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Alcohol Issues hudson on 19 Mar 2008

MADD’s Legislative Goals

Recently I was surfing the Mother’s Against Drunk Drivers website and found the page that delineates the legislative goals for each state. Simply click on the state and it will send you to the state MADD chapter and a description of the current strategy.

As part of this individual state strategy, MADD also has a national goal to force persons convicted for DUI to install an Ignition Interlock Device on their car(s). This goal is funded by the manufacturer’s of these devices although there is very little evidence to support that the installation of this equipment actually reduces DUI. Quite simply, if a person wants to drink and drive, they will, unfortunately the real cost of this program will be born by automobile manufacturer’s who will lose lease revenue as the installtion of the equipment permanently damages the car.

Alcohol Issues &DUI Issues &DUI Law &Kapsack & Bair &Technology hudson on 10 Feb 2008


By now most people have heard of the source code litigation taking place in Florida, Minnesota, New Jersey, and elsewhere. Few people however understand what the fuss is all about. Let me put it to you in simple terms.

It is almost the same investigation that was used in evaluating voting machines. That investigation, and software evaluation, revealed a number of flaws which were felt to undermine the reliability of the machines.

In other words, the same type of information that is being sought by people ACCUSED OF CRIMES was turned over for evaluating voting machines. Upon analysis it was determined the machines didn’t pass muster. I am not sure about you, but seems to me that putting people in jail is at least as important as putting someone in office, and that if a machine is not sufficient for the latter it certainly is not for the former.

Suppose you were accused of a crime? Further, suppose that the only witness against you states under oath that they ran a test that proves your guilt beyond a reasonable doubt. In fact, in some courts, you can not even present evidence against this witness.

Would you consider this fair? Wouldn’t you like to know how the test was conducted? Wouldn’t you like to know how it was graded? Wouldn’t you like to know that the math, answers and all other aspects were legitimate?

That is what source code litigation is all about. Simply put it is the right to find out how the breath machines work. All that is being sought is how do the machines do what they claim they can do.

Is this just a fishing expedition, an exercise in futility and merely an excuse to use up resources and cause delay? You be the judge.

Throughout the time of the Intoxilyzer use in California and elsewhere the manufacturer indicated that these machines performed regular ‘self diagnostics’. For years it was assumed that this was true. Then one December a group of defense attorneys and experts decided to test this program by removing a number of the critical parts of the breath machine and running the program. Turns out that 13 critical parts of the machine can be removed and the self diagnostic still gives an “OK” message.

Think about this; the machine can have a vital part disconnected and it will still tell the police it is operable, still give a reading and STILL CONVICT CITIZENS. In fact, this author brought this to the attention of the Contra Costa crime lab, AND THEY STOPPED USING THOSE MACHINES.

Additionally, it was discovered, through experiments, that when the machine clears itself in between tests, it does not really do so. What the machine truly does is LIE. It prints out that there is no residual alcohol in the machine which would lead one to believe it is empty, and that is exactly what the manufacturer warranted, but what it really does is measure the residual alcohol and allegedly subtracts that from the next sample.

Wouldn’t you like to know if this works? Does the machine round up or down?

Now, given these two examples, BOTH CONTAINED IN THE SOFTWARE, isn’t it reasonable to allow the accused the right to see what other shenanigans may be going on? In every other aspect of criminal defense the accused can see the witness against them, test or retest the evidence, and obtain a full report of how the expert for the government came to its conclusion. But not when it comes to a DUI. The breath is destroyed, the machine is immune from questioning and the manufacturer will not tell anyone, INCLUDING THE GOVERNMENT, how it works.

All that the source code litigation is demanding is disclosure and fairness. Besides, if you had faith in your processes, why would you try to hide them?

Alcohol Issues &DUI Cases &DUI Defense &DUI Enforcement &DUI Issues &DUI Law hudson on 04 Feb 2008

Washington State Patrol Laboratory… Busted

Earlier this week a three judge panel finally concluded the drama in King County regarding the Washington State Patrol’s Toxicology Laboratory and oversight of breath testing program. The 29 page indictment found that many of the safeguards employed in proper laboratory protocols were not followed and in fact ignored by the Lab Manager, Anne Marie Gordon.

The panel found that Ms. Gordon authenticated test solutions that were prepared by other laboratory personnel without independent validation. The laboratory protocols called for calibration/accuracy testing solutions to be prepared and independently tested by the lab personnel. The importance of these solutions rests in that the entire breath testing program relies on the accuracy of the solutions to validate the measurements taken by breath testing equipment. The solutions are heated and the vapor is used to simulate human breath, that vapor is measured by the breath testing equipment and the result is compared to the “known” value. Of course, the problem arises when the “known” value isn’t actually “known” and the machines are calibrated to the unknown value. Without knowing what the machine is actually measuring it is difficult to verify the accuracy of the accused citizen’s breath test.

The panel found that other procedures were employed by the lab that resulted in a “culture of compromise.”

Alcohol Issues &DUI Defense &DUI Issues &Uncategorized hudson on 20 Jan 2008

Diabetics Beware of Breathtesting

Depending upon the type of equipment used and the specificity of said equipment a person experiencing Hypoglycemia or Hyperglycemia can have an inaccurate measurement due to the inclusion of keytones in the measurement. Ketoacidosis is a metabolic crisis that occurs when the boy uses fats for energy instead of the primary source of energy, carbohydrates. As a result of this process keytones (acetone, etc.) accumulate in the blood and subsequently cause the body’s pH to drop to dangerous levels. These keytones can be measured as alcohol by machines that are not specific for alcohol.

Alcohol Issues &DUI Enforcement &DUI Issues hudson on 16 Jan 2008

Coming Soon to a State Near You?

An Oklahoma legislator has introduced legislation to require DUI convictions to appear on a persons driver’s license. The imputus is to put bars, nightclubs and liquor stores on notice that the person patronizing their establishment on notice that the person has a history of drinking and driving. This “scarlet letter” seems appealing in the sense that a person with a special notation on their driving license might be embarrassed into not drinking or driving after drinking, it seems highly unlikely that a bar, nightclub or liquor store will refuse service to the potential patron. Further, it seems even less likely that a busy bartender or other server of alcoholic beverages will have the time or inclination to moderate the drinking of the patron.

Alcohol Issues &DUI Enforcement &DUI Issues &Technology hudson on 06 Dec 2007

What’s Your Alcohol Level?

It may seem weird for a DUI lawyer to be a proponent of a .00 legal limit but I’m one. Let me explain how I determined that I supported a .00 legal limit. Since our government is intent upon criminalizing conduct that may only cause harm it seems unfair that people “breaking” the law should know when it happens. When a person is out drinking with friends, family, co-workers or others socializing they have no idea when their blood alcohol concentration crosses from being legal to illegal. Each person metabolizes alcohol at their own rate, a rate that depends upon the time of day, the amount of sleep that they got the night before, stomach contents, alcohol level of drink, mixer and many other factors. When people go out they have no idea how much liquor is in their drink and frequently as they cross from below the legal limit to the legal limit, they can’t tell nor can the people they are drinking with. Rarely, does a person exhibit the commonly accepted symptoms of being intoxicated, they aren’t slurring their words or staggering, in fact they look just like you and me, but they are violating the law. They may be stopped by law enforcement for having an equipment violation, or possibly departing their lane while they fumbled for something they dropped, something that isn’t obviously driving under the influence. The simple fact is that most people don’t know when they go from legal to drive to illegal to drive a legal, if the legal limit was zero, we would all know that if we had a drink and chose to drive we were in violation of the law.

For persons looking for a less extreme approach, Stephen J. Dubner wrote a column relating to breath testing technology that other countries employ to help remove the “guess work” from guessing whether its safe to drive.

Alcohol Issues &DUI Defense &DUI Enforcement &DUI Issues hudson on 01 Nov 2007

Alcohol/Drug Synergy?

Many times potential or existing client has questions relating to a possible drug interaction with either something they ate or drank on the evening they were arrested for suspicion of DUI. Our office seeks the assistance of counsel from a forensic alcohol expert. However, many lay people may be surprised that such information may be available on the web: This website provides in-depth information regarding drugs and possible interactions, it may be the first step toward deciding whether a “drug interaction” defense exists in your case.

A qualified DUI lawyer can help flesh out the facts necessary to set-up the interaction defense as it is possible that some interactions can provide reasonable explanations for physiological observations made by law enforcement and even explain elevated blood/breath alcohol measurements. Again, drug interactions can and do provide reasonable alternative explanations for otherwise questionable observations. The first step may be investigating the interactions yourself.

Alcohol Issues &DUI Enforcement &DUI Issues &DUI Law hudson on 14 Oct 2007

Zero Tolerance for DUI Probationers

The Governor has signed into law a statute that will impact anyone on probation for DUI. Effective January 1, 2009, if you are on probation for an alcohol related driving offense (DUI [V.C. 23152(a) or (b), DUI with injury [V.C. 23153(a) or (b)). The law changes means that the old probation requiring a probationer “not to drive with a measurable amount of alcohol” will now require a probationer’s blood alcohol measurement to be zero, meaning that a measurement of .01 or more can result in a probation violation.

The statute doesn’t change the legal requirement that the probationer be lawfully stopped, however, it does mean that the odor of an alcoholic beverage alone will most likley serve as grounds for a probation violation prosecution.

Alcohol Issues hudson on 10 Oct 2007

Alcoholism Treatment Drug

The migraine drug Topamax has been revealed to also help people suffering from alcoholism. The drug available by prescription apparently works as a dopamine inhibiter and prevents the “feel good” aspect of alcohol. By inhibiting the positive aspects of drinking alcohol participants in the study stopped drinking.

The subjects in the study were consumers of an average of 11 drinks per day, approximately a twelve pack of beer, two bottles of wine or a pint of 80 proof liquor. After taking the drug many of the study participants stopped drinking completely, the study did not require the participants to stop or even reduce their alcohol intake.

About one in five participants were unable to complete the study as the side effects, such as difficulty concentration, tingling, itching, drowsiness and dizziness.

The cost of the treatment is about $350/mo. not including the cost associated with medical doctor visits and oversight.

Alcohol Issues hudson on 01 Sep 2007

San Mateo Coroner .09 not “significant” impairment

A San Francisco rookie police officer accidentally shot and killed himself. The autopsy included a chemical test for alcohol which resulted in a .09 measurement. The San Mateo county coroner commented, “It’s hard to say, but I don’t believe a level that low would impair somebody significantly.”

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