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Monthly ArchiveApril 2007

Kapsack & Bair staff on 30 Apr 2007

Kapsack & Bair on the Radio

Yes it’s true – Kapsack & Bair, LLP has taken to the mass media. We are currently running a series of radio ads on San Francisco Bay area stations.

These are the DUI Defender Ads (visit our website at D-U-I DEFENDER DOT COM)
We did a series of 30 second spots using Google Radio distribution. These play mostly in the North Bay:

We also have a really ominous 60 second spot which is currently playing on talk radio stations 960 The Quake and Talk 910 KNEW. Not sure whether we will get a better a response from the political left or right

60second spot

Rumor has it you might be able to hear the soothing of Bruce Kapsack beaming into your radio soon. Stay tuned for developments …

Alcohol Issues &DUI Cases &DUI Defense &DUI Issues &Notable DUI Defendants &Uncategorized hudson on 27 Apr 2007

New Jersey Considers Draeger Breath Test Device

At a recent conference on “scientific evidence” an extensive period of time was spent discussing the challenge to the Draeger breath tester.  The presenters Evan Levow and John Mensel, lead counsel on the Draeger challenge, discussed at length the efforts by Draeger to thwart defense attorney’s from investigating the software of the breath tester.  Their conclusion was that Draeger was essentially asking the State to “trust them” regarding the manner with which the breath was captured, measured and then converted into a blood alcohol concentration.  The fact of the matter is that it should be a open process, how the tester calculates the blood alcohol range based on the breath sample.  People’s liberty rests on the ‘testimony” of this black box, it should be scrutinized before being accepted.  The battle for “open source” code regarding breath testers is also underway in Florida, Georgia and some other States.  While the New Jersey Special Master’s Report concluded that the machine was reliable, it left many issues unanswered.


The device is authorized for use in New Jersey (and in Santa Clara, San Mateo, Contra Costa, Marin and Solano Counties) makes physiological assumptions as well.  While Draeger manufactures accessories that measure breathe temperature and breathe volume the Government chose not to purchase them.  The existence of these accessories reflects the reality that every person has a different lung capacity and some may have a different breath temperature.  The issue of breath temperature has become increasingly relevant as even one degree can cause the breath test to over estimate the blood alcohol concentration by up to 6% meaning that a low breath alcohol measurement could be below the legal limit.  The fact that the State has the capacity to measure the temperature of the breath test and doesn’t arguably denies defendant’s exculpatory evidence and provides a sure fire defense to the “per se” charge of driving with a blood alcohol concentration of .08 or above.


In the balance hang thousands of cases that have been stayed pending a final decision in the case.  The Supreme Court of New Jersey is expected to render a decision on the Special Masters report this summer.  The challenges brought in New Jersey do not directly effect the admissibility of the Draeger breath records in California, however the conclusions of the special master could have some persuasive value in cases that involve Draeger breath testers, breath temperature and possibly even partition ratio.

DUI Defense &DUI Enforcement &DUI Issues hudson on 23 Apr 2007

Chronic Cough linked to GERD

It comes as no surprise as researchers delve further into GERD, the causes and possible treatments that also should discover other symptoms. It has been recently published (GERD and Chronic Cough) that a chronic cough may be indicia of GERD in patients that are non-smokers and aren’t taking ACE inhibitors. This is currently being described as silent GERD and may account for 43 to 75% of all GERD cases, it also referred to as larygopharyngeal reflux disease. Just because a person isn’t symptomatic in a typical fashion (chronic heartburn, burping/belching, regurgitation) does not mean that they do not suffer from GERD. The reality is that a far greater number of people may have undiagnosed GERD which means that a larger percentage of the population may not be good subject’s for breath testing due to the mouth alcohol contamination caused by GERD.

Alcohol Issues hudson on 20 Apr 2007

Alcoholism Gene?

For many years we have wondered why alcoholism runs in some families and not in others. As our understanding of human genetics has increased, researchers have investigated the possibility of an alcoholic gene, while it is not likely that a single gene is responsible for alcoholism, genetics definitely play a role between the way our body and brain intereact. In an article published earlier this month Scientific American published some information regarding the state of the research, I found it interesting as it relates to the differences between us, as much as the similarities.

Alcohol Issues hudson on 14 Apr 2007

Good News about Booze

A recent article in Reason magazine relates an interesting fact, people who drink socially make more money. The magazine concludes the reason for the discrepancy is simple, social drinkers are meeting new people, networking and building relationships. These relationships, in turn, result in more business connections and a larger paycheck.

The article cites a study that found, men who drink earn 10 percent more than their counterparts who abstain from alcohol, women earn 14 percent more. The study also demonstrated that men who drink in bars at least once a month earned 7 percent more than their counterparts who didn’t. Also of note, this trend was not mimicked by women, there was no difference between the paychecks of women who enviveda bar at least once a month and those who did not.

As we continue to escalate our efforts to push prohibition as a national agenda, perhaps we should step back and look at some of good things that result from alcohol use.

Technology bruce on 02 Apr 2007

Roadside Breath Testing Issues

How Roadside Breath Machines Work

Roadside breath test devices typically use an electro-chemical reaction to measure breath alcohol content. Air, from a suspect or calibration machine, is blown over a porous disc. This disc is a wafer of materials, one of which will react with the alcohol, freeing electrons and causing a small electrical current. This current is measured and then translated in to an alleged Breath alcohol content.

In order to ensure a “good” breath sample, the devices measure the flow time of the air sample and “capture” a sample near the end of the “average” persons breath. Some devices are also equipped to allow a “manual” capture by the officer if the flow rate and time is not met. This is done by the simple pushing of a button.

Typically in breath testing, not all of a person’s breath is tested, only a small portion is reviewed. This is done by a simple piston popping closed once blow time or manual trapping has occurred. This sample is then analyzed and the results displayed.

Problems with Roadside Breath Machines
Because these devices only sample the air stream, they can easily end of measuring mouth alcohol instead of true breath (also known as deep lung alcohol). Laboratory machines typically have a “slope detector” that allows a trained operator to distinguish between the two. With a slope detector there is constant monitoring of the breath as it passes through the sample chamber and an evaluation made. Any rapid falling off of the alcohol level, or “slope”, triggers the sensor to indicate mouth alcohol.

Next, these machines are subject to more calibration problems. Unlike their big brothers, these machines are not being kept and maintained by laboratories and their staff. Most are housed by local cops or CHP. The maintenance, or more appropriately, calibration is being done by police officers with no scientific back ground.

Depending on the underlying technology, some roadside breath analyzers might be subject to other serious problems. For example, with fuel cell devices there is a lack of specificity: the devices will detect a large number of chemical compounds, indiscriminately “reading” them as ethanol. Although the manufacturers of the passive alcohol sensor claim in their advertisements that it “is unaffected by acetone, paint and glue fumes, foods, confectionery, methane and practically any other substance likely to be found in the breath,” the fact remains that any device using fuel cell oxidation is not specific for ethanol; the manufacturer’s use of the term “practically” should certainly create suspicion.