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DUI Related Articles

The Problem With Hematocrit In BAC Testing

Matthew Ruff, Attorney at Law

In DUI cases numerous medical conditions can influence how blood alcohol testing is done accurately. One big problem when testing a person for a specfic alcohol concentration is to take into consideration Hematocrit levels. Hematocrit represents the fraction of whole blood composed of red cells and is correlated with the acqueous content of the blood, the higher the hematocrit, the lower the concentration of water in the blood and vice versa. In the simplest terms it is a ratio or a formula. In other words, it is a value expressed as a ratio of the solid components of blood (cellular material) to the liquid components of blood (water). In a normal healthy being it can vary the amount of alcohol contained in the blood.

Perhaps the best way to imagine it in your mind is to compare the sample with a glass full of rocks vs. a glass filled with no rocks. Here is the problem when it is related to DUI chemical testing for ethanol in the blood: The higher the hematocrit equals more solids in the blood, therefore less water and consequently a higher alcohol concentration. A person with lower than normal hematocrit has less solids in their blood, more water and therefore a lower blood alcohol concentration.

What does all this mean as far as DUI defense? Well, studies have concluded that a person whose hematocrit levels are out of whack or not within normal paramaters can have a breath test result with a higher than actual blood alcohol level as much as 14%, more commonly in the range of 10-14 percent variation.

Police Searches During DUI Stops.

It is not uncommon for a police officer to attempt to search the interior of an automobile during a routine DUI stop. Although the police have every legal right to ask for your permission to search your car, you have every legal right to let them know that you do not welcome the intrusion of a search. There are exceptions to this rule, for example if you are on probation or parole or are on the grounds of military installations or other high security complexes. In general, California law provides that unless there is probable cause to search, the police have no business looking through your personal items. The United States Constitution mandates that all people shall be free from unreasonable searches and seizures. What type of governmental conduct is deemed unreasonable, and therefore unconstitutional, is determined by the particular facts and circumstances of each case. However, some hard and fast rules do provide guidance. First and foremost among these is the core principle that all police searches, unless conducted pursuant to a warrant, are per se unreasonable, therefore unconstitutional. There are, however, certain well-crafted exceptions to the warrant requirement, permitting warrantless searches when the requirements of the relevant exception are met. One is if the police officer makes specific observations of potential criminal activity during a traffic stop, such as observing a gun sticking out from under the seat or smells the odor of drugs or sees some evidence of drug use. Another exception to the rule is when a policeman's safety is threatened in some way. For example if the officer sees an occupant of the vehicle reach under the seat during the stop and can articulate that his safety was in danger of being compromised a search of the area where the person was reaching may be justified. If contraband is found and it is later determined that a search was not done within legal parameters, an attorney can make a motion to supress that evidence. The bottom line is that a lawyer should be consulted to address the specific factual scenario in any given case.

The Problem of Mouth Alcohol and Breath Testing in DUI Cases.

One of the big problems with breath testing in DUI cases is the issue of mouth alcohol contamination of the sample. "Mouth alcohol" refers to the presence of any alcohol in the mouth or airway during breath testing after having been arrested for DUI. If even small amounts of raw alcohol exist during a breath test, then the results will be a false high reading. This is because the breath testing device assumes that the alcohol is from the deep part of the lungs; the machine multiplies the amount of alcohol 2100 times to extrapolate what a “normal” person’s blood alcohol would be. Therefore, even a microscopic amount of alcohol breathed directly into the machine from the mouth or throat instead of from the lungs can have a huge impact on the test result.

Mouth alcohol is often caused by belching, burping, hiccupping or vomiting within 20 minutes
before taking the test which can bring vapor from alcoholic beverages still in the stomach up into the mouth and throat. Some breath freshener products such as Binaca and Listerine have alcohol in them and their use can also cause similar problems; cough syrups and other cold products also contain alcohol. Dental bridges and dental caps can trap alcohol as well. Blood in the mouth from an injury is yet another source of inaccurate breath test results: breathed into the mouthpiece, any alcohol in the blood will be multiplied 2100 times. Some people with health problems can also be adversely affected. For example people with GERD or chronic “acid reflux" can create falsely elevated blood alcohol reading due to their condition and not even know it.

According to many seasoned DUI practioners, This problem is one that has plagued the area of breath testing in drunk driving cases for many years. Despite efforts by the breath test machine manufacturers to detect this problem, it continues to result in many convictions for DUI even though the individual may in fact be innocent.
Due to the complexity of this defense it is advisable to be represented by an attorney who is familiar with this area. When handled correctly, this defense can prevent an innocent person from being convicted of a DUI or Drunk Driving. If you have questions regarding your particular case you should speak to an experienced DUI Lawyer.

To combat mouth alcohol problems, police officers generally are required by regulations, specifically Title 17 of the California Code of Regulation to monitor and observe the arrested suspect before the test. In addition, the manufacturer protocol and instruction mandate that the suspect be observed continuously for 15 to 20 minutes prior to breath testing in a DUI arrest. Generally the machine "checklist" will reflect this observation which must be recorded as a required step in the pre-breath test procedures. The failure to keep the suspect under constant observation for the required time period may be grounds for an experienced attorney to suppress the test results or in the alternative may serve as fertile grounds for cross examination at trial.

Alcohol Elimination Rates in DUI Cases

Alcohol elimination rates are significant in DUI defense because it can make or break a rising blood alcohol defense. In DUI cases where the state’s expert is using retrograde extrapolation to place your client at a .017 grams per hour rate, other toxicologists may use a range of elimination rates.01 to .02 grams per hour, and express the purported BAC as a range of values that benefit the prosecution. If the issue is what was the BAC at a specific time, it may be helpful to have the subject tested to determine their personal elimination rate. The common test that can be done is called a absortion/elimination study and it is done in a laboratory setting involving dosing the subject and determining his or her actual elimination rate. During the retrograde extrapolation ( or guessing at what BAC level the subject was at during a certain time) certain assumptions will be made regarding the elimination rate of your client. Often, the toxicologist will use the elimination rate they favor. In any event, having your client tested to determine their specific elimination rate may be one avenue you have toward poking holes in the plethora of assumptions made during a back calculation. The procedure is fairly straightforward. You must retain the services of a private toxicologist, or expert who has access to a breath testing device. The client will be given a specific dose of ethanol to consume, and will have their peak BAC and elimination rate calculated so that there is no question as to the actual number.

The consequences of driving on a suspended license because of a DUI

In California Judges and the Courts impose harsh penalties on individuals accused of driving while a license has been suspended due to a DUI or drunk driving conviction. Vehicle Code section 14601.2 governs the area dealing with license suspension charges because of driving under the influence. A driving on suspended license attorney can offer guidance and sound legal advice to those facing a criminal charge of VC 14601 and other offenses pertaining to the suspension of driving privileges.

Due to the pressures put forth by poliitically influential groups such as MADD, SADD and the private insurance industry, California has enacted some of the most stringent laws and consequences for driving on a suspended license violations. The most severe of all the charges is the one that punishes those who continue to drive after the Court took their license away following a DUI conviction. A minimum of 10 days jail is required for a conviction of the statute and the Judge is also compelled to order that an ignition interlock device be installed on all vehicle registered to a convicted person.

A first offense driving on a suspended license charge (14601.2) in Los Angeles County for example is punishable by a fine of approximately $2000, 10 days in jail, and mandatory ignition interlock device on all cars registered to the offender. Hiring a lawyer can help, the attorney can often negotiate a lesser charge or work a deal that does not require jail. Driving on suspended with priors becomes much more serious and a lawyer should certainly be hired to represent folks accused of this type of case.

The other thing to remember when dealing with driving on suspended license violations is that usually the individual cited will be on probation for the underlying charge (DUI, etc) and a plea of guilty or no contest will trigger a violation of probation and additional consequences.

 

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