgeries. He said he routinely warns his patients about drinking alcohol, but it wasn’t until Winfrey discussed the issue on her show last October that the public really took notice. He said questions poured in. “I didn’t find a whole lot in the literature, so that prompted the study,” he said.

The research team gave 36 men and women – 19 who had obesity surgery and 17 who did not – five ounces of red wine each to drink in 15 minutes. Using a breathalyzer, their alcohol levels were measured every five minutes until it returned to zero. More than 70 percent of the surgery patients hit a blood-alcohol level of 0.08 percent, which qualifies as legally intoxicated in California, and two reached levels above .15, Morton said. By contrast, most of the control group had levels below 0.05 percent, the study reported.

Researchers also found that obesity patients took longer to sober up. After matching the control group with the patient group for age, gender and weight, they found the patients took 108 minutes on average to return to a zero blood-alcohol level versus 72 minutes for the control group. Morton said the obesity surgery patients don’t produce as much of an enzyme that breaks down alcohol because their stomachs are smaller. Also, the alcohol passes to their small intestine faster, speeding up absorption, he said.

Dr. Madelyn Fernstrom, director of the weight management center at the University of Pittsburgh Medical Center, said Morton’s results support alcohol warnings normally given to gastric bypass patients. However, she called drinking five ounces of wine in 15 minutes an “artificial” test. No one – let alone bariatric surgery patients – would be advised to drink that amount of alcohol so quickly, she said.

 

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Gastroesophogeal Reflux Disease

June 16th, 2007 Allen Trapp Posted in Breath Tests, Health Issues No Comments »

Gastroesophageal reflux disease (GERD) is a common disease that affects approximately 25 to 30 percent of the U.S. population. GERD is a chronic condition that results from esophagus deterioration from stomach acid eruptions over time. Mark Scott and Aimee R. Gelhot, Gastroesophageal Reflux Disease: Diagnosis and Management, 59 Am.Fam. Physician 1161 (1999) (available online at www.aafp.org/afp/990301ap/1161.html). The impact on breath testing is whether alcohol erupting from the stomach into the mouth from gastric reflux (generally a silent response) poses a problem with accurate breath testing during a 20-minute deprivation period. Research has been minimal to nonexistent on this issue. Research conducted to try to mimic gastric reflux is problematic because of a very small non-representative population (ten people or less) sample, and some researchers used a compression belt to invoke eruption, in contrast to spontaneous and natural eruption.

In People v. Bonutti, ___ Ill.App.3d ___, 788 N.E.2d 331, 273 Ill.Dec. 22 (5th Dist. 2003), expert testimony identified that the defendant had suffered from GERD since 1992 and was being treated for the condition. The expert testified that alcohol, coffee, and carbonated drinks dilate the stomach and the lower esophageal sphincter. The reflux is silent, and regurgitation and reflux are synonymous. In Bonutti, the trial court properly suppressed the breath test when the defendant testified that he refluxed during the 20-minute observation period. However, the trial court properly declined to rescind the statutory summary suspension where the State rebutted the defendant’s claim the breath test was invalid.

In the State of Washington, the Washington State Patrol examined the issue of GERD and concluded safeguards should be implemented for fair and accurate breath testing. Their conclusions for proper breath alcohol testing suggested a sound forensic practice should be followed to ensure the integrity of the breath test and GERD recognition. The safeguards should include the following: at least a 15-minute pre-sample observation period, duplicate testing, instrument detection of mouth alcohol, trained and alert operators that ask appropriate questions, and visual observations looking for symptoms of GERD. Rod G. Gullberg, Breath Alcohol Analysis in One Subject with Gastroesophageal Reflux Disease. 46 J. Forensic Sci. 1498 (2001).

The problem in most breath testing programs is lack of training on GERD, absence of duplicate testing, and that pre-evidentiary test questions do not include information about GERD. In one Midwest state police program, a breath testing instructor testified that he purposely avoids the GERD issue in his breath test training program. The use of a continuous 20-minute observation period is supported again. An officer should be prohibited from driving a car, reading paperwork, turning his or her back on the defendant, and leaving the room during the 20-minute deprivation period. Anything other than continuous 20-minute observation should be prohibited to help ensure the integrity of the breath test. General compliance for a person who suffers from GERD is not acceptable.

Dr. Ronald Henson, Ph.D., C.P.C.T.

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Airline Blames Breath Test Result on Diet

April 8th, 2007 Allen Trapp Posted in Breath Tests, Health Issues No Comments »

This article was published by Reuters on April 7, 2007.

LONDON, April 7 (Reuters) – An airline pilot arrested just before take-off on suspicion of being over the alcohol limit was not drunk and the diet he was on may have been to blame for the confusion, airline Virgin Atlantic said on Saturday.

Police arrested the 47-year-old pilot of a New York-bound Virgin Atlantic [VA.UL] plane at London’s Heathrow airport last Saturday after being tipped off by security staff who thought the pilot had been drinking.

While an initial breath test showed the pilot to be over the alcohol limit, police told the pilot on Saturday that a blood test was negative, Virgin Atlantic spokesman Paul Charles said.

“The result showed the amount of alcohol in the blood was consistent with that of a non-drinker,” he said.

No charges will be brought against the British pilot, whose name was not released. The pilot, suspended after the incident, will be able to resume his duties immediately, the airline said.

“He is elated with the news and is keen to resume his flying career as soon as possible,” Charles said.

Charles said a diet the pilot had been on may have been the cause of the mistake. A laboratory that carried out a blood test on the pilot said some diets led the body to generate increased levels of acetone, he said. “It would smell like alcohol on someone’s breath,” he said.

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Effects of Alcohol

October 11th, 2006 Allen Trapp Posted in Health Issues 1 Comment »

The following material is from CMI, Inc., the manufacturer of the Intoxilyzer 5000. While I may not agree with all of their conclusions, it is still interesting reading.

Alcohol is classified in different ways, depending on who is doing the classification. Generally alcohol is considered to be a DRUG; specifically, a CENTRAL NERVOUS SYSTEM DEPRESSANT. There are other drugs grouped in this category including: METHADONE, MORPHINE, METHAQUALONE AND BARBITURATES.

The effects of alcohol can be seen in all the sensory and motor functions of the body. However in our work we are concerned primarily with the effect of alcohol on the brain. Alcohol depresses the transmissions in the nervous system between the brain and the rest of the body. The disruption of these transmissions have dramatic effects on the mental and physical performance of the body.

For our purposes, the brain will be divided into four sectors: THE HIGHER CENTER OF LEARNING, THE MIDLINE BRAIN FUNCTIONS, MOTOR SKILLS and THE BRAIN STEM.

Alcohol affects the brain in the reverse order to the way the brain develops in a fetus. Alcohol initially affects the brain in the THE HIGHER CENTER OF LEARNING. This

is where a person’s JUDGMENT functions reside and where we make our decisions. This is where our social behavior is programmed, our religious beliefs reside, our standards and ethics, risk assessment, self evaluation, inhibitions and general sense of reality Alcohol affects this part of the brain at very low concentration levels (0.02 -0.04%), resulting in loss of the ability to assess one’s own impairment, the risk involved in taking certain actions, and the ability to make correct decisions in any given situation or activity.

It is particularly interesting that the vomit control center is contained in the higher center of learning. The body self monitors levels of substances which are toxic and if a toxin exceeds a sufficient quantity the vomit mechanism is activated. Research has shown that the trigger for the vomit mechanism regarding alcohol is an alcohol concentration of 0.12%. In theory, an individual should not be able to exceed the 0.12% concentration level. However, since the vomit control center is part of the higher center of learning, its function can be impaired by the alcohol in the brain and rendered inoperative.

If the alcohol concentration in the brain increases, more and more of our mental and physical capabilities are affected and, therefore, cannot be relied upon.

As the concentration of alcohol continues to increase the mid line brain functions are affected. These include the senses of sight, hearing, touch, smell and taste. These senses are affected at alcohol concentrations of 0.05% and greater. For example, alcohol increases the acoustical threshold. This means that as a person continues to drink sounds must be louder and tones more distinct for the person to hear them. This is a slow process and few notice the hearing loss. With heavy drinking, the effect is as if the person were driving an automobile through heavy traffic wearing earplugs.

The eye exhibits changes due to increasing alcohol concentration as well. Studies have shown that there can be changes in color and depth perception, blurring of vision, and diplopia (double vision) at concentration levels as low as 0.08%. Visual acuity was affected at concentration levels as small 0.01% in novice drinkers to 0.04% in heavy users. The ability to visually track an object or focus is generally not affected until concentration levels of .08% are exceeded. In research looking at both tracking ability and the ability to focus, performance of the eye on both measures was affected at low levels of alcohol. Two of the most dangerous effects of alcohol are the lengthening of time necessary for the eye to recover from a bright light and from light fixation. The amount of time the eye takes to adjust to different levels of light is usually very short. Alcohol in the brain can cause this time to increase by a factor of six. For example, in driving, glare blindness caused by the passing of a vehicle in the opposite direction is generally less than a second. This time can increase to 2 to 4 seconds in a person who has been drinking to make a very dangerous situation. Light fixation is when an intoxicated person becomes so intently focused on a light source, especially one that is flashing, that the person ignores all other external stimuli. This is why patrol cars parked on the side of the road with their lights are occasionally hit by intoxicated drivers. Another important effect of alcohol in the brain is the distortion in the ability to estimate distances. An individual under the influence of alcohol consistently over estimates the distance between two points. The consequence of such a change is the underestimation of that person’s own speed. Even more important, an individual who has been drinking may believe that they have more distance to pass a vehicle than they actually have. A number of head on crashes have been caused by intoxicated drivers attempting to pass other vehicles.

The sense of smell is very quickly dulled by alcohol. Sometimes the sense of smell is an important safety factor. Have you ever stopped your car because something did not smell right? A car which is over heating or burning oil or burning brake fluid creates very distinct odors. If a person’s ability to detect these problems is hampered, it is hazardous.

The sense of touch changes with increasing alcohol concentration in that increasing pressure is necessary before the person senses the contact. This can result in a change in a person’s grip strength for the steering wheel and the pressure the person exerts on the gas or brake pedal. The ability to determine different textures also becomes less efficient.

Alcohol affects the sense of taste by causing most food to be bland.

If alcohol concentration continues to increase “MOTOR SKILLS” are affected. There will be less muscular coordination. Nerve transmissions from the brain to a muscle are impeded, affecting the performance of the muscle. This depression of nerve transmissions causes a dramatic change in reaction time. At low levels of alcohol concentration (0.06%), fine muscle (motor) coordination is affected. The person’s ability to perform tasks requiring finger dexterity, such as the extraction of a driver’s license from a wallet, are affected. As alcohol concentration continues to increase, larger muscle groups are affected (gross muscle or motor coordination). At levels of 0.08% and above, the typical visual clues to intoxication begin to manifest themselves, such as staggering walk, problems with balance, hand to eye coordination and slurring speech.

Alcohol acts as a “VASODILATOR”. This means that blood vessel walls relax under the influence of alcohol, and more blood is delivered to the extremities (arms, legs, feet and hands). The flushed face observed in some individuals is the result of vasodilation effect. A consequence of additional blood being sent to extremities can be loss of heat at the body core. Alcohol should never be given to a person suffering from cold exposure since this will result in further lowering of the body’s core temperature.

If alcohol concentration continues to increase, the final area of the brain to be affected is the “BRAIN STEM”. This part of the brain controls all of the body’s autonomic functions. If alcohol reaches a level in excess of 0.10% changes are evident in the heartbeat, respiration and body temperature. If alcohol concentration exceeds 0.40% the respiration function can cease. Death due to alcohol poisoning is usually caused by stoppage of respiration.

Alcohol in Combination with Other Drugs

Visual indications of alcohol intoxication can be mimicked by other drugs as well as illnesses and diseases. Visual symptoms which can be attributed to alcohol intoxication include slurred speech, staggering, drowsiness, loss of equilibrium, and loss of motor skills. Other drugs such as valium can have similar affects. In a DUI arrest, these symptoms can be a result of drugs, alcohol, or a combination of both.

Pharmacologically alcohol produces a feeling of euphoria, or relaxation and well being. This feeling normally peaks at alcohol concentration of approximately 0.08%. At this concentration level there are very few symptoms evident to indicate intoxication. If alcohol concentration increases beyond this point then the familiar “overdose” symptoms begin to appear.

One of the real dangers of alcohol is its reaction when other drugs are present. Alcohol when taken in combination with other drugs can produce “additive” or “synergistic” effects. “Additive” effects are when a person’s impairment level is simply the sum of the impairing effect of the alcohol and the drug present. Alcohol in combination with Phenobarbital is an example of an additive effect. The synergistic effect of alcohol with Valium, is greater than a simple additive effect of alcohol with the Valium. There is no known example of a drug which can decrease the intoxicating effect of alcohol. Therefore, WHEN ANY DRUG IS COMBINED WITH ALCOHOL, THE ABILITY OF THE INDIVIDUAL IS MORE IMPAIRED THAN WHEN ONLY ALCOHOL OR THE DRUG ARE PRESENT.

Usage of drugs, whether illicit, prescribed, or over the counter, is common. It is difficult to determine what drug a person has consumed from the visual effects. A breath alcohol analysis cannot detect or determine the presence of drugs. Those people who misuse drugs know this and occasionally attempt to “mask” their use of a drug by consuming a strongly aromatic alcoholic beverage such as whiskey or beer. The odor of an alcoholic beverage can cause the law enforcement officer to investigate the use of alcohol, not thinking that drugs may also be present. In other words, the smell of alcohol can produce an “alcohol mindset” in the officer and limit the investigation before drug use is uncovered.

Even though a breath alcohol test cannot detect the presence of drugs, the fact that the alcohol concentration does not correlate with the symptoms being observed in the individual is a sign that further investigation is warranted.

Alcohol still remains the number one cause of accidents and motor vehicle fatalities. It has been estimated, however, that drugs may be present in drivers suspected of DUI in over 40% of the cases. Some studies have indicated that alcohol and drugs are present in approximately 25% of all accidents and 1/3 of these involve two or more drugs. The use of alcohol with drugs is a dangerous development.

The effects of intoxication can be mimicked by illness or diseases. Examples include diabetes, epilepsy and certain types of trauma, especially head trauma.

Alcohol Tolerance

A person’s TOLERANCE to alcohol is often misunderstood. With most drugs, tolerance is thought of as the need to increase dosage of a drug to obtain a desired pharmacological result on the person. With alcohol, the person does not develop a tolerance in the normal pharmacological sense due to chronic use of alcohol. Alcohol tolerance is usually seen with regards to the exhibited effects of alcohol consumption. The two distinct categories of tolerance are: “NATURAL” and “LEARNED”.

Natural tolerance is further divided into INBORN, PHYSICAL, and STRESS TOLERANCE. Inborn tolerance is the body’s own response to a given concentration of alcohol. Inborn tolerance is only effective at relatively low levels of alcohol concentration. In fact, no individual has been shown to have immunity to the effects of alcohol above concentration of 0.08%. Studies have shown inborn tolerance to be most prominent up to concentrations levels of 0.04% to 0.06%.

The term physical tolerance refers to the effect of a given dose of alcohol on a person who is ill. The individual’s physical and mental abilities, already diminished by illness, are further diminished by the presence of alcohol. This effect does not work both ways. For example, a person in superb physical health is not less affected by alcohol than the average healthy individual.

Stress tolerance is often encountered by law enforcement officers but sometimes not recognized. A classic example of stress tolerance is an individual’s performing poorly in the roadside sobriety test then performing well a few minutes later in a reassessment at the lock-up facility. In high stress situations or when a person has increased anxiety, adrenaline is released in the body. Adrenaline has been shown to cause some intoxicated individuals to appear less intoxicated than they really are. It is not clear whether this effect is due to an increased metabolic rate, which masks the effects of the alcohol, or to the individual becoming more aware of their situation, and an attempt to cover-up the intoxication. Stress tolerance is a temporary phenomenon and lasts for only a few minutes. However, those few minutes can make a great deal of difference in the performance of a field sobriety test.

There are three forms of learned tolerance: “PSYCHOLOGICAL, ACQUIRED and ACUTE TOLERANCE”.

Psychological tolerance results from all of a person’s life experiences. A persons behavior is controlled by a number of factors, for example the social setting, our basic ideas of right and wrong, religious training received, current mental state, the people we associate with and many other factors. An individual might normally refrain from certain

actions, but the consumption of alcohol can lessen the person’s inhibitions. Strong evidence of this is the number of crimes which are committed under the influence of alcohol versus the number of crimes where no alcohol or drugs are present.

The most common type of tolerance observed is acquired tolerance. Acquired tolerance is only established by habitual users of alcohol. The chronic drinker can learn to compensate for some of the more obvious effects of alcohol intoxication. An individual who can perform field sobriety maneuvers well with a high alcohol concentration is a classic example of acquired tolerance. It is important to remember that the chronic drinker can compensate for the effect of alcohol on gross motor functions, but cannot compensate in the areas of judgment, reaction time and perceptions of risk.

Acute tolerance, also referred to as the “MELLANBY EFFECT”, is the brain’s tendency to continually compare its current condition to its condition at a previous time. For example, during the pre-peak phase on the alcohol curve, the individual comparing his current feelings to how he felt when there was no alcohol present will likely overestimate his level of intoxication. Once the individual enters the post-peak phase, however, he begins comparing his current state to a previously higher level of intoxication and consequently will underestimate his level of intoxication. This is a dangerous situation with regards to operating a motor vehicle.

There is no form of tolerance which reverses the effects of alcohol with regard to diminished physical and mental abilities in the operation of a motor vehicle.

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Balance Disorders

October 11th, 2006 Allen Trapp Posted in Health Issues No Comments »

Two of the three “standardized field sobriety tests” – the walk and turn as well as the one leg stand – are premised on the assumption that people who are not under the influence of alcohol can perform the tests satisfactorily. However, many people do not have particularly good balance, and then there are those who suffer from a balance disorder.

When balance is impaired, an individual has difficulty maintaining orientation. For example, an individual may experience the “room spinning” and may not be able to walk without staggering, or may not even be able to arise. Some of the symptoms a person with a balance disorder may experience are:

* A sensation of dizziness or vertigo (spinning).
* Falling or a feeling of falling.
* Lightheadedness or feeling woozy.
* Visual blurring.
* Disorientation.

Some individuals may also experience nausea and vomiting, diarrhea, faintness, changes in heart rate and blood pressure, fear, anxiety, or panic. Some reactions to the symptoms are fatigue, depression, and decreased concentration. The symptoms may appear and disappear over short time periods or may last for a longer period of time.

Infections (viral or bacterial), head injury, disorders of blood circulation affecting the inner ear or brain, certain medications, and aging may change our balance system and result in a balance problem. Individuals who have illnesses, brain disorders, or injuries of the visual or skeletal systems, such as eye muscle imbalance and arthritis, may also experience balance difficulties. A conflict of signals to the brain about the sensation of movement can cause motion sickness (for instance, when an individual tries to read while riding in a car). Some symptoms of motion sickness are dizziness, sweating, nausea, vomiting, and generalized discomfort. Balance disorders can be due to problems in any of four areas:

* Peripheral vestibular disorder, a disturbance in the labyrinth.
* Central vestibular disorder, a problem in the brain or its connecting nerves.
* Systemic disorder, a problem of the body other than the head and brain.
* Vascular disorder, or blood flow problems.

Some of the more common balance disorders are:

Benign Paroxysmal Positional Vertigo (BPPV)–a brief, intense sensation of vertigo that occurs because of a specific positional change of the head. An individual may experience BPPV when rolling over to the left or right upon getting out of bed in the morning, or when looking up for an object on a high shelf. The cause of BPPV is not known, although it may be caused by an inner ear infection, head injury, or aging.

Labyrinthitis–an infection or inflammation of the inner ear causing dizziness and loss of balance.

Ménière’s disease–an inner ear fluid balance disorder that causes episodes of vertigo, fluctuating hearing loss, tinnitus (a ringing or roaring in the ears), and the sensation of fullness in the ear. The cause of Ménière’s disease is unknown.

Vestibular neuronitis–an infection of the vestibular nerve, generally viral.

Perilymph fistula–a leakage of inner ear fluid to the middle ear. It can occur after head injury, physical exertion or, rarely, without a known cause.

Diagnosis of a balance disorder is complicated because there are many kinds of balance disorders and because other medical conditions–including ear infections, blood pressure changes, and some vision problems–and some medications may contribute to a balance disorder. A person experiencing dizziness should see a physician for an evaluation.

The primary physician may request the opinion of an otolaryngologist to help evaluate a balance problem. An otolaryngologist is a physician/surgeon who specializes in diseases and disorders of the ear, nose, throat, head, and neck, with expertise in balance disorders. He or she will usually obtain a detailed medical history and perform a physical examination to start to sort out possible causes of the balance disorder. The physician may require tests to assess the cause and extent of the disruption of balance. The kinds of tests needed will vary based on the patient’s symptoms and health status. Because there are so many variables, not all patients will require every test.

Some examples of diagnostic tests the otolaryngologist may request are a hearing examination, blood tests, an electronystagmogram (ENG–a test of the vestibular system), or imaging studies of the head and brain.

The caloric test may be performed as part of the ENG. In this test, each ear is flushed with warm and then cool water, usually one ear at a time; the amount of nystagmus resulting is measured. Weak nystagmus or the absence of nystagmus may indicate an inner ear disorder.

Another test of the vestibular system, posturography, requires the individual to stand on a special platform capable of movement within a controlled visual environment; body sway is recorded in response to movement of the platform and/or the visual environment.

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Gastric Bypass Surgery

August 4th, 2006 Allen Trapp Posted in Health Issues 18 Comments »

     A 36-year old female gastric bypass patient left a party after having only two alcoholic beverages, drove her car into oncoming traffic, causing the death of a 12-year old child. Her blood alcohol level was above the legal limit for the operation of a motor vehicle and was far higher than would have been expected from the two alcoholic beverages she claimed to have consumed. Was the patient telling the truth about the amount of alcohol she drank at the party or did her surgery affect the way her body absorbed or metabolized the alcohol?

     A recent study reported in the British Journal of Clinical Pharmacology found that the gastric bypass procedure significantly affects alcohol absorption and its inebriating influence. According to the study protocol, a group of gastric bypass patients, three years post-surgery, and their non-surgical controls consumed an alcoholic drink containing 20% v/v alcohol (95% ethanol), and blood alcohol levels were examined over a period of time. The data showed that blood alcohol levels of the gastric bypass patients were far higher and required much less time to peak than those of the non-surgical controls.

     The more rapid absorption of alcohol and heightened blood alcohol levels would cause the bariatric patient to have a more pronounced feeling of inebriation during and shortly after drinking. And, such effects could have serious ramifications with regard to driving an automobile or performing other skilled tasks such as operating heavy machinery, piloting a plane or any other task that may influence the safety of the individual or that of others.

     Why would alcohol absorption be higher for someone who has had gastric bypass (or any other surgical procedure that reduces the size of the stomach and bypasses the upper portion of the gut)? With the gastric bypass procedure, 95% of the stomach and the upper gut (duodenum and a portion of the jejunum) are bypassed. Alcohol passes directly from the stomach pouch, usually without restriction, into the second portion of the gut, known as the jejunum. This portion of the gut has a large surface area and readily and rapidly absorbs the alcohol.

     In addition to anatomical changes in the GI tract that influence alcohol absorption, the gastric bypass patient (or any bariatric patient) may also be more sensitive to the intoxicating effects of alcohol because of the reduced calorie intake that occurs after surgery. A number of studies have found that alcohol absorption is far higher if fasting or when consumed on an empty stomach than if provided with a meal or drank soon thereafter.

     During the first several months following gastric bypass or any other bariatric surgical procedure, total daily calorie intake is quite low. Drinking alcohol, even small amounts, at this time, would increase significantly an individuals risk for intoxication.

     In the rapid weight loss period following bariatric surgery, alcohol consumption could have far more serious consequences than inebriation, namely brain damage, coma and death. How is this possible?

     Muscle, heart, liver and other tissues use fat and sugar (glucose) for fuel. The brain, however, requires sugar (glucose) to function. To avoid low sugar, the body stores sugar in the form of glycogen. However, glycogen stores can be depleted in a short period of time with prolonged work or exercise, starvation or a diet low in carbohydrate. When this happens, the body has two back-ups mechanisms that help to provide the brain and nervous system the sugar required to function.

     One of the mechanisms whereby sugar is produced is a process called gluconeogenesis, a chemical pathway that converts certain components of protein, lactic acid and other substances into sugar. Fat cannot be converted into sugar. However, the production of sugar by gluconeogenesis is run by energy produced by the incomplete breakdown of fat into ketone bodies via a process known as ketosis.

     Ketone bodies can be used by all tissues, including the brain, for fuel. And, ketones can also be converted into sugar via gluconeogenesis. In this way, the brain and nervous system can function normally, even during times of low calorie intake, such as during the rapid weight loss period following bariatric surgery.

     The production of ketones is what causes the sweet or distinct smell in the urine and on the breaths of bariatric patients during the rapid weight loss period after surgery. And, during this time, it is extremely important that alcohol NOT be consumed. Why?

     Alcohol inhibits gluconeogenesis and ketosis. This means the brain and nerves are depleted of the fuel needed to function. The consequences of such fuel depletion initially are disorientation, confusion, semi-consciousness, coma and, ultimately, death. The detrimental effects of alcohol on the brains fuel supply can also cause accidents, such as the hypothetical situation described below.

     A bariatric patient, four weeks after surgery, had a couple of drinks and drove to the post office. But, instead of walking into the post office to get her mail, she drove her car through the front window. She claimed to have “blacked out” before the accident and had no memory of the event. People standing by said she was disoriented and, presumably, intoxicated. Fortunately, someone provided her a beverage containing sugar that helped her to regain full consciousness, preventing coma or even death, as well as an evening in jail.

     Drinking alcohol in the early postoperative period may have other adverse effects on health. Frequent vomiting, low calorie intake, not taking multivitamins and malabsorption may cause a number of vitamin and mineral deficits, including thiamin. Alcohol further reduces the absorption of thiamin, causing severe deficits and a condition known as Beriberi (see May 2003 issue of Beyond Change). Beriberi, in turn, may cause congestive heart failure, nerve damage, muscle cramping and pain, crippling, brain damage, a loss of memory and inability to learn, confusion, disorientation, coma and death.

     Addiction transfer is yet another precaution to be considered with regard to alcohol. The prevalence of food addiction and associated eating abnormalities, i.e. binge eating, carbohydrate cravings, are high among individuals with morbid obesity. With bariatric surgery, the addictive tendencies for food and aberrant eating behavior are considerably improved. However, individuals with addictions often transfer their addiction to yet another substance, such as alcohol. According to the findings of one study, addiction transfer may occur in up to 25% of bariatric patients.

     Drinking alcohol after surgery may also reduce maximal weight loss success. Alcohol has no nutrient benefits and contains high numbers of calories that may cause weight gain or prevent weight loss. One 12-ounce can of beer, for instance, contains 150 calories; 3.5 ounces of wine contains 70 calories; 1.5 ounces of gin, rum, vodka or whiskey contains between 97 and 124 calories; and 1.5 ounces of liquer contains 160 calories.

     Based on all the information provided above, should the bariatric patient abstain from alcohol totally? The bariatric patient should absolutely NOT drink alcohol during the rapid weight loss period and definitely not if consuming no or low carbohydrates, not taking vitamin and mineral supplements, vomiting frequently, or not able to keep their food down. However, with time, there is no reason an individual should not be able to enjoy an occasional drink, provided they are aware that it only takes a small amount of alcohol to produce an inebriating effect. With such knowledge, appropriate precautions should be taken, such as waiting a sufficient length of time after drinking to drive or perform other skilled tasks.

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