One of the reasons I argue against stiffer penalties for DUI is because the technology and testing being used is very inaccurate and there is a high risk that these stiffer penalties will be applied to innocent people. In one case, a Minnesota man tested positive for alcohol and was sent to jail because this was a violation of his parole terms. The fact of the matter is he did not drink and the positive test was the result of his use of an alcohol-based hand-sanitizer. His charges were dismissed in court and now he is suing the laboratory that makes the tests.
You can get a DUI for using many common substances
Man sues lab over accuracy of alcohol test
Jailed on alleged probation violation, he claims false positive
When convicted drunken driver John Gerard Miller flunked a court-ordered test that showed he’d been drinking while on probation, he swore he hadn’t touched a drop.
Given a record littered with arrests and convictions for driving while impaired, there was little reason to believe him. Probation officers tossed him in jail to wait for a probation revocation hearing.
But when that hearing came, an attorney for Miller showed that June’s positive test results probably resulted from Miller’s use of alcohol-based hand sanitizer — and the company marketing the tests to law enforcement knew such products could skew the outcome but did nothing about it. In November, a judge in Minnesota’s Polk County ruled there was no convincing evidence Miller had violated his probation and ordered him released.
Miller, 46, of East Grand Forks, Minn., is now suing the company that makes the test, Redwood Toxicology Laboratory. He claims the exams, referred to as EtG/EtS, often are skewed by outside substances but that the company never says that when it markets the tests to probation departments and law enforcement.
Under certain circumstances, sadly, such as the case with this fellow, you can be accused of drinking simply by using hand-sanitizer. This is really something we should all think about, especially if you are one of those who believe “If you get charged with a DUI you must have been drinking.” With the increasing penalties for DUI all over the country, even a first arrest at a low rate can have grave consequences. This is especially traumatic fro those who are convicted because of the use of common legal substances which are interpreted as alcohol by these faulty DUI tests. Some of the items that produce false positives might surprise you.
The doctor, Gregory Skipper, said studies have shown a person’s exposure to a variety of everyday items, including hand sanitizers, mouthwash, sauerkraut and even bananas, can produce the same test results as drinking booze.
Add to this list cough medication, white bread, antacids, exposure to paint thinner and even being a diabetic and you will quickly realize that common citizens are arrested everyday and charged with Pennsylvania DUI. This is also one of the main reasons you should consult with an expert PA DUI attorney if you are charged with a DUI violation.
For a free detailed consultation please call 1-866-MCSHANE.
(Pictured above: A sacred cow)
A sacred cow is defined as "an object or practice which is considered immune from criticism, especially unreasonably so."
They exist all around us. Some healthy. Most are not. It is vitally important for the evolution of man and science to identify, examine and challenge sacred cows.
In short to be a scientist.
This begins with the idea of accepting only the null hypothesis as truth before you accept correlation or causation. The null hypothesis typically proposes a general or default position, such as that there is no relationship between two quantities, or that there is no difference between a experimental group and the control group. One then designs a series of statistically and scientifically valid tests to robustly challenge the null hypothesis not to adopt it, but rather with an eye towards disproving the null hypothesis.
For example, imagine flipping a coin three times for three heads and then forming the opinion that we have used a two-headed trick coin. Clearly this opinion is based on the premise that such a sequence is unlikely to have arisen using a normal coin. In fact, such sequences (three consecutive heads or three consecutive tails) occur a quarter of the time on average when using normal unbiased coins. Therefore, the opinion that this coin is two-headed has little support. Formally, the hypothesis to be tested in this example is "this is a two-headed coin." One tests it by assessing whether the data contradict the null hypothesis that "this is a normal, unbiased coin." Since the observed data arise reasonably often by chance under the null hypothesis, we cannot reject the null hypothesis as an explanation for the data, and we conclude that we cannot assert our hypothesis on the basis of the observed sequence.
So, it is healthy and natural to accept no proposition as proven until it has rigorously been examined as if under a microscope. In the court of law, there should be no scared cows.
So, if we accept the proposition that there are no sacred cows and that we must identify, challenge, test or challenge these sacred cows of science in the Courtroom, what can be the consequence?
The consequence could be a paradigm shift.
One of my personal all time favorite books is Thomas Kuhn’s The Structure of Scientific Revolution, it was published in 1962 and really codified the concept of "paradigm shift". He postulated and observed that scientific advancement is not evolutionary, but rather is a "series of peaceful interludes punctuated by intellectually violent revolutions", and in those revolutions "one conceptual world view is replaced by another". Driven by agents of change, a Paradigm Shift is a change from one way of thinking to another. Sometimes even violently so in the face of institutional or systemic resistance. It is a revolution, a transformation, a sort of metamorphosis. It just does not happen, but rather it is forced typically over objection of the status quo.
As identified by Scientific American magazine (I added an additional 5 to their list), some of the "classical cases" of paradigm shifts are as follows:
In "hard sciences":
- The transition from a Ptolemaic cosmology to a Copernican one.
- The acceptance of the theory of biogenesis, that all life comes from life, as opposed to the theory of spontaneous generation, which began in the 17th century and was not complete until the 19th century with Pasteur.
- The transition between the Maxwellian Electromagnetic worldview and the Einsteinian Relativistic worldview.
- The transition between the worldview of Newtonian physics and the Einsteinian Relativistic worldview.
- The development of Quantum mechanics, which redefined Classical mechanics.
- The acceptance of Plate tectonics as the explanation for large-scale geologic changes.
- The development of absolute dating
- The acceptance of Lavoisier’s theory of chemical reactions and combustion in place of phlogiston theory, known as the Chemical Revolution.
- The acceptance of Lamarck’s theory of evolution to replace creationism
- The acceptance of Charles Darwin’s theory of natural selection replaced Lamarckism as the mechanism for evolution.
- The acceptance of Mendelian inheritance, as opposed to pangenesis in the early 20th century.
- Moving from Newtonian physics to Relativity and Quantum Physics.
In other contexts:
- The transition from a hunter-gatherer lifestyle to an agricultural one.
- The widespread use of the printing press publishing works in the vernacular of the region as opposed to handwritten and copied texts published only in Latin.
As we continue to creep and settle into the second decade of the 21st century, some needed paradigm sifts in DUI jurisprudence are as follows:
- It is high time for all of us to insist upon modern 21 century be used in our Courts. Infrared breath test spectrometry that only detects at wave lengths that are non-specific to ETOH and have insufficient Mouth Alcohol Detectors that do not take into account that every person’s physiology is different and rely instead on a incorrect assumption that everyone’s partition ratio is the same needs to be banished to the relics area along with lead bullet analysis, forensic odentology and other psudeo or para forensic endeavors.
- Ending the acceptable reliance by the Court’s upon the use of enzymatic assay testing to determine BAC based on colormetric/photospectrographic analytical devices as it is an indirect measure of the uptake of NAD to NADH and only singly measures this uptake at a single wavelength that is non-specific to ETOH (at the 340 wavelength) on the spectrum.
- The use and reliance on solely a police officer’s opinion as to intoxication where no video tape exists to verify the claims of the officer.
- When Gas Chromatography results are used, the failure to assure that there is no carry-over effect by running a blank immediately before the suspect sample must become the standard and the norm.
- Forcing forensic science and its presentation out of the hands of law enforcement and into the hands of true credentialed and formally trained neutral scientists who exercise only within the scope of their formal training.
- The use of blinded proficiency based testing on all technologists that is monitored and refereed by independent third parties.
- The reporting of uncertainty in all results using accepted metrological principles.
- The monitoring of all state expert witnesses in terms of the truthfulness and the candor of their testimony by a panel of independent scientists in the respected fields of testimony.
- Demonstrated validity and robustness of all processes used in the field of breath testing and blood testing for achieving ETOH results prior to their continued introduction into Court.
Paradigm shifts are well within the natural order of things and can only occur if we reject the concept that sacred cows should exist. It comes through agents of change and the use of skepticism and science. It is high time, we take a look at these sacred cows in the Courtroom when it comes to DUI. Don’t you agree?
-Justin J. McShane, Esquire, Pennsylvania DUI Attorney
I am the highest rated DUI Attorney in PA as Rated by Avvo.com
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See……there is this animatronic character that we all know called Pac-Man. Pac-Man has everything to do with inaccurate BAC results.
Honestly, when was the last time you even thought about playing this great game. Well, here is your chance.
Since its release in May 22, 1980, the little pixel gobbling creature was a hit. It became an omnipresent icon of the 80′s. It became a social phenomenon that sold a millions upon millions of dollars of merchandise and also inspired, among other things, an animated television series and a top-ten hit single. Pac-Man, according to the Davie-Brown Index, has the highest brand awareness of any video game character among American consumers, recognized by 94 percent of all people.
Just in case you are in the six percent, let me take four sentences to illustrate the basics of the game, then I will relate it back to DUI.
The player controls Pac-Man through a maze, eating pac-dots. When all dots are eaten, Pac-Man is taken to the next stage. Four ghosts (Blinky, Pinky, Inky and Clyde) roam the maze, trying to catch Pac-Man. If a ghost touches Pac-Man, a life is lost. Near the corners of the maze are four larger, flashing dots known as power pellets that provide Pac-Man with the temporary ability to eat the ghosts.
On the other hand, is something called candida albicans.
(This is a photomicrograph of "Pac-Man" or Candida Albicans)
Candida Albicans is a type of yeast. It is one of the most bountiful organisms on the planet earth. It can be practically found on any surface on the planet. This would include your skin and most surfaces. If the question is "where can Candida Albicans be found?" in a word without much exaggeration the answer would be "everywhere" or "anywhere".
Why does this matter?
Exogenous alcohol production in the blood tube. In other words, under certain conditions, ETOH can be actually produced in the tube AFTER collection. That’s right. You are accused of a DUI, they draw your blood and through no fault of your own (but through the fault of the collector), your Blood Alcohol Content (BAC) can be higher than it was in your blood when it was circulating through your veins. It is so bad that it can even produce ETOH when none existed organically (naturally) in your bloodstream in your body at all.
What is worse? Even the most perfectly calibrated and flawless analytical device (either a GC-FID or GC-FID/MS/MS and even especially a device based upon colormetric analysis such as hospital blood testing) cannot tell the difference between the endogenous alcohol amount (i.e., the amount of alcohol that is there and is your fault because you actually drank it) and exogenous alcohol amounts (i.e., the amount of alcohol that is there that is not your fault because it was created in the tube after it was collected from you). WOOOOOOOO!
Got your attention now?
How does this happen, you might ask.
It is really quite simple. There are a great number of scenarios that can lead to exogenous alcohol production. But first a microbiology lesson.
Blood contains glucose.
In order to have exogenous alcohol production that will either result in a false positive or an inappropriate and unfair additive effect one must have:
- The organisms (Candida Albicans) themselves must be present in the tube (which is remarkably easy as most phlebotomists that I have cross-examined incorrectly or insufficiently cleanse the venipunture site, or the tubes themselves are out of expiration meaning that the vacuum of the tube which is designed to keep good things in and the bad stuff-Candida Albicans-out); and
- Appropriate substrate is present; and
- Appropriate temperature exists; [and optionally]
- [insufficient amount or lack of anti-fermenting agent in the tube itself or it is improperly mixed]
The basic transformation can be simplified as follows: Candida Albicans when the blood is not refrigerated takes the glucose in the blood, consumes it and excretes EOTH.
Now we go back to Pac-Man (see there was a reason why I put it in this post)….
.jpg)
(Pictured above-Candida Albicans "eats" glucose in the blood and "poops" out ETOH)
So think of it this way….
- Pac-Man is Candida Albicans
- The ghosts are glucose
- The flashing dots in the corner that energizes Pac-Man is the lack of refrigeration
Just like in the game itself, it is only when Pac-Man eats the flashing dots, that Pac-man can eat the ghosts. However, instead of it killing the ghosts in our version of Pac-Man, it creates ETOH. So, Candida Albicans "eats" glucose in the blood and "poops" out ETOH.
All of this can all be ruled out by a simple test called the Ion Scan, but the government doesn’t bother. Why bother to be sure?
-Justin J. McShane, Esquire, Pennsylvania DUI Attorney
I am the highest rated DUI Attorney in PA as Rated by Avvo.com
You can follow me on Twitter, Facebook or Linkedin
Board Certified Criminal Trial Advocate
By the National Board of Trial Advocacy
A Pennsylvania Supreme Court Approved Agency
As mentioned in an earlier post, there are many potential sources for error when it comes to Blood Alcohol Testing for DUI. This is very important in blood-based DUI cases where the Blood Alcohol Content (BAC) is reported because many of the prosecutors I have faced erroneously believe that these blood test results are infallible in DUI cases in Pennsylvania . They believe if there is an alleged blood test showing a BAC level above the legal limit, that is enough to prove a DUI was committed. They do not want to look at the number to see if it is true. Fortunately, in the United States, we do not have a trial by paper or by computer or by a magic number, we have a trial by jury. By law, the Jury must examine the reported number. The government and the government only must prove the number beyond a reasonable doubt starting from the position that it is not as that is consistent with the Presumption of Innocence. There is but one presumption in a DUI case and that is not the presumption that the reported BAC is true, but rather that the accused is presumed to be innocent of the charge. The BAC level attained from these blood tests must be verified, true, accurate, precise, traceable and relevant to the case to be considered as evidence of a DUI.
So in that prosecutors think that blood tests yield perfect results in all occasions, in this post I will prove that something so seemly insignificant such as putting a lid on a jar early on in the methods used by laboratories for DUI blood tests based upon the “gold standard” of Blood Alcohol testing which is Headspace Gas Chromatography, can be fraught with potential sources of error that can visit disastrous incorrect results.
In particular, there are several potential sources of error when it comes to Gas Chromatography. Among the potential sources of error that comes into play during sample preparation: Crimping or putting the lid on the jar.
To crimp is the physical act of attaching both the septum (the membrane that the needle passes through) and the cap (the metal ring) to the headspace vial as demonstrated below. The devise used to do so is called a crimp (kind of like a walnut cracker).
As headspace gas chromatography (as opposed to direct injection) is based upon Henry’s law. Henry’s Law states that at a constant temperature, the amount of a given gas dissolved in a given type and volume of liquid is directly proportional to the partial pressure of that gas in equilibrium with that liquid. Or stated differently, an equivalent way of stating the law is that the solubility of a gas in a liquid at a particular temperature is proportional to the pressure of that gas above the liquid. Headspace gas chromatography requires a closed system (i.e. no pressure leaking from the gaseous phase). As a result if the crimping of the headspace vial (which is typically a manual process) is not complete, then it is not a closed system. Hence, without assurances that the crimping is properly done, there is a large possible source of error as Henry’s Law is violated. It is indeed the entire principle upon which Headspace Gas Chromatography is based.
On the below left is the (manual) crimper. On the right is pictured a de-capping pliers.
There are some automated ones like the below:
To the left is the vial. Not all vials look alike-some are used once and discarded; others are re-used. It depends upon the lab. This is yet another potential source of error if not properly cleansed. There should be a validated Standard Operating Procedure (SOP) for that too as well as an SOP for drying and even cleaning the drying rack.
Pictured is a cap (the silver) and the septum (the brown orange part)
Not all septa are the same….
Some are made of Teflon or Silicon/Teflon, others made of Butyl/Teflon and some are even rubber (which is very poor)
Above is a septum
N.B., not all vials are crimped. Some are screw on tops, like the below.
There are even crimp snap tops too. Pictured below:
And combi-kits like the below:
The above is the completed, crimped headspace vial.
As we can plainly see, something as simple as putting a cap on a jar can invite so much error into the process. This is why blood testing needs to be documented so that an independent examiner can go back and make sure the BAC as reported is verified, true, accurate, precise, traceable and relevant to the case.
-Justin J. McShane, Esquire, Pennsylvania DUI Attorney
I am the highest rated DUI Attorney in PA as Rated by Avvo.com
You can follow me on Twitter, Facebook or Linkedin
When people think of DUI, they often think of Drunk Driving meaning drinking too much alcohol. There is, of course, another form of DUI that is referred to as DUID or Driving Under the Influence of Drugs, both legal prescription drugs and illegal drugs. As such, it now becomes very important for DUI Lawyers to become well versed in DUID and in not only analytical chemistry, but also in Drug Recognition Expert (DRE) protocol.
DRE is a twelve step National Highway Traffic and Safety Administration (NHTSA) standardized national curriculum that has been designed, but have yet to be vigorously tested, to supposedly detect impaired drivers at roadside. The base principles of DRE are the Standardized Field Sobriety Tests which interestingly enough were not designed to record or quantify impairment yet form the crux of detecting impairment in the DRE context. The twelve (12) published steps of DRE are as follows:
1. Breath Alcohol Test
The arresting officer reviews the subject’s breath alcohol concentration (BrAC) test results and determines if the subject’s apparent impairment is consistent with the subject’s BrAC. If so, the officer will not normally call a DRE. If the impairment is not explained by the BrAC, the officer requests a DRE evaluation.
2. Interview of the Arresting Officer
The DRE begins the investigation by reviewing the BrAC test results and discussing the circumstances of the arrest with the arresting officer. The DRE asks about the subject’s behavior, appearance, and driving. The DRE also asks if the subject made any statements regarding drug use and if the arresting officer(s) found any other relevant evidence consistent with drug use.
3. Preliminary Examination and First Pulse
The DRE conducts a preliminary examination, in large part, to ascertain whether the subject may be suffering from an injury or other condition unrelated to drugs. Accordingly, the DRE asks the subject a series of standard questions relating to the subject’s health and recent ingestion of food, alcohol and drugs, including prescribed medications. The DRE observes the subject’s attitude, coordination, speech, breath and face. The DRE also determines if the subject’s pupils are of equal size and if the subject’s eyes can follow a moving stimulus and track equally. The DRE also looks for horizontal gaze nystagmus (HGN) and takes the subject’s pulse for the first of three times. The DRE takes each subject’s pulse three times to account for nervousness, check for consistency and determine if the subject is getting worse or better. If the DRE believes that the subject may be suffering from a significant medical condition, the DRE will seek medical assistance immediately. If the DRE believes that the subject’s condition is drug-related, the evaluation continues.
4. Eye Examination
The DRE examines the subject for HGN, Vertical Gaze Nystagmus (VGN) and for a lack of ocular convergence. A subject lacks convergence if his eyes are unable to converge toward the bridge of his nose when a stimulus is moved inward. Depressants, inhalants, and dissociative anesthetics, the so-called "DID drugs", may cause HGN. In addition, the DID drugs may cause VGN when taken in higher doses for that individual. The DID drugs, as well as cannabis (marijuana), may also cause a lack of convergence.
5. Divided Attention Psychophysical Tests
The DRE administers four psychophysical tests: the Romberg Balance, the Walk and Turn, the One Leg Stand, and the Finger to Nose tests. The DRE can accurately determine if a subject’s psychomotor and/or divided attention skills are impaired by administering these tests.
6. Vital Signs and Second Pulse
The DRE takes the subject’s blood pressure, temperature and pulse. Some drug categories may elevate the vital signs. Others may lower them. Vital signs provide valuable evidence of the presence and influence of a variety of drugs.
7. Dark Room Examinations
The DRE estimates the subject’s pupil sizes under three different lighting conditions with a measuring device called a pupilometer. The device will assist the DRE in determining whether the subject’s pupils are dilated, constricted, or normal. Some drugs increase pupil size (dilate), while others may decrease (constrict) pupil size. The DRE also checks for the eyes’ reaction to light. Certain drugs may slow the eyes’ reaction to light. Finally, the DRE examines the subject’s nasal and oral cavities for signs of drug ingestion.
8. Examination for Muscle Tone
The DRE examines the subject’s skeletal muscle tone. Certain categories of drugs may cause the muscles to become rigid. Other categories may cause the muscles to become very loose and flaccid.
9. Check for Injection Sites and Third Pulse
The DRE examines the subject for injection sites, which may indicate recent use of certain types of drugs. The DRE also takes the subject’s pulse for the third and final time.
10. Subject’s Statements and Other Observations
The DRE typically reads Miranda, if not done so previously, and asks the subject a series of questions regarding the subject’s drug use.
11. Analysis and Opinions of the Evaluator
Based on the totality of the evaluation, the DRE forms an opinion as to whether or not the subject is impaired. If the DRE determines that the subject is impaired, the DRE will indicate what category or categories of drugs may have contributed to the subject’s impairment. The DRE bases these conclusions on his training and experience and the DRE Drug Symptomatology Matrix. While DREs use the drug matrix, they also rely heavily on their general training and experience.
12. Toxicological Examination
After completing the evaluation, the DRE normally requests a urine, blood and/or saliva sample from the subject for a toxicology lab analysis.
One of the problems with DRE evaluation is in the process itself. The process itself is immediately and perhaps irreparably removed from the realm of the supposedly objective and empirical into the subjective and interpretive with step number two (2): Interview of the Officer.
From an officer’s point of view, Step two (2) or “Interview with Officer” is fraught with potential peril. From a scientist’s point of view, Step two (2) or “Interview with Officer” removes the exercise from empiricism into subjectivity. This second step carries within its implementation, even subconsciously, a very real risk to shortcut thinking. Step two (2) or “Interview with Officer” should be eliminated or at the very least removed to after the DRE examiner makes a determination, which is really an quasi-educated guess, as to the class of impairing substance, if there is indeed any at all.
It is small wonder that someone comes to the conclusion of a Central Nervous System (CNS) stimulant when the arresting officer tells the examiner IN THE BEGINNING of the DRE evaluation that he has seized bags of cocaine, use paraphernalia and the evaluator is made privy to an admission of use of cocaine. So much of the DRE evaluation is truly subjective or subject to interpretation whether it is fudging or coloring.
Why not move “Interview of the Officer” to step eleven (11), if one wanted to eliminate contextual bias? Should all of this not be based upon primarily the quasi-objective clues of the physical and psychomotor symptomology INDEPENDENT of the context?
To be clear, contextual bias is really confirmation bias which is the tendency to search for or interpret information in a way that confirms one’s preconceptions; this is related to the concept of cognitive dissonance.
In the body of knowledge referred to as cognitive forensic psychology, there is a well-researched and well-documented phenomenon known collectively as the "cold" biases. These “cold biases” come about due to ignoring relevant information (e.g. Neglect of probability), perhaps involve a decision or judgment being affected by irrelevant information (for example the “Framing effect” where the same problem receives different responses depending on how it is described) or giving excessive weight to an unimportant but salient feature of the problem (e.g., Anchoring).
Daniel Kahneman and Amos Tversky in 1972 introduced in a formalized manner a conceptual framework, the modern notion of cognitive bias. What initially began as their anecdotal observation of people’s inability to reason intuitively with the greater orders of magnitude (innumeracy) has developed into the accepted field of science. They designed a series of experiments that have been successfully replicated over the decades to record ways in which humans make decisions, evaluate judgments and form conclusions that differ from rational choice theory. Ultimately, the settled academic weight of the research concluded that human decision-making and conclusion formation could be explained in heuristics or a series of rules which are simple for the brain to compute, but introduce systematic errors as they may not be based upon reason and empirical data.
The “Framing Effect” is of particular note for DUI practitioners especially in a DUID context. Technically explained, the “Framing Effect” is when one seeks to explain an event, the understanding often depends on the frame referred to or the context. To clarify by way of example, the following is offered. If a friend rapidly closes and opens an eye, we will respond very differently depending on whether we attribute this to a purely "physical" frame (s/he blinked) or to a social frame (s/he winked). Though the former might result from a speck of dust (resulting in an involuntary and not particularly meaningful reaction), the latter would imply a voluntary and meaningful action (to convey infatuation, for example). Observers will read events seen as purely physical or within a frame of "nature" differently than those seen as occurring with social frames. But we do not look at an event and then "apply" a frame to it. Rather, individuals constantly project into the world around them the interpretive frames, even involuntarily or subconsciously, that allow them to make sense of it; we only shift frames (or realize that we have habitually applied a frame) when incongruity calls for a frame-shift. In other words, we only become aware of the frames that we always already use when something forces us to replace one frame with another.
As long as Step two (2) or “Interview with Officer” remains in the position that it is among the twelve (12), then DRE protocol will always be subject to criticism and perhaps proper exclusion from presentation in the Courtroom.
At The McShane Firm we have all gone through highly specialized DUI training and are able to effectively argue these issues in court. We are ready to challenge DRE cases.
-Justin J. McShane, Esquire, Pennsylvania DUI Attorney
I am the highest rated DUI Attorney in PA as Rated by Avvo.com
A colleague of mine from Colorado asked a very good question: Why on Earth do we use Gray tube tops for forensic blood analysis to determine Blood Alcohol Content for ETOH (drinking alcohol)?
The answer is evolution or really "re-purposing".
It got me to thinking…
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On the 24th day of November 1859, Charles Darwin published his seminal book entitled "On the Origin of Species". It was where the well-accepted theory of biological evolution was first published. A little known fact is that the full title as it was originally published was: On the Origin of Species by Means of Natural Selection, or the Preservation of Favoured Races in the Struggle for Life.
I suggest that for Blood Alcohol testing for ETOH, the same pretty much happened. Here is why.
In order to understand why it is such a great and important question and to put the question into its proper perspective, you first have to know three (3) things:
(1) There is a growing trend across the United States is to move away from Evidentiary Breath Testing to determine Breath Alcohol Content (BrAC) using infrared spectrometry (i.e., breathalyzers) and towards true forensic blood alcohol testing using a Gas Chromatograph with usually a Flame Ionization Detector (to be distinguished from the forensically unacceptable practice of non-whole blood or Hospital Blood testing to determine Blood Alcohol Content); and,
(2) When we do true Blood Alcohol Content testing by drawing a person’s blood, the blood goes into a specimen tube; and,
(3) There is more than one type of blood specimen tube (e.g., not all gray tube tops have the same thing in them)
As there are more than one type of tube, the great question why did we settle on the gray one?
But first some history….
What we have to remember is that chemical testing for ETOH content in both breath and blood and even urine is a relatively new and novel as far as the general field of science goes. New York in 1910 was the first jurisdiction in the United States of America to adopt laws against drunk driving, with California and others following. Early laws simply made illegal driving while intoxicated. It only required proof of a state of intoxication with no specific definition of what level of drunkenness qualified. The first per se law (where only the BAC was necessary to prove the offense) was established Norway in 1936. The first generally-accepted legal limit for blood alcohol concentration (BAC) was 0.15. Then by linking it to federal highway funding, the national limit was moved down to 0.10 and most recently to 0.08.
The study of alcohol as an academic exercise, however, can be traced to the late 1700s when J.J. Plenc proposed the chemical identification of poisons
In 1937, Indiana University’s Prof. Rolla N. Harger conducted the first-ever "short course" on chemical tests for intoxication. Shortly thereafter in 1938, Dr. Harger also introduced the Drunkometer, the first stable instrument for testing breath alcohol.
Professor Robert F. Borkenstein of Indiana University, in 1954, invented the Breathalyzer, the first practical instrument for testing breath alcohol. Whereas the The Drunkometer required re-calibration when it was moved from place to place, the Breathalyzer was more portable.
But I digress….
This blog is supposed to be about true Blood-based Blood Alcohol Content testing. Actually forensic blood testing for a Blood Alcohol Content is even “newer” than Breathalyzer technology. Especially considering Harold McNair did not really popularize Gas Chromatography in the United States until around 1967.
The technique of headspace-gas chromatography (HS-GC) was originally invented by Professor G. Machata of the University of Vienna in Austria. The proper instrumentation for the practical realization of the technique was developed by Perkin-Elmer’s German affiliate, using a unique pressure-balanced, time-based sampling of the headspace of the thermostatted sample vials. The first instrument, the Model F-40 was introduced in the fall of 1967; it was then followed by the Model F-42 in 1975 and the Model F-45 in 1978.
So, it is very, very new. It was some time much after that the forensic blood testing for ETOH content to determine Blood Alcohol Content really began.
This is the long way back around to the original question: Why gray tubes?
Therein the history of it all was the problem. We had an unpopular technique that has incrementally come on line so to speak. This presented a big problem.
That is because BD Vaccutainer and other blood tube specimen manufacturers did not develop tubes simply and specifically designed for ETOH determination.
Originally the NaF and K2C2O4 (sodium fluoride and potassium oxalate) tubes were developed for blood samples to test on the aspects of blood sugar tolerance, red blood cell electrophoresis, Alkali-Resistant HB Determination, and sugar dissolution. Due to the addition of the anti- glycolytic agent or inhibitor, these additives in the tube could maintain the blood specimen’s original characters for some time, and the metabolism of the RBC relative ceased. Glucose values in unpreserved blood samples decrease quickly after collection as glucose is metabolized by the blood cells. The additives contained in BD Vaccutainer Sodium Fluoride/Potassium Oxalate tubes may stop enzymatic activity at the glycolytic pathway if present in sufficient amounts, if properly inverted and properly refrigerated, transported and stored.
So if it is originally designed for these types of studies, how did it become used for ETOH determinations? Like much of the science in DUI, the glucose tube has been bastardized and re-purposed for ETOH testing through the years
It is not perfect and due to the ad hoc nature of this development and re-purposing there are a lot of unintended consequences that can develop that can call into question the accuracy, the precision, the reliability, the repeatability, the traceability and the truth of the reported Blood Alcohol Content result.
Eventually, I will post on these common forms of error.
-Justin J. McShane, Esquire, Pennsylvania DUI Attorney
I am the highest rated DUI Attorney in PA as Rated by Avvo.com
You can follow me on Twitter , Facebook or Linkedin.
First off what is Chromatography?
Chromatography is strictly and simply speaking "separation science". It is the study of how an analyst can take a complex matrix (compound) and separate it out into its component parts.
It is a relatively "new" form of analytical chemistry in that the first true use of modern chromatography is usually attributed to Russian botanist Mikhail Semyonovich Tsvet, who used columns of calcium carbonate for separating plant pigments during the first decade of the 20th century during his research of chlorophyll.
In is very basic nature, and grossly oversimplified, it involves passing a complex non-separated mixture presented to the machine in a "mobile phase" expelled through a stationary phase. The stationary phase separates the analyte to be measured from other molecules of a different type present in the mixture based on differential partitioning between the mobile and stationary phases (affinity). This results in differential retention time on the stationary phase and thus making the separation.
Say what?
Imagine you live at a house that has a driveway. At the bottom of this driveway you put a pile of different types of balls resting at the bottom of this inclined, paved driveway. This pile includes all different types and kinds of balls with different surface areas and textures such as ball bearings, marbles, ping pong balls, golf balls, wiffle balls, handballs, tennis balls, hockey pucks, baseballs, soccer balls, volley balls, basketballs, footballs, and bowling balls. You want to find the bowling ball so you can go bowling later in the afternoon, but you are blindfolded for some reason (stick with me here, it is just an analogy), You are not allowed to touch the group, but you have a tool to help separate them out. A leaf blower. So, you know that based upon its make up namely its weight the bowling ball will take a very powerful leafblower as opposed to say the wiffle ball. So, you attempt to move this motley collection of balls up the driveway with a normal leafblower. Some of the pile will quickly move to the top of the driveway immediately, some balls will migrate at varying speeds, and some balls may take an eternity to reach the end of the driveway just like our bowling ball.
The difference in the time that each type of ball takes to travel to the top depends upon the characteristics of each ball such as the surface area, the weight and so on. Obviously, the lighter balls travel more quickly. The heavier ones might take forever. Also, some balls may take longer due to their shape, like the hockey puck or the football. The different balls interact with each other as the air from the leaf blower acts on the pile. This interaction may hinder or accelerate the ball’s travel as the balls strike each other. The surface characteristics of the ball may be important, as in the examples of the tennis ball and golf ball.
What you are doing here is technically speaking separation science. You are separating out a complex mixture into its component parts.
What is Gas Chromatography?
Gas chromatography (GC) is a specific form of Chromatography. It is a separation technique in which the mobile phase is a gas.
Gas chromatography (GC) is based on a partition equilibrium of analyte between a solid stationary phase (often a liquid silicone-based material) and a mobile gas (most often Helium). The stationary phase is adhered to the inside of a small-diameter glass tube (a capillary column) or a solid matrix inside a larger metal tube (a packed column). The GC itself is a qualitative analytical method whereby if it alone is used, it can only tell that the characteristic is present by the retention time as compared against a known At best, using only a GC, you can tell that the suspect analyte is consistent with the characteristics of the known. It does not necessarily mean that it is the analyte until you use a detector of some level of analytical sensitivity,
How is it used in Pennsylvania DUI prosecution?
It is a whole blood analysis technique (in fact, it is the only direct form of whole blood analysis) used to separate out the analyte of interest (often times either alcohol or drugs of abuse). But what it really does is scare to death most DUI attorneys. It is hardcore science that most even experienced attorneys are scared to hear about.
Why is it so important in Pennsylvania DUI prosecution?
It drives a stake in the heart of many an experienced DUI attorney. In fact, most attorneys when those hear those dreaded words plead the case out.
I’m not one to be scared about GC results in Pennsylvania DUI arrests.
So, realizing that hospital blood testing was on its way out of use, I gathered up a bunch of my colleagues and we went to Chicago to take an American Chemical Society course entitled: "Gas Chromatography: Fundamentals, Troubleshooting, and Method Development". It was a week long hands-on laboratory course conducted through the American Chemical Society and instructed by Dr. Lee N. Polite, MBA, PhD of Axion Labs.
(Pictured: Pennsylvania DUI Attorney Justin McShane with the attorneys who participated in the Course on the left and on the right with all of the attendees)
According to the Course Description:
This course is designed for beginners and intermediate-level practitioners who want practical laboratory experience in gas chromatography (GC). The lectures—supplemented by problem sets, slides, and video presentations—provide the fundamentals needed to understand the technique and instrumentation involved in this powerful analytical tool. At the end of the class, you will have mastered the fundamentals of GC, participated in six hands-on laboratory sessions, performed reference and literature searches, and learned specialized techniques based on your specific interests.
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(Pictured: Pennsylvania DUI Attorney Justin McShane prepares a direction injection and a run on the GC)
Boy was that an understatement! It was a great course. Here is why…
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I took a lot away from it.
(Pictured: Pennsylvania DUI Attorney Justin McShane installs a capillary column)
But why bother?
We must remember that the Defendant has no burden to prove any facts in this proceeding at all. Instead, the burden of proof remains at all times with the Commonwealth and the evidence presented must always prove guilt beyond a reasonable doubt or the Defendant maintains the presumption of innocence and the result must be not guilty.
The blood result as reported by the Government must be PROVEN as reliable, accurate, precise, repeatable, traceable, verified and true. It is a matter of fact that the Jury must resolve and it be proven to all of them and they must be satisfied of this fact beyond a reasonable doubt. Otherwise, the Defendant maintains the presumption of innocence and the result must be not guilty.
In order for a Blood Alcohol Concentration as measured by blood to be reliable, accurate, precise, repeatable, traceable, verified and true and to form the basis for a conviction, there must be a full examination of all of the evidence.
A very good Pennsylvania DUI attorney during the trial will be able to point out that in determining the reliability or veracity of the reported BAC it is essential to have all of the information concerning the pre-collection storage of the kit, the blood collection itself, the transportation and storage of the specimen, the type of analysis, the method of the analysis, and the accuracy, calibration and reliability of the analyzing instrument. Further, it is well-known that in order to have a truly valid and reliable result, the specimen must be handled in a specific way, including:
- The pre-collection storage of the specimen kit must be maintained within tolerance and per the manufacturer,
- The blood collection itself must be performed in a specified manner,
- The handling of the specimen post-collection must be performed in a specified manner,
- The transportation and storage of the specimen post-collection must be performed in a specified manner,
- The preparation of the specimen before the analysis must be done in a specified manner,
- The instrument used to analyze the specimen must be set up in a specific way.
- The instrument used must be maintained in a specific way,
- The analyst must know what he she is doing and must be tested in terms of his/her proficiency.
- The instrument used to analyze the specimen must be calibrated and checked for accuracy and precision,
- The pre-analysis preparation of the sample itself must be performed in a specified manner
- The analysis itself must be performed in a specified manner, and
- The reporting of the specimen as tested must be performed in a specified manner.
These and many other issues are essential for the proper determination of the reliability, accuracy, precision, repeatability, traceability, verification and the truth of the blood alcohol results.
Thank you to Dr. Lee N. Polite, MBA, PhD.
(Pictured: PA DUI Attorney Justin McShane with Dr. Polite at the ACS Short Course in Gas Chromatography)
-Justin J. McShane, Esquire, Pennsylvania DUI Attorney
I am the highest rated DUI Attorney in PA as Rated by Avvo.com
You can follow me on Twitter , Facebook or Linkedin.
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A FALSE POSITIVE:
We can think of a lot of things in our every day lives that can provide for false positives such as:
- pregnancy tests
- quick screen mammograms
- prostate marker screening tests for cancer
- PAP smear
- BREATH TEST MACHINES!
We are all probably familiar with the idea of a false positive. Technically, Merriam Webster’s Medical Dictionary defines it as:
False Positive: Relating to or being an individual or a test result that is erroneously classified in a positive category (as of diagnosis) because of imperfect testing methods or procedures
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