Novel Defense

Question 1

Top ten defenses

Answer 1

Drinking after the offense; “hip flask”
Laced drinks
Inhalation of alcohol vapors at work
Pathological condition or trauma
Use of skin antiseptics containing alcohol
Alleged mix-up of blood specimens
Post-sampling formation of alcohol [in vitro formation]
Drug-alcohol interferences
Consumption of elixirs or tonics containing alcohol
Infusion of blood or other medicinal fluids during emergency treatment

Question 2

Hip flask defense

Answer 2

Challenge
Common defense tactic
Suspect alleges consumption of alcohol after driving but before the blood specimen was drawn
Claims consumption of alcohol to “calm nerves”
Rebuttals
Testimony of police officer or other witnesses who observed poor driving and/or non-consumption during the interval
Calculation to demonstrate the alleged amount consumed is inconsistent with measured BAC
Measurement of blood and urine alcohol concentrations

Question 3

Laced Drinks

Answer 3

Challenge
Unwitting consumption of alcohol
A “friend” added spirits to a weaker or non-alcoholic drink
Home-made “punch” having an unusually high EtOH content
Rebuttals
Drinking experience and BAC measured
Calculations to refute the story
Common sense

Question 4

Inhalation of alcohol vapors at work

Answer 4

Challenge
Individuals who work with organic solvents and breathe them in from their work environment
Rebuttals
Limited work environments with a sufficient concentration of EtOH vapor
Controlled studies have failed to substantiate
Inhalation of EtOH vapor of abnormally high concentration uncomfortable to test subjects
Irritation of mucous membranes of nose and throat – precludes long-term exposure

Question 5

Top 10 excuses

Answer 5

I handle my liquor
I don’t want to pay for taxi
Leaving my car is a hassle
Short drive home
One more drink won’t hurt
They only take your license if you’re drunk

Question 6

Pathological conditions or trauma

Answer 6

Rebuttals
Claim of various diseases [hepatitis or cirrhosis] – slow metabolism
Studies do not support
Alcoholics generally metabolize faster
Diabetes mellitus
Impaired glucose metabolism – increased acetone
Gas chromatography and newer breathe testing instruments
Trauma
Empirical studies do not support

Question 7

Use of skin antiseptics containing alcohol

Answer 7

Challenge
Disinfection of the skin at the venipuncture is a routine hospital procedure
If the swab contains ethanol – potential for contamination
Rebuttals
Most “alcohol swabs” contain isopropanol – therefore differentiated from EtOH
Gas chromatography
Controlled studies refute
70% EtOH – still wet sponge over the site – a negligible amount of EtOH before needle withdrawal

Question 8

Alleged mix-up of blood specimens

Answer 8

Chain of custody procedures
Duplicate samples
Reanalysis
DNA testing

Question 9

Post-sampling formation of alcohol [in vitro formation]

Answer 9

Challenge
Blood infected with bacteria and/or tube did not contain preservative
Rebuttals
Verification of appropriate preservative
Evaluation of raw data to demonstrate lack of evidence of decomposition
Verification of proper storage
Empirical studies

Question 10

Drug-alcohol interactions

Answer 10

Challenge
Drugs may alter absorption kinetics
Low BAC in combination with other drugs
Rebuttals
Slight effect on absorption kinetics – moot in the face of measured BAC
Still impaired driving: EtOH and drugs – may shift the burden of proof
Generally, mood with “per se statues”

Question 11

Consumption of elixirs or tonics containing alcohol

Answer 11

Challenge
Unintentional intake of EtOH from various medicinal
5-40% EtOH
Rebuttals
Not all contain EtOH
Calculations
“Per se laws”

Question 12

Infusion of blood or other medicinal fluids during emergency treatment

Answer 12

Challenge
Infusion of blood or other medicinal fluids during emergency treatment
Rebuttals
All infusions of blood should be free of alcohol
At equilibrium – 0.10 g% EtOH blood infused [5 liters] negligible effect of patient’s BAC

Question 13

Novel DUI defenses

Answer 13

Endogenous alcohol
Asthma inhalers
Hand sanitizers – Purell Defense
Sugar alcohol in gum
E-cigarettes
Tyndall effect or airbag defense
“Soda Cracker Defense”
Irritable Bowel Syndrome (IBS)

Question 14

Endogenous Ethanol

Answer 14

Question of endogenous ethanol subject of much debate
Ethanol found is an artifact of the sampling/measuring process
Rate of formation to overcome elimination does not fit
OR
Is real but insubstantial in concertation
Reported concentrations range: 0.002 – 0.003 g%
Below LOD of the most common measuring platforms

Question 15

Asthma

Answer 15

Asthma medications containing ethyl alcohol
Use before breath test may elevate measured BAC
Most do not contain EtOH
Primatene mist – 34% EtOH
Studies have demonstrated that shortly after use, and well before the 20-minute deprivation period is up – no measurable BAC/Breath AC
Calculations will refute the issue of absorbed EtOH from inhalers is reasonable for measured BAC

Question 16

Purell Defense

Answer 16

US Rep. Vito Fossella pleads guilty to DUI
BAC of 0.17
Based on his defense used Purell hand sanitizer nine hours earlier
Strawsine and Lutmer
~10% gave positive readings at the initial testing time
0.021-0.41 g/210L

Question 17

Gum Defense

Answer 17

Breath alcohol test impacted by Gum with sugar alcohols
Two positive results
Alco-sensor IV DWF
Alcotest 7410 GLC
Trident splash strawberry with kiwi
< 10 mg/100 mL [<0.001 g%]
Gum contained 0.05% w/w of EtOH

Question 18

E-Cigarettes

Answer 18

Most do not contain EtOH
Few ~10% EtOH
GBI simple study
Alcosensor IV and Intoxilyser 5000
Blew vapor from inhalation into the device
Alcosensor IV
No alcohol detected
Intoxilyser 5000
0.011 g/210L
Second sample @ 3 min – tested 0.000 G/210 L
Recall – possible EtG positive result

Question 19

Air Bag Defense

Answer 19

Claim that inhaled powder from an airbag deploying will increase a breath alcohol measurement
Based upon the Tyndall Effect
Airbags are packed with fine powder for preservation
Fine powder [talcum/cornstarch] released from the airbag
Talcum powder/corn starch are absorbent substances that adhere to the mucus membranes of the lung and mouth
Powders stuck to mucus
Excerpt from article published in International Associate for Chemical Testing [ca 2004]

Question 20

Intragastrointestinal Alcohol Fermentation Syndrome

Answer 20

“Soda Cracker Defense”
Intragastrointestinal alcohol fermentation syndrome
Syndrome in which individuals develop significant concentrations of ethyl alcohol following the intake of an ordinary meal
Essential factors of syndrome are
Abnormal proliferation of various microorganisms in the bowel
Abnormal stagnation of food in the alimentary track
Intake of a carbohydrate diet as the substrate for the alcohol

Question 21

Atypical Japanese subjects

Answer 21

Subjects ate carbohydrate-rich food such as rice
Chronic yeast infection
Candida albicans – abnormal proliferation
No ingested alcoholic beverages
Appreciable concentrations of alcohol in blood and breath
Signs and symptoms of “drunkenness”

Question 22

Irritable Bowel Syndrome

Answer 22

IBS disturbance in the normal gut flora
Increase in sulphur producing bacteria, yeasts, and single cell organisms
Causes unusual fermentation in the gut leading to “wind”, bloating and changes in bowel habit and remote symptoms such as migraine, nausea, join pain, and fatigue
Gut fermentation test:
Fasting form 3 – 12 hours
Consume a measured amount of glucose
BAC determined an hour later