CDC: 1 in 10 Die from Excessive Drinking

by Anton Hopen16. January 2015 15:55

Tags:

Feature Update: Drink Number Reporting

by Anton Hopen4. April 2014 09:07

DUI Pro was updated this week to accommodate simulations involving more than 20 drinks.  As drink quantity increases the font size of the report will step down to avoid any overlap between the text report and the simulation graph.

Tags:

Software Features

Don’t be fooled by simple blood alcohol calculators

by Anton Hopen14. September 2013 10:42

DUI Pro drink database of over 1,000 profiles used to alcohol blood alcohol levelsDUI Cases are Expensive to Investigate:  A drunk driving arrest (DUI or DWI) is almost certainly the most complex misdemeanor charge brought across the United States.  It combines witness testimony of the arresting officers, video evidence of field sobriety tests and chemical/scientific evidence of breath or blood samples.  By the time the criminal defense attorney first sits down with his client the state has invested a substantial amount of time and money in the case.  Accordingly, to have the case either dismissed or reduced to a lower charge (such as reckless driving) it is critical to have reliable, scientific data to support the defense attorney’s position.

Experiences as a prosecutor:  There are a myriad of iPhone apps, webpage forms and other calculators to estimate expected blood alcohol concentrations.  However, as a former prosecutor, I can advise these have zero evidentiary value.  Having a biotechnology education, I was trying both DUI cases and DNA cases.  In fact, I taught seminars in the identification of DNA for murder and rape cases at the Florida Department of Law Enforcement.  In those cases, it was critical to convey the statistical probability of the defendant matching the genetic profile of the evidence gathered.

Blood Alcohol Calculation RangesWhy statistics are critical:  However, after covering hours of statistical analysis in DNA cases I would try a DUI case with expert witnesses on both sides.  What was striking to me was the lack of statistical measures in extrapolating blood alcohol levels.  There are seminal studies that evaluated meaningful populations of subjects that consumed alcohol and measured how it was absorbed and eliminated in the human body.  The statistics where there for the taking.  Standard deviations, means, median values, etc….   Why did DUI expert testimony lack this?

DUI Professional Approach:  There are two looming variables in blood alcohol forecasting:  (1) distribution; and (2) elimination.  While there are other factors like absorption delay (e.g., having a big meal before drinking) the distribution and elimination define the boundaries of a statistically meaningful result.  Distribution can be thought of as the body’s volumetric capacity for alcohol.  Pound for pound, a muscular individual will have a lower blood alcohol level than an indiDUI Pro is the only software that provides an easy to generate PDF report complete with error rangesvidual with more adipose tissue (a euphemism for “fat'”).  Elimination is the rate in which the liver can remove (or oxidize) alcohol from the human body. 

Upper and Lower Calculations:  To obtain the lower blood alcohol calculation, you must look at the population sample under the lens of one or two standard deviations and use a high distribution constant with a high elimination rate.  This would be the outlying individual that would tend to be muscular and have a very active and healthy liver.  Individuals with higher blood alcohol levels would tend to be less muscular with a more inactive or perhaps damaged liver that does not oxidize alcohol well.

Relevance for DUI/DWI Cases:  The old adage goes “it is not illegal to drink and drive.”  I’ve heard many defense attorneys start out with this in opening statements.  The correct standard (they remind the jury) is that it is “illegal to drive while under the influence to the extent one’s normal faculties are impaired.”  A well-informed defense attorney will also remind the jury that presumptive levels of impairment determined by a blood or breath test may align with levels at the time of driving.  In a perfect case for a defense attorney, the client ate a few appetizers (delaying absorption for 30 minutes or so) and then knocked back a couple of shots before hitting the road.  The client is immediately pulled over while the client’s blood alcohol level is at a relatively low level but continues to rise until a blood or breath test is administered.  This is the “absorptive phase defense.” 

If this scenario is analogous to your client’s fact pattern then running a DUI Pro simulation might confirm or dispel the possibility of this defense.  It is also encouraged that collateral evidence be introduced to support an absorptive phase defense.  Eyewitness testimony, bar receipts (including both alcohol and food) are relevant in conjunction with the DUI Pro report for a prosecutor to reconsider a DUI/DWI charge.

Tags: , , ,

DUI Defense

DUI Sergeant in Alleged “Setup” Takes the Stand

by Anton Hopen6. August 2013 19:56

Sgt. Ray Fernandez of the Tampa Police Department tells his side of the story

Tags: , ,

DUI Defense | Law Enforcement

Make DUI limit 0.05% blood-alcohol level, NTSB say

by Anton Hopen29. May 2013 12:52

USA Today reports that NTSB is recommending a 0.05% BAC limit.  This will effectively negate the standard “I only had two drinks officer” line.  For example, a 135 female having two glasses of wine over 1.5 hours would be (under the proposed NTSB guidelines) legally intoxicated at 0.0525% BAC.  See the screenshot below.

image

Tags:

DUI Defense | Law Enforcement

Supreme Court on DUI Evidence –Warrants Needed for Blood Tests

by Anton Hopen19. April 2013 09:00

APRIL 17, 2013  Justice Sonia Sotomayor wrote the majority opinion in Missouri v. McNeely (opinion below) holding that that the natural metabolization of alcohol does not justify an automatic exception to the 4th amendment warrant requirement.  However, Chief Justice Roberts dissented in part said a warrant should only be required when there is time to do so.  Justice Thomas (dissenting) was most aware of the issues of alcohol elimination and noted “once police arrest a suspect for drunk driving, each passing minute eliminates probative evidence of the crime.”

Why DUI Pro Analysis is Needed Even More

If blood draws are suppressed or not obtained, blood alcohol modeling will play an even more important role in DUI/DWI cases.  If a defendant refuses a breath test and the arresting officer takes an hour to get a warrant and blood draw from the suspect, it may be literally hours after the traffic stop.  DUI Professional can show the extreme variability of BAC as time passes and model statistically meaningful retrograde extrapolations. Consider a traffic stop for DUI/DWI.  The arresting officer stops the vehicle, runs the tag, performs field sobriety tests (FSTs), documents his findings, arrests the defendant, and takes him to the nearest station for a breath test.  That easily can take 60 minutes. 

Now consider if the defendant refuses.  The officer then secures a blood draw warrant within 90 minutes from an on-duty judge.  Once the warrant is obtained, another 60 minutes passes before the defendant’s blood is drawn at a local hospital.  Three hours and 30 minutes have passed.

image

 

 

Applying DUI Professional to this Fact Pattern

Let say the defendant actually has three beers and two wines between 6 pm and 8:30 pm.  The traffic stop was at 9 pm.  The refusal was at 10 pm.  The warrant was issued at 11:30 pm and the blood draw at 12:30 am.

image

 

At the time of the traffic stop (at 21:00 hours), the BAC ranged from 0.0591 to 0.1065%.

 

image

 

However, by the time of the blood draw, the range of expected BAC levels was 0.0129 to 0.0919% with an expected value of 0.0511%.  With a BAC far below the presumptive limit (0.08% in most states) would the defendant be charged with DUI/DWI?  Would the arresting officer now consider the elimination of alcohol during that delayed period?  Would the prosecutor assume a straight elimination value or would the state take into account the wide variability in the human population (calculable by DUI Professional)?

 

image

 

image

 

Chief Justice Roberts complained the opinion gave little guidance to arresting officers but one this is sure….getting a warrant for a blood draw will take time and BAC levels will likely fall substantially during that delay.  DUI Professional is an even more important tool for law enforcement and defense attorneys in view of the Supreme Court ruling.

blood-draw-DUI-supreme-court-opinion-11-1425_cb8e.pdf (240.54 kb)

Tags: , , , ,

DUI Defense | Law Enforcement

Seeking Reductions in DUI Charges

by Anton Hopen8. March 2013 06:03

There are generally a number of possible outcomes for a DUI charge:

  1. Plead to DUI charge
  2. Seek a reduction of the DUI charge to a lesser offense (such as reckless driving)
  3. Seek a dismissal of the charge itself
  4. Take the case to trial

As a criminal prosecutor I tried nearly fifty jury trials to verdict and the experience was understandably stressful to the defendant.  Some well-regarded former prosecutors (now defense attorneys) once told me that his clients always sought to avoid trial and that a good defense attorney seeks every possible option to negotiate the best possible outcome.  Trial should be the very last option due to the stress and uncertainty.

imageHowever, as a prosecutor I couldn’t just reduce a charge without meaningful reasons.  Sometimes I didn’t have breath or blood tests so the evidence was relatively subjective….namely, the arresting officer’s observations of intoxication.  A good defense attorney preemptively made my decision to reduce or dismiss the charge easier by doing the following:

  1. Have the defendant undergo an alcohol evaluation by a counselor;
  2. Take and complete a DUI course;
  3. Attend a DUI victim impact panel;
  4. Gather evidence of those around him/her that observed any drinking on the day in question; and
  5. Submit an alcohol analysis report showing the possible range of blood alcohol levels.

If  the defendant had a few drinks among friends than can be quantified to show it was impossible or unlikely that the defendant exceeded the presumptive limit, I had a much easier time reducing the charges.  It is important for defense attorneys to keep in mind that DUI Pro is a scientific tool and completely impartial.  There are no “criminal defense” or “prosecutor” settings to the software.  It is quite possible that after modeling a client’s alcohol intake the DUI Pro report clearly establishes a likelihood of intoxication and impaired faculties.  This is why a substantial number of law enforcement organizations use DUI Pro in their training and investigations.  However, because DUI Pro plays no favorites the report submitted by the defense attorney may carry more weight with the prosecuting attorney.  Just a few of law enforcement agencies registered to use DUI Pro include:

  1. James Dixon-Law Enforcement Training - Hudson, WI
  2. Pennsylvania State Police, Harrisburg, PA
  3. Colgate University, University Police Dept.; Hamilton, NY
  4. State Attorney's Office, (West Palm Beach, FL)
  5. Sliver Springs Police Department, (Oliver Springs, TN)
  6. Ministry of the Attorney General (Ontario)
  7. Office of the District Attorney (Calaveras County, California)
  8. Washougal Police Department (Washington)
  9. Pinellas County Sheriff's Office (Florida)
  10. Las Animas Police Department (Colorado)
  11. Washington County Sheriff's Department (Vermont)
  12. Florida Department of Law Enforcement (Florida)
  13. Haldimand-Norfold Regional Police (Ontario)
  14. Village of Chester Police (New York)
  15. Washougal Police Department (Washington)
  16. Baltimore County Police (Maryland)
  17. City of Peoria, Police Department (Illinois)
  18. City of Greenbelt Police Department, Maryland
  19. Clearwater Police Department (Florida)
  20. City of South Gate (California)
  21. City of Vermillion (South Dakota)
  22. Dallas County Institute of Forensic Science Crime Lab

Technorati Tags: ,,,,,,,,,

Tags:

DUI Defense

Drinking and Flying–Alcohol and Pilots

by Anton Hopen7. March 2013 08:33

According to FAA publications, the number of serious errors committed by pilots dramatically increases at or above concentrations of 0.04% blood alcohol and is attributed to many fatalities:

Year

Fatalities

BAC of 0.02% or more*

BAC of 0.04% or more*

1987

341

13.5%

8.5%

1988

364

6.6%

6.3%

1989

349

12.9%

8.0%

1990

367

14.2%

7.9%

1991

379

12.9%

7.9%

1992

396

11.9%

7.3%

1993

338

12.7%

8.9%

*Some cases may include alcohol produced after death by tissue decomposition.

FAR Rules for Alcohol Consumption

The Federal Aviation Regulation(FAR) 91.17 states that no person may operate or attempt to operate an aircraft:

  • within 8 hours of having consumed alcohol
  • while under the influence of alcohol
  • with a blood alcohol content of 0.04% or greater
  • while using any drug that adversely affects safety

How Much Alcohols Puts One at 0.04%?

drinking-and-flying-blood-alcohol-level-chartWhat kind of drinking would create a 0.04% BAC?  Consider a 160 pound male that had a light snack and three 12 ounce beers between 3 pm and 4:30 pm.  He waits an hour to fly and takes off at 5:30 pm.  There is a sixty eight percent (68%) chance his BAC would fall between 0.0251% and 0.0597% with a mean value of 0.0417%….in violation of FAR 97.17.  There is a ninety five percent (95%) chance his BAC would fall between 0.0094% and 0.0795% with the same mean value of 0.0417%. 

Will Waiting 8 Hours Always Work?

What if the pilot followed at least part of FAR 97.17 and waited eight (8) hours after consuming eight (8) beers from 9 pm to midnight?  At 8 am (eight hours after last consumption) his BAC is 0.046%…still in violation of FAR 91.17

DUI Professional Software has been used by the U.S. military for modeling just these types of scenarios to educate its pilots on alcohol consumption and flight safety.  If you are a flight instructor, commercial pilot or aviation safety officer for an airline please look into using DUI Professional for modeling these types of alcohol consumption patterns.  It just might save lives. Technorati Tags: ,,,,,,,,,

Pilots and DUI

If you are a pilot faced with a DUI please consult this article within sixty (60) days from an alcohol or drug-related motor vehicle action.

 

alcohol.pdf (142.12 kb)

Tags:

Occupational Safety

Calculating Blood Alcohol Levels for DUI Trials

by Anton Hopen5. March 2013 15:12

imageBack in the mid-1990s I was a criminal prosecutor in Florida trying numerous DUI cases.  A common defense was the so-called “absorptive phase” argument.  It generally went like this:

  1. Defendant had a full stomach of food.
  2. Immediately prior to driving, Defendant consumed a large amount of alcohol.
  3. Defendant was stopped, administered field sobriety tests and arrested for DUI.
  4. An hour or two later, Defendant is administered a blood or breath test over the legal limit.
Virtually all DUI statutes having legal limits are applicable at the time of driving.  If the stomach contents delayed the absorption of alcohol in the body for an hour or two, then it is possible the Defendant’s blood alcohol level was below the legal limit at the time of driving.  During the arresting officer’s delay in administering the breath or blood tests, the blood alcohol level of the Defendant rose until the oxidative effectives of the liver exceeded the absorption rate and the blood alcohol level began its decline. Technorati Tags: ,,,,,

duipro_standard_deviationsCalculating these hypotheticals on paper (or using a DOS program available at the time) was very cumbersome.  In addition, I always found it odd that the variation in human physiology was not used in the calculations.  Within a statistical population, people will distribute alcohol differently in the human body (weight and mass).  They will also eliminate alcohol at different rates as well.  These two variables create a substantial range of values under the Product Rule and need to be considered. 

If the case were tried in civil court, a well-informed attorney might use one standard deviation of the population (68%) for the error range.  On the other hand, a prosecuting attorney (with a very high standard of proof) might use two standard deviations of the population (95%).

When we released DUI Pro Online in 2012, one of my favorite features is providing real-time BAC levels as any parameter is changed.  Add ten pounds to the subject?  Automatic recalculation.  Change the distribution constant?  Automatic recalculation.  This allows law enforcement and prosecutors to make a virtually unlimited number of simulations to determine how a Defendant may have arrived at his or her breath or blood test values.

Tags:

Law Enforcement

Using DUI Pro for Alcohol Addiction Counseling

by Administrator5. March 2013 14:28

imageA number of tools are commonly used to detect a loss of control of alcohol use. These tools are mostly self-reports in questionnaire form. Another common theme is a score or tally that sums up the general severity of alcohol use.  All alcohol addiction counselors are familiar with the CAGE questionnaire which asks:

  1. Have you ever felt you needed to Cut down on your drinking?
  2. Have people Annoyed you by criticizing your drinking?
  3. Have you ever felt Guilty about drinking?
  4. Have you ever felt you needed a drink first thing in the morning (Eye-opener) to steady your nerves or to get rid of a hangover?

While this and other methods may be effective, DUI Professional has been used for years to diagnose and treat alcohol dependency in an unique way….namely, quantifying the absorption, distribution and elimination of alcohol in the human body. 

Patients are frequently resistant to subjective questions about their alcohol intake and are better suited for quantitative measurements of how their consumption affects their body.  Many subjects, particularly women are surprised to learn how just a few drinks taken on an empty stomach can radically change their blood alcohol level and impair their normal faculties. 

By quantifying the effect of alcohol on the human body, the counselor is viewed with greater impartiality as the software is quantifying levels of intoxication.  This may be used to build trust in the early stages of therapy as well as for patient education on the effectives of their consumption habits. Technorati Tags: ,,,,,,

DuiProfessionalGUI DuiProfessionalPlot
DuiProfessionalReport

Tags:

Counseling and Addiction

About the author

DUI Professional is the world's most advanced online alcohol analysis system.

Month List