After a particularly festive evening that included a few drinks at a friend's get-together last winter, K. Renfrew, a New York City resident who suffers from gastroesophageal reflux disease, also known as GERD, was overcome with the tell-tale symptoms of the illness. "There was a lot of pressure centered in my chest," she says. "It felt like an anxiety attack mixed up with a heart attack." No wonder: Alcohol is one of the biggest triggers of GERD.
With party season in high gear, doctors say men and women who suffer from GERD may also be in for a period of heartburn attacks. Although not all people with GERD have trouble with alcohol, many clearly do. "It's very individualized," says Dr. Philip Jaffe, associate professor of medicine at the University of Connecticut Health Center.
How alcohol worsens GERD. GERD is a condition in which the acidic juices that typically stay in the stomach back up into the esophagus, damaging its lining and causing a spate of symptoms, including chest pain, sore throats and, most common, heartburn. One reason patients develop GERD is because the lower esophageal sphincter, a clump of muscles separating the stomach from the esophagus, isn't working properly and doesn't form a tight seal as it should; gastric juices are then able to slip through. Even a few sips of liquor can cause the LES to work inefficiently, turning a once-happy partygoer into a miserable guest.
"Alcohol can immediately decrease the pressure of the LES," says Dr. Kristine Krueger, associate professor of medicine and medical director of the Digestive Health Center at the University of Louisville. "It makes [the LES] sit in an open position, and acid backs up." Doctors aren't certain which substances in alcohol are to blame. Some point to the ethanol in beer and hard liquor as the culprit, while others say the problem may be traceable to sulfites.
Another reason alcohol is a no-no: It dries the thin mucous layer lining the esophagus, which, for many chronic reflux sufferers, is already highly sensitive. Liquor also decreases peristalsis, the wave-like movements of the swallowing tube that help shift food and other substances, including acid, down to the stomach. "People can't clear the acid well," says Dr. Lauren Gerson, assistant professor of medicine at the Stanford University School of Medicine. When that happens, they can end up in agony.
Imbibing liquor also hinders the body's natural weapon against acid: the saliva. Loaded with bicarbonate, saliva can effectively neutralize acid in the esophagus. "But people who drink a lot of alcohol can impair the production of saliva," says Jaffe.
Red or white? Experts say no one beverage is to blame; beer and champagne, for example, may bring on a bad case of heartburn for one person and cause no aches and pains in the next, but doctors say many of their patients report red wine as a big culprit. No scientific research supports this finding, however. "That's purely anecdotal," says Gerson.
How much GERD sufferers imbibe and how potent their drinks are definitely play a role, though. No one can pinpoint exactly how much is too much, but "volume consumed plays a part," says Krueger. "The higher the alcohol content of a drink, the more it can cause injury."
Patients with severe GERD or who are especially prone to flare-ups after knocking back a few may want to consider abstaining from alcohol. But if total abstention isn’t practical, especially during the holidays, then at least drink sensible amounts. "Let's be honest," says Jaffe. "Life is short. It's important to have a good quality of life. We don't advocate drinking heavily but during the holidays, if you want to give a toast or have a glass of champagne, then it's possibly OK."
The recourseAside from moderation, some doctors say patients who take proton-pump inhibitors can lessen or even do away with the unpleasant GERD symptoms. "Many people with terrible reflux can drink moderately on special occasions when they're on medication," says Jaffe.
Other tips: Choose drinks that are diluted, such as wine spritzers or beer with ginger ale, and nibble on treats in-between sips to minimize the amount of alcohol consumed. Doctors also remind patients not to overeat in general, and not to gorge on foods that are known to trigger GERD symptoms, such as tomato-based sauces and greasy foods. Patients who have an especially hard time with heartburn and acid regurgitation at night, referred to by physicians as "supine refluxers," should stop drinking for at least a few hours before bedtime; the longer patients wait to go to sleep, the more time they allow gravity to work in their favor.
S. Jhoanna Robledo Wade is a freelance journalist based in New York.
Saturday, January 27, 2007
Minor Traffic Violation Not Aways Grounds For Stop
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, v. ERIC COLIN, Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee, v.
EFRAIN ESTRADA-NAVA,Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Argued and Submitted
May 9, 2002*—Pasadena, California
Filed December 31, 2002
Before: Donald P. Lay,** William C. Canby, Jr. and
Richard A. Paez, Circuit Judges.
Opinion by Judge Paez
*Case No. 01-50140 was submitted without oral argument.
**The Honorable Donald P. Lay, Senior United States Circuit Judge for
the Eighth Circuit, sitting by designation.
COUNSEL
James H. Locklin, Deputy Federal Public Defender, Los
Angeles, California, for defendant-appellant Efrain Estrada-
Nava.
Michael J. Treman (brief), Santa Barbara, California, and
James H. Locklin (argument), Deputy Federal Public
Defender, Los Angeles, California, for defendant-appellant
Eric Colin.
Joseph H. Zwicker (on brief) and Brian Hoffstadt (argued),
Assistant United States Attorneys, Los Angeles, California,
for plaintiff-appellee United States of America.
OPINION
PAEZ, Circuit Judge:
Efrain Estrada-Nava and Eric Colin were indicted on one
count of possession of methamphetamine with intent to dis-
UNITED STATES v. COLIN 5
tribute, in violation of 21 U.S.C. § 841(a)(1). They moved in
the district court to suppress the evidence on which the charge
was based, claiming it was the fruit of an illegal stop and
search. The district court denied the motion. Estrada-Nava
and Colin then pled guilty to the charge.1 We reverse and hold
that the police officer who discovered the evidence did so
only after he stopped Estrada-Nava and Colin’s car without
reasonable suspicion, in violation of the Fourth Amendment
BACKGROUND
On November 12, 1999, at approximately 2:05 a.m., Sergeant
Thomas Carmichael observed a blue Honda traveling at
70 m.p.h. northbound in the right lane on Interstate 15. Carmichael
first observed the Honda from his patrol car, which
was positioned 75 yards behind it. He observed the car drift
onto the solid white fog line on the far side of the right lane
and watched the car’s wheels travel along the fog line for
approximately ten seconds. The Honda then drifted to the left
side of the right lane, signaled a lane change, and moved into
the left lane. Carmichael next observed the car drift to the left
side of the left lane where its left wheels traveled along the
solid yellow line for approximately ten seconds. The car then
returned to the center of the left lane, signaled a lane change,
and moved into the right lane. Carmichael pulled the car over
for possible violations of California Vehicle Code § 21658(a)
(lane straddling) and California Vehicle Code § 23152(a)
(driving under the influence).
Appellant Efrain Estrada-Nava (“Estrada-Nava”) was the
Estrada-Nava and Colin entered a conditional plea agreement that preserved their right to appeal the district court’s ruling on their motion to suppress. Because we hold that the police officer lacked reasonable suspicion to stop Estrada-Nava and Colin, in violation of the Fourth Amendment, we decline to reach the issue of whether the stop was motivated by a programmatic aim to enforce drug and weapons laws.
driver of the car and appellant Eric Colin (“Colin”) was his
passenger. When Carmichael advised Estrada-Nava of the
reasons for stopping him and asked for his license and registration,
he noticed that both Estrada-Nava and Colin were nervous
and shaking. He also noticed that the glove compartment
contained a bottle of air freshener and a radar detector, that
there were only three keys on Estrada-Nava’s key ring, and
that neither Estrada-Nava nor Colin owned the Honda. Suspecting
that the car might have been stolen, Carmichael separately
questioned Estrada-Nava and Colin about the
ownership of the vehicle. On the basis of their slightly conflicting
stories, their nervous appearances, and his own training
and experience, Carmichael concluded they might be
involved in drug trafficking. Estrada-Nava and Colin separately
consented to a search of the Honda, which revealed
marijuana and methamphetamine. Colin filed a motion to suppress the narcotics evidence, in which Estrada-Nava joined, arguing that Carmichael illegally stopped the Honda and illegally detained the two of them
thereafter. After an evidentiary hearing, the district court
denied the motion, concluding that Carmichael had reasonable
suspicion to stop the car and that the evidence therefore was
legally obtained. Estrada-Nava and Colin appealed.
STANDARD OF REVIEW
We review de novo the district court’s determination of reasonable
suspicion. United States v. Arvizu, 534 U.S. 266, 275
(2002) (citing Ornelas v. United States, 517 U.S. 690, 699
(1996)); see also United States v. Mariscal, 285 F.3d 1127,
1129 (9th Cir. 2002). We review the district court’s findings
of fact for clear error. Mariscal, 285 F.3d at 1129; see also
United States v. Lopez-Soto, 205 F.3d 1101, 1103 (9th Cir.
2000).
We have cited only the facts relevant to our disposition of the case.
DISCUSSION
[1] The Fourth Amendment’s prohibition against unreasonable
searches and seizures applies to investigatory traffic
stops. Arvizu, 534 U.S. at 273; United States v. Sigmond-
Ballesteros, 285 F.3d 1117, 1121 (9th Cir. 2002), reh’g en
banc denied by 309 F.3d 545 (9th Cir. 2002). To justify an
investigative stop, a police officer must have reasonable suspicion
that a suspect is involved in criminal activity. Lopez-
Soto, 205 F.3d at 1104-05. Reasonable suspicion is formed by
“specific articulable facts which, together with objective and
reasonable inferences, form the basis for suspecting that the
particular person detained is engaged in criminal activity.” Id.
at 1105 (internal quotation marks and citations omitted); see
also Mariscal, 285 F.3d at 1130; United States v. Twilley, 222
F.3d 1092, 1095 (9th Cir. 2000). An officer’s inferences must
“be grounded in objective facts and be capable of rational
explanation.” Lopez-Soto, 205 F.3d at 1105 (internal quotation
marks and citations omitted); see also Mariscal, 285 F.3d
at 1130; Twilley, 222 F.3d at 1095. In reviewing the district
court’s determination of reasonable suspicion, we must look
at the “totality of the circumstances” to see whether the officer
had a “particularized and objective basis” for suspecting
criminal activity. Arvizu, 534 U.S. at 273 (internal quotation
marks and citations omitted); see also United States v. Diaz-
Juarez, 299 F.3d 1138, 1141-42 (9th Cir. 2002). Officers are
encouraged to draw upon their own specialized training and
experience in assessing the “totality of the circumstances.”
Arvizu, 534 U.S. at 750-51.
A. Standing
To challenge their stop on Fourth Amendment grounds,
Estrada-Nava and Colin must have a reasonable expectation
of privacy in the Honda. United States v. Dorais, 241 F.3d
1124, 1128 (9th Cir. 2001). We have held that occupants of
a vehicle have standing to challenge on Fourth Amendment
grounds an officer’s stop of their vehicle even if they have no
possessory or ownership interest in the vehicle. Twilley, 222
F.3d at 1095 (citations omitted). We therefore conclude that
Estrada-Nava and Colin have standing to challenge the stop.
B. The Stop
Carmichael stopped Estrada-Nava and Colin for possible
violations of California Vehicle Code section 21658(a) (lane
straddling) and section 23152 (driving under the influence).
We will address each of these potential violations in turn.
Carmichael also thought that Estrada-Nava may have been
fatigued. We will address this issue together with section
23152.
1. California Vehicle Code § 21658(a) (“lane
straddling”)
[2] Carmichael stopped Estrada-Nava and Colin in part for
violating California’s “lane straddling” statute. The statute
states:
Whenever any roadway has been divided into two or
more clearly marked lanes for traffic in one direction,
the following rules apply: (a) A vehicle shall be
driven as nearly as practical entirely within a single
lane and shall not be moved from the lane until such
movement can be made with reasonable safety.
Cal. Veh. Code § 21658(a). Under the proper construction of
this statute, Estrada-Nava and Colin’s conduct was not a violation.
[3] When interpreting California Vehicle Code section
21658(a), we are bound to follow the decisions of the California
Supreme Court. Paulson v. City of San Diego, 294 F.3d
1124, 1128 (9th Cir. 2002). If the California Supreme Court
itself has not interpreted the meaning of this code provision,
then we must predict how the court would interpret the code
in light of California appellate court opinions, decisions from
other jurisdictions, statutes, and treatises. Id.; see also S.D.
Myers, Inc. v. City & County of San Francisco, 253 F.3d 461,
473 (9th Cir. 2001); In re Watts, 298 F.3d 1077, 1082-83 (9th
Cir. 2002) (adopting state’s interpretation of a state law in
light of two subsequent state appellate court opinions at odds
with federal court’s prior interpretation of the law).
[4] The California Supreme Court has not issued an opinion
directly addressing section 21658(a). The Los Angeles Superior
Court, Appellate Department, however, interpreted this
statute in People v. Butler, 146 Cal. Rptr. 856 (Cal. App.
Dep’t Super. Ct. 1978). In Butler, the court interpreted “and”
as used in section 21658(a) to mean “or;” that is, to be read
disjunctively. Id. at 857. The court reasoned:
It is our view that section 21658, subdivision (a)
simply states two affirmative duties placed upon the
operator of a motor vehicle. One of these is to drive
as nearly as practicable entirely within one lane. A
separate duty is not to move from that lane until the
movement can be made with reasonable safety.
Id. Although the driver in Butler made no unsafe lane
changes, the court held that he failed to drive within a single
lane, thus violating section 21658(a). Id.
[5] The California Supreme Court has cited Butler with
approval for the proposition that:
The inadvertent use of ‘and’ where the purpose or
intent of a statute seems clearly to require ‘or’ is a
familiar example of a drafting error which may properly
be rectified by judicial construction.
See People v. Skinner, 704 P.2d 752, 758 (Cal. 1985). The
court’s approval of the reasoning in Butler suggests it is likely
to agree with the Butler court’s interpretation of section
21658(a). See also Friedman v. City of Beverly Hills, 54 Cal.
Rptr. 2d 882, 886 (Cal. Ct. App. 1996) (citing Skinner and
Butler for the proposition that the word “and” in a statute may
be read as “or” to effectuate legislative intent).
Even if we interpret section 21658(a) to impose two separate
duties on drivers — to stay within a single lane and to
make safe lane changes — we conclude that Estrada-Nava
and Colin did not violate the statute.
[6] Estrada-Nava and Colin’s car touched for approximately
ten seconds, but did not cross, the fog line and the
solid yellow-painted line. The district court concluded on the
basis of these facts that Carmichael had reasonable suspicion
to stop Estrada-Nava and Colin for lane straddling because
“[a] common sense definition of lane straddling . . . includes
a situation in which a vehicle’s wheels rest on the marking
line.” We disagree, and conclude that based on the “totality of
the circumstances,” Carmichael lacked the requisite reasonable
suspicion to stop Estrada-Nava and Colin for lane straddling.
[7] As the district court pointed out, neither section
21658(a) nor California case law specifies what is meant by
“drive as nearly as practical entirely within a single lane.” It
therefore is unclear under California law whether a car’s
wheels must cross over a line for there to be a violation of
lane straddling. Courts in other states, however, that have
interpreted statutes similar to, if not the same as, section
21658(a) have held that touching the line is not enough to
constitute lane straddling. See, e.g., United States v. Gregory,
79 F.3d 973, 978 (10th Cir. 1996) (holding that an isolated
incident of a vehicle crossing into the emergency lane of a
roadway does not violate state statute’s requirement that vehicles
remain entirely in a single lane “as nearly as practical”);
United States v. Guevara-Martinez, 2000 WL 33593291, at
*2 (D. Neb. May 26, 2000) (interpreting a similar Nebraska
statute and concluding that touching, but not crossing, the
broken line between two southbound lanes twice in a half
mile did not violate the statute’s “near as practicable” requirement),
aff’d, 262 F.3d 751 (8th Cir. 2001); Rowe v. State of
Maryland, 769 A.2d 879, 889 (Md. 2001) (concluding that
“momentary crossing of the edge line of the roadway and later
touching of that line” was not reasonable suspicion to justify
traffic stop); State v. Caron, 534 A.2d 978, 979 (Me. 1987)
(holding that there was not reasonable suspicion to justify a
stop because a vehicle’s “one time straddling of the center
line of an undivided highway is a common occurrence”);
State v. Tarvin, 972 S.W.2d 910, 912 (Tex. Ct. App. 1998)
(holding that police officer did not have reasonable suspicion
to stop the defendant’s vehicle where the defendant’s car
“touch[ed] the right-hand white line”). These cases suggest
that to violate a lane straddling statute, a driver must do more
than simply touch, even for 10 seconds, a painted line on a
highway. See Rowe, 769 A.2d at 887-88 (citing cases in
which courts have upheld traffic stops and noting that the conduct
justifying the stop was “more egregious” than touching
the line or briefly crossing over it).
[8] Even if we assume, as the district court did, that “if the
wheels were on the line, then that part of the vehicle that
extends beyond the wheels was over the line and the car was
traveling in two lanes,” we still conclude that there was not
reasonable suspicion to stop Estrada-Nava and Colin for a
violation of section 21658(a). Touching a dividing line, even
if a small portion of the body of the car veers into a neighboring
lane, satisfies the statute’s requirement that a driver drive
as “nearly as practical entirely within a single lane.” Cal.
Veh. Code § 21658(a) (emphasis added); see also Crooks v.
State, 710 So. 2d 1041, 1043 (Fla. Dist. Ct. App. 1998)
(“Because the record does not establish how far into the righthand
emergency lane [defendant] drove on any of three occasions,
there is no basis to state that he was outside the ‘practicable’
lane.” (emphasis added)). The Honda touched the lines
only twice, both times before making safe lane changes. It is
reasonable that a driver with no cars abreast of him might
12 UNITED STATES v. COLIN
veer slightly within his lane or over the lane line in the course
of making a lane change to ensure that it is safe to do so.
[9] In sum, we conclude that the facts, taken together, support
the conclusion that Carmichael lacked probable cause to
stop Estrada-Nava and Colin for lane straddling.
2. California Vehicle Code § 23152 (driving under the
influence)
At the evidentiary hearing on the motion to suppress, Carmichael
testified that he stopped Estrada-Nava and Colin in
part for a “possible” violation of driving under the influence.4
He described Estrada-Nava’s “unusual” driving pattern as follows:
Most people who travel the highway travel the main
portion of the lane which is pretty much the center
of the lane. To travel the extreme right for an
extended period of time and then travel to the
extreme left portion of the lane and then make the
lane change and then travel again to the extreme left
portion of that lane, those are irregular driving patterns.
The district court concluded on the basis of Carmichael’s testimony
that “he was reasonable in concluding . . . that the
mere fact Estrada-Nava signaled as he moved back and forth
across the highway did not neutralize the erratic pattern of
driving he observed.” We disagree.
Although we recognize that in some cases evidence of
weaving might be indicative of driving under the influence,
we disagree that the evidence in this case was sufficient for
Carmichael to harbor a reasonable suspicion that Estrada-
4Carmichael also testified that he thought Estrada-Nava was possibly
fatigued or ill.
Nava was driving under the influence, thus justifying the stop.
Carmichael testified that he observed Estrada-Nava and
Colin’s vehicle for 35-45 seconds before pulling it over, and
that during this time, Estrada-Nava drove within the speed
limit and properly activated his turn signals before making
lane changes. Carmichael thought Estrada-Nava was “possibly”
driving under the influence because the car’s wheels
touched the fog line on the right side of the right lane for 10
seconds and then, about 5-10 seconds later, touched the yellow
line on the far left of the left lane for another 10 seconds.
[10] In People v. Perez, an officer with training and experience
in handling cases involving driving under the influence
observed a driver weave within his lane (two feet in each
direction) for approximately three-quarters of a mile. The
court considered as a matter of first impression in California
whether an officer “may lawfully detain a driver [on the basis
of driving under the influence] who has been observed to be
weaving within his lane.” 221 Cal. Rptr. 776, 777 (Cal. App.
Dep’t Super. Ct. 1985) (emphasis added).5 Adopting the reasoning
of cases from other states in which courts have held
that weaving within one’s lane for substantial distances
creates reasonable suspicion of driving under the influence,
the court held that “pronounced weaving within a lane provides
an officer with reasonable cause to stop a vehicle on
suspicion of driving under the influence where such weaving
continues for a substantial distance.” Id. at 778 (emphasis
added).
[11] Here, Estrada-Nava and Colin did not demonstrate
“pronounced weaving” of up to two feet in either direction, or
weave for a “substantial distance.” In fact, the only “suspicious”
behavior Carmichael observed was Estrada-Nava and
Colin’s car touching the right fog line and the center yellow
line each for 10 seconds, after legitimate lane changes. This
5The court noted that it has been clearly established in California that
“weaving from one lane to another justifies an investigatory stop.” Id.
is hardly “pronounced weaving.” See State v. Caron, 534
A.2d 978, 979 (Me. 1987) (holding that “single, brief straddling
of the center line of the undivided highway, with no
oncoming traffic in sight and no vehicles passing on the left
. . . did not give rise to an objectively reasonable suspicion”
of intoxication or fatigue); State v. Bello, 871 P.2d 584, 587
(Utah Ct. App. 1994) (finding a single incident of weaving in
windy conditions insufficient to justify a stop based on suspicion
of drunk driving). Similarly, Carmichael’s entire observation
lasted only 35-45 seconds, which is not long enough to
show that Estrada-Nava and Colin were weaving for a “substantial”
distance. We agree with the Tenth Circuit, which has
aptly observed:
[I]f failure to follow a perfect vector down the highway
or keeping one’s eyes on the road were sufficient
reasons to suspect a person of driving while
impaired, a substantial portion of the public would
be subject each day to an invasion of their privacy.
United States v. Lyons, 7 F.3d 973, 976 (10th Cir. 1993),
overruled on other grounds by United States v. Botero-
Ospina, 71 F.3d 783, 786-87 (10th Cir. 1995).
As a final note, we find it curious that Carmichael did not
conduct a sobriety field test or ask Estrada-Nava if he had
been drinking when he stopped the car. This further convinces
us that Carmichael did not harbor reasonable suspicion that
Estrada-Nava was driving under the influence. See United
States v. Gregory, 79 F.3d 973, 978 (10th Cir. 1996) (concluding
that where officer did not conduct a road sobriety test
after stopping the defendant for briefly crossing into the right
emergency shoulder lane, he did not have reasonable suspicion
that the defendant was intoxicated); United States v.
Ochoa, 4 F. Supp. 2d 1007, 1012 (D. Kan. 1998) (finding that
a single drifting onto the shoulder did not justify stopping
defendant on the basis of fatigue and that officer’s failure to
conduct a sobriety test suggests he did not have reasonable
suspicion defendant was intoxicated).
[12] In sum, we conclude Carmichael did not have reasonable
suspicion to stop Estrada-Nava and Colin based on lane
straddling or driving under the influence. As a result, the
methamphetamine he seized through the search of their vehicle
should have been suppressed. See United States v. Twilley,
222 F.3d 1092, 1097 (9th Cir. 2000) (finding that search and
resulting seizure were products of illegal stop and that evidence
therefore should have been suppressed); United States
v. Lopez-Soto, 205 F.3d 1101, 1106 (9th Cir. 2000) (suppressing
evidence that police officer gathered pursuant to an
unconstitutional stop); United States v. Millan, 36 F.3d 886,
890 (9th Cir. 1994) (“Because the interrogation and search
were a direct result of the illegal stop, we hold that all of the
evidence must be suppressed.”). We further conclude that
Estrada-Nava’s and Colin’s consent to search their car was
unlawfully obtained pursuant to the illegal stop and therefore
did not purge the taint.6 See United States v. Chavez-
Valenzuela, 268 F.3d 719, 727 (9th Cir. 2001) (“[E]vidence
obtained subsequent to an illegal investigation is tainted by
the illegality and thus inadmissible, notwithstanding the suspect’s
consent, unless subsequent events have purged the
taint.”), amended by 279 F.3d 1062 (9th Cir. 2002); Twilley,
222 F.3d at 1097 (holding that the evidence obtained as part
of an illegal stop should have been suppressed even where the
defendants consented to the search).
6There were no intervening events that purged the illegal taint. See
United States v. Sigmond-Ballesteros, 285 F.3d 1117, 1127 (9th Cir. 2002)
(holding that evidence obtained pursuant to an unlawful stop should have
been suppressed because there were no intervening events that purged the
illegal taint).
C. Ex Parte Application for Out-of-District
Subpoena
Estrada-Nava and Colin also appeal the district court’s
denial of their ex parte application for issuance of an out-ofdistrict
subpoena duces tecum pursuant to Federal Rule of
Criminal Procedure 17(c). In their respective plea agreements,
Estrada-Nava and Colin reserved only their right to seek
review of the district court’s denial of the motion to suppress.
They did not reserve the right to appeal “any other determination
or issue,” including the district court’s denial of their ex
parte application for a subpoena duces tecum. As a result,
Estrada-Nava and Colin have waived this issue on appeal, and
we decline to rule on it. See United States v. Chon, 210 F.3d
990, 995 (9th Cir. 2000) (holding that appellants waived all
issues “not expressly reserved for appeal” in their conditional
guilty pleas); United States v. Alexander, 761 F.2d 1294, 1303
(9th Cir. 1985) (declining to rule on issues that were not
reserved for appeal in the conditional plea agreement).
CONCLUSION
Because we hold that Carmichael did not have reasonable
suspicion to stop Estrada-Nava and Colin and that the motion
to suppress therefore should have been granted, we need not
address the constitutionality of Estrada-Nava’s and Colin’s
subsequent detention.
REVERSED and REMANDED.
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, v. ERIC COLIN, Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee, v.
EFRAIN ESTRADA-NAVA,Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Argued and Submitted
May 9, 2002*—Pasadena, California
Filed December 31, 2002
Before: Donald P. Lay,** William C. Canby, Jr. and
Richard A. Paez, Circuit Judges.
Opinion by Judge Paez
*Case No. 01-50140 was submitted without oral argument.
**The Honorable Donald P. Lay, Senior United States Circuit Judge for
the Eighth Circuit, sitting by designation.
COUNSEL
James H. Locklin, Deputy Federal Public Defender, Los
Angeles, California, for defendant-appellant Efrain Estrada-
Nava.
Michael J. Treman (brief), Santa Barbara, California, and
James H. Locklin (argument), Deputy Federal Public
Defender, Los Angeles, California, for defendant-appellant
Eric Colin.
Joseph H. Zwicker (on brief) and Brian Hoffstadt (argued),
Assistant United States Attorneys, Los Angeles, California,
for plaintiff-appellee United States of America.
OPINION
PAEZ, Circuit Judge:
Efrain Estrada-Nava and Eric Colin were indicted on one
count of possession of methamphetamine with intent to dis-
UNITED STATES v. COLIN 5
tribute, in violation of 21 U.S.C. § 841(a)(1). They moved in
the district court to suppress the evidence on which the charge
was based, claiming it was the fruit of an illegal stop and
search. The district court denied the motion. Estrada-Nava
and Colin then pled guilty to the charge.1 We reverse and hold
that the police officer who discovered the evidence did so
only after he stopped Estrada-Nava and Colin’s car without
reasonable suspicion, in violation of the Fourth Amendment
BACKGROUND
On November 12, 1999, at approximately 2:05 a.m., Sergeant
Thomas Carmichael observed a blue Honda traveling at
70 m.p.h. northbound in the right lane on Interstate 15. Carmichael
first observed the Honda from his patrol car, which
was positioned 75 yards behind it. He observed the car drift
onto the solid white fog line on the far side of the right lane
and watched the car’s wheels travel along the fog line for
approximately ten seconds. The Honda then drifted to the left
side of the right lane, signaled a lane change, and moved into
the left lane. Carmichael next observed the car drift to the left
side of the left lane where its left wheels traveled along the
solid yellow line for approximately ten seconds. The car then
returned to the center of the left lane, signaled a lane change,
and moved into the right lane. Carmichael pulled the car over
for possible violations of California Vehicle Code § 21658(a)
(lane straddling) and California Vehicle Code § 23152(a)
(driving under the influence).
Appellant Efrain Estrada-Nava (“Estrada-Nava”) was the
Estrada-Nava and Colin entered a conditional plea agreement that preserved their right to appeal the district court’s ruling on their motion to suppress. Because we hold that the police officer lacked reasonable suspicion to stop Estrada-Nava and Colin, in violation of the Fourth Amendment, we decline to reach the issue of whether the stop was motivated by a programmatic aim to enforce drug and weapons laws.
driver of the car and appellant Eric Colin (“Colin”) was his
passenger. When Carmichael advised Estrada-Nava of the
reasons for stopping him and asked for his license and registration,
he noticed that both Estrada-Nava and Colin were nervous
and shaking. He also noticed that the glove compartment
contained a bottle of air freshener and a radar detector, that
there were only three keys on Estrada-Nava’s key ring, and
that neither Estrada-Nava nor Colin owned the Honda. Suspecting
that the car might have been stolen, Carmichael separately
questioned Estrada-Nava and Colin about the
ownership of the vehicle. On the basis of their slightly conflicting
stories, their nervous appearances, and his own training
and experience, Carmichael concluded they might be
involved in drug trafficking. Estrada-Nava and Colin separately
consented to a search of the Honda, which revealed
marijuana and methamphetamine. Colin filed a motion to suppress the narcotics evidence, in which Estrada-Nava joined, arguing that Carmichael illegally stopped the Honda and illegally detained the two of them
thereafter. After an evidentiary hearing, the district court
denied the motion, concluding that Carmichael had reasonable
suspicion to stop the car and that the evidence therefore was
legally obtained. Estrada-Nava and Colin appealed.
STANDARD OF REVIEW
We review de novo the district court’s determination of reasonable
suspicion. United States v. Arvizu, 534 U.S. 266, 275
(2002) (citing Ornelas v. United States, 517 U.S. 690, 699
(1996)); see also United States v. Mariscal, 285 F.3d 1127,
1129 (9th Cir. 2002). We review the district court’s findings
of fact for clear error. Mariscal, 285 F.3d at 1129; see also
United States v. Lopez-Soto, 205 F.3d 1101, 1103 (9th Cir.
2000).
We have cited only the facts relevant to our disposition of the case.
DISCUSSION
[1] The Fourth Amendment’s prohibition against unreasonable
searches and seizures applies to investigatory traffic
stops. Arvizu, 534 U.S. at 273; United States v. Sigmond-
Ballesteros, 285 F.3d 1117, 1121 (9th Cir. 2002), reh’g en
banc denied by 309 F.3d 545 (9th Cir. 2002). To justify an
investigative stop, a police officer must have reasonable suspicion
that a suspect is involved in criminal activity. Lopez-
Soto, 205 F.3d at 1104-05. Reasonable suspicion is formed by
“specific articulable facts which, together with objective and
reasonable inferences, form the basis for suspecting that the
particular person detained is engaged in criminal activity.” Id.
at 1105 (internal quotation marks and citations omitted); see
also Mariscal, 285 F.3d at 1130; United States v. Twilley, 222
F.3d 1092, 1095 (9th Cir. 2000). An officer’s inferences must
“be grounded in objective facts and be capable of rational
explanation.” Lopez-Soto, 205 F.3d at 1105 (internal quotation
marks and citations omitted); see also Mariscal, 285 F.3d
at 1130; Twilley, 222 F.3d at 1095. In reviewing the district
court’s determination of reasonable suspicion, we must look
at the “totality of the circumstances” to see whether the officer
had a “particularized and objective basis” for suspecting
criminal activity. Arvizu, 534 U.S. at 273 (internal quotation
marks and citations omitted); see also United States v. Diaz-
Juarez, 299 F.3d 1138, 1141-42 (9th Cir. 2002). Officers are
encouraged to draw upon their own specialized training and
experience in assessing the “totality of the circumstances.”
Arvizu, 534 U.S. at 750-51.
A. Standing
To challenge their stop on Fourth Amendment grounds,
Estrada-Nava and Colin must have a reasonable expectation
of privacy in the Honda. United States v. Dorais, 241 F.3d
1124, 1128 (9th Cir. 2001). We have held that occupants of
a vehicle have standing to challenge on Fourth Amendment
grounds an officer’s stop of their vehicle even if they have no
possessory or ownership interest in the vehicle. Twilley, 222
F.3d at 1095 (citations omitted). We therefore conclude that
Estrada-Nava and Colin have standing to challenge the stop.
B. The Stop
Carmichael stopped Estrada-Nava and Colin for possible
violations of California Vehicle Code section 21658(a) (lane
straddling) and section 23152 (driving under the influence).
We will address each of these potential violations in turn.
Carmichael also thought that Estrada-Nava may have been
fatigued. We will address this issue together with section
23152.
1. California Vehicle Code § 21658(a) (“lane
straddling”)
[2] Carmichael stopped Estrada-Nava and Colin in part for
violating California’s “lane straddling” statute. The statute
states:
Whenever any roadway has been divided into two or
more clearly marked lanes for traffic in one direction,
the following rules apply: (a) A vehicle shall be
driven as nearly as practical entirely within a single
lane and shall not be moved from the lane until such
movement can be made with reasonable safety.
Cal. Veh. Code § 21658(a). Under the proper construction of
this statute, Estrada-Nava and Colin’s conduct was not a violation.
[3] When interpreting California Vehicle Code section
21658(a), we are bound to follow the decisions of the California
Supreme Court. Paulson v. City of San Diego, 294 F.3d
1124, 1128 (9th Cir. 2002). If the California Supreme Court
itself has not interpreted the meaning of this code provision,
then we must predict how the court would interpret the code
in light of California appellate court opinions, decisions from
other jurisdictions, statutes, and treatises. Id.; see also S.D.
Myers, Inc. v. City & County of San Francisco, 253 F.3d 461,
473 (9th Cir. 2001); In re Watts, 298 F.3d 1077, 1082-83 (9th
Cir. 2002) (adopting state’s interpretation of a state law in
light of two subsequent state appellate court opinions at odds
with federal court’s prior interpretation of the law).
[4] The California Supreme Court has not issued an opinion
directly addressing section 21658(a). The Los Angeles Superior
Court, Appellate Department, however, interpreted this
statute in People v. Butler, 146 Cal. Rptr. 856 (Cal. App.
Dep’t Super. Ct. 1978). In Butler, the court interpreted “and”
as used in section 21658(a) to mean “or;” that is, to be read
disjunctively. Id. at 857. The court reasoned:
It is our view that section 21658, subdivision (a)
simply states two affirmative duties placed upon the
operator of a motor vehicle. One of these is to drive
as nearly as practicable entirely within one lane. A
separate duty is not to move from that lane until the
movement can be made with reasonable safety.
Id. Although the driver in Butler made no unsafe lane
changes, the court held that he failed to drive within a single
lane, thus violating section 21658(a). Id.
[5] The California Supreme Court has cited Butler with
approval for the proposition that:
The inadvertent use of ‘and’ where the purpose or
intent of a statute seems clearly to require ‘or’ is a
familiar example of a drafting error which may properly
be rectified by judicial construction.
See People v. Skinner, 704 P.2d 752, 758 (Cal. 1985). The
court’s approval of the reasoning in Butler suggests it is likely
to agree with the Butler court’s interpretation of section
21658(a). See also Friedman v. City of Beverly Hills, 54 Cal.
Rptr. 2d 882, 886 (Cal. Ct. App. 1996) (citing Skinner and
Butler for the proposition that the word “and” in a statute may
be read as “or” to effectuate legislative intent).
Even if we interpret section 21658(a) to impose two separate
duties on drivers — to stay within a single lane and to
make safe lane changes — we conclude that Estrada-Nava
and Colin did not violate the statute.
[6] Estrada-Nava and Colin’s car touched for approximately
ten seconds, but did not cross, the fog line and the
solid yellow-painted line. The district court concluded on the
basis of these facts that Carmichael had reasonable suspicion
to stop Estrada-Nava and Colin for lane straddling because
“[a] common sense definition of lane straddling . . . includes
a situation in which a vehicle’s wheels rest on the marking
line.” We disagree, and conclude that based on the “totality of
the circumstances,” Carmichael lacked the requisite reasonable
suspicion to stop Estrada-Nava and Colin for lane straddling.
[7] As the district court pointed out, neither section
21658(a) nor California case law specifies what is meant by
“drive as nearly as practical entirely within a single lane.” It
therefore is unclear under California law whether a car’s
wheels must cross over a line for there to be a violation of
lane straddling. Courts in other states, however, that have
interpreted statutes similar to, if not the same as, section
21658(a) have held that touching the line is not enough to
constitute lane straddling. See, e.g., United States v. Gregory,
79 F.3d 973, 978 (10th Cir. 1996) (holding that an isolated
incident of a vehicle crossing into the emergency lane of a
roadway does not violate state statute’s requirement that vehicles
remain entirely in a single lane “as nearly as practical”);
United States v. Guevara-Martinez, 2000 WL 33593291, at
*2 (D. Neb. May 26, 2000) (interpreting a similar Nebraska
statute and concluding that touching, but not crossing, the
broken line between two southbound lanes twice in a half
mile did not violate the statute’s “near as practicable” requirement),
aff’d, 262 F.3d 751 (8th Cir. 2001); Rowe v. State of
Maryland, 769 A.2d 879, 889 (Md. 2001) (concluding that
“momentary crossing of the edge line of the roadway and later
touching of that line” was not reasonable suspicion to justify
traffic stop); State v. Caron, 534 A.2d 978, 979 (Me. 1987)
(holding that there was not reasonable suspicion to justify a
stop because a vehicle’s “one time straddling of the center
line of an undivided highway is a common occurrence”);
State v. Tarvin, 972 S.W.2d 910, 912 (Tex. Ct. App. 1998)
(holding that police officer did not have reasonable suspicion
to stop the defendant’s vehicle where the defendant’s car
“touch[ed] the right-hand white line”). These cases suggest
that to violate a lane straddling statute, a driver must do more
than simply touch, even for 10 seconds, a painted line on a
highway. See Rowe, 769 A.2d at 887-88 (citing cases in
which courts have upheld traffic stops and noting that the conduct
justifying the stop was “more egregious” than touching
the line or briefly crossing over it).
[8] Even if we assume, as the district court did, that “if the
wheels were on the line, then that part of the vehicle that
extends beyond the wheels was over the line and the car was
traveling in two lanes,” we still conclude that there was not
reasonable suspicion to stop Estrada-Nava and Colin for a
violation of section 21658(a). Touching a dividing line, even
if a small portion of the body of the car veers into a neighboring
lane, satisfies the statute’s requirement that a driver drive
as “nearly as practical entirely within a single lane.” Cal.
Veh. Code § 21658(a) (emphasis added); see also Crooks v.
State, 710 So. 2d 1041, 1043 (Fla. Dist. Ct. App. 1998)
(“Because the record does not establish how far into the righthand
emergency lane [defendant] drove on any of three occasions,
there is no basis to state that he was outside the ‘practicable’
lane.” (emphasis added)). The Honda touched the lines
only twice, both times before making safe lane changes. It is
reasonable that a driver with no cars abreast of him might
12 UNITED STATES v. COLIN
veer slightly within his lane or over the lane line in the course
of making a lane change to ensure that it is safe to do so.
[9] In sum, we conclude that the facts, taken together, support
the conclusion that Carmichael lacked probable cause to
stop Estrada-Nava and Colin for lane straddling.
2. California Vehicle Code § 23152 (driving under the
influence)
At the evidentiary hearing on the motion to suppress, Carmichael
testified that he stopped Estrada-Nava and Colin in
part for a “possible” violation of driving under the influence.4
He described Estrada-Nava’s “unusual” driving pattern as follows:
Most people who travel the highway travel the main
portion of the lane which is pretty much the center
of the lane. To travel the extreme right for an
extended period of time and then travel to the
extreme left portion of the lane and then make the
lane change and then travel again to the extreme left
portion of that lane, those are irregular driving patterns.
The district court concluded on the basis of Carmichael’s testimony
that “he was reasonable in concluding . . . that the
mere fact Estrada-Nava signaled as he moved back and forth
across the highway did not neutralize the erratic pattern of
driving he observed.” We disagree.
Although we recognize that in some cases evidence of
weaving might be indicative of driving under the influence,
we disagree that the evidence in this case was sufficient for
Carmichael to harbor a reasonable suspicion that Estrada-
4Carmichael also testified that he thought Estrada-Nava was possibly
fatigued or ill.
Nava was driving under the influence, thus justifying the stop.
Carmichael testified that he observed Estrada-Nava and
Colin’s vehicle for 35-45 seconds before pulling it over, and
that during this time, Estrada-Nava drove within the speed
limit and properly activated his turn signals before making
lane changes. Carmichael thought Estrada-Nava was “possibly”
driving under the influence because the car’s wheels
touched the fog line on the right side of the right lane for 10
seconds and then, about 5-10 seconds later, touched the yellow
line on the far left of the left lane for another 10 seconds.
[10] In People v. Perez, an officer with training and experience
in handling cases involving driving under the influence
observed a driver weave within his lane (two feet in each
direction) for approximately three-quarters of a mile. The
court considered as a matter of first impression in California
whether an officer “may lawfully detain a driver [on the basis
of driving under the influence] who has been observed to be
weaving within his lane.” 221 Cal. Rptr. 776, 777 (Cal. App.
Dep’t Super. Ct. 1985) (emphasis added).5 Adopting the reasoning
of cases from other states in which courts have held
that weaving within one’s lane for substantial distances
creates reasonable suspicion of driving under the influence,
the court held that “pronounced weaving within a lane provides
an officer with reasonable cause to stop a vehicle on
suspicion of driving under the influence where such weaving
continues for a substantial distance.” Id. at 778 (emphasis
added).
[11] Here, Estrada-Nava and Colin did not demonstrate
“pronounced weaving” of up to two feet in either direction, or
weave for a “substantial distance.” In fact, the only “suspicious”
behavior Carmichael observed was Estrada-Nava and
Colin’s car touching the right fog line and the center yellow
line each for 10 seconds, after legitimate lane changes. This
5The court noted that it has been clearly established in California that
“weaving from one lane to another justifies an investigatory stop.” Id.
is hardly “pronounced weaving.” See State v. Caron, 534
A.2d 978, 979 (Me. 1987) (holding that “single, brief straddling
of the center line of the undivided highway, with no
oncoming traffic in sight and no vehicles passing on the left
. . . did not give rise to an objectively reasonable suspicion”
of intoxication or fatigue); State v. Bello, 871 P.2d 584, 587
(Utah Ct. App. 1994) (finding a single incident of weaving in
windy conditions insufficient to justify a stop based on suspicion
of drunk driving). Similarly, Carmichael’s entire observation
lasted only 35-45 seconds, which is not long enough to
show that Estrada-Nava and Colin were weaving for a “substantial”
distance. We agree with the Tenth Circuit, which has
aptly observed:
[I]f failure to follow a perfect vector down the highway
or keeping one’s eyes on the road were sufficient
reasons to suspect a person of driving while
impaired, a substantial portion of the public would
be subject each day to an invasion of their privacy.
United States v. Lyons, 7 F.3d 973, 976 (10th Cir. 1993),
overruled on other grounds by United States v. Botero-
Ospina, 71 F.3d 783, 786-87 (10th Cir. 1995).
As a final note, we find it curious that Carmichael did not
conduct a sobriety field test or ask Estrada-Nava if he had
been drinking when he stopped the car. This further convinces
us that Carmichael did not harbor reasonable suspicion that
Estrada-Nava was driving under the influence. See United
States v. Gregory, 79 F.3d 973, 978 (10th Cir. 1996) (concluding
that where officer did not conduct a road sobriety test
after stopping the defendant for briefly crossing into the right
emergency shoulder lane, he did not have reasonable suspicion
that the defendant was intoxicated); United States v.
Ochoa, 4 F. Supp. 2d 1007, 1012 (D. Kan. 1998) (finding that
a single drifting onto the shoulder did not justify stopping
defendant on the basis of fatigue and that officer’s failure to
conduct a sobriety test suggests he did not have reasonable
suspicion defendant was intoxicated).
[12] In sum, we conclude Carmichael did not have reasonable
suspicion to stop Estrada-Nava and Colin based on lane
straddling or driving under the influence. As a result, the
methamphetamine he seized through the search of their vehicle
should have been suppressed. See United States v. Twilley,
222 F.3d 1092, 1097 (9th Cir. 2000) (finding that search and
resulting seizure were products of illegal stop and that evidence
therefore should have been suppressed); United States
v. Lopez-Soto, 205 F.3d 1101, 1106 (9th Cir. 2000) (suppressing
evidence that police officer gathered pursuant to an
unconstitutional stop); United States v. Millan, 36 F.3d 886,
890 (9th Cir. 1994) (“Because the interrogation and search
were a direct result of the illegal stop, we hold that all of the
evidence must be suppressed.”). We further conclude that
Estrada-Nava’s and Colin’s consent to search their car was
unlawfully obtained pursuant to the illegal stop and therefore
did not purge the taint.6 See United States v. Chavez-
Valenzuela, 268 F.3d 719, 727 (9th Cir. 2001) (“[E]vidence
obtained subsequent to an illegal investigation is tainted by
the illegality and thus inadmissible, notwithstanding the suspect’s
consent, unless subsequent events have purged the
taint.”), amended by 279 F.3d 1062 (9th Cir. 2002); Twilley,
222 F.3d at 1097 (holding that the evidence obtained as part
of an illegal stop should have been suppressed even where the
defendants consented to the search).
6There were no intervening events that purged the illegal taint. See
United States v. Sigmond-Ballesteros, 285 F.3d 1117, 1127 (9th Cir. 2002)
(holding that evidence obtained pursuant to an unlawful stop should have
been suppressed because there were no intervening events that purged the
illegal taint).
C. Ex Parte Application for Out-of-District
Subpoena
Estrada-Nava and Colin also appeal the district court’s
denial of their ex parte application for issuance of an out-ofdistrict
subpoena duces tecum pursuant to Federal Rule of
Criminal Procedure 17(c). In their respective plea agreements,
Estrada-Nava and Colin reserved only their right to seek
review of the district court’s denial of the motion to suppress.
They did not reserve the right to appeal “any other determination
or issue,” including the district court’s denial of their ex
parte application for a subpoena duces tecum. As a result,
Estrada-Nava and Colin have waived this issue on appeal, and
we decline to rule on it. See United States v. Chon, 210 F.3d
990, 995 (9th Cir. 2000) (holding that appellants waived all
issues “not expressly reserved for appeal” in their conditional
guilty pleas); United States v. Alexander, 761 F.2d 1294, 1303
(9th Cir. 1985) (declining to rule on issues that were not
reserved for appeal in the conditional plea agreement).
CONCLUSION
Because we hold that Carmichael did not have reasonable
suspicion to stop Estrada-Nava and Colin and that the motion
to suppress therefore should have been granted, we need not
address the constitutionality of Estrada-Nava’s and Colin’s
subsequent detention.
REVERSED and REMANDED.
Saturday, January 20, 2007
Field Sobriety Test are Designed For Failure?
Perceptual and Motor Skills, 1994, 79, 99-104. 8 Perceptual and Motor Skills 1994
FIELD SOBRIETY TESTS: ARE THEY DESIGNED FOR FAILURE?'
SPURGEON COLE AND RONALD H. NOWACZYK
Clemson. University
Summary--Field sobriety tests have been used by law enforcement officers to identify alcohol-impaired drivers. Yet in 1981 Tharp. Burns. and Moskowitz found that 32.% of individuals in a laboratory setting who were judged to have an alcohol level above the legal limit actually were below the level. In this study, two groups of seven law enforcement officers each viewed videotapes, of 21 sober individuals performing a variety of field sobriety tests or normal-abilities tests, e.g.. reciting one's address and phone number or walking in a normal manner. Officers judged a
significantly larger number of the individuals as impaired when they performed the field sobriety tests than when they performed the normal-abilities tests. The need to reevaluate the predictive validity of field sobriety tests is discussed.
Field sobriety tests have been used throughout this century by police officers to help them assess whether an individual is too impaired to drive an automobile. A classic paper by Bjerver and Goldberg, (1951) examined the relationship between performance on the field sobriety test and driving. Over the past two decades the National Highway Transportation SafetyAdministration (NHTSA) has funded several studies to examine the effectiveness of field sobriety tests in predicting a person's level of intoxication and driving impairment (e.g., Anderson. Schweitz. & Snyder.
1983; Burns & Moskowitz. 1977; Tharp, Burns, & Moskowitz. 1981).
In a 1977 report, Burns and Moskowitz examined a number of different tests commonly used by officers. Based on the results from a laboratory study, they recommended three tests, the Horizontal Gaze Nystagmus (HGN) test, thewalk-and turn test, and the one leg stand test for further research. The HGN measures the angle of gaze at the onset of jerking movement which can be influenced by alcohol consumption as well as other physiological factors. The other two tests require dividing, attention among mental and physical tasks. Briefly, the walk-and-turn test requires a person to stand on a line in a heel-to-toe position while listening to
instructions and then to take nine steps in a heel-to-toe fashion, pivot, and take nine more steps along a straight line. The one-leg stand requires an individual to stand with arms at the side and extend one foot six inches off the ground and maintain that position while counting for 30 seconds without extending the arms or losing balance.
(For complete instructions see "DWI Detection and
'Requests for reprints can be sent to either author at the Department of Psychology, Clemson University,
Clemson, SC 29634.
The authors thank Ronnie Cole for his assistance in the completion of this study and Jack Davenport for his comments on an earlier draft of this manuscript.
100 S. COLE & R.H. NOWACZYK
Divided Attention Field Sobriety Testing" by NHTSA, 1987.) Although these
tests seemed to hold the most promise, the authors reported that false alarms are a concern. In the 1977 study, 47 percent of the subjects who would have been arrested based on test performance actually had a blood alcohol concentration (BAC) lower than .10 percent, the decision level used by officers.
A 1981 report by Tharp, et al employed the three previously mentioned
tests in another laboratory study. The error rate improved somewhat; 32 percent of the participants judged to have BACs greater than .10 actually had BACs lower than .10, the decision point used in many states for assuming driving impairment. Reliability coefficients for these tests, however, were often below accepted levels for standardized clinical tests. Reliable rests have coefficients of approximately .85 or higher (Rosenthal & Rosnow, 1991). Test-retest reliability coefficients for the field sobriety tests ranged from.61 to .72 for individual tests and .77 for the total test score for 77 individuals who were dosed to the same BAC level on two occasions. Interrater reliability coefficients, based on having
different officers score performance on each occasion,were even lower, ranging from .34 to .60 with .57 as an over-all test score.
Problems in scoring can be attributed, in part, to the lack of standardization across many of the field sobriety test studies. In addition, a few miscues in performance can result in an individual being scored as impaired (Anderson, et at. 1983). For example, a person is viewed as impaired for missing two of nine points on the walk-and-turn test or two of five points on the one-leg stand test. The stringent scoring criteria as well as potential subjectivity in determiningwhether a point should
be awarded may account for accuracy rates that vary from 72 to 96 percent among police agencies using these tests in the Anderson, et al. study. The fact that these tests are largely unfamiliar to most people and not well practiced may make it more difficult for people to perform them. As few as two miscues in performance can result in an individual being classified as impaired because of alcohol consumption when the problem may actually be the result of their unfamiliarity with the rest. This study tested the hypothesis that sober individuals will find the field sobriety tests difficult to perform and, as a result, will be judged to be impaired by officers viewing their performance. Individuals who were completely sober were asked to perform several field sobriety tests and several "normal-abilities" tests which should be well known to individuals. These latter tests included answering personal data questions, such as stating one's address and phone number, as well as walking in a normal manner. Performance on the field sobriety tests and normal-abilities tests was
videotaped.
FIELD SOBRIETY TESTS: ARE THEY DESIGNED FOR FAILURE?'
SPURGEON COLE AND RONALD H. NOWACZYK
Clemson. University
Summary--Field sobriety tests have been used by law enforcement officers to identify alcohol-impaired drivers. Yet in 1981 Tharp. Burns. and Moskowitz found that 32.% of individuals in a laboratory setting who were judged to have an alcohol level above the legal limit actually were below the level. In this study, two groups of seven law enforcement officers each viewed videotapes, of 21 sober individuals performing a variety of field sobriety tests or normal-abilities tests, e.g.. reciting one's address and phone number or walking in a normal manner. Officers judged a
significantly larger number of the individuals as impaired when they performed the field sobriety tests than when they performed the normal-abilities tests. The need to reevaluate the predictive validity of field sobriety tests is discussed.
Field sobriety tests have been used throughout this century by police officers to help them assess whether an individual is too impaired to drive an automobile. A classic paper by Bjerver and Goldberg, (1951) examined the relationship between performance on the field sobriety test and driving. Over the past two decades the National Highway Transportation SafetyAdministration (NHTSA) has funded several studies to examine the effectiveness of field sobriety tests in predicting a person's level of intoxication and driving impairment (e.g., Anderson. Schweitz. & Snyder.
1983; Burns & Moskowitz. 1977; Tharp, Burns, & Moskowitz. 1981).
In a 1977 report, Burns and Moskowitz examined a number of different tests commonly used by officers. Based on the results from a laboratory study, they recommended three tests, the Horizontal Gaze Nystagmus (HGN) test, thewalk-and turn test, and the one leg stand test for further research. The HGN measures the angle of gaze at the onset of jerking movement which can be influenced by alcohol consumption as well as other physiological factors. The other two tests require dividing, attention among mental and physical tasks. Briefly, the walk-and-turn test requires a person to stand on a line in a heel-to-toe position while listening to
instructions and then to take nine steps in a heel-to-toe fashion, pivot, and take nine more steps along a straight line. The one-leg stand requires an individual to stand with arms at the side and extend one foot six inches off the ground and maintain that position while counting for 30 seconds without extending the arms or losing balance.
(For complete instructions see "DWI Detection and
'Requests for reprints can be sent to either author at the Department of Psychology, Clemson University,
Clemson, SC 29634.
The authors thank Ronnie Cole for his assistance in the completion of this study and Jack Davenport for his comments on an earlier draft of this manuscript.
100 S. COLE & R.H. NOWACZYK
Divided Attention Field Sobriety Testing" by NHTSA, 1987.) Although these
tests seemed to hold the most promise, the authors reported that false alarms are a concern. In the 1977 study, 47 percent of the subjects who would have been arrested based on test performance actually had a blood alcohol concentration (BAC) lower than .10 percent, the decision level used by officers.
A 1981 report by Tharp, et al employed the three previously mentioned
tests in another laboratory study. The error rate improved somewhat; 32 percent of the participants judged to have BACs greater than .10 actually had BACs lower than .10, the decision point used in many states for assuming driving impairment. Reliability coefficients for these tests, however, were often below accepted levels for standardized clinical tests. Reliable rests have coefficients of approximately .85 or higher (Rosenthal & Rosnow, 1991). Test-retest reliability coefficients for the field sobriety tests ranged from.61 to .72 for individual tests and .77 for the total test score for 77 individuals who were dosed to the same BAC level on two occasions. Interrater reliability coefficients, based on having
different officers score performance on each occasion,were even lower, ranging from .34 to .60 with .57 as an over-all test score.
Problems in scoring can be attributed, in part, to the lack of standardization across many of the field sobriety test studies. In addition, a few miscues in performance can result in an individual being scored as impaired (Anderson, et at. 1983). For example, a person is viewed as impaired for missing two of nine points on the walk-and-turn test or two of five points on the one-leg stand test. The stringent scoring criteria as well as potential subjectivity in determiningwhether a point should
be awarded may account for accuracy rates that vary from 72 to 96 percent among police agencies using these tests in the Anderson, et al. study. The fact that these tests are largely unfamiliar to most people and not well practiced may make it more difficult for people to perform them. As few as two miscues in performance can result in an individual being classified as impaired because of alcohol consumption when the problem may actually be the result of their unfamiliarity with the rest. This study tested the hypothesis that sober individuals will find the field sobriety tests difficult to perform and, as a result, will be judged to be impaired by officers viewing their performance. Individuals who were completely sober were asked to perform several field sobriety tests and several "normal-abilities" tests which should be well known to individuals. These latter tests included answering personal data questions, such as stating one's address and phone number, as well as walking in a normal manner. Performance on the field sobriety tests and normal-abilities tests was
videotaped.
Are you Drunk Because You Can't Balance On One Leg Or Walk The Line?
Two of the three “standardized field sobriety tests” - the walk and turn as well as the one leg stand - are premised on the assumption that people who are not under the influence of alcohol can perform the tests satisfactorily. However, many people do not have particularly good balance, and then there are those who suffer from a balance disorder. When balance is impaired, an individual has difficulty maintaining orientation. For example, an individual may experience the “room spinning” and may not be able to walk without staggering, or may not even be able to arise. Some of the symptoms a person with a balance disorder may experience are:
A sensation of dizziness or vertigo (spinning).
Falling or a feeling of falling.
Lightheadedness or feeling woozy.
Visual blurring.
Disorientation.
Some individuals may also experience nausea and vomiting, diarrhea, faintness, changes in heart rate and blood pressure, fear, anxiety, or panic. Some reactions to the symptoms are fatigue, depression, and decreased concentration. The symptoms may appear and disappear over short time periods or may last for a longer period of time.
Infections (viral or bacterial), head injury, disorders of blood circulation affecting the inner ear or brain, certain medications, and aging may change our balance system and result in a balance problem. Individuals who have illnesses, brain disorders, or injuries of the visual or skeletal systems, such as eye muscle imbalance and arthritis, may also experience balance difficulties. A conflict of signals to the brain about the sensation of movement can cause motion sickness (for instance, when an individual tries to read while riding in a car). Some symptoms of motion sickness are dizziness, sweating, nausea, vomiting, and generalized discomfort. Balance disorders can be due to problems in any of four areas:
Peripheral vestibular disorder, a disturbance in the labyrinth.
Central vestibular disorder, a problem in the brain or its connecting nerves.
Systemic disorder, a problem of the body other than the head and brain.
Vascular disorder, or blood flow problems.
Some of the more common balance disorders are:
Benign Paroxysmal Positional Vertigo (BPPV)–a brief, intense sensation of vertigo that occurs because of a specific positional change of the head. An individual may experience BPPV when rolling over to the left or right upon getting out of bed in the morning, or when looking up for an object on a high shelf. The cause of BPPV is not known, although it may be caused by an inner ear infection, head injury, or aging.
Labyrinthitis–an infection or inflammation of the inner ear causing dizziness and loss of balance.
Ménière’s disease–an inner ear fluid balance disorder that causes episodes of vertigo, fluctuating hearing loss, tinnitus (a ringing or roaring in the ears), and the sensation of fullness in the ear. The cause of Ménière’s disease is unknown.
Vestibular neuronitis–an infection of the vestibular nerve, generally viral.
Perilymph fistula–a leakage of inner ear fluid to the middle ear. It can occur after head injury, physical exertion or, rarely, without a known cause.
Diagnosis of a balance disorder is complicated because there are many kinds of balance disorders and because other medical conditions–including ear infections, blood pressure changes, and some vision problems–and some medications may contribute to a balance disorder. A person experiencing dizziness should see a physician for an evaluation.
The primary physician may request the opinion of an otolaryngologist to help evaluate a balance problem. An otolaryngologist is a physician/surgeon who specializes in diseases and disorders of the ear, nose, throat, head, and neck, with expertise in balance disorders. He or she will usually obtain a detailed medical history and perform a physical examination to start to sort out possible causes of the balance disorder. The physician may require tests to assess the cause and extent of the disruption of balance. The kinds of tests needed will vary based on the patient’s symptoms and health status. Because there are so many variables, not all patients will require every test.
Some examples of diagnostic tests the otolaryngologist may request are a hearing examination, blood tests, an electronystagmogram (ENG–a test of the vestibular system), or imaging studies of the head and brain.
The caloric test may be performed as part of the ENG. In this test, each ear is flushed with warm and then cool water, usually one ear at a time; the amount of nystagmus resulting is measured. Weak nystagmus or the absence of nystagmus may indicate an inner ear disorder.
Another test of the vestibular system, posturography, requires the individual to stand on a special platform capable of movement within a controlled visual environment; body sway is recorded in response to movement of the platform and/or the visual environment.
A sensation of dizziness or vertigo (spinning).
Falling or a feeling of falling.
Lightheadedness or feeling woozy.
Visual blurring.
Disorientation.
Some individuals may also experience nausea and vomiting, diarrhea, faintness, changes in heart rate and blood pressure, fear, anxiety, or panic. Some reactions to the symptoms are fatigue, depression, and decreased concentration. The symptoms may appear and disappear over short time periods or may last for a longer period of time.
Infections (viral or bacterial), head injury, disorders of blood circulation affecting the inner ear or brain, certain medications, and aging may change our balance system and result in a balance problem. Individuals who have illnesses, brain disorders, or injuries of the visual or skeletal systems, such as eye muscle imbalance and arthritis, may also experience balance difficulties. A conflict of signals to the brain about the sensation of movement can cause motion sickness (for instance, when an individual tries to read while riding in a car). Some symptoms of motion sickness are dizziness, sweating, nausea, vomiting, and generalized discomfort. Balance disorders can be due to problems in any of four areas:
Peripheral vestibular disorder, a disturbance in the labyrinth.
Central vestibular disorder, a problem in the brain or its connecting nerves.
Systemic disorder, a problem of the body other than the head and brain.
Vascular disorder, or blood flow problems.
Some of the more common balance disorders are:
Benign Paroxysmal Positional Vertigo (BPPV)–a brief, intense sensation of vertigo that occurs because of a specific positional change of the head. An individual may experience BPPV when rolling over to the left or right upon getting out of bed in the morning, or when looking up for an object on a high shelf. The cause of BPPV is not known, although it may be caused by an inner ear infection, head injury, or aging.
Labyrinthitis–an infection or inflammation of the inner ear causing dizziness and loss of balance.
Ménière’s disease–an inner ear fluid balance disorder that causes episodes of vertigo, fluctuating hearing loss, tinnitus (a ringing or roaring in the ears), and the sensation of fullness in the ear. The cause of Ménière’s disease is unknown.
Vestibular neuronitis–an infection of the vestibular nerve, generally viral.
Perilymph fistula–a leakage of inner ear fluid to the middle ear. It can occur after head injury, physical exertion or, rarely, without a known cause.
Diagnosis of a balance disorder is complicated because there are many kinds of balance disorders and because other medical conditions–including ear infections, blood pressure changes, and some vision problems–and some medications may contribute to a balance disorder. A person experiencing dizziness should see a physician for an evaluation.
The primary physician may request the opinion of an otolaryngologist to help evaluate a balance problem. An otolaryngologist is a physician/surgeon who specializes in diseases and disorders of the ear, nose, throat, head, and neck, with expertise in balance disorders. He or she will usually obtain a detailed medical history and perform a physical examination to start to sort out possible causes of the balance disorder. The physician may require tests to assess the cause and extent of the disruption of balance. The kinds of tests needed will vary based on the patient’s symptoms and health status. Because there are so many variables, not all patients will require every test.
Some examples of diagnostic tests the otolaryngologist may request are a hearing examination, blood tests, an electronystagmogram (ENG–a test of the vestibular system), or imaging studies of the head and brain.
The caloric test may be performed as part of the ENG. In this test, each ear is flushed with warm and then cool water, usually one ear at a time; the amount of nystagmus resulting is measured. Weak nystagmus or the absence of nystagmus may indicate an inner ear disorder.
Another test of the vestibular system, posturography, requires the individual to stand on a special platform capable of movement within a controlled visual environment; body sway is recorded in response to movement of the platform and/or the visual environment.
Monday, January 15, 2007
Types of Nystagagmus Apart from HGN
TYPES OF NYSTAGMUS–SEPARATE FROM HORIZONTAL NYSTAGMUS
(1) Acquired;
(2) Anticipatory (induced);
(3) Arthrokinetic (induced, somatosensory);
(4) Associated (induced, Stransky’s);
(5) Audio kinetic (induced);
(6) Bartel’s (induced);
(7) Brun’s;
(8) Centripetal;
(9) Cervical (neck torsion, vestibular-basilar artery insufficiency);
(10) Circular/Elliptic/Oblique (alternating windmill, circumduction, diagonal, elliptic, gyratory, oblique, radiary);
(11) Congenital (fixation, hereditary);
(12) Convergence;
(13) Convergence-evoked;
(14) Dissociated (disjunctive);
(15) Downbeat;
(16) Drug-induced (barbituate, bow tie, induced);
(17) Epileptic (ictal);
(18) Flash induced;
(19) Gaze-evoked (deviational, gaze-paretic, neurasthenic, seducible, setting-in);
(20) Horizontal;
(21) Induced (provoked);
(22) Intermittent Vertical;
(23) Jerk;
(24) Latent/Manifest Latent (monocular fixation, unimacular);
(25) Lateral Medullary;
(26) Lid;
(27) Miner’s (occupational);
(28) Muscle-Paretic (myasthenic);
(29) Optokinetic (induced, optomotor, panoramic, railway, sigma);
(30) Optokinetic After-Induced (post-optokinetic, reverse post-optokinetic);
(31) Pendular (talantropia);
(32) Periodic/Aperiodic Alternating;
(33) Physiologic (end-point, fatigue);
(34) Pursuit After-induced;
(35) Pursuit Defect;
(36) Pseudo spontaneous;
(37) Rebound;
(38) Reflex (Baer’s);
(39) See-Saw;
(40) Somatosensory;
(41) Spontaneous;
(42) Stepping Around;
(43) Torsional;
(44) Uniocular;
(45) Upbeat;
(46) Vertical;
(47) Vestibular (ageotropic, geotropic, Bechterew’s, caloric, compensatory, electrical/faradic/galvanic, labyrinthine, pneumatic/compression, positional/alcohol, pseudo caloric.
(1) Acquired;
(2) Anticipatory (induced);
(3) Arthrokinetic (induced, somatosensory);
(4) Associated (induced, Stransky’s);
(5) Audio kinetic (induced);
(6) Bartel’s (induced);
(7) Brun’s;
(8) Centripetal;
(9) Cervical (neck torsion, vestibular-basilar artery insufficiency);
(10) Circular/Elliptic/Oblique (alternating windmill, circumduction, diagonal, elliptic, gyratory, oblique, radiary);
(11) Congenital (fixation, hereditary);
(12) Convergence;
(13) Convergence-evoked;
(14) Dissociated (disjunctive);
(15) Downbeat;
(16) Drug-induced (barbituate, bow tie, induced);
(17) Epileptic (ictal);
(18) Flash induced;
(19) Gaze-evoked (deviational, gaze-paretic, neurasthenic, seducible, setting-in);
(20) Horizontal;
(21) Induced (provoked);
(22) Intermittent Vertical;
(23) Jerk;
(24) Latent/Manifest Latent (monocular fixation, unimacular);
(25) Lateral Medullary;
(26) Lid;
(27) Miner’s (occupational);
(28) Muscle-Paretic (myasthenic);
(29) Optokinetic (induced, optomotor, panoramic, railway, sigma);
(30) Optokinetic After-Induced (post-optokinetic, reverse post-optokinetic);
(31) Pendular (talantropia);
(32) Periodic/Aperiodic Alternating;
(33) Physiologic (end-point, fatigue);
(34) Pursuit After-induced;
(35) Pursuit Defect;
(36) Pseudo spontaneous;
(37) Rebound;
(38) Reflex (Baer’s);
(39) See-Saw;
(40) Somatosensory;
(41) Spontaneous;
(42) Stepping Around;
(43) Torsional;
(44) Uniocular;
(45) Upbeat;
(46) Vertical;
(47) Vestibular (ageotropic, geotropic, Bechterew’s, caloric, compensatory, electrical/faradic/galvanic, labyrinthine, pneumatic/compression, positional/alcohol, pseudo caloric.
Non Alcohol Related HGN
CAUSES OF HORIZONTAL GAZE NYSTAGMUS NOT ALCOHOL RELATED
(1) problems with the inner ear labyrinth;
(2) irrigating the ears with warm or cold water under peculiar weather conditions;
(3) influenza;
(4) streptococcus infection;
(5) vertigo;
(6) measles;
(7) syphilis;
(8) arteriosclerosis;
(9) muscular dystrophy;
(10) multiple sclerosis;
(11) Korchaff’s syndrome;
(12) brain hemorrhage;
(13) epilepsy;
(14) hypertension;
(15) motion sickness;
(16) sunstroke;
(17) eyestrain;
(18) eye muscle fatigue;
(19) glaucoma;
(20) changes in atmospheric pressure;
(21) consumption of excessive amounts of caffeine;
(22) excessive exposure to nicotine;
(23) aspirin;
(24) circadian rhythms;
(25) acute trauma to the head;
(26) chronic trauma to the head;
(27) some prescription drugs, tranquilizers, pain medications, anti-convulsants;
(28) barbiturates;
(29) disorders of the vestibular apparatus and brain stem;
(30) cerebellum dysfunction;
(31) heredity;
(32) diet;
(33) toxins;
(34) exposure to solvents, PCBs, dry-cleaning fumes, carbon monoxide;
(35) extreme chilling;
(36) lesions;
(37) continuous movement of the visual field past the eyes;
(38) antihistamine use.
Schultz v. State, 664 A.2d 60, 77 (Md. App. 1995)
(1) problems with the inner ear labyrinth;
(2) irrigating the ears with warm or cold water under peculiar weather conditions;
(3) influenza;
(4) streptococcus infection;
(5) vertigo;
(6) measles;
(7) syphilis;
(8) arteriosclerosis;
(9) muscular dystrophy;
(10) multiple sclerosis;
(11) Korchaff’s syndrome;
(12) brain hemorrhage;
(13) epilepsy;
(14) hypertension;
(15) motion sickness;
(16) sunstroke;
(17) eyestrain;
(18) eye muscle fatigue;
(19) glaucoma;
(20) changes in atmospheric pressure;
(21) consumption of excessive amounts of caffeine;
(22) excessive exposure to nicotine;
(23) aspirin;
(24) circadian rhythms;
(25) acute trauma to the head;
(26) chronic trauma to the head;
(27) some prescription drugs, tranquilizers, pain medications, anti-convulsants;
(28) barbiturates;
(29) disorders of the vestibular apparatus and brain stem;
(30) cerebellum dysfunction;
(31) heredity;
(32) diet;
(33) toxins;
(34) exposure to solvents, PCBs, dry-cleaning fumes, carbon monoxide;
(35) extreme chilling;
(36) lesions;
(37) continuous movement of the visual field past the eyes;
(38) antihistamine use.
Schultz v. State, 664 A.2d 60, 77 (Md. App. 1995)
Still The Law?
One of Thomas Jefferson’s favorite quotes from William Pitt . . . .
DUI arrest without warrant
Section 32-5-171
Arrest without warrant.
A uniformed police officer, state trooper, county sheriff or his deputy or member of a municipal police force may arrest, at the scene of a traffic accident, any driver of a vehicle involved in the accident if upon personal investigation, including information from eyewitnesses, the officer has reasonable grounds to believe that the person by violating Section 32-5A-191 contributed to the accident. He may arrest such a person without a warrant although he did not personally see the violation.
(Acts 1971, No. 1942, p. 3137; Acts 1983, 2nd Ex. Sess., No. 83-201, p. 379.)
Arrest without warrant.
A uniformed police officer, state trooper, county sheriff or his deputy or member of a municipal police force may arrest, at the scene of a traffic accident, any driver of a vehicle involved in the accident if upon personal investigation, including information from eyewitnesses, the officer has reasonable grounds to believe that the person by violating Section 32-5A-191 contributed to the accident. He may arrest such a person without a warrant although he did not personally see the violation.
(Acts 1971, No. 1942, p. 3137; Acts 1983, 2nd Ex. Sess., No. 83-201, p. 379.)
Military Consequences for DUI
Military Consequences/Actions for Incident Off-Post
Savannah attorney and retired JAG officer Doug Andrews has prepared this list of common actions that the military may inflict on the soldier (and probably the airman, sailor and marine). This list may not be all inclusive, and not all actions will be taken in every case, but the consequences can be enormous and continuing. However, it shows the options available to the commander and what may result, separate and apart from the civilian disposition.
Immediate Suspension of all Favorable Personnel Actions (”Flagged”):No promotionsNo leave or passes allowedNo transfer/reassignment by Permanent Change of StationNo Temporary Duty assignmentNo selection to attend military schools
Relief for Cause from Duty Position with adverse Efficiency Report filed for record.
Suspension or Termination of Security Clearance, which bars access to sensitive equipment and information, prevents performance of classified military duties, and causes transfer or elimination from service.
Bar to Re-Enlistment imposed, forcing discharge at end of enlistment, ending career.
General Officer Memorandum of Reprimand filed in permanent record.
Mandatory/Command referral to ADAPC/ASAP (Alcohol or Substance Abuse Proram).
Initiation of Reduction Board (to reduce in rank an enlisted person) for “inefficiency” or inability to perform at more senior rank.
Mandatory Separation if reduction causes “Retention Control Point” to be exceeded, which sets limits on length of service allowed for each rank. (For example, E-4/Corporal limited to 9 yrs service, E-5/SGT = 13 years maximum and short of retirement eligibility).
Administrative Elimination/Discharge Action, with likelihood of stigmatizing Less than Honorable Discharge, which denies veteran’s benefits, including Educational Assistance (G.I. Bill)
Quality Management Program review initiates discharge as “less qualified” for retention.
Upon Discharge, likely to be stigmatized with Re-Enlistment Code of RE-3 or RE-4, which prevents re-entry into military service (even in the Reserve Forces), despite a successful rehabilitation period, effectively preventing later qualification for retirement eligibilitybased on years of accrued servicePunitive action under the Uniform Code of Military Justice (10 U.S. Code 801 et seq.)Article 15 (Non-Judicial Punishment action) imposed by Commanding Officer, which may include reduction in rank, forfeitures of pay, restrictions on liberty, and extra (fatigue-type) duty.Court-Martial, which may impose confinement, forfeitures, reduction in rank, and either a Bad Conduct Discharge or Dishonorable Discharge, both of which are stigmatizing and disqualifying for military and veterans benefits.
Savannah attorney and retired JAG officer Doug Andrews has prepared this list of common actions that the military may inflict on the soldier (and probably the airman, sailor and marine). This list may not be all inclusive, and not all actions will be taken in every case, but the consequences can be enormous and continuing. However, it shows the options available to the commander and what may result, separate and apart from the civilian disposition.
Immediate Suspension of all Favorable Personnel Actions (”Flagged”):No promotionsNo leave or passes allowedNo transfer/reassignment by Permanent Change of StationNo Temporary Duty assignmentNo selection to attend military schools
Relief for Cause from Duty Position with adverse Efficiency Report filed for record.
Suspension or Termination of Security Clearance, which bars access to sensitive equipment and information, prevents performance of classified military duties, and causes transfer or elimination from service.
Bar to Re-Enlistment imposed, forcing discharge at end of enlistment, ending career.
General Officer Memorandum of Reprimand filed in permanent record.
Mandatory/Command referral to ADAPC/ASAP (Alcohol or Substance Abuse Proram).
Initiation of Reduction Board (to reduce in rank an enlisted person) for “inefficiency” or inability to perform at more senior rank.
Mandatory Separation if reduction causes “Retention Control Point” to be exceeded, which sets limits on length of service allowed for each rank. (For example, E-4/Corporal limited to 9 yrs service, E-5/SGT = 13 years maximum and short of retirement eligibility).
Administrative Elimination/Discharge Action, with likelihood of stigmatizing Less than Honorable Discharge, which denies veteran’s benefits, including Educational Assistance (G.I. Bill)
Quality Management Program review initiates discharge as “less qualified” for retention.
Upon Discharge, likely to be stigmatized with Re-Enlistment Code of RE-3 or RE-4, which prevents re-entry into military service (even in the Reserve Forces), despite a successful rehabilitation period, effectively preventing later qualification for retirement eligibilitybased on years of accrued servicePunitive action under the Uniform Code of Military Justice (10 U.S. Code 801 et seq.)Article 15 (Non-Judicial Punishment action) imposed by Commanding Officer, which may include reduction in rank, forfeitures of pay, restrictions on liberty, and extra (fatigue-type) duty.Court-Martial, which may impose confinement, forfeitures, reduction in rank, and either a Bad Conduct Discharge or Dishonorable Discharge, both of which are stigmatizing and disqualifying for military and veterans benefits.
The Inadequacy of Instrumental "Mouth Alcohol" Detection Systems in Forensic Breath Alcohol Measurement
Rod Gullberg, Washington State Patrol Breath Test Section
811 East Roanoke Seattle, WA 98102
"Mouth Alcohol", resulting from regurgitation or recently consumed alcohol, has long been a concern in forensic toxicology because of the potential for biasing an end-expiratory breath alcohol measurement. Manufacturers of forensic breath alcohol instruments have attempted to address the issue in part by developing software algorithms that attempt to identify ‘mouth alcohol" and abort the test if detected as present. These algorithms (as in the case of the BAC Datamaster, National Patent Analytical Systems, Inc.) generally evaluate the slopes of the breath alcohol expirogram and will abort the test if the slope is sufficiently negative.
Experimental breath alcohol expirograms were collected from drinking subjects both with and with out the presence of "mouth alcohol". The data reveals that for subjects already having measurable breath alcohol, biases can exist in end-expiratory measurements and remain undetected by the "mouth alcohol" detection algorithm within the BAC Datamaster instrument. These biases occur at approximately five minutes after exposure to "mouth alcohol" because the expirogram does not conform to that assumed by the instrumental algorithm. These biases are unlikely to occur in sober subjects. Rather than relying on instrumental features to minimize the risk of "mouth alcohol" bias, sound protocol employing a 15 minute observation period and duplicate testing will enhance confidence in results to a much greater extent.
811 East Roanoke Seattle, WA 98102
"Mouth Alcohol", resulting from regurgitation or recently consumed alcohol, has long been a concern in forensic toxicology because of the potential for biasing an end-expiratory breath alcohol measurement. Manufacturers of forensic breath alcohol instruments have attempted to address the issue in part by developing software algorithms that attempt to identify ‘mouth alcohol" and abort the test if detected as present. These algorithms (as in the case of the BAC Datamaster, National Patent Analytical Systems, Inc.) generally evaluate the slopes of the breath alcohol expirogram and will abort the test if the slope is sufficiently negative.
Experimental breath alcohol expirograms were collected from drinking subjects both with and with out the presence of "mouth alcohol". The data reveals that for subjects already having measurable breath alcohol, biases can exist in end-expiratory measurements and remain undetected by the "mouth alcohol" detection algorithm within the BAC Datamaster instrument. These biases occur at approximately five minutes after exposure to "mouth alcohol" because the expirogram does not conform to that assumed by the instrumental algorithm. These biases are unlikely to occur in sober subjects. Rather than relying on instrumental features to minimize the risk of "mouth alcohol" bias, sound protocol employing a 15 minute observation period and duplicate testing will enhance confidence in results to a much greater extent.
Saturday, January 13, 2007
Protect Your License!
WARNING! If you refused to take the breath test you face an automatic suspension of your license for ninety (90) days to five (5) years. You have ten (10) days from the date of your arrest to file a "request for administrative review" with the Department of Public Safety. Likewise, if you submitted to a test which yields a result of .08 or more, you can also be suspended for ninety (90) days to five (5) years. Contact http://alabamaduidefense.com for more information
Friday, January 12, 2007
How much interferent does it take to make an innocent person "fail" a breath test?
.08 grams per 210 liters (32-5A-194(A)(5)) = .0003800952 grams per liter
209 liters = 55 gallon drum
The legislatively set ratio is the functional equivalent of 1/10 gram of sweet "n" low packet into a fifty-five gallon drum.
=
If a breath test error occurs it is compounded by 3000 ( the breath to blood ration is 3000:1 not 2100:1 since based on .08% standard)
210 divided by IR chamber size 70 cc = 3000
Question: How much interferent, ie., mouth alcohol, would it take raise a blood alcohol level of 0.0% to .08%?
Answer: .0003800952 (.08%)= approximately 3/millionths of a gram of alcohol
********************************************************
70 cc = .07 liters
1 cc = .001 liters
.08 grams = 210,000 ml
Thursday, January 11, 2007
Alabama DUI
Alabama has two theories in which a person can be prosecuted for a DUI/DWI. First, a DUI charge can be brought against someone who is considered "under the influence" of alcohol or drugs. A person is considered “under the influence” if a person’s physical or mental capabilities are impaired by drugs or alcohol to render that person unsafe to drive. Second, a DUI prosecution in Alabama can be based on Alabama’s per se laws, which makes it illegal to drive with a blood alcohol content (BAC) of .08% or higher. A charge of this type is based solely on body chemistry and can be brought regardless of whether or not a person’s ability to drive a vehicle is impaired by alcohol.In Alabama, the law does not require that a person charged with a DUI was actually driving the car. Instead, Alabama only requires that the person charged was in “actual physical control” of the vehicle, which means being in the car and having the present ability to move, park or direct whatever use is to be made of the vehicle at the moment.
Alabama Drops It's Old Technology in Favor of Draeger because of Temperature Correction
ABSTRACTS FROM THE 45th ANNUAL MEETING (WOLFVILLE, NOVA SCOTIA, AUGUST 12–15, 1998) Alabama’s Field Evaluation of the Draeger Alcotest 7110 M K III: Breath Temperature CorrectionAuthors: Dale A. Carpenter, Ph.D. and James M. Buttram, Ph.D.
Over the past several months the Alabama Department of Forensic Sciences has been conductingan evaluation of the Draeger Alcotest 7110 MK III evidential breath alcohol testing instrument. The Alcotest 7110 MK III is the first commercial evidential breath-testing instrument available that measures a suspect’s exhalation breath temperature. The importance of breath temperature in breath alcohol testing has been mentioned in the literature repeatedly. One aspect of our evaluation was to place two instruments in the field and perform parallel testing of actual arrestees against the current Alabama evidential breath-testing instrument. Almost all (93%, 81%) of the over two hundred collected breath samples acquired on the Alcotest 7110 MK IIIAEs had breath temperatures above 34°C. Our results show a breath temperature range of 32.4 – 36.2°C with a mean of 34.9°C. The influence of temperature on Henry’s Law illustrates the benefit of an instrument capable of measuring a suspect’s exhalation breath temperature and correcting the resulting (BrAC) to the reference temperature of 34°C. Our data indicate an overwhelming number of suspects would benefit from a breath-testing program that utilizes breath temperature correction capability. The Alabama Chemical Tests for Intoxication Program is currently implementing a protocol that will correct or lower a suspects BrAC when an elevated (>34°C) breath temperature exists. In the event that a suspect’s breath temperature is lower than 34°C no correction will be made. The Alabama Breath testing protocol will provide relief to those suspects with BrACs on or about the 0.08% level with elevated breath temperatures.
Over the past several months the Alabama Department of Forensic Sciences has been conductingan evaluation of the Draeger Alcotest 7110 MK III evidential breath alcohol testing instrument. The Alcotest 7110 MK III is the first commercial evidential breath-testing instrument available that measures a suspect’s exhalation breath temperature. The importance of breath temperature in breath alcohol testing has been mentioned in the literature repeatedly. One aspect of our evaluation was to place two instruments in the field and perform parallel testing of actual arrestees against the current Alabama evidential breath-testing instrument. Almost all (93%, 81%) of the over two hundred collected breath samples acquired on the Alcotest 7110 MK IIIAEs had breath temperatures above 34°C. Our results show a breath temperature range of 32.4 – 36.2°C with a mean of 34.9°C. The influence of temperature on Henry’s Law illustrates the benefit of an instrument capable of measuring a suspect’s exhalation breath temperature and correcting the resulting (BrAC) to the reference temperature of 34°C. Our data indicate an overwhelming number of suspects would benefit from a breath-testing program that utilizes breath temperature correction capability. The Alabama Chemical Tests for Intoxication Program is currently implementing a protocol that will correct or lower a suspects BrAC when an elevated (>34°C) breath temperature exists. In the event that a suspect’s breath temperature is lower than 34°C no correction will be made. The Alabama Breath testing protocol will provide relief to those suspects with BrACs on or about the 0.08% level with elevated breath temperatures.
Blind Man Trial Story
A man was flying from Seattle to San Francisco. Unexpectedly, the plane stopped in Sacramento along the way. The flight attendant explained that there would be a delay, and if the passengers wanted to get off the aircraft, the plane would re-board in 50 minutes. Everybody got off the plane except one gentleman who was blind. The man had noticed him as he walked by and could tell the gentleman was blind because his seeing eye dog lay quietly underneath the seats in front of him throughout the entire flight. He could also tell he had flown this very flight before because the pilot approached him, and calling him by name, said, "Bill, we're in Sacramento for almost an hour. Would you like to get off and stretch your legs?" The blind man replied, "No thanks, but maybe my dog would like to stretch his legs." Picture this: All the people in the gate area came to a complete standstill when they looked up and saw the pilot walk off the plane with a seeing eye dog. The pilot was even wearing sunglasses. People scattered. They not only tried to change planes, but they were trying to change airlines! Remember... things aren't always as they appear.
Quote Concerning Paris Hilton DUI from Noted DUI Defense Attorney
"At this point, I expect the L.A. city attorney will eventually offer her a plea bargain to a lesser charge in which she'll do no jail time, no community service, and just pay a fine," Lawrence Taylor, an L.A.-based attorney and DUI expert, tells PEOPLE. "Barring that scenario, this case will go to jury trial, and she stands an excellent chance of being acquitted because of her low blood-alcohol level, among other reasons."
Lawrence Taylor
Lawrence Taylor
Wednesday, January 10, 2007
Foundation of Breath Testing Cannot be True
The Impact of Breathing Pattern and Lung Size on the Alcohol Breath
Test
MICHAEL P. HLASTALA
1,2,3 and JOSEPH C. ANDERSON4
1Department of Physiology and Biophysics, University of Washington, Box 356522, Seattle, WA 98195-6522, USA; 2Department
of Medicine, University of Washington, Box 356522, Seattle, WA 98195-6522, USA; 3Division of Pulmonary and Critical Care
Medicine, University of Washington, Box 356522, Seattle, WA 98195-6522, USA; and 4Department of Bioengineering,
University of Washington, Seattle, WA 98195-5061, USA
(Received 21 March 2006; accepted 29 September 2006)
Abstract—Highly soluble gases exchange primarily with the
bronchial circulation through pulmonary airway tissue.
Because of this airway exchange, the assumption that
end-exhaled alcohol concentration (EEAC) is equal to
alveolar alcohol concentration (AAC) cannot be true.
During exhalation, breath alcohol concentration (BrAC)
decreases due to uptake of ethanol by the airway tissue. It
is therefore impossible to deliver alveolar gas to the mouth
during a single exhalation without losing alcohol to the
airway mucosa. A consequence of airway alcohol exchange
is that EEAC is always less than AAC. In this study, we
use a mathematical model of the human lung to determine
the influence of subject lung size on the relative reduction
of BrAC from AAC. We find that failure to inspire a
full inspiration reduces the BrAC at full exhalation, but
increases the BrAC at minimum exhalation. In addition, a
reduced inhaled volume and can lead to an inability to
provide an adequate breath volume. We conclude that
alcohol exchange with the airways during the singleexhalation
breath test is dependent on lung size of the
subject with a bias against subjects with smaller lung
size.
Keywords—Ethyl alcohol, Ethanol, Bronchial circulation,
Airway gas exchange.
INTRODUCTION
An assumption used in the development of the
alcohol breath test (ABT) is that the ethanol concentration
in the last part of the exhaled breath is equal to
that in the alveolar gas. This long-held assumption is
the basis for justifying the ABT1 as an accurate
measure of blood alcohol concentration (BAC).
However, under normal circumstances, a singleexhalation
alcohol breath test shows a gradually and
continually increasing breath alcohol concentration
(BrAC) if the subject exhales at a constant rate
(Fig. 1). The end-exhaled alcohol concentration
(EEAC) is always lower than the alveolar alcohol
concentration (AAC). As more volume is exhaled the
BrAC continues to increase. It has recently been shown
that EEAC is less than AAC due to the exchange of
alcohol in the airways during both inspiration and
expiration.2,3,8
Earlier studies have examined the assumption of
equality between end-exhaled and AAC by comparing
ABT values with blood measurements and found a
considerable amount of variation in the ratio of EEAC
to BAC. For further evidence regarding the lack of
end-exhaled and alveolar equality, two studies10,13
have shown that EEAC is approximately 15–20%
lower than AAC on average (obtained using isothermal
rebreathing). The explanation for this variation
has been discussed before.2,8 The physiological
importance of the discrepancy between EEAC and
AAC are the subject of this study.
Two recent studies have demonstrated a relationship
between the blood:breath2 ratio (BBR) for alcohol and
body weight14 or gender11 in normal subjects. Thus, it
may be possible that the BBR for alcohol is dependent
on physiological or anatomic differences among individual
subjects.9 One anatomical feature, lung size,
depends on body size, age, gender and ethnicity.
When an ABT is performed, subjects are not
required to control either the volume inhaled or the
Address correspondence to Michael P. Hlastala, Division of
Pulmonary and Critical Care Medicine, University of Washington,
Box 356522, Seattle, WA 98195-6522, USA. Electronic mail: hlastala@
u.washington.edu
1 A list of abbreviations used in this paper is shown in Table 1.
2 The blood:breath ratio is equal to the ratio of end-exhaled alcohol
concentration divided by blood alcohol concentration (EEAC/BAC).
Annals of Biomedical Engineering ( 2006)
DOI: 10.1007/s10439-006-9216-3
2006 Biomedical Engineering Society
volume exhaled. Under normal resting conditions, a
subject inhales and exhales a tidal volume (VT)
beginning from a functional residual capacity (FRC)
(Fig. 2). When administering an ABT, the subject is
asked to inhale ambient air and exhale into the breath
test instrument as far as possible. Although the subject
is asked to take a full inhalation, he/she is not required
to inhale to total lung capacity (TLC). Because it takes
some effort to inhale from FRC to TLC, a volume
known as inspiratory capacity (IC), it is most likely
that a subject’s lung size is less than TLC at the time
exhalation is initiated (gray line in Fig. 2). Some subjects
may exhale after inhaling only a very small volume.
The expiratory volume also varies naturally
between tests. To obtain a valid ABT, a subject can
exhale any amount between the minimum exhaled
volume required by the particular breath test instrument
(usually either 1.1 or 1.5 l)5 and the maximum
exhaled volume of the lungs, which is limited by the
vital capacity (VC), the difference between TLC and
residual volume (RV). The exhaled volume depends on
the mechanical limitations of the lungs and the relative
effort of the subject, which may vary from time to
time. For the calculations below, we assume that an
average exhaled volume is the average of the minimum
volume and the VC.
Lung volume varies substantially among individual
human subjects (both normal and with lung disease). In
1991, the American Thoracic Society (ATS) compiled
data from three international societies (the ATS, the
European Community for Coal and Steel, and the
European Society for Clinical Respiratory Research)
and published a summary document of lung volumes in
normal, non-smoking, human subjects for clinical use
in interpretation of pulmonary function tests.1 Collectively,
the summary of data (Table 2) shows that, in
adults, lung volumes increases with body height and
decreases with age. Lung volumes are smaller in African
Americans, both males and females, than their Caucasian
height-, age-, and gender- matched counterparts.
For either racial group, females have smaller vital
capacities than males. Because individuals with smaller
lung size must exhale a greater fraction of their lung
volume to fulfill any minimum volume requirement for
a valid sample, we reasoned that a subject with a smaller
lung volume would exhale farther along the increasing
exhaled partial pressure profile before an end-exhaled
sample is taken (see Fig. 3). Consequently, the alcohol
breath test would tend to overpredict the BAC for
individuals with small lung volumes.
We use a mathematical model2 to explore the
dependence of BrAC on lung size (a function of height,
age, gender, and race), inspiratory volume, and expiratory
volume. We hypothesize that BBR will depend
on the subject physical characteristics as well as the
level of cooperation.
FIGURE 2. Lung volume tracing for a single exhalation
maneuver. A subject breathes tidal volumes (VT) at functional
residual capacity (FRC) and then expands his lungs to total
lung capacity (TLC) by inhaling a volume equal to the inspiratory
capacity (IC). The subject exhales his vital capacity (VC)
at a constant flow rate, which causes his lung volume to
approach residual volume (RV). The gray tracing shows the
lung volume dimensions if the subject only inhales 50% of IC
during the prolonged inhalation.
BrAC
AAC
0.2
0.4
0.6
0.8
1.0
I
III
II
0 1 3 4 5
Exhaled Volume (Liters)
0.0
2
FIGURE 1. Exhaled ethanol concentration, normalized by
alveolar alcohol concentration, over a full exhalation at a
constant flow (From4).
TABLE 1. Glossary of abbreviations.
AAC Alveolar alcohol concentration
ABT Alcohol breath test
ATS American Thoracic Society
BAC Blood alcohol concentration
BBR Blood:breath ratio
BrAC Breath alcohol concentration
EEAC End-exhaled alcohol concentration
FRC Functional residual capacity
IC Inspiratory capacity
RR Respiratory rate
RV Residual volume
TLC Total lung capacity
VC Vital capacity
VI Volume of inspiration
VT Tidal volume
M.P. HLASTALA AND J.C. ANDERSON
METHODS
Mathematical Model
A detailed description of the model has been published
previously.2,4,15 Only the essential features will
be described here. The airway tree has a symmetric
bifurcating structure through 18 generations. The
respiratory bronchioles and alveoli are lumped
together into a single well-mixed alveolar unit. Axially,
the airways are divided into 480 control volumes.
TABLE 2. Predicted forced vital capacity for healthy, Non-smoking subjects: Caucasian and African American, male and female.
Predicted vital capacity (l)
Caucasian African-American
Height (in) Height (m) Age (Year) Male Female Male Female
51 1.30 20 2.587 2.137 2.866 2.244
51 1.30 40 2.195 1.721 2.430 1.810
51 1.30 60 1.803 1.305 1.994 1.376
55 1.40 20 3.178 2.560 3.191 2.541
55 1.40 40 2.786 2.144 2.755 2.107
55 1.40 60 2.394 1.728 2.319 1.673
59 1.50 20 3.770 2.984 3.517 2.838
59 1.50 40 3.378 2.568 3.081 2.404
59 1.50 60 2.986 2.152 2.645 1.970
63 1.60 20 4.361 3.407 3.842 3.135
63 1.60 40 3.969 2.991 3.406 2.701
63 1.60 60 3.577 2.575 2.970 2.267
67 1.70 20 4.952 3.830 4.167 3.432
67 1.70 40 4.560 3.414 3.731 2.998
67 1.70 60 4.168 2.998 3.295 2.564
71 1.80 20 5.544 4.254 4.493 3.729
71 1.80 40 5.152 3.838 4.057 3.295
71 1.80 60 4.760 3.422 3.621 2.861
75 1.90 20 6.135 4.677 4.818 4.026
75 1.90 40 5.743 4.261 4.382 3.592
75 1.90 60 5.351 3.845 3.946 3.158
79 2.00 20 6.727 5.100 5.144 4.323
79 2.00 40 6.335 4.684 4.708 3.889
79 2.00 60 5.943 4.268 4.272 3.455
FIGURE 3. Effect of lung size (as represented by vital capacity) on the exhalation profile. At a given exhaled volume (e.g., 1.5 l),
BrAC/AAC is inversely related to lung size. The model simulated a lung performing an IC inhalation (IC = 0.75 Æ VC) and a VC
exhalation at a rate of 200 ml s)1. The horizontal solid bars indicate the end-exhaled normalized BrAC at an average exhaled
volume. The relative average end-exhaled breath to alveolar concentration ratios are 0.767, 0.722 and 0.705 for subject vital
capacities of 2.0, 4.0, and 6.0 l, respectively.
Single-Exhalation Alcohol Breath Test
Radially, the airways are divided into six concentric
layers: (1) the airway lumen, (2) a thin mucous layer,
(3) connective tissue (epithelium and mucosal tissue),
(4) the bronchial circulation, (5) the adventitia, and (6)
the pulmonary circulation. Functionally, the upper
respiratory tract and cartilaginous airways (generation<
10) only have the first four layers. Within each
radial layer, concentration and temperature values are
bulk averages for the entire layer. Mass and energy are
transported between lumenal control volumes by bulk
convection and axial diffusion. Radial transport
between the gas phase and mucous layer is described
with heat and mass transfer coefficients. Radial
transport of water and soluble gas between concentric
layers occurs via filtration (from bronchial circulation
to mucus) and diffusion (Fick’s law). In the alveolar
unit, the concentration of soluble gas is allowed to vary
with time and depends on the pulmonary blood flow,
ventilation, blood solubility, and concentration of
soluble gas in the incoming blood as described by a
mass balance on the alveolar compartment.
Because airway volume increases with increasing
lung size, the lengths and diameter of the intraparenchymal
airways were scaled to ensure the ratio of the
airway volume to the VC was constant. Since the VC
of the Weibel lung model is 5000 ml, these dimensions
were scaled by the factor (VC/5000)1/3. None of
these airway dimensions changed dynamically during
the breathing cycle. The dimensions of the airway wall
compartments were calculated using data and a
method outlined previously.2
Mass and energy balances around a control volume
produce three partial-differential in time, t, and space,
z and nine ordinary differential equations. The equations
are solved simultaneously for the following 12
dependent variables: the mole fraction of soluble gas in
the air, mucous, connective tissue, bronchial bed, and
adventitial tissue layers; the temperature of the air,
mucous, connective tissue, bronchial bed, and adventitial
tissue layers; the mole fraction of water in the air;
and the mucous thickness. The 12 differential equations
are solved numerically using previously published
boundary conditions.2 The spatial derivatives are
approximated by upwind finite difference while the
time derivatives are solved using LSODE, an integrating
software package developed by Hindmarsh.7
Computer Simulations
Before an ABT was simulated, the model first must
reach breath-to-breath steady-state conditions. The
temperature, water concentrations, and ethanol concentrations
within the mathematical model were
brought to steady-state conditions by simulating tidal
breathing at FRC. A respiratory rate of 12 br min)1, a
sinusoidal flow waveform, and a tidal volume equal to
10% of VC were used for the case study (Table 2). For
the parameter study, tidal volume was varied between
200 and 600 ml in 100 ml increments. The inspired air
temperature and relative humidity were set to 23C
and 50%, respectively. The bronchial blood flow rate
was set to 1 ml s)1. The concentration of ethanol in the
pulmonary arterial blood was constant and equal to
0.10 g dl)1 of blood. Steady-state conditions were
reached when the end-exhaled water and ethanol
concentrations changed by less than 0.1% between
breaths. Then, the model simulated a single inhalation
of a volume equal to or a fraction of IC, the volume
from FRC to TLC, at a constant rate of 1500 ml s)1.
Inspiratory capacity was approximated to be 75% of
the VC.6 Then, the model simulated a prolonged
exhalation; the lung was emptied at a rate of
200 ml s)1 until the lung volume reached RV.
RESULTS
For highly soluble gas like ethyl alcohol, exhaled
concentration continues to increase with continued
exhalation due to airway gas exchange. An example of
an exhaled ethyl alcohol profile is shown in Fig. 1. In
this example, a male subject with a BAC 0.09 g/dl
inhaled quickly to TLC, exhaled at a constant flow
rate, and stopped exhalation at RV.4 Several different
expiratory profiles for the same subject are shown.
During exhalation at a constant exhaled flow rate, the
exhaled ethanol concentration rises continuously during
the final phase (phase III) of the ethanol profile.
When the subject stops exhalation (either due to
reaching RV or simply because the subject chooses to
stop), the alcohol concentration plotted against time
levels off because exhalation has stopped and no new
air enters the breath test machine.8 At this time, a
sample is taken and assumed to be ‘‘alveolar’’ in nature.
However, any breath sample is ‘‘always’’ lower in
alcohol concentration than AAC. The classical interpretation
assumes that the EEAC is related to the BAC
with an average BBR of 2100. This factor neglects the
exchange of alcohol with the airways of the lungs and
any variability in this ratio among individuals.
From the model’s predictions of exhaled ethanol
profiles from human subjects,4 we can describe the
mechanisms underlying ethanol exchange in the airways.
As fresh air is inhaled, it absorbs ethanol from
the mucous layer, thereby depleting the ethanol concentration
in the airway wall. Because of the small
bronchial blood flow (Qbr) and the significant diffusion
barrier between the bronchial circulation and mucous
layer, the mucus is not replenished with ethanol before
M.P. HLASTALA AND J.C. ANDERSON
exhalation begins. During exhalation, respired air
encounters a lower concentration of ethanol in the
mucus and, therefore, a large driving force for the
deposition of ethanol onto the mucus. This large airto-
mucus gradient promotes recovery of ethanol by the
mucous layer, decreases the ethanol concentration in
the air, and delays the rise in ethanol concentration at
the mouth. A large (small) air-to-mucus gradient causes
a slowly (rapidly) increasing phase III slope. These
absorption–desorption phenomena decrease the ethanol
concentration leaving the lung (relative to the
alveolar concentration) throughout exhalation and
are the major mechanisms of pulmonary ethanol
exchange.
The mathematical model simulated the effect of lung
size on the exhalation profile (Fig. 3). After a steadystate
was reached during tidal breathing (RR = 12 br
min)1 and VT = 400 ml), the model simulated a full
inhalation from FRC to TLC and then a constant
(200 ml s)1) exhalation to RV. These conditions were
simulated in five lung sizes as represented by the VC
that varied from 2 l to 6 l. The normalized BrAC after
a maximum exhalation (to RV) was 0.79 for all five
lung sizes and appears to be unaffected by lung size
(i.e., VC). However, many times subjects do not exhale
their entire VC and, in addition, most alcohol breathtesting
instruments only require a minimum exhaled
volume (e.g., 1.5 l) before a breath test is acceptable.
We examined the normalized BrAC in Fig. 3 after 1.5 l
of air had been exhaled from lungs of different sizes:
small (VC = 2 l), medium (VC = 4 l) and large
(VC = 6 l). The normalized BrAC was 0.74, 0.61, and
0.55, respectively. At this exhaled volume, the ratio of
change in normalized BrAC to change in lung size is
)0.048 l)1. Additionally, we examined how lung size
affected the normalized BrAC (Fig. 3) after an average
exhalation. We assumed that, on average, an individual
would exhale a volume that is the mean of the
minimum (1.5 l) and maximum (VC) volume. Thus,
for an individual with VC = 6 l, an average exhaled
volume (after an IC inhalation) is 3.75 l and results in a
normalized BrAC of 0.705. Subjects with smaller lung
size, 4 and 2 l, and providing an average exhalation
have normalized BrAC of 0.722 and 0.767, respectively.
For an average exhalation, individuals with
smaller lung size provide BrAC samples that are
greater than those with larger lung size because of the
minimum exhalation volume requirement in combination
with the mechanics of airway gas exchange. The
effect of lung size on this average BrAC is )0.015 l)1.
Thus, a one liter increase in VC decreases the normalized
BrAC at this average volume by 0.015.
The minimum, average, and maximum BrAC values
for subjects with different vital capacities are shown in
Fig. 4. Results are shown for vital capacities varying
between 2.0 and 7.0 l and for an inspiration of a full
IC. As lung VC increases, the average BrAC decreases.
For lungs with vital capacities less than 2.0 l, it is often
difficult for the subject to fulfill the mininum 1.5 l
minimum exhalation volume.
We simulated the effect of inspiratory volume on the
exhalation profile for a given lung size (Fig. 5). Once a
periodic steady-state was achieved (VT = 400 ml), the
model simulated an inhalation from FRC. The inhaled
volume depended on the simulation. For a maximum
IC inhalation, the inhaled volume was assumed to be
0.75ÆVC. Smaller inhaled volumes of 66%, 33%, and
10% of IC were simulated. After inhalation, a constant
(200 ml s)1) exhalation to RV was simulated. Figure 5
shows the effect of inhaled volume on normalized
BrAC from three lungs of varying size, VC = 2 l
(panel A), 4 l (panel B) and 6 l (panel C). For every VC
studied, a decrease in inhaled volume causes: (1) an
increase in normalized BrAC at a given exhaled volume;
(2) an increase in the normalized BrAC from a
minimum (1.5 l) and average exhalation; and (3) a
decrease in the normalized BrAC after a maximum
exhalation to RV. Specifically, a decrease in inspired
volume in a lung with VC = 4 l causes the normalized
BrAC after a minimum exhalation to increase by
0.048 l)1, the normalized BrAC after an average
exhalation to increase 0.004 l)1, and the normalized
BrAC after a maximum exhalation to decrease
0.022 l)1. These rates of change of normalized BrAC
per inspired volume are a function of VC. A two liter
increase (decrease) in VC causes these rates to decrease
(increase) by 15%. As compared with individuals with
small VC, subjects with large VC can choose from
more possible inspired volumes that will result in a
minimum exhaled volume and an acceptable breath
test. We examined the effect of tidal volume on BrAC
and found that a 100 ml increase in tidal volume
FIGURE 4. The relationship between normalized breath
alcohol concentration and lung size (based on vital capacity)
are shown for IC inhalations followed by different exhaled
volumes: maximum (VC), average and minimum (1.5 l). See
text for definitions.
Single-Exhalation Alcohol Breath Test
decreased all three measures (minimum, average, and
maximum exhalation) of normalized BrAC by 0.01.
The variation of lung volume among individuals of
differing gender, body height and age are shown in
Table 2. Typical values are presented in Table 2 for
normal Caucasian and African American male and
female adults. Lung volumes are greater in equally sized
and aged males compared with females, in Caucasians
FIGURE 5. Effect of inspiratory volume on the exhalation profile for a given lung size. At a given exhaled volume (e.g., 1.5 l),
BrAC/AAC is inversely related to volume of gas inhaled (VI). The model simulated a lung inhaling a volume, VI, from FRC and
exhaling to RV at a rate of 200 ml s)1. VC represents lung size. For each panel, VC is 2 l (panel A), 4 l (panel B), and 6 l (panel C).
M.P. HLASTALA AND J.C. ANDERSON
compared with African Americans and in younger
adults compared with older adults. Table 3 shows the
predicted BrAC normalized by AAC taken from Fig. 4.
The predictions of the mathematical model show a
greater BrAC (relative to AAC) in all cases comparing a
smaller lung volume with a larger lung volume.
DISCUSSION
Alcohol breath testing-instruments require a minimum
exhaled volume before a breath sample is taken
at the end of an exhalation. For a subject with a small
lung size, a greater fraction of the VC must be exhaled
before the sample criteria are fulfilled. Most breath test
instruments require a minimum exhalation pressure (or
flow) for a minimal duration of time (4–6 s and a
minimal exhalation volume (between 1.1 l and 1.5 l).
For our calculations, we chose 1.5 l as the minimum
exhaled volume. Once the minimum criteria are fulfilled,
a sample will be taken when the change in
exhaled alcohol partial pressure levels off (always
achievable when the exhaled flow is stopped). For a
subject with a VC of 6 l using a BAC Verifier Datamaster
(minimum volume is 1.5 l), a sample can be
obtained any where between 1.5 and 6.0 l of exhalation
because the subject may choose to stop exhalation any
where between 1.5 l and VC. For a subject with a VC
of 2 l, a sample can be obtained using a BAC Verifier
Datamaster anywhere between 1.5 and 2.0 l of exhalation.
A subject with a small lung size will proceed
further up the increasing BrAC exhaled profile before a
sample is taken (Fig. 3).
One of the fundamental assumptions of the ABT is
that during exhalation, the BrAC continues to increase
until alveolar air reaches the mouth. At this point the
BrAC levels off. This observation has been assumed to
indicate that EEAC is equal to AAC. However, breath
alcohol always increases during exhalation as air
moves out of the mouth,4 never reaching AAC. The
flatness of the slope of the exhaled alcohol profile
simply means that exhalation has stopped. It is not an
indication of alveolar air. Additional support of this
idea follows from two studies using isothermal rebreathing
in human subjects,10,13 which showed that
EEAC (with a single-exhalation maneuver) is always
less than AAC. The difference, on average, is
approximately 15%8 and consistent with the ideas
described in this paper. Individuals with smaller lung
size are predicted to have a smaller difference between
EEAC and AAC such that an individual with a smaller
lung size, would have an ABT that is greater than an
individual with a larger lung size.
The major thesis of this paper is that lung size and
breathing pattern influence the BrAC reading determined
with a breath-testing instrument. Figure 3
shows exhaled alcohol profiles for subjects taking a full
inspiration followed by a full expiration. For each lung
size (represented by VC), the end exhaled BrAC is the
same. In other words, if a subject takes a full inspiration
followed by a full exhalation, there would be no
size dependence. If these subjects were to exhale just to
the minimum volume requirement (1.5 l), the greatest
discrepancy is predicted between subjects with differing
lung size. Every thing else being equal (including
BAC), the subject with the smallest lung size would
TABLE 3. Relative BrAC comparisons.
Predicted VC (l) BrAC/AAC
Min Avg Max
55’’ vs. 75’’ – Male 40 Years
55’’ Male – 40 Years 2.786 0.681 0.747 0.794
75’’ Male – 40 Years 5.743 0.509 0.675 0.770
BrAC Ratio of small to large volume 1.34 1.11 1.03
67’’ Female vs. 67’’ Male – 40 Years
67’’ Female – 40 Years 3.414 0.629 0.723 0.785
67’’ Male – 40 Years 4.560 0.560 0.696 0.776
BrAC Ratio of small to large volume 1.12 1.04 1.01
67’’ AA Male vs. 67’’ Caucasian Male – 40 Years
67’’ AA Male – 40 Years 3.731 0.607 0.714 0.782
67’’ Caucasian Male – 40 Years 4.560 0.560 0.696 0.776
BrAC Ratio of small to large volume 1.08 1.03 1.01
75’’ Male – 60 Years vs. 20 Years
75’’ Male – 60 Years 5.544 0.516 0.678 0.771
75’’ Male – 20 Years 6.351 0.487 0.667 0.767
BrAC Ratio of small to large volume 1.06 1.02 1.00
Single-Exhalation Alcohol Breath Test
have the greatest BrAC. Table 3 summarizes this effect
by comparing the relative ratio of BrAC between two
hypothetical subjects that differ in height, gender, race,
or age. Comparing a male and female of the same
height, the female has a minimum exhalation BrAC
that is approximately 12% greater than the male.
Comparing a 55-inch tall male with a 75-inch tall male,
at minimum exhalation, the smaller male has a 34%
greater BrAC than the taller male. With a minimum
exhalation, the overestimate for the smaller lung individual
is substantial.
On the average, a subject with a valid breath test can
exhale to any point between the minimum volume and
the maximum exhalation. When the subject stops
exhaling, new breath is no longer being delivered for
analysis. Therefore, the BrAC levels off when plotted
against time. An average of the different exhalation
volumes would be approximately equal to the mean of
the volumes exhaled at 1.5 l and the maximum exhalation.
For hypothetical subjects that differ in either
their height, gender, race or age, the ratios of average
BrAC between matched subjects are shown in Column
4 of Table 3. Comparing a 67-inch tall 40-year-old
male and with a female of the same height and age, the
female has an average exhaled BrAC that is approximately
4% greater than the male. Comparing a 55-inch
tall 40-year-old male with a 75-inch tall 40-year-old
male, at average exhalation, the smaller male has an
11% greater BrAC than the taller male. Comparing a
67-inch tall 40-year-old African American male with a
67-inch tall 40-year-old Caucasian male, at average
exhalation, the African American male has a 3%
greater BrAC than the Caucasian male. Comparing a
75-inch tall 20-year-old Caucasian male with a 75-inch
tall 60-year-old Caucasian male, at average exhalation,
the African American male has a 2% greater BrAC
than the Caucasian male. With an average exhalation,
the bias for the smaller lung individual is less than the
bias predicted for the minimum exhalation. The largest
discrepancy is related to body height because of the
greatest difference in relative lung size.
The mechanism of airway gas exchange has been
described briefly above and used to explain how ethanol
exchanges in the lung.2–4 Based on this mechanism
of ethanol exchange, the effect of changes in
inspired volume on BrAC can be understood. A small
inhaled volume will reduce the ethanol concentration
in the airway mucus and tissue layers to a lesser extent
than a large inhaled volume. During exhalation, the
former case will have a smaller air-to-mucus gradient
than the latter case. A smaller gradient causes less
ethanol to be deposited to the airway surface and, as a
result, the BrAC rises more rapidly when the inhaled
volume is small than when it is large (Fig. 5). The
maximum BrAC/AAC depends on the ratio of inspiratory-
to-expiratory time, but because the flow rates
are prescribed, inhaled volumes are defined by percent
of VC and exhalation always proceeds to RV, the
maximum BrAC/AAC only depends on inhaled volume
(VI) as shown in Fig. 5.
The ability to fulfill the minimum exhalation criteria
for a breath test instrument is limited by individuals
with smaller lungs and less than full inhalations. Figure
5 illustrates the combined impact lung size and
inspiratory volume have on the ability to provide a
minimum sample volume. As the size of the individual’s
lungs decrease, it becomes more important to
inspire a greater volume before exhalation. This finding
is consistent with the observations of Jones and
Andersson12 showing the probability of failing to
provide a minimum sample is greater in females than
males. Both genders show an increased in the probability
of an insufficient sample with increasing age.
There are two recent studies that can be used to
compare with our model predictions. Ska˚ le et al.14 and
Jones and Andersson11 determined the blood–breath
ratio (or partition ratio) for several subjects (male and
female) with varying heights, ages and body weight.
Jones studied 9 male and 9 female subjects and found
average BBRs of 2553±576 for males and 2417±494
for females. Although not statistically significant, the
trend agrees with our predictions. The ratio of females
to males is 1.056. The smaller lung size females had a
5.6% greater BrAC than the males. Ska˚ le et al. studied
9 male and 15 female subjects and found that the
blood–breath ratio was dependent on body weight.
The average BBR for subjects with body weights of
50–70 kg was approximately 2250 while the BBR for
subjects with body weights of 90–100 kg was approximately
2476. The ratio is 1.10. The BrAC for the
smaller subjects was 10% greater than the larger
subjects. Neither of these two papers measured lung
VC as this was not part of their hypotheses. So we
cannot directly compare our data. However the trends
are consistent with the hypothesis put forward in this
paper that individuals with smaller lung size have
greater BrAC in comparison to the BAC3 .
The present hypothesis is consistent with published
data and with the mechanisms of pulmonary gas exchange.
We encourage future investigators to include
3 The Blood–Breath Ratio (BBR) is a commonly used term in
forensic science. Because alcohol is a very highly soluble gas, the
ratio of concentration in the blood normalized by that in the breath
is a very large number (typically around 2000). For a given Blood
Alcohol Concentration (BAC), the Breath Alcohol Concentration
(BrAC) is about 1/2000 x BAC. With smaller lung volumes, the
BrAC is greater, hence the BBR (= BAC/BrAC) is lesser. In one
case the BrAC is in the numerator (BrAC/AAC). In the other case,
the BrAC is in the denominator. So a greater BBR is the same as a
lesser BrAC/AAC.
M.P. HLASTALA AND J.C. ANDERSON
the measurement of lung VC with the measurements
of BBR in order to provide data to test our
hypothesis. Surely, if there is anatomically dependent
variation in the alcohol breath test, it is important to
make corrections for the bias of the test. Once these
data are obtained, several possible alternative solutions
can be used: appropriate corrections to the
BrAC values can be made; adjustable legal limits can
be used for individuals of differing lung size; or rebreathing
can be used to obtain a better sample of
AAC.
In conclusion, alcohol exchanges between the respired
air and the airway tissue during both inspiration
and expiration. This airway gas exchange causes the
exhaled alcohol concentration to always be less than
the AAC. A consequence of this airway exchange is
that BrAC depends on lung size and the amount of
effort provided by the subject.
ACKNOWLEDGMENTS
This work was supported, in part, by National
Institute for Biomedical Imaging and Bioengineering
Grant T32 EB001650 and by National Heart, Lung,
and Blood Institute Grants HL24163 and HL073598.
REFERENCES
1American Thoracic Society. Lung function testing: Selection
of reference values and interpretative strategies. Am.
Rev. Respir. Dis. 144:1202–1218, 1991.
2Anderson, J. C., A. L. Babb, and M. P. Hlastala. Modeling
soluble gas exchange in the airways and alveoli. Ann.
Biomed. Eng. 31:1402–1422, 2003.
3Anderson, J. C. and M. P. Hlastala. Breath tests and airway
gas exchange. Pulm. Pharmacol. Ther. in press, 2006.
4George, S. C., A. L. Babb, and M. P. Hlastala. Dynamics
of soluble gas exchange in the airways. III. Single-exhalation
breathing maneuver. J. Appl. Physiol. 75:2439–2449,
1993.
5Harding, P. Methods for breath analysis. In: Medical–Legal
Aspects of Alcohol (4th ed.), edited by Garriott J. C.
Tucson: Lawyers & Judges Publishing Co., 2003, pp. 185–
211.
6Hildebrandt, J. Structural and mechanical aspects of respiration.
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D., Fuchs A. F., Hille B., Scher A. M., and Steiner R.
Philadelphia: W.B. Saunders Co., 1989, pp. 991–1011.
7Hindmarsh, A. LSODE (computer software). Laurence
Livermore Laboratory, Livermore, CA.
8Hlastala, M. P. The alcohol breath test – a review. J. Appl.
Physiol. 84:401–408, 1998.
9Hlastala, M. P. Invited editorial on ‘‘the alcohol breath
test’’. J. Appl. Physiol. 93:405–406, 2002.
10Jones, A. W. Role of rebreathing in determination of the
blood–breath ratio of expired ethanol. J. Appl. Physiol.
55:1237–1241, 1983.
11Jones, A. W. and L. Andersson. Comparison of ethanol
concentrations in venous blood and end-expired breath
during a controlled drinking study. Forensic Sci. Int.
132:18–25, 2003.
12Jones, A. W. and L. Andersson. Variability of the blood/
breath alcohol ratio in drinking drivers. J. Forensic. Sci.
41:916–921, 1996.
13Ohlsson, J., D. D. Ralph, M. A. Mandelkorn, A. L. Babb,
and M. P. Hlastala. Accurate measurement of blood alcohol
concentration with isothermal rebreathing. J. Stud.
Alcohol 51:6–13, 1990.
14Ska˚ le, A. G., L. Slørdal, G. Wethe, and J. Mørland. Blood/
breath ratio at low alcohol levels: A controlled study. Ann.
Toxicol. Analytique. XIV:41.
15Tsu, M. E., A. L. Babb, D. D. Ralph, and M. P. Hlastala.
Dynamics of heat, water, and soluble gas exchange in the
human airways: 1. A model study. Ann. Biomed. Eng.
16:547–571, 1988.
Test
MICHAEL P. HLASTALA
1,2,3 and JOSEPH C. ANDERSON4
1Department of Physiology and Biophysics, University of Washington, Box 356522, Seattle, WA 98195-6522, USA; 2Department
of Medicine, University of Washington, Box 356522, Seattle, WA 98195-6522, USA; 3Division of Pulmonary and Critical Care
Medicine, University of Washington, Box 356522, Seattle, WA 98195-6522, USA; and 4Department of Bioengineering,
University of Washington, Seattle, WA 98195-5061, USA
(Received 21 March 2006; accepted 29 September 2006)
Abstract—Highly soluble gases exchange primarily with the
bronchial circulation through pulmonary airway tissue.
Because of this airway exchange, the assumption that
end-exhaled alcohol concentration (EEAC) is equal to
alveolar alcohol concentration (AAC) cannot be true.
During exhalation, breath alcohol concentration (BrAC)
decreases due to uptake of ethanol by the airway tissue. It
is therefore impossible to deliver alveolar gas to the mouth
during a single exhalation without losing alcohol to the
airway mucosa. A consequence of airway alcohol exchange
is that EEAC is always less than AAC. In this study, we
use a mathematical model of the human lung to determine
the influence of subject lung size on the relative reduction
of BrAC from AAC. We find that failure to inspire a
full inspiration reduces the BrAC at full exhalation, but
increases the BrAC at minimum exhalation. In addition, a
reduced inhaled volume and can lead to an inability to
provide an adequate breath volume. We conclude that
alcohol exchange with the airways during the singleexhalation
breath test is dependent on lung size of the
subject with a bias against subjects with smaller lung
size.
Keywords—Ethyl alcohol, Ethanol, Bronchial circulation,
Airway gas exchange.
INTRODUCTION
An assumption used in the development of the
alcohol breath test (ABT) is that the ethanol concentration
in the last part of the exhaled breath is equal to
that in the alveolar gas. This long-held assumption is
the basis for justifying the ABT1 as an accurate
measure of blood alcohol concentration (BAC).
However, under normal circumstances, a singleexhalation
alcohol breath test shows a gradually and
continually increasing breath alcohol concentration
(BrAC) if the subject exhales at a constant rate
(Fig. 1). The end-exhaled alcohol concentration
(EEAC) is always lower than the alveolar alcohol
concentration (AAC). As more volume is exhaled the
BrAC continues to increase. It has recently been shown
that EEAC is less than AAC due to the exchange of
alcohol in the airways during both inspiration and
expiration.2,3,8
Earlier studies have examined the assumption of
equality between end-exhaled and AAC by comparing
ABT values with blood measurements and found a
considerable amount of variation in the ratio of EEAC
to BAC. For further evidence regarding the lack of
end-exhaled and alveolar equality, two studies10,13
have shown that EEAC is approximately 15–20%
lower than AAC on average (obtained using isothermal
rebreathing). The explanation for this variation
has been discussed before.2,8 The physiological
importance of the discrepancy between EEAC and
AAC are the subject of this study.
Two recent studies have demonstrated a relationship
between the blood:breath2 ratio (BBR) for alcohol and
body weight14 or gender11 in normal subjects. Thus, it
may be possible that the BBR for alcohol is dependent
on physiological or anatomic differences among individual
subjects.9 One anatomical feature, lung size,
depends on body size, age, gender and ethnicity.
When an ABT is performed, subjects are not
required to control either the volume inhaled or the
Address correspondence to Michael P. Hlastala, Division of
Pulmonary and Critical Care Medicine, University of Washington,
Box 356522, Seattle, WA 98195-6522, USA. Electronic mail: hlastala@
u.washington.edu
1 A list of abbreviations used in this paper is shown in Table 1.
2 The blood:breath ratio is equal to the ratio of end-exhaled alcohol
concentration divided by blood alcohol concentration (EEAC/BAC).
Annals of Biomedical Engineering ( 2006)
DOI: 10.1007/s10439-006-9216-3
2006 Biomedical Engineering Society
volume exhaled. Under normal resting conditions, a
subject inhales and exhales a tidal volume (VT)
beginning from a functional residual capacity (FRC)
(Fig. 2). When administering an ABT, the subject is
asked to inhale ambient air and exhale into the breath
test instrument as far as possible. Although the subject
is asked to take a full inhalation, he/she is not required
to inhale to total lung capacity (TLC). Because it takes
some effort to inhale from FRC to TLC, a volume
known as inspiratory capacity (IC), it is most likely
that a subject’s lung size is less than TLC at the time
exhalation is initiated (gray line in Fig. 2). Some subjects
may exhale after inhaling only a very small volume.
The expiratory volume also varies naturally
between tests. To obtain a valid ABT, a subject can
exhale any amount between the minimum exhaled
volume required by the particular breath test instrument
(usually either 1.1 or 1.5 l)5 and the maximum
exhaled volume of the lungs, which is limited by the
vital capacity (VC), the difference between TLC and
residual volume (RV). The exhaled volume depends on
the mechanical limitations of the lungs and the relative
effort of the subject, which may vary from time to
time. For the calculations below, we assume that an
average exhaled volume is the average of the minimum
volume and the VC.
Lung volume varies substantially among individual
human subjects (both normal and with lung disease). In
1991, the American Thoracic Society (ATS) compiled
data from three international societies (the ATS, the
European Community for Coal and Steel, and the
European Society for Clinical Respiratory Research)
and published a summary document of lung volumes in
normal, non-smoking, human subjects for clinical use
in interpretation of pulmonary function tests.1 Collectively,
the summary of data (Table 2) shows that, in
adults, lung volumes increases with body height and
decreases with age. Lung volumes are smaller in African
Americans, both males and females, than their Caucasian
height-, age-, and gender- matched counterparts.
For either racial group, females have smaller vital
capacities than males. Because individuals with smaller
lung size must exhale a greater fraction of their lung
volume to fulfill any minimum volume requirement for
a valid sample, we reasoned that a subject with a smaller
lung volume would exhale farther along the increasing
exhaled partial pressure profile before an end-exhaled
sample is taken (see Fig. 3). Consequently, the alcohol
breath test would tend to overpredict the BAC for
individuals with small lung volumes.
We use a mathematical model2 to explore the
dependence of BrAC on lung size (a function of height,
age, gender, and race), inspiratory volume, and expiratory
volume. We hypothesize that BBR will depend
on the subject physical characteristics as well as the
level of cooperation.
FIGURE 2. Lung volume tracing for a single exhalation
maneuver. A subject breathes tidal volumes (VT) at functional
residual capacity (FRC) and then expands his lungs to total
lung capacity (TLC) by inhaling a volume equal to the inspiratory
capacity (IC). The subject exhales his vital capacity (VC)
at a constant flow rate, which causes his lung volume to
approach residual volume (RV). The gray tracing shows the
lung volume dimensions if the subject only inhales 50% of IC
during the prolonged inhalation.
BrAC
AAC
0.2
0.4
0.6
0.8
1.0
I
III
II
0 1 3 4 5
Exhaled Volume (Liters)
0.0
2
FIGURE 1. Exhaled ethanol concentration, normalized by
alveolar alcohol concentration, over a full exhalation at a
constant flow (From4).
TABLE 1. Glossary of abbreviations.
AAC Alveolar alcohol concentration
ABT Alcohol breath test
ATS American Thoracic Society
BAC Blood alcohol concentration
BBR Blood:breath ratio
BrAC Breath alcohol concentration
EEAC End-exhaled alcohol concentration
FRC Functional residual capacity
IC Inspiratory capacity
RR Respiratory rate
RV Residual volume
TLC Total lung capacity
VC Vital capacity
VI Volume of inspiration
VT Tidal volume
M.P. HLASTALA AND J.C. ANDERSON
METHODS
Mathematical Model
A detailed description of the model has been published
previously.2,4,15 Only the essential features will
be described here. The airway tree has a symmetric
bifurcating structure through 18 generations. The
respiratory bronchioles and alveoli are lumped
together into a single well-mixed alveolar unit. Axially,
the airways are divided into 480 control volumes.
TABLE 2. Predicted forced vital capacity for healthy, Non-smoking subjects: Caucasian and African American, male and female.
Predicted vital capacity (l)
Caucasian African-American
Height (in) Height (m) Age (Year) Male Female Male Female
51 1.30 20 2.587 2.137 2.866 2.244
51 1.30 40 2.195 1.721 2.430 1.810
51 1.30 60 1.803 1.305 1.994 1.376
55 1.40 20 3.178 2.560 3.191 2.541
55 1.40 40 2.786 2.144 2.755 2.107
55 1.40 60 2.394 1.728 2.319 1.673
59 1.50 20 3.770 2.984 3.517 2.838
59 1.50 40 3.378 2.568 3.081 2.404
59 1.50 60 2.986 2.152 2.645 1.970
63 1.60 20 4.361 3.407 3.842 3.135
63 1.60 40 3.969 2.991 3.406 2.701
63 1.60 60 3.577 2.575 2.970 2.267
67 1.70 20 4.952 3.830 4.167 3.432
67 1.70 40 4.560 3.414 3.731 2.998
67 1.70 60 4.168 2.998 3.295 2.564
71 1.80 20 5.544 4.254 4.493 3.729
71 1.80 40 5.152 3.838 4.057 3.295
71 1.80 60 4.760 3.422 3.621 2.861
75 1.90 20 6.135 4.677 4.818 4.026
75 1.90 40 5.743 4.261 4.382 3.592
75 1.90 60 5.351 3.845 3.946 3.158
79 2.00 20 6.727 5.100 5.144 4.323
79 2.00 40 6.335 4.684 4.708 3.889
79 2.00 60 5.943 4.268 4.272 3.455
FIGURE 3. Effect of lung size (as represented by vital capacity) on the exhalation profile. At a given exhaled volume (e.g., 1.5 l),
BrAC/AAC is inversely related to lung size. The model simulated a lung performing an IC inhalation (IC = 0.75 Æ VC) and a VC
exhalation at a rate of 200 ml s)1. The horizontal solid bars indicate the end-exhaled normalized BrAC at an average exhaled
volume. The relative average end-exhaled breath to alveolar concentration ratios are 0.767, 0.722 and 0.705 for subject vital
capacities of 2.0, 4.0, and 6.0 l, respectively.
Single-Exhalation Alcohol Breath Test
Radially, the airways are divided into six concentric
layers: (1) the airway lumen, (2) a thin mucous layer,
(3) connective tissue (epithelium and mucosal tissue),
(4) the bronchial circulation, (5) the adventitia, and (6)
the pulmonary circulation. Functionally, the upper
respiratory tract and cartilaginous airways (generation<
10) only have the first four layers. Within each
radial layer, concentration and temperature values are
bulk averages for the entire layer. Mass and energy are
transported between lumenal control volumes by bulk
convection and axial diffusion. Radial transport
between the gas phase and mucous layer is described
with heat and mass transfer coefficients. Radial
transport of water and soluble gas between concentric
layers occurs via filtration (from bronchial circulation
to mucus) and diffusion (Fick’s law). In the alveolar
unit, the concentration of soluble gas is allowed to vary
with time and depends on the pulmonary blood flow,
ventilation, blood solubility, and concentration of
soluble gas in the incoming blood as described by a
mass balance on the alveolar compartment.
Because airway volume increases with increasing
lung size, the lengths and diameter of the intraparenchymal
airways were scaled to ensure the ratio of the
airway volume to the VC was constant. Since the VC
of the Weibel lung model is 5000 ml, these dimensions
were scaled by the factor (VC/5000)1/3. None of
these airway dimensions changed dynamically during
the breathing cycle. The dimensions of the airway wall
compartments were calculated using data and a
method outlined previously.2
Mass and energy balances around a control volume
produce three partial-differential in time, t, and space,
z and nine ordinary differential equations. The equations
are solved simultaneously for the following 12
dependent variables: the mole fraction of soluble gas in
the air, mucous, connective tissue, bronchial bed, and
adventitial tissue layers; the temperature of the air,
mucous, connective tissue, bronchial bed, and adventitial
tissue layers; the mole fraction of water in the air;
and the mucous thickness. The 12 differential equations
are solved numerically using previously published
boundary conditions.2 The spatial derivatives are
approximated by upwind finite difference while the
time derivatives are solved using LSODE, an integrating
software package developed by Hindmarsh.7
Computer Simulations
Before an ABT was simulated, the model first must
reach breath-to-breath steady-state conditions. The
temperature, water concentrations, and ethanol concentrations
within the mathematical model were
brought to steady-state conditions by simulating tidal
breathing at FRC. A respiratory rate of 12 br min)1, a
sinusoidal flow waveform, and a tidal volume equal to
10% of VC were used for the case study (Table 2). For
the parameter study, tidal volume was varied between
200 and 600 ml in 100 ml increments. The inspired air
temperature and relative humidity were set to 23C
and 50%, respectively. The bronchial blood flow rate
was set to 1 ml s)1. The concentration of ethanol in the
pulmonary arterial blood was constant and equal to
0.10 g dl)1 of blood. Steady-state conditions were
reached when the end-exhaled water and ethanol
concentrations changed by less than 0.1% between
breaths. Then, the model simulated a single inhalation
of a volume equal to or a fraction of IC, the volume
from FRC to TLC, at a constant rate of 1500 ml s)1.
Inspiratory capacity was approximated to be 75% of
the VC.6 Then, the model simulated a prolonged
exhalation; the lung was emptied at a rate of
200 ml s)1 until the lung volume reached RV.
RESULTS
For highly soluble gas like ethyl alcohol, exhaled
concentration continues to increase with continued
exhalation due to airway gas exchange. An example of
an exhaled ethyl alcohol profile is shown in Fig. 1. In
this example, a male subject with a BAC 0.09 g/dl
inhaled quickly to TLC, exhaled at a constant flow
rate, and stopped exhalation at RV.4 Several different
expiratory profiles for the same subject are shown.
During exhalation at a constant exhaled flow rate, the
exhaled ethanol concentration rises continuously during
the final phase (phase III) of the ethanol profile.
When the subject stops exhalation (either due to
reaching RV or simply because the subject chooses to
stop), the alcohol concentration plotted against time
levels off because exhalation has stopped and no new
air enters the breath test machine.8 At this time, a
sample is taken and assumed to be ‘‘alveolar’’ in nature.
However, any breath sample is ‘‘always’’ lower in
alcohol concentration than AAC. The classical interpretation
assumes that the EEAC is related to the BAC
with an average BBR of 2100. This factor neglects the
exchange of alcohol with the airways of the lungs and
any variability in this ratio among individuals.
From the model’s predictions of exhaled ethanol
profiles from human subjects,4 we can describe the
mechanisms underlying ethanol exchange in the airways.
As fresh air is inhaled, it absorbs ethanol from
the mucous layer, thereby depleting the ethanol concentration
in the airway wall. Because of the small
bronchial blood flow (Qbr) and the significant diffusion
barrier between the bronchial circulation and mucous
layer, the mucus is not replenished with ethanol before
M.P. HLASTALA AND J.C. ANDERSON
exhalation begins. During exhalation, respired air
encounters a lower concentration of ethanol in the
mucus and, therefore, a large driving force for the
deposition of ethanol onto the mucus. This large airto-
mucus gradient promotes recovery of ethanol by the
mucous layer, decreases the ethanol concentration in
the air, and delays the rise in ethanol concentration at
the mouth. A large (small) air-to-mucus gradient causes
a slowly (rapidly) increasing phase III slope. These
absorption–desorption phenomena decrease the ethanol
concentration leaving the lung (relative to the
alveolar concentration) throughout exhalation and
are the major mechanisms of pulmonary ethanol
exchange.
The mathematical model simulated the effect of lung
size on the exhalation profile (Fig. 3). After a steadystate
was reached during tidal breathing (RR = 12 br
min)1 and VT = 400 ml), the model simulated a full
inhalation from FRC to TLC and then a constant
(200 ml s)1) exhalation to RV. These conditions were
simulated in five lung sizes as represented by the VC
that varied from 2 l to 6 l. The normalized BrAC after
a maximum exhalation (to RV) was 0.79 for all five
lung sizes and appears to be unaffected by lung size
(i.e., VC). However, many times subjects do not exhale
their entire VC and, in addition, most alcohol breathtesting
instruments only require a minimum exhaled
volume (e.g., 1.5 l) before a breath test is acceptable.
We examined the normalized BrAC in Fig. 3 after 1.5 l
of air had been exhaled from lungs of different sizes:
small (VC = 2 l), medium (VC = 4 l) and large
(VC = 6 l). The normalized BrAC was 0.74, 0.61, and
0.55, respectively. At this exhaled volume, the ratio of
change in normalized BrAC to change in lung size is
)0.048 l)1. Additionally, we examined how lung size
affected the normalized BrAC (Fig. 3) after an average
exhalation. We assumed that, on average, an individual
would exhale a volume that is the mean of the
minimum (1.5 l) and maximum (VC) volume. Thus,
for an individual with VC = 6 l, an average exhaled
volume (after an IC inhalation) is 3.75 l and results in a
normalized BrAC of 0.705. Subjects with smaller lung
size, 4 and 2 l, and providing an average exhalation
have normalized BrAC of 0.722 and 0.767, respectively.
For an average exhalation, individuals with
smaller lung size provide BrAC samples that are
greater than those with larger lung size because of the
minimum exhalation volume requirement in combination
with the mechanics of airway gas exchange. The
effect of lung size on this average BrAC is )0.015 l)1.
Thus, a one liter increase in VC decreases the normalized
BrAC at this average volume by 0.015.
The minimum, average, and maximum BrAC values
for subjects with different vital capacities are shown in
Fig. 4. Results are shown for vital capacities varying
between 2.0 and 7.0 l and for an inspiration of a full
IC. As lung VC increases, the average BrAC decreases.
For lungs with vital capacities less than 2.0 l, it is often
difficult for the subject to fulfill the mininum 1.5 l
minimum exhalation volume.
We simulated the effect of inspiratory volume on the
exhalation profile for a given lung size (Fig. 5). Once a
periodic steady-state was achieved (VT = 400 ml), the
model simulated an inhalation from FRC. The inhaled
volume depended on the simulation. For a maximum
IC inhalation, the inhaled volume was assumed to be
0.75ÆVC. Smaller inhaled volumes of 66%, 33%, and
10% of IC were simulated. After inhalation, a constant
(200 ml s)1) exhalation to RV was simulated. Figure 5
shows the effect of inhaled volume on normalized
BrAC from three lungs of varying size, VC = 2 l
(panel A), 4 l (panel B) and 6 l (panel C). For every VC
studied, a decrease in inhaled volume causes: (1) an
increase in normalized BrAC at a given exhaled volume;
(2) an increase in the normalized BrAC from a
minimum (1.5 l) and average exhalation; and (3) a
decrease in the normalized BrAC after a maximum
exhalation to RV. Specifically, a decrease in inspired
volume in a lung with VC = 4 l causes the normalized
BrAC after a minimum exhalation to increase by
0.048 l)1, the normalized BrAC after an average
exhalation to increase 0.004 l)1, and the normalized
BrAC after a maximum exhalation to decrease
0.022 l)1. These rates of change of normalized BrAC
per inspired volume are a function of VC. A two liter
increase (decrease) in VC causes these rates to decrease
(increase) by 15%. As compared with individuals with
small VC, subjects with large VC can choose from
more possible inspired volumes that will result in a
minimum exhaled volume and an acceptable breath
test. We examined the effect of tidal volume on BrAC
and found that a 100 ml increase in tidal volume
FIGURE 4. The relationship between normalized breath
alcohol concentration and lung size (based on vital capacity)
are shown for IC inhalations followed by different exhaled
volumes: maximum (VC), average and minimum (1.5 l). See
text for definitions.
Single-Exhalation Alcohol Breath Test
decreased all three measures (minimum, average, and
maximum exhalation) of normalized BrAC by 0.01.
The variation of lung volume among individuals of
differing gender, body height and age are shown in
Table 2. Typical values are presented in Table 2 for
normal Caucasian and African American male and
female adults. Lung volumes are greater in equally sized
and aged males compared with females, in Caucasians
FIGURE 5. Effect of inspiratory volume on the exhalation profile for a given lung size. At a given exhaled volume (e.g., 1.5 l),
BrAC/AAC is inversely related to volume of gas inhaled (VI). The model simulated a lung inhaling a volume, VI, from FRC and
exhaling to RV at a rate of 200 ml s)1. VC represents lung size. For each panel, VC is 2 l (panel A), 4 l (panel B), and 6 l (panel C).
M.P. HLASTALA AND J.C. ANDERSON
compared with African Americans and in younger
adults compared with older adults. Table 3 shows the
predicted BrAC normalized by AAC taken from Fig. 4.
The predictions of the mathematical model show a
greater BrAC (relative to AAC) in all cases comparing a
smaller lung volume with a larger lung volume.
DISCUSSION
Alcohol breath testing-instruments require a minimum
exhaled volume before a breath sample is taken
at the end of an exhalation. For a subject with a small
lung size, a greater fraction of the VC must be exhaled
before the sample criteria are fulfilled. Most breath test
instruments require a minimum exhalation pressure (or
flow) for a minimal duration of time (4–6 s and a
minimal exhalation volume (between 1.1 l and 1.5 l).
For our calculations, we chose 1.5 l as the minimum
exhaled volume. Once the minimum criteria are fulfilled,
a sample will be taken when the change in
exhaled alcohol partial pressure levels off (always
achievable when the exhaled flow is stopped). For a
subject with a VC of 6 l using a BAC Verifier Datamaster
(minimum volume is 1.5 l), a sample can be
obtained any where between 1.5 and 6.0 l of exhalation
because the subject may choose to stop exhalation any
where between 1.5 l and VC. For a subject with a VC
of 2 l, a sample can be obtained using a BAC Verifier
Datamaster anywhere between 1.5 and 2.0 l of exhalation.
A subject with a small lung size will proceed
further up the increasing BrAC exhaled profile before a
sample is taken (Fig. 3).
One of the fundamental assumptions of the ABT is
that during exhalation, the BrAC continues to increase
until alveolar air reaches the mouth. At this point the
BrAC levels off. This observation has been assumed to
indicate that EEAC is equal to AAC. However, breath
alcohol always increases during exhalation as air
moves out of the mouth,4 never reaching AAC. The
flatness of the slope of the exhaled alcohol profile
simply means that exhalation has stopped. It is not an
indication of alveolar air. Additional support of this
idea follows from two studies using isothermal rebreathing
in human subjects,10,13 which showed that
EEAC (with a single-exhalation maneuver) is always
less than AAC. The difference, on average, is
approximately 15%8 and consistent with the ideas
described in this paper. Individuals with smaller lung
size are predicted to have a smaller difference between
EEAC and AAC such that an individual with a smaller
lung size, would have an ABT that is greater than an
individual with a larger lung size.
The major thesis of this paper is that lung size and
breathing pattern influence the BrAC reading determined
with a breath-testing instrument. Figure 3
shows exhaled alcohol profiles for subjects taking a full
inspiration followed by a full expiration. For each lung
size (represented by VC), the end exhaled BrAC is the
same. In other words, if a subject takes a full inspiration
followed by a full exhalation, there would be no
size dependence. If these subjects were to exhale just to
the minimum volume requirement (1.5 l), the greatest
discrepancy is predicted between subjects with differing
lung size. Every thing else being equal (including
BAC), the subject with the smallest lung size would
TABLE 3. Relative BrAC comparisons.
Predicted VC (l) BrAC/AAC
Min Avg Max
55’’ vs. 75’’ – Male 40 Years
55’’ Male – 40 Years 2.786 0.681 0.747 0.794
75’’ Male – 40 Years 5.743 0.509 0.675 0.770
BrAC Ratio of small to large volume 1.34 1.11 1.03
67’’ Female vs. 67’’ Male – 40 Years
67’’ Female – 40 Years 3.414 0.629 0.723 0.785
67’’ Male – 40 Years 4.560 0.560 0.696 0.776
BrAC Ratio of small to large volume 1.12 1.04 1.01
67’’ AA Male vs. 67’’ Caucasian Male – 40 Years
67’’ AA Male – 40 Years 3.731 0.607 0.714 0.782
67’’ Caucasian Male – 40 Years 4.560 0.560 0.696 0.776
BrAC Ratio of small to large volume 1.08 1.03 1.01
75’’ Male – 60 Years vs. 20 Years
75’’ Male – 60 Years 5.544 0.516 0.678 0.771
75’’ Male – 20 Years 6.351 0.487 0.667 0.767
BrAC Ratio of small to large volume 1.06 1.02 1.00
Single-Exhalation Alcohol Breath Test
have the greatest BrAC. Table 3 summarizes this effect
by comparing the relative ratio of BrAC between two
hypothetical subjects that differ in height, gender, race,
or age. Comparing a male and female of the same
height, the female has a minimum exhalation BrAC
that is approximately 12% greater than the male.
Comparing a 55-inch tall male with a 75-inch tall male,
at minimum exhalation, the smaller male has a 34%
greater BrAC than the taller male. With a minimum
exhalation, the overestimate for the smaller lung individual
is substantial.
On the average, a subject with a valid breath test can
exhale to any point between the minimum volume and
the maximum exhalation. When the subject stops
exhaling, new breath is no longer being delivered for
analysis. Therefore, the BrAC levels off when plotted
against time. An average of the different exhalation
volumes would be approximately equal to the mean of
the volumes exhaled at 1.5 l and the maximum exhalation.
For hypothetical subjects that differ in either
their height, gender, race or age, the ratios of average
BrAC between matched subjects are shown in Column
4 of Table 3. Comparing a 67-inch tall 40-year-old
male and with a female of the same height and age, the
female has an average exhaled BrAC that is approximately
4% greater than the male. Comparing a 55-inch
tall 40-year-old male with a 75-inch tall 40-year-old
male, at average exhalation, the smaller male has an
11% greater BrAC than the taller male. Comparing a
67-inch tall 40-year-old African American male with a
67-inch tall 40-year-old Caucasian male, at average
exhalation, the African American male has a 3%
greater BrAC than the Caucasian male. Comparing a
75-inch tall 20-year-old Caucasian male with a 75-inch
tall 60-year-old Caucasian male, at average exhalation,
the African American male has a 2% greater BrAC
than the Caucasian male. With an average exhalation,
the bias for the smaller lung individual is less than the
bias predicted for the minimum exhalation. The largest
discrepancy is related to body height because of the
greatest difference in relative lung size.
The mechanism of airway gas exchange has been
described briefly above and used to explain how ethanol
exchanges in the lung.2–4 Based on this mechanism
of ethanol exchange, the effect of changes in
inspired volume on BrAC can be understood. A small
inhaled volume will reduce the ethanol concentration
in the airway mucus and tissue layers to a lesser extent
than a large inhaled volume. During exhalation, the
former case will have a smaller air-to-mucus gradient
than the latter case. A smaller gradient causes less
ethanol to be deposited to the airway surface and, as a
result, the BrAC rises more rapidly when the inhaled
volume is small than when it is large (Fig. 5). The
maximum BrAC/AAC depends on the ratio of inspiratory-
to-expiratory time, but because the flow rates
are prescribed, inhaled volumes are defined by percent
of VC and exhalation always proceeds to RV, the
maximum BrAC/AAC only depends on inhaled volume
(VI) as shown in Fig. 5.
The ability to fulfill the minimum exhalation criteria
for a breath test instrument is limited by individuals
with smaller lungs and less than full inhalations. Figure
5 illustrates the combined impact lung size and
inspiratory volume have on the ability to provide a
minimum sample volume. As the size of the individual’s
lungs decrease, it becomes more important to
inspire a greater volume before exhalation. This finding
is consistent with the observations of Jones and
Andersson12 showing the probability of failing to
provide a minimum sample is greater in females than
males. Both genders show an increased in the probability
of an insufficient sample with increasing age.
There are two recent studies that can be used to
compare with our model predictions. Ska˚ le et al.14 and
Jones and Andersson11 determined the blood–breath
ratio (or partition ratio) for several subjects (male and
female) with varying heights, ages and body weight.
Jones studied 9 male and 9 female subjects and found
average BBRs of 2553±576 for males and 2417±494
for females. Although not statistically significant, the
trend agrees with our predictions. The ratio of females
to males is 1.056. The smaller lung size females had a
5.6% greater BrAC than the males. Ska˚ le et al. studied
9 male and 15 female subjects and found that the
blood–breath ratio was dependent on body weight.
The average BBR for subjects with body weights of
50–70 kg was approximately 2250 while the BBR for
subjects with body weights of 90–100 kg was approximately
2476. The ratio is 1.10. The BrAC for the
smaller subjects was 10% greater than the larger
subjects. Neither of these two papers measured lung
VC as this was not part of their hypotheses. So we
cannot directly compare our data. However the trends
are consistent with the hypothesis put forward in this
paper that individuals with smaller lung size have
greater BrAC in comparison to the BAC3 .
The present hypothesis is consistent with published
data and with the mechanisms of pulmonary gas exchange.
We encourage future investigators to include
3 The Blood–Breath Ratio (BBR) is a commonly used term in
forensic science. Because alcohol is a very highly soluble gas, the
ratio of concentration in the blood normalized by that in the breath
is a very large number (typically around 2000). For a given Blood
Alcohol Concentration (BAC), the Breath Alcohol Concentration
(BrAC) is about 1/2000 x BAC. With smaller lung volumes, the
BrAC is greater, hence the BBR (= BAC/BrAC) is lesser. In one
case the BrAC is in the numerator (BrAC/AAC). In the other case,
the BrAC is in the denominator. So a greater BBR is the same as a
lesser BrAC/AAC.
M.P. HLASTALA AND J.C. ANDERSON
the measurement of lung VC with the measurements
of BBR in order to provide data to test our
hypothesis. Surely, if there is anatomically dependent
variation in the alcohol breath test, it is important to
make corrections for the bias of the test. Once these
data are obtained, several possible alternative solutions
can be used: appropriate corrections to the
BrAC values can be made; adjustable legal limits can
be used for individuals of differing lung size; or rebreathing
can be used to obtain a better sample of
AAC.
In conclusion, alcohol exchanges between the respired
air and the airway tissue during both inspiration
and expiration. This airway gas exchange causes the
exhaled alcohol concentration to always be less than
the AAC. A consequence of this airway exchange is
that BrAC depends on lung size and the amount of
effort provided by the subject.
ACKNOWLEDGMENTS
This work was supported, in part, by National
Institute for Biomedical Imaging and Bioengineering
Grant T32 EB001650 and by National Heart, Lung,
and Blood Institute Grants HL24163 and HL073598.
REFERENCES
1American Thoracic Society. Lung function testing: Selection
of reference values and interpretative strategies. Am.
Rev. Respir. Dis. 144:1202–1218, 1991.
2Anderson, J. C., A. L. Babb, and M. P. Hlastala. Modeling
soluble gas exchange in the airways and alveoli. Ann.
Biomed. Eng. 31:1402–1422, 2003.
3Anderson, J. C. and M. P. Hlastala. Breath tests and airway
gas exchange. Pulm. Pharmacol. Ther. in press, 2006.
4George, S. C., A. L. Babb, and M. P. Hlastala. Dynamics
of soluble gas exchange in the airways. III. Single-exhalation
breathing maneuver. J. Appl. Physiol. 75:2439–2449,
1993.
5Harding, P. Methods for breath analysis. In: Medical–Legal
Aspects of Alcohol (4th ed.), edited by Garriott J. C.
Tucson: Lawyers & Judges Publishing Co., 2003, pp. 185–
211.
6Hildebrandt, J. Structural and mechanical aspects of respiration.
In: Textbook of physiology, edited by Patton H.
D., Fuchs A. F., Hille B., Scher A. M., and Steiner R.
Philadelphia: W.B. Saunders Co., 1989, pp. 991–1011.
7Hindmarsh, A. LSODE (computer software). Laurence
Livermore Laboratory, Livermore, CA.
8Hlastala, M. P. The alcohol breath test – a review. J. Appl.
Physiol. 84:401–408, 1998.
9Hlastala, M. P. Invited editorial on ‘‘the alcohol breath
test’’. J. Appl. Physiol. 93:405–406, 2002.
10Jones, A. W. Role of rebreathing in determination of the
blood–breath ratio of expired ethanol. J. Appl. Physiol.
55:1237–1241, 1983.
11Jones, A. W. and L. Andersson. Comparison of ethanol
concentrations in venous blood and end-expired breath
during a controlled drinking study. Forensic Sci. Int.
132:18–25, 2003.
12Jones, A. W. and L. Andersson. Variability of the blood/
breath alcohol ratio in drinking drivers. J. Forensic. Sci.
41:916–921, 1996.
13Ohlsson, J., D. D. Ralph, M. A. Mandelkorn, A. L. Babb,
and M. P. Hlastala. Accurate measurement of blood alcohol
concentration with isothermal rebreathing. J. Stud.
Alcohol 51:6–13, 1990.
14Ska˚ le, A. G., L. Slørdal, G. Wethe, and J. Mørland. Blood/
breath ratio at low alcohol levels: A controlled study. Ann.
Toxicol. Analytique. XIV:41.
15Tsu, M. E., A. L. Babb, D. D. Ralph, and M. P. Hlastala.
Dynamics of heat, water, and soluble gas exchange in the
human airways: 1. A model study. Ann. Biomed. Eng.
16:547–571, 1988.
DUI LIES
LIES About DUI's
Many people, attorneys and judges included, have a completely wrong attitude towards a Alabama DUI charge. They are trapped by believing many common LIES about a Alabama DUI. Such LIES can lead to malpractice by the attorney and to dire consequences for the client who suffers due to the lawyer’s lack of knowledge. The LIES surrounding DUI are:
LIE 1:
A DUI is a "Simple" charge
Let me ask: D you think it is ‘simple’ to loose your job?
Is it simple to be unable to drive?
Is it ‘simple’ to be able to travel to other countries?
Is it ‘simple’ to be unable to rent an apartment?
Is it ‘simple’ to be banned for life from having a Commercial driver’s license?
Is it ‘simple’ to go to jail?
Is damaged credit rating ‘simple’?
Is it simple for your insurance to increase by thousands of dollars for yeas to come?
This is just the start of some of the hidden costs of a DUI. This is a charge that keeps on giving-it follows you for years, possibly even lifetime. There is nothing ‘simple’ about these types of penalties you can suffer form a ‘simple’ DUI.
Regretfully, far to many untrained attorneys think of DUI’s as ‘simple and advise their clients to quickly enter a plea. A trained, competent DUI Lawyer can help you understand the dangers you face and protect you from this harm.
LIE 2:
A DUI case is the same as any other Criminal Case
If the consequences were not so serious, this LIE would be humorous. Recently a judge said ‘A DUI case is one of the most difficult cases to try, more difficult than most murder cases.” In many areas, the courts handle DUI cases differently from other offenses. For example, in a murder case, the defense lawyer will order an independent analysis of ballistics tests, blood splatter patterns, fingerprints, and other physical evidence. This is not true in drunk driving cases. Alabama does not require an officer taking a breath test to capture some of the breath so it can be analyzed independently at a later date, even though the machines can seal samples at a minimal cost. The U.S. Supreme Court has said that it is perfectly acceptable that such critical evidence is destroyed.
In the judicial system DUI’s are ‘special’. Special? Yes, different rules apply to a DUI case. In a run of the mill criminal case-murder, drugs, etc. - you would be allowed to view and test the evidence against you. If blood were involved you could have it tested also. In most DUI’s the evidence consist of a breath test which produces a number printed on a piece of paper. In Alabama your breath is not saved for additional testing. The machine- Draeger Alcotest 7110 - is fully capable of saving a sample (it cost about $1.50) but the state has chosen not to do so. The courts say, no big deal, it is DUI evidence and we will ignore that evidence was destroyed.
Attorneys who are not heavily trained in DUI defense or even more disturbing, the ones who just want to earn a quick buck do not know how to protect their clients. The attorney could face malpractice from mishandling such cases but even more disturbing—the client is the one who will suffer for years to come.
LIE 3:
If you were arrested, you must be guilty
You certainly don’t what an attorney representing you who starts off thinking you are guilty. An attorney should believe in his client and devote himself to defending his client.This is perhaps the most troubling LIE because so many attorneys and individuals believe it. Since this mindset can eliminate objectivity, an attorney who believes this has no business representing a person accused of drunk driving.
The evidence in most drunk driving cases is a breath test, not a blood test. A skillful attorney can be successful in exposing the problems with such a test. Because of their lack of sophistication, most scientists would not trust the results of a breath test machine as a basis for research or investigation. Both the accuracy and reliability of these machines are subject to challenge.The breath machine is just that—the low bid machine purchase in a government contract. There are a number of ways to attack a machine test. This is not a scientific instrument yet the state wants to treat it as such. There are reliability, accuracy, administration and training errors, just to name a few.
It takes extensive training and study by an attorney to challenge these test. Attempting to defend a DUI case without this training and knowledge could expose the attorney to a malpractice charge and leave the defendant to suffer the consequences.
LIE 4:
You can't win a Alabama DUI case.
Oh my goodness, we have allowed ourselves to be brainwashed into believing this lie. It is outrageous to think that a person would actually pay a lawyer who believes this lie.
An experience DUI lawyer will start preparing for trial from the very first meeting. He will investigate and subpoena every piece of evidence available. The lawyer will often fight extensively through motions and other procedural maneuvers. The client should not automatically be advised to plead guilty because an attorney who is not properly trained believes that these cases are difficult or impossible to win.Many lawyers will push a guilty plea without having done any investigation of the case. Possibly the client told the attorney he could not afford to fight the case.
This is common but –did the attorney tell the client the hidden and long-term cost of a conviction and did the attorney explain the defense to the charge so the client could make an informed, intelligent decision?
Many times the client will realize the long-term cost of accepting a quick guilty plea is greater that the cost of fighting—that is if the options are fully explained by a competent attorney.
LIE 5:
DUI is a Minor Offense
The stigma of a conviction can cause tremendous stress and fear. Many drivers whose licenses are suspended continue driving to keep a job and provide for their families. By doing so, they live in fear of being stopped, caught, and jailed for driving with a suspended license. Most of those convicted also suffer financially and socially. In most states, a DUI conviction is permanently on a driving record. Only those justly convicted should have to endure these emotional, financial, and psychological hardships.
It is not a crime to have a drink and drive. Convictions for drunk driving should only occur when a person’s blood alcohol level exceeds the arbitrary numerical standard set by the state, or when it is proven that a person’s bad driving is connected to an impaired state due to a high blood alcohol level.
Attorneys who improperly advise a client to plead guilty may be committing malpractice and open themselves to litigation for substandard representation. Usually, the driver’s do not know if they have been properly represented or of the state’s case was valid and based on a legal stop. A qualified DUI attorney is needed to investigate the case thoroughly and recommend the best alternative.
You have a right to inquire about the training your potential attorney has received. You should be sure that the lawyer has spent substantial time training specifically in the field of DUI.
Many people, attorneys and judges included, have a completely wrong attitude towards a Alabama DUI charge. They are trapped by believing many common LIES about a Alabama DUI. Such LIES can lead to malpractice by the attorney and to dire consequences for the client who suffers due to the lawyer’s lack of knowledge. The LIES surrounding DUI are:
LIE 1:
A DUI is a "Simple" charge
Let me ask: D you think it is ‘simple’ to loose your job?
Is it simple to be unable to drive?
Is it ‘simple’ to be able to travel to other countries?
Is it ‘simple’ to be unable to rent an apartment?
Is it ‘simple’ to be banned for life from having a Commercial driver’s license?
Is it ‘simple’ to go to jail?
Is damaged credit rating ‘simple’?
Is it simple for your insurance to increase by thousands of dollars for yeas to come?
This is just the start of some of the hidden costs of a DUI. This is a charge that keeps on giving-it follows you for years, possibly even lifetime. There is nothing ‘simple’ about these types of penalties you can suffer form a ‘simple’ DUI.
Regretfully, far to many untrained attorneys think of DUI’s as ‘simple and advise their clients to quickly enter a plea. A trained, competent DUI Lawyer can help you understand the dangers you face and protect you from this harm.
LIE 2:
A DUI case is the same as any other Criminal Case
If the consequences were not so serious, this LIE would be humorous. Recently a judge said ‘A DUI case is one of the most difficult cases to try, more difficult than most murder cases.” In many areas, the courts handle DUI cases differently from other offenses. For example, in a murder case, the defense lawyer will order an independent analysis of ballistics tests, blood splatter patterns, fingerprints, and other physical evidence. This is not true in drunk driving cases. Alabama does not require an officer taking a breath test to capture some of the breath so it can be analyzed independently at a later date, even though the machines can seal samples at a minimal cost. The U.S. Supreme Court has said that it is perfectly acceptable that such critical evidence is destroyed.
In the judicial system DUI’s are ‘special’. Special? Yes, different rules apply to a DUI case. In a run of the mill criminal case-murder, drugs, etc. - you would be allowed to view and test the evidence against you. If blood were involved you could have it tested also. In most DUI’s the evidence consist of a breath test which produces a number printed on a piece of paper. In Alabama your breath is not saved for additional testing. The machine- Draeger Alcotest 7110 - is fully capable of saving a sample (it cost about $1.50) but the state has chosen not to do so. The courts say, no big deal, it is DUI evidence and we will ignore that evidence was destroyed.
Attorneys who are not heavily trained in DUI defense or even more disturbing, the ones who just want to earn a quick buck do not know how to protect their clients. The attorney could face malpractice from mishandling such cases but even more disturbing—the client is the one who will suffer for years to come.
LIE 3:
If you were arrested, you must be guilty
You certainly don’t what an attorney representing you who starts off thinking you are guilty. An attorney should believe in his client and devote himself to defending his client.This is perhaps the most troubling LIE because so many attorneys and individuals believe it. Since this mindset can eliminate objectivity, an attorney who believes this has no business representing a person accused of drunk driving.
The evidence in most drunk driving cases is a breath test, not a blood test. A skillful attorney can be successful in exposing the problems with such a test. Because of their lack of sophistication, most scientists would not trust the results of a breath test machine as a basis for research or investigation. Both the accuracy and reliability of these machines are subject to challenge.The breath machine is just that—the low bid machine purchase in a government contract. There are a number of ways to attack a machine test. This is not a scientific instrument yet the state wants to treat it as such. There are reliability, accuracy, administration and training errors, just to name a few.
It takes extensive training and study by an attorney to challenge these test. Attempting to defend a DUI case without this training and knowledge could expose the attorney to a malpractice charge and leave the defendant to suffer the consequences.
LIE 4:
You can't win a Alabama DUI case.
Oh my goodness, we have allowed ourselves to be brainwashed into believing this lie. It is outrageous to think that a person would actually pay a lawyer who believes this lie.
An experience DUI lawyer will start preparing for trial from the very first meeting. He will investigate and subpoena every piece of evidence available. The lawyer will often fight extensively through motions and other procedural maneuvers. The client should not automatically be advised to plead guilty because an attorney who is not properly trained believes that these cases are difficult or impossible to win.Many lawyers will push a guilty plea without having done any investigation of the case. Possibly the client told the attorney he could not afford to fight the case.
This is common but –did the attorney tell the client the hidden and long-term cost of a conviction and did the attorney explain the defense to the charge so the client could make an informed, intelligent decision?
Many times the client will realize the long-term cost of accepting a quick guilty plea is greater that the cost of fighting—that is if the options are fully explained by a competent attorney.
LIE 5:
DUI is a Minor Offense
The stigma of a conviction can cause tremendous stress and fear. Many drivers whose licenses are suspended continue driving to keep a job and provide for their families. By doing so, they live in fear of being stopped, caught, and jailed for driving with a suspended license. Most of those convicted also suffer financially and socially. In most states, a DUI conviction is permanently on a driving record. Only those justly convicted should have to endure these emotional, financial, and psychological hardships.
It is not a crime to have a drink and drive. Convictions for drunk driving should only occur when a person’s blood alcohol level exceeds the arbitrary numerical standard set by the state, or when it is proven that a person’s bad driving is connected to an impaired state due to a high blood alcohol level.
Attorneys who improperly advise a client to plead guilty may be committing malpractice and open themselves to litigation for substandard representation. Usually, the driver’s do not know if they have been properly represented or of the state’s case was valid and based on a legal stop. A qualified DUI attorney is needed to investigate the case thoroughly and recommend the best alternative.
You have a right to inquire about the training your potential attorney has received. You should be sure that the lawyer has spent substantial time training specifically in the field of DUI.
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