Orange County DUI Lawyer Blog

INVESTIGATION REVEALS GROSS INACCURACIES IN DUI BREATH TEST DEVICES

From the early Drunkometerprotypes to today’s purportedly sophisticated breathalyzers, the police have been administering breath tests on suspected drunk drivers for decades and millions have been arrested on the results of these devices. A recent New York Times investigationrevealed that the alcohol breath tests devices used by law enforcement across the county are often unreliable and inaccurate. The study should have sent shockwaves through police departments and courts everywhere but nary a peep was heard. Drunk driving has been so stigmatized that even valid evidence that drivers may be arrested on inaccurate breath test results is just ignored. Of course, no one wants drunk drivers on the road, but that shouldn’t come at the expense of due process.

The New York Times investigation is alarming. The investigation reveals that the various alcohol breath test devices used by law enforcement are often improperly programmed, calibrated and/or maintained. And DUI defense attorneys have argued this for years.

This must be the strangest DUI defenses I have ever heard of… but it’s true. It came to my attention when I read an article about a Boston man who was driving, seemingly drunk. The police didn’t believe him when he told them his “drunkenness” was caused by a medical condition known as “auto-brewery syndrome.” The condition is just as it sounds, his body was making alcohol. And as it turns out, this Boston man was not the first to be arrested for a DUI due to this condition. Others have made the news in the past, including a New York woman who was charged with DUI when her BAC was over four times the legal limit! Her body sure was making a lot of alcohol.

Auto-brewery syndrome is probably not the way a person would choose to get drunk. Our guts ferment fungi and bacteria as part of a normal process of digestion. During the normal digestive process, we produce very small quantities of ethanol. But the digestive process in a person with Auto-brewery syndrome becomes pathogenic and can produce high levels of ethanol. It is not caused or triggered by the consumption of alcohol; rather, it is an internal process gone awry. But it can, and usually does, cause the affected individual to have signs and symptoms of intoxication and raises the person’s blood alcohol level, sometimes to extreme levels as was the case with the New York woman.

It’s a pretty awful disease, but rare—although some research indicates it is underdiagnosed. It can occur in healthy individuals, but more often shows up in people with Crohn disease or diabetes, or in obese individuals. It not only makes the individual “drunk” but can cause many other unpleasant conditions, including vomiting, chronic fatigue, disorientation, and more.

Earlier this year, two friends, Giao Pham and Andy Lynn, were visiting San Diego from San Francisco. The two men stopped at a local San Diego bar. At the same time and in the same bar, a young San Diego woman, Alondra Marquez, was drinking with her friends. Messrs. Pham and Lynn, recognizing that they shouldn’t drink and drive, decided to take a Lyft back to their hotel. Ms. Marquez, despite her obvious inebriation, decided to drive.

In a tragic irony, Ms. Marquez, driving over 100 mph and with a blood alcohol level2 to 3 times higher than the lawful amount of 0.08%, slammed into the Lyft vehicle in which Messrs. Pham and Lynn were riding, killing Mr. Pham and severely injuring Mr. Lynn.  It was reported that Ms. Marquez’s friends tried to stop her from driving, but she insisted she was okay to drive.  The irony does not stop at the coincidence that both parties, unknown to each other, but whose fates were intertwined, were drinking at the same bar at the same time. The sadder irony is that the responsible drinker, Mr. Pham, ended up as another DUI fatality, while the irresponsible Ms. Marquez, while seriously injured, is alive.

It came out in court that Ms. Marquez, at the young age of 22, has a serious substance abuse problemthat started when she was in the eighth grade. This puts her at high risk of another DUI, but not very soon—she first has to spend time in prison.

The American Automobile Association Foundation for Traffic Safety recently released the results of its annual Traffic Safety Culture Index. Among the findings is that 70 percent of the respondents believe driving under the influence of cannabis is very dangerous or extremely dangerous.  While this is a significant percentage, it is far below the 96 percent of respondents who thought driving while drowsy was very or extremely dangerous, 95.1 percent thought the same for driving under the influence of alcohol (over the legal limit), and 87.4 percent for driving under the influence of prescription drugs. A small but significant portion of the respondents – seven percent – thought it was just fine to drive under the influence of cannabis, whereas only 1.6 percent thought it was okay to drive under the influence of alcohol.

Clearly, a significant portion of the survey respondents – and all are drivers – believe that driving under the influence of marijuana is not as dangerous as many other potentially dangerous driving habits. Does this belief hold up? Study after study has concluded that driving under the influence of cannabis impairsa driver’s motor coordination, tracking, attention, concentration, the perception of time and distance, and reaction time. All can certainly affect a driver’s ability to drive safely. However, these impairments do not appear to be as pronounced as drivers who are under the influence of alcohol. But let’s be clear, just as there are varying degrees of alcohol inebriation, so too, cannabis intoxication can run the gamut from a mild high to hallucinations.

Cannabis edibles – a popular method of consuming cannabis – are often consumed in dose quantities that cause a much stronger high that other delivery methods. Furthermore, edibles are metabolized differently by the body, converting the THC to a stronger form that can cross the blood-brain barrier, causing a longer and far more intense high than one gets when smoking or “vaping” cannabis. In fact, there are many reports of a “psychedelic” experience on high dose edibles. Surely driving under the influence of edibles is unsafe.

Ketogenic (Keto) and low carbohydrate diets are among the more popular eating lifestyles these days. Someone on a strict Keto or other low carb diet metabolizes energy differently than a person who is eating a normal amount of carbs. The liver of a person on such diets breaks down fat for fuel, which creates acetone that may be released through the person’s breath. This is colloquially referred to a “being in ketosis.” The acetone can be reduced to isopropyl alcohol depending on the stage of ketosis

Anecdotal evidence (and a few scientific papers) supports a potential concern that someone on a Keto diet could cause a false positive on a breathalyzer. While the breath molecules expelled by a person in ketosis will not turn a 0.00% blood alcohol content (BAC)into a 0.08% BAC, a Keto diet may cause a breathalyzer to register over 0.08% for someone who, if not on a Keto diet, may have registered something below that. For example, someone who is in ketosis and has had a couple of drinks and might have a 0.06% true BAC, could potentially register 0.08% or more.

Law enforcement agencies use fuel cell breathalyzers, which supposedly can differentiate between ethanol molecules (those created by drinking alcohol) and other alcohol-based molecules, such as the Isopropyl molecules expelled when someone is in ketosis. However, I am unaware of any data that support this. While a blood test for BAC can establish that the driver’s BAC is under 0.08%, this can become more than an inconvenience for the driver. Beyond that, the driver who unwittingly chooses a breath test rather than a blood chemical test, may be stuck with a false positive result. A lesson here might be that if your

Two years ago I wrote about the national movementtoward lowering the per se BAC to 0.05%. Since then, Utah has become the first state to write the 0.05% per se BAC into law. There is a bill pending in the California legislature, which is currently referred to Committee (AB-1713), that would lower the legal blood alcohol content (BAC) to 0.05%. This bill is guaranteed to see pushback from various business groups, especially the restaurant and bar industry. I don’t expect the bill to become law this year but given the changing and more restrictive attitudes towards driving under the influence, it is certainly up for consideration.

Let’s consider the arguments made by those who oppose lowering the BAC to 0.05%. Do they have valid arguments?

Opponents of lowering the lawful BAC argue that lowering the legal BAC will target responsible drinkers who are not impaired and the proposed law is creeping towards a new kind of prohibition.   For example, a 110-pound woman who drank of glass of wine and 30 minutes later got behind the wheel might register a BAC of 0.05%. Until 1990, the per se BAC was 0.10%in California.  It was then lowered to the current 0.08%. Lowering it again to 0.05% may seem to some as though Carrie Nation’s ghost is whispering in lawmakers’ ears.

I’m sure you’ve seen the billboards: “Report Drunk Drivers. Call 9-1-1.” The CHP and other agencies even have tips for spotting and reporting a drunk driver. So, let’s say you see a car weaving somewhat on the road and you suspect a drunk driver. You call 9-1-1 and report the driver, your location, and the license plate number of the weaving vehicle. What happens next?

Generally, the local law enforcement agency with jurisdiction over the location will respond.  Perhaps they will observe the vehicle and determine that the driver is violating a traffic law (such as Vehicle Code section 21658, lane change violation) and effect a legal traffic stop. If the detaining officers end up finding probable causeto believe the driver is under the influence of alcohol or drugs, a legal arrest will be made.

But what if the officers locate the vehicle but it is not moving? Say the driver is parked with the engine off. Can the officers still confront the driver and potentially arrest him or her if there is reason to believe the driver is under the influence? After all, the driver is not driving, and the DUI law prohibits drivingunder the influence. Over 25 years ago, in the seminal case, Mercer v. Department of Motor Vehicles, the California Supreme Court held that “driving” under the DUI law requires evidence of observed volitional movement of the vehicle.