Thursday, June 21, 2007

GERD Impact on Breath Test

Gastroesophageal reflux disease (GERD) is a common disease that affects approximately 25 to 30 percent of the U.S. population. GERD is a chronic condition that results from esophagus deterioration from stomach acid eruptions over time. Mark Scott and Aimee R. Gelhot, Gastroesophageal Reflux Disease: Diagnosis and Management, 59 Am.Fam. Physician 1161 (1999) (available online at The impact on breath testing is whether alcohol erupting from the stomach into the mouth from gastric reflux (generally a silent response) poses a problem with accurate breath testing during a 20-minute deprivation period. Research has been minimal to nonexistent on this issue. Research conducted to try to mimic gastric reflux is problematic because of a very small non-representative population (ten people or less) sample, and some researchers used a compression belt to invoke eruption, in contrast to spontaneous and natural eruption.
In People v. Bonutti, ___ Ill.App.3d ___, 788 N.E.2d 331, 273 Ill.Dec. 22 (5th Dist. 2003), expert testimony identified that the defendant had suffered from GERD since 1992 and was being treated for the condition. The expert testified that alcohol, coffee, and carbonated drinks dilate the stomach and the lower esophageal sphincter. The reflux is silent, and regurgitation and reflux are synonymous. In Bonutti, the trial court properly suppressed the breath test when the defendant testified that he refluxed during the 20-minute observation period. However, the trial court properly declined to rescind the statutory summary suspension where the State rebutted the defendant’s claim the breath test was invalid.
In the State of Washington, the Washington State Patrol examined the issue of GERD and concluded safeguards should be implemented for fair and accurate breath testing. Their conclusions for proper breath alcohol testing suggested a sound forensic practice should be followed to ensure the integrity of the breath test and GERD recognition. The safeguards should include the following: at least a 15-minute pre-sample observation period, duplicate testing, instrument detection of mouth alcohol, trained and alert operators that ask appropriate questions, and visual observations looking for symptoms of GERD. Rod G. Gullberg, Breath Alcohol Analysis in One Subject with Gastroesophageal Reflux Disease. 46 J. Forensic Sci. 1498 (2001).
The problem in most breath testing programs is lack of training on GERD, absence of duplicate testing, and that pre-evidentiary test questions do not include information about GERD. In one Midwest state police program, a breath testing instructor testified that he purposely avoids the GERD issue in his breath test training program. The use of a continuous 20-minute observation period is supported again. An officer should be prohibited from driving a car, reading paperwork, turning his or her back on the defendant, and leaving the room during the 20-minute deprivation period. Anything other than continuous 20-minute observation should be prohibited to help ensure the integrity of the breath test. General compliance for a person who suffers from GERD is not acceptable.
Dr. Ronald Henson, Ph.D., C.P.C.T.

Rogue DUI Cop Wrongly Jailed Dozens

TAMPA - Daniel Brock won high praise for jailing impaired motorists. Mothers Against Drunk Driving honored him. So did his bosses. But one of Hillsborough County’s most aggressive DUI deputies may have wrongly sent dozens of people to jail, the Sheriff’s Office acknowledged on Thursday, June 14, 2007.
The agency fired Brock on May 24th. In one year, Brock arrested 58 people whose blood-alcohol content was below 0.08, the level at which state law presumes a driver is impaired, an internal affairs audit showed. “I don’t prescribe to the theory that somehow you have to be 0.08 to be drunk or impaired, ” Brock, 38, told investigators. (Editor’s Note: I bet he “prescribes” to the theory that somehow everyone is impaired or too drunk to drive at .08)
A driver may be charged with DUI in Florida if the blood-alcohol level is between 0.05 and 0.08 percent, but there must be other evidence of impairment, such as a swerving vehicle. In 43 of those 58 cases, motorists demonstrated no visible impairment behind the wheel, according to an internal affairs report made public Thursday. In 41 arrests, Brock also failed to make a case with urine samples, the report states.
Repeatedly, investigators found Brock reported failures in field sobriety tests when his patrol car video camera documented the opposite. He wrote, for instance, that a driver on Oct. 25, 2005, lost balance while turning. The video of the encounter showed that wasn’t the case. The driver blew a 0.01 in the breath test but was arrested anyway. He said drivers incorrectly recited the alphabet, used arms for balance and slurred speech - when the video showed correct alphabets, perfect balance and clear speech.
Records show he pulled people over on DUI stops 17 times while his cruiser was occupied with other prisoners. That’s against procedure. He routinely filed arrest reports days, even weeks, after making an arrest. He told internal affairs Detective Bruce Crumpler that he always reported the results of field sobriety tests based on memory. Wouldn’t that leave room for errors, Crumpler asked? “Well, there’s room for error, ” Brock told Crumpler. “I’ve never had a problem.” (Editor’s Note: Until now his job was not on the line, his liberty was not restrained, and his license was not jeopardized. No wonder he had never had a problem.)
His paperwork became the subject of scorn at the Hillsborough State Attorney’s Office, where prosecutors said the deputy tarnished his reputation by filing inaccurate arrest reports that lacked important details. “He doesn’t have a very good reputation for being a very good DUI officer that we care to work with, ” prosecutor Jennifer Gabbard told Crumpler. “It’s almost like whatever you can do to make it look like you’re arresting people.”
From October 2005 to October 2006, Brock made 313 arrests for driving under the influence. He failed to activate his cruiser’s audio and video equipment in 40 percent of his stops, instead relying on his “wrought memory” to recall important arrest details, the audit showed. Within the Sheriff’s Office, Deputy Brock previously had been praised for his “outstanding professional service” and was consistently recommended for raises. His superiors rated his performance “satisfactory” and called him a credit to the office. He was lauded as a dedicated deputy who spoke to high school students about the perils of impaired driving.
“We always felt he was a good officer, ” said Becky Gage, 55, the victim advocate for Hillsborough’s MADD chapter. “As long as officers are within the scope of the law, then we support their efforts to remove impaired drivers.” (Editor’s Note: MADD’s leadership embraces a “zero tolerance” standard for everyone, so they believe a person who drank one beer at a ball game should be arrested.)
However, the former deputy encountered a few bumps in the road. He was suspended and sent to driving school in 2000 after a string of what the Sheriff’s Office deemed avoidable traffic accidents. In 2006, he was named in a federal lawsuit alleging that he physically attacked the mother of a teenage boy he arrested in 2002. The Hillsborough County woman said Brock forced himself into her home, pushed her into a corner and sprayed her with pepper spray. The lawsuit is unresolved.
During the recent internal affairs investigation, Brock denied trying to boost numbers for personal recognition. It was unclear Thursday whether Brock intends to appeal his firing. He told investigators that given the chance, he would conduct his DUI stops the same way. Said Brock: “I mean, perfect world, we need more deputies and fewer people.”