Monthly Archives: February 2012

The Phoenix Open & DUI Apps Don’t Mix

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Every year record crowds come to the Valley of the Sun to enjoy the most popular and rowdiest event on the PGA tour. The Phoenix Open, a social hotspot that is better than any festival you may encounter in the Scottsdale area. Taking place during Super Bowl weekend, the Phoenix Open is known to attract enough people to consistently break attendance records, and is filled with live music, games, drinks galore, and rowdy fans constantly testing the mental concentration of their favorite golfer. However, one fact that goes unnoticed is the large number of police presence.

Picture this: After sipping on a few drinks you may start to notice that you have a slight buzz, and as the Open is coming to a close you can’t help but to wonder if you had a little too much to drink. So you think “what is my BAC?” You think you might be okay, but you aren’t really sure. Hold on…there are BAC calculator apps on your smartphone! There are apps for practically everything today, so this should be easy. So you pull one up, like Show me my Buzz¹ or iDrink Smarter² and try to determine what your BAC level is.

Most of these applications will give you a BAC estimation based on the amount of drinks that you’ve had. Some also take your height, weight, and sex into consideration. The problem is that it’s hard to determine an accurate BAC when other factors are present. Many of these sites are incomplete or don’t take things into consideration, like: Food consumption, medication, health and psychological conditions.³ While it’s always a good thing to keep track of how much alcohol you are consuming throughout the night, keep in mind that the calculations for BAC levels are not that simple. It can take between a half-hour to two hours for your body to fully absorb and then eliminate the drink, depending on whether or not you’ve eaten.⁵ A study by Kurt Dubowski, PhD of the University of Oklahoma found that blood alcohol time curves can fluctuate, and “alcohol absorption isn’t always complete in 60-90 minutes, as is often claimed.”

Further, apps that calculate how many “drinks” you’ve had are only as accurate as your memory of them will be. It’s also difficult to approximate what “one drink” is because a different sized glass or a heavy-handed bartender can make one drink actually become 3 or 4. Typically, 1.5 oz of hard liquor constitutes one drink, and can be poured in 6 seconds.⁴ But not all bartenders measure this exactly the same way.

One way to monitor your consumption is to drink easily measured drinks over a set time, like a 12-oz light beer(considered a “standard drink” in the study of alcohol consumption and BAC calculation) every hour or so. One standard drink an hour is typically what the average male can process, on a general scale. This does differ from person to person, and even between men and women. Again, there are other incalculable factors can potentially change your BAC. Remember, depending on the above mentioned factors, even the smallest amount of alcohol can impair your senses and judgment. If you feel in the slightest bit uncomfortable to drive, then you would be better off using your iPhone app to call a cab. Apps are great for many things, but estimating your ability to drive a car is not one of them!

(1) http://www.drugfree.org/join-together/alcohol/new-smartphone-app-estimates-blood-alcohol-concentration

(2) http://appadvice.com/appguides/show/best-blood-alcohol-content-gauging-apps-for-the-iPhone

(3) http://www.modot.org/safety/ImpairedDriving.htm

(4) http://www.examiner.com/bartender-in-national/bartending-101-free-pouring-vs-the-jigger

(5) http://www.forcon.ca/learning/alcohol.html

Science and DUI Testing: The Basics

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In January, I posted an article about the importance of knowing your rights during a DUI investigation, specifically your rights when you are initially pulled over, questioned, and asked to submit to field sobriety tests. Your rights as a defendant continue through all of the fact-finding process. Upon arrest your blood, breath, or urine is taken and the samples are sent to a police crime lab for testing. Part of the DUI investigative process includes a more precise scientific determination of your blood alcohol concentration, the results of which could potentially be introduced as evidence during a trial. But what if the machinery that tested your blood isn’t working the way it should?

Most of us assume that crime labs hold these forensic tests to the utmost standards. After all, the results carry significant weight in the courtroom and can affect one’s liberty and reputation. But this is not always the case. Errors can and do occur periodically even with subsequent testing. If there is reason to believe an error has occurred, it is incumbent upon a skilled DUI practitioner to request relevant data and to review it with qualified forensic experts. If you are being charged with a DUI, it is paramount that you consult with counsel that is not only skilled in relevant DUI law but who also places significant emphasis on forensic DUI science and testing procedures. After all, due to the significance of DUI charges, scientifically produced evidence supporting or negating the charge should be subject to strict review. These standards should ideally apply to all evidence in a case.

Your forensic samples are tested on the general assumption that the results will be accurate and trustworthy. But there are many potential sources of error like faulty equipment, analyst error, etc. As such, not every test is performed perfectly so the lab is expected to review all of their results. This is why lab equipment is routinely tested for accuracy, much like you do routine maintenance on your car to keep it running correctly. Labs typically perform Quality Assurance procedures where all of the information produced by a machine is reviewed to determine its accuracy. But mistakes are not always easy to spot; the devil may lie in the details. There may be errors appearing on only some documents that are harder to spot at a glance, that only a trained eye would be able to spot, but can still compromise the integrity of the entire run. A further possibility is that errors may be ignored as well as missed. This is why your attorney should know how to further review these Quality Assurance procedures and not merely take a lab’s stamp of accuracy at face value. If your attorney is familiar with valley and statewide lab testing procedures, he or she will be much more adept at comparing irregularities and standards.

Labs measure accuracy by looking at all of the results from the tests done and making sure they are all acceptable to produce. If a lab mistake is made on a defendant’s sample, then naturally the attorney should be aware of it and able to investigate further. If a machine breaks or malfunctions, which does happen from time to time, then the results from that broken machine aren’t reliable. It would not be logical to use flawed results towards proving an individual’s guilt or innocence. Realistically these ‘bad results’ should not be used at all, but sometimes they are. That’s why it is crucial that you have an attorney with a knowledge of the basic science behind DUI testing procedures, who is able to further investigate any errors made, and is able to work with forensic experts to interpret and understand lab documents. Depending on the information given by the labs, certain conclusions can be drawn about the source of a machine’s error. It’s hard to immediately pinpoint the source of a lab error, especially if you are only looking at some of the documents. If there is a known test error that doesn’t show up on some of the paperwork, it doesn’t mean the error ceases to exist. What it means is that review should be done on all of the paperwork. Savvy legal representation can help to uncover these testing errors, which of course would be relevant to the evidence of a case and potentially relevant to the outcome of a case. Shaky evidence should not be used to convict as this is grossly unjust and violates multiple civil rights. (Refer to my January 12 article for details on recent changes made in Arizona to certain categories of DUI charges and punishments.)

To sum it all up, imagine that you know your bathroom scale is broken. Knowing this, would you still be using it to measure your weight and honestly expect an accurate result? Of course not. The same applies to forensic testing machines, with much more serious consequences.