[During my jury trial] Patrick presented a cogent and effective cross examination, effectively fleshing out all the exculpatory aspects of my stop. He concluded with a compelling and metaphorically vivid closing argument, which clearly undermined the prosecution’s capacity for rebuttal.

-R.S.

• Possible DUI Defenses
• Possible Defenses to the DUI Breath/Blood Test
• Beating the DUI Breath/Blood Test (see below)
• Successfully Challenging the Blood Test (.pdf)
• DUI Exception to the United States Constitution
• Prosecutor's Guide to Drugs (.pdf)

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Beating the DUI Breath/Blood Test

(Areas of Expert Testimony)

1. For DUI cases based on breath alcohol analysis e.g. with DataMaster instrument:

1.1 The BAC of an individual can be greatly overestimated (as much as 100%) by DataMaster results.
1.1.1 In over 2,400 drivers stopped for DUI, 10% to 20% had their BACs were overestimated by breath test results results, where both blood and breath alcohol were determined at about the same time.
1.1.2 Likely identity of drivers in this group.

1.2 Factors Affecting the Movement of Alcohol from Blood to Breath

1.2.1 Sample time of breath
1.2.2 Hematocrit of blood
1.2.3 Lung capacity and lung function
1.2.4 Body and breath temperature
1.2.5 Breathing pattern before and during blow
1.2.6 Blood pressure

1.3 Factors Responsible for Alcohol Contamination of Breath Samples

1.3.1 The "atomizer" effect
1.3.2 Burping and belching
1.3.3 Vomiting (Regurgitation)
1.3.4 Blood and saliva
1.3.5 Food in the mouth
1.3.6 Absorption and adsorption of alcohol by foreign objects

2. For DUI cases based on direct blood alcohol analysis for BAC:

2.1 Gas chromatography (GC) determinations
2.2 Alcohol dehydrogenase enzyme determinations
2.3 Differences for whole blood, plasma and serum
2.4 Sample collection and storage issues

3. For DUI cases based on EITHER breath analysis or direct blood analysis:

3.1 Factors Affecting Estimation of Amount of Alcohol Consumed
3.1.1 Alcohol content of alcoholic beverages
3.1.2 Serving size of alcoholic beverages

3.2 Factors Affecting the Rate of Stomach Emptying of Alcohol

3.2.1 Eating a large meal with spices, fat and/or protein
3.2.2 Drinking alcohol beverages
3.2.3 Drinking repeatedly, over a long tine versus one day
3.2.4 Drinking alcoholic beverages regularly (daily)
3.2.5 Inactivity, including sleep

3.3 Factors Affecting the Rate of Alcohol Metabolism

3.3.1 Drinker versus Non-Drinker
3.3.2 Age effect on rate of alcohol metabolism
3.3.3 Sex differences on rate of metabolism

3.4 Estimation of Blood Alcohol Concentration (BAC) Based on Testimony

3.4.1 Correction for alcohol metabolism
3.4.2 Estimation of BAC corrected for alcohol metabolism

3.5 Factors Affecting Neurologic Status in DUI Cases

3.5.1 Relationship of blood alcohol levels to neurologic symptoms
3.5.2 Relationship of blood alcohol levels to performance on field sobriety tests
3.5.3 Other neurologic and/or medical conditions similar in appearance to alcohol intoxication
3.5.4 Alcohol and drug interactions

The above outline contributed by:
Lawrence W. Masten, PhD, DABT, RAC,
Board Certified Toxicologist
SunBrite@compuserve.com
866-329-9262