Lack Of Probable Cause Requires Suppression Motion Not Motion to Dismiss

959 So.2d 698

959 So.2d 698

(Cite as: 959 So.2d 698)

Court of Criminal Appeals of Alabama.

Bradford Savage Dominic MULDOON

v.

STATE.

CR-04-1758.

Sept. 29, 2006.

Rehearing Denied Dec. 1, 2006.

Background: Following a guilty plea after denial of motion to dismiss, defendant was convicted in the Houston Circuit Court, No. CC-04-4, S. Edward Jackson, J., of driving under the combined influence of alcohol and controlled substances. Defendant appealed.

Holding: The Court of Criminal Appeals, Cobb, J., held that defendant was not entitled to dismissal of Uniform Traffic Ticket and Complaint (UTTC), even if arresting officer lacked probable cause to effect arrest and even if arrest warrant separate from UTTC should have been obtained.

Affirmed.

West Headnotes

[1] Automobiles 351.1

48Ak351.1

[1] Criminal Law 394.4(9)

110k394.4(9)

Defendant was not entitled to dismissal of Uniform Traffic Ticket and Complaint (UTTC), which charged defendant with driving under the combined influence of alcohol and controlled substances, even if arresting officer lacked probable cause to effect arrest and even if arrest warrant separate from UTTC should have been obtained; remedy would have been suppression of evidence, not dismissal of charge. U.S.C.A. Const.Amend. 4; Code 1975, § 32-5A-191(a)(4).

[2] Automobiles 351.1

48Ak351.1

[2] Criminal Law 1139

110k1139

In misdemeanor traffic cases, the Uniform Traffic Ticket and Complaint (UTTC) is the formal charging instrument, analogous to an indictment and conferring original subject-matter jurisdiction on the District or Municipal Court, and on the Circuit Court in the case of a de novo appeal. Rules Crim.Proc., Rule 2.2(d).

[3] Automobiles 351.1

48Ak351.1

[3] Criminal Law 99

110k99

Illegal arrest does not void a subsequent conviction, does not bar prosecution on a Uniform Traffic Ticket and Complaint (UTTC) returned after the arrest, and does not entitle the accused to a dismissal of the charges against him. U.S.C.A. Const.Amend. 4.

[4] Criminal Law 394.4(9)

110k394.4(9)

Remedy for illegal pretrial detention, other than pretrial release, may be the suppression of any evidence obtained as a result of that illegal detention, not the dismissal of the charge against the accused. U.S.C.A. Const.Amend. 4.

*699 Thomas Scott Smith, Jr., Dothan, for appellant.

Troy King, atty. gen., and Audrey Jordan, asst. atty. gen., for appellee.

COBB, Judge.

Bradford Savage Dominic Muldoon appeals from his misdemeanor conviction, pursuant to a guilty plea, for driving under the combined influence of alcohol and controlled substances, a violation of § 32-5A-191(a)(4), Ala.Code 1975. Muldoon was sentenced to 12 months in the county jail; that sentence was suspended on the condition that he complete two years' probation. He was also ordered to pay a fine of $600 and court costs, to complete a substance-abuse program, and to surrender his driver's license.

Before entering a guilty plea, Muldoon reserved for appellate review "the issue as to whether or not the arrest was a lawful arrest."

At the hearing on Muldoon's motion to dismiss the charge, the following facts were stipulated: On March 30, 2003, Muldoon was involved in a single-vehicle accident. He was transported unconscious from the scene of the accident to Flowers Hospital, where he remained in a coma for three days. State Trooper Mark Nielson arrived at the accident scene to investigate the accident after Muldoon had been transported to the hospital. There is no information in the record concerning Trooper Nielson's investigation at the accident scene. Trooper Nielson first saw Muldoon at Flowers Hospital, where Muldoon was in a coma. Trooper Nielson did not speak to Muldoon until some time after Muldoon awoke from the three-day coma. There is nothing in the record concerning what information Trooper Nielson obtained after arriving at the hospital. On March 30, 2003, Trooper Nielson issued a Uniform Traffic Ticket and Complaint ("UTTC") to Muldoon charging Muldoon with misdemeanor driving under the influence ("DUI"). That UTTC was later dismissed, and on August 21, 2003, a new UTTC was issued to Muldoon charging him with driving under the combined influence of alcohol and controlled substances.

Based on the above stipulated facts, Muldoon argued that the charges should be dismissed because, he says, his arrest was illegal. According to Muldoon, Trooper Nielson did not see him at the accident scene, therefore, Nielson had no personal knowledge of facts or circumstances--i.e., probable cause--to justify a warrantless arrest. According to Muldoon, the mere issuance of a summons pursuant to a UTTC was insufficient to effect an arrest. Muldoon argued that under the facts of his case the proper procedure to perfect his arrest would have been to obtain an arrest warrant as required by § 32-5- 310, Ala.Code 1975.

Section 32-5-310, Ala.Code 1975, [FN1] permits a police officer to arrest a person for *700 a misdemeanor without a warrant if the offense is committed in the officer's presence. Conversely, § 32-5-310, Ala.Code 1975, requires an arrest for a misdemeanor be made pursuant to a warrant if the officer does not observe the commission of the offense. Moreover, Muldoon argued that § 32-5-171, Ala.Code 1975, [FN2] specifically addresses DUI charges by allowing an officer who did not witness the accident, but who is on the scene with the driver and determines that the driver is under the influence, to arrest the driver at the scene of the accident. See Ingram v. State, 720 So.2d 1036 (Ala.Crim.App.1998)(arrest at the hospital upheld where investigating troopers testified that based on the strong odor of alcohol on driver at the accident scene, and what appeared to be the path of vehicles before the crash, they formed the opinion at the accident scene that driver was intoxicated).

FN1. Section 32-5-310 provides:

"Any peace officer, including state troopers, sheriffs and their deputies, constables and their deputies, police officers and marshals of cities or incorporated towns, county police or patrols, state or county license inspectors and their deputies, and special officers appointed by any agency of the State of Alabama for the enforcement of its laws relating to motor vehicles, now existing or hereafter enacted, shall be authorized, and it is hereby made the duty of each of them to enforce the provisions of this chapter and to make arrests for any violation or violations thereof, without warrant if the offense be committed in his presence, and with warrant if he does not observe the commission of the offense. If the arrest be made without warrant, the accused may elect to be immediately taken before the nearest court having jurisdiction, whereupon it shall be the duty of the officer to so take him. If the accused elects not to be so taken, then it shall be the duty of the officer to require of the accused a bail bond in a sum not to exceed $300.00, conditioned that the accused binds himself to appear in the nearest court having jurisdiction at the time fixed in the bond. In case the arrested person fails to appear on the day fixed, the bond shall be forfeited in the manner as is provided for the forfeiture of bonds in other cases. No officer shall be permitted to take a cash bond. The officer making the arrest and taking the bond shall report the same to the court having jurisdiction within 18 hours after taking such bond."

FN2. Section 32-5-171 provides:

"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."

Therefore, Muldoon argued that because Trooper Nielson was not a witness to the accident and was not on the scene at the same time as Muldoon, his warrantless arrest was "an illegal arrest in violation of the Alabama law and his right to procedural due process." Thus, Muldoon argued that the case against him was due to be dismissed.

The State responded in part by arguing that Muldoon agreed to turn himself in after his recovery and release from the hospital. At that point, the State argued, the investigation had been completed, and, thus, an arrest warrant was unnecessary. [FN3]

FN3. The stipulation of facts is devoid as to facts related to probable cause to arrest. The record contains references to medical records; however, the content of these records were not discussed on the record and the medical records were not entered into evidence.

On April 26, 2005, the trial court denied the motion to dismiss by notation on the case-action summary sheet. On May 2, 2005, before trial, the parties were heard on miscellaneous motions. After hearing arguments on the various motions, the trial court orally denied all pending motions. With the complete acquiescence of the trial court, Muldoon reserved for appellate review issues, see infra, before entering a guilty plea.

On appeal, Muldoon contends that the trial court erred in denying his motion to dismiss because his arrest was illegal in that "the officer did not see the defendant drive a vehicle, inside a vehicle, or even at the scene of a vehicle accident" and thus there was no probable cause [FN4] to support a *701 warrantless arrest. (Muldoon's brief at 12.) Also, Muldoon contends that Trooper Nielson did not issue the new UTTC until almost five months after the accident. Thus, according to Muldoon, there was no valid reason the officer could not have obtained a lawful warrant to execute a valid arrest during that period of time.

FN4. In some instances Muldoon's brief refers to a lack of reasonable suspicion; it is clear the argument concerns probable cause.

It is unclear whether Muldoon's appellate claim regarding the five-month delay in issuing the second UTTC is a separate claim that he did not reserve before entering his guilty plea or an argument in support of the claim reserved at trial. Nevertheless, as the State correctly asserted, the statute of limitations for a misdemeanor offense is one year. § 15-3-2, Ala.Code 1975 ("Unless otherwise provided, the prosecution of all misdemeanors before a circuit or district court must be commenced within 12 months after the commission of the offense."). Thus, the UTTC was timely issued within one year.

[1][2] As to Muldoon's claim that his arrest was illegal because, he says, there was no probable cause and no arrest warrant was issued, we note:

"In misdemeanor traffic cases, the UTTC is the formal charging instrument, analogous to an indictment and conferring original subject matter jurisdiction on the district or municipal court, and on the circuit court in the case of a de novo appeal. Young[ v. City of Hokes Bluff], 611 So.2d [401] at 411-13 [ (Ala.Crim.App.),] (Bowen, J., concurring in result)[, aff'd, 611 So.2d 414 (Ala.1992) ]; Sanders v. City of Birmingham, 669 So.2d 236, 238 (Ala.Cr.App.1995). See also Rule 2.2(d), Ala.R.Crim.P., as amended effective August 1, 1997."

Stoll v. State, 724 So.2d 90, 91-92 (Ala.Crim.App.1998).

[3] " ' "As a general rule, the mere fact that the arrest of an accused person is unlawful is of itself no bar to a prosecution on a subsequent [UTTC], by which the court acquires jurisdiction over the person of the defendant." ' " Taylor v. State, 589 So.2d 804, 805 (Ala.Crim.App.1991)(quoting Coral v. State, 551 So.2d 1181, 1182 (Ala.Crim.App.1989), quoting in turn 41 Am.Jur.2d Indictments and Informations § 18 (1968) ). " 'An illegal arrest "does not void a subsequent conviction," ... does not bar prosecution on [a UTTC] returned after the arrest, ... and does not entitle the accused to a dismissal of the charges against him....' " Holland v. State, 615 So.2d 1313, 1317 (Ala.Crim.App.1993) (quoting Atwell v. State, 594 So.2d 202, 208 (Ala.Crim.App.1991)).

[4] Therefore, even if, as Muldoon alleges, the arresting officer lacked probable cause to effect the arrest, and if an arrest warrant separate from the UTTC should have been obtained, Muldoon was not entitled to have the UTTC (indictment) dismissed. " '[T]he remedy for illegal pretrial detention, other than pretrial release, may be the suppression of any evidence obtained as a result of that illegal detention--not the dismissal of the charge against the accused.' " Taylor v. State, 589 So.2d at 806 (quoting Speers v. State, 545 So.2d 247, 250 (Ala.Crim.App.1989)). A motion to dismiss was not the appropriate remedy for the allegedly illegal arrest.

Based on the foregoing, we affirm the trial court's denial of Muldoon's motion to dismiss.

AFFIRMED.

McMILLAN, P.J., and BASCHAB, SHAW, and WISE, JJ., concur.

959 So.2d 698

GERD MAY SHOW FALSELY INFLATED BAC

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 www.aafp.org/afp/990301ap/1161.html). 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.

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 www.aafp.org/afp/990301ap/1161.html). 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.”

Are FST's an Accurate Method to Base Arrest Decision?

Separating Myth from Fact: A Review of Research on the Field Sobriety Tests

Spurgeon Cole
&
Ronald H. Nowaczyk
Clemson University
Clemson, SC 29634

For over a decade Marcelline Burns, senior author of an often-cited 1977 NHTSA (National Highway Traffic Safety Administration) report and co-author of a 1981 NHTSA study, has traveled across the country extolling the virtues of the new and improved Field Sobriety test (FST) battery. The FST battery, as recommended by NHTSA, consists of three tests that are supposed to predict an individual’s blood alcohol (BAG) level. The tests are the Horizontal Gaze Nystagmus (HGN) test, the Walk-and-turn test and the One-leg stand test. None of these tests were specifically developed to identify BAG level, but have been used by law enforcement as indicators of driving impairment.
NHTSA claims that the new version of the FST battery is scientific and can differentiate between impaired and unimpaired drivers. Until recently Burns’ testimony has gone unchallenged because few attorneys have the prerequisite understanding of statistics and test development to critically evaluate the NHTSA reports and effectively cross-examine NHTSA’s witnesses. Judges who have recently heard the “rFST of the story” are either not admitting the FST entirely or declaring it unscientific and not allowing police to use such terms as “tests” “results” “passed” or “failure.”2
The prosecution in DUI trials has long held a decided advantage over the defense because of misconceptions about the effectiveness of the FST. Even defense attorneys have often accepted the premise that the FST has a measure of value in predicting driving impairment. In essence, NHTSA representatives have for over a decade enjoyed a free ride, but the road has recently developed some serious pot holes.

Research (Cole & Cole, 1991; Cole & Nowaczyk, 1994) and expert testimony offered by Cole & Nowaczyk have enabled judges and attorneys to better understand the limitations of the FST. In the past, NHTSA representatives have made outlandish claims as to the effectiveness of the FST even though these claims are not supported by their own research data. Because of these sins of omission and an occasional sin of commission, many myths have developed concerning the validity and reliability of the FST battery. The present article attempts to separate the facts from the myths.

Myth 1: The Field Sobriety TFST (FST) battery predicts driving impairment.

Fact: NHTSA never attempted to determine if the FST could predict driving Impairment. There is not a single study linking the recommended FST battery directly to driving impairment. The fact is, there never wilt be a simple roadside coordination task that can predict driving impairment. In one of NHTSA’s own reports, the following statement is made “… even valid, behavioral tests are likely to be poor predictors either of actual behind-the-wheel driving …or of accidents” (p. 2-7, Snapper, Seaver & Schwartz, 1981.) The stated goal in the 1977 study was to determine the relationship between FST and intoxication and driving impairment. However, they did not investigate the relationship between the FST and driving impairment.
While there is a relationship between BAC level and driving impairment, the relationship is not likely to be a simple linear one. Therefore, it is not appropriate to assume that 1) if FST performance and BAC are related and 2) if BAC and driving Impairment are related, therefore, 3) FST and driving impairment are related. The relationships among these factors are too complex to assume a simple relationship as NHTSA might like you to conclude. There are comments among NHTSA researchers themselves alluding to this conclusion. In the 1981 NHTSA study, the researchers conclude,”…Individuals vary in alcohol tolerance, and infrequent drinker may be severely impaired at a BAC of 0.05, whereas a heavy drinker may show only minimal Impairment at this level” (p. 19). Dr. Moskowitz, one of the co-authors of both the 1977 and 1981 NHTSA studies, co-authored a later review of research on driving and alcohol, levels and concluded in a presentation at a scientific conference that,”... studies of driving simulator and on-the-road testing varied widely in results. This is due to the wide range of behavioral demands required by diverse control and visual search requirements” (Moskowitz & Robinson, 1987, p. 85). It is obvious that research is needed examining the relationship between FST and driving performance directly. That research has not yet been conducted. Dr. Burns herself indicated that the FST battery has its value in predicting BAG levels (Burns, 1984).

Myth 2: The FST battery is 80 percent accurate in differentiating between Individuals with BAC levels above or below .10.

Fact: The 1981 NHTSA study is the one cited by NHTSA as evidence of an 80 percent accuracy rate with the use of the FST battery. That study tested 296 subjects. Thirty-three percent of the subjects in the study had a BAC level of .00 and 34 percent were given dose levels calculated to raise BAG levels to .05. Another 11 percent of the subjects had BAG levels approximating .15, with some having BACs as high as .18. An officer should have no difficulty correctly identifying totally alcohol-free subjects as being unimpaired. Although slightly more difficult, one would expect officers to correctly classify subjects with BAC levels of .05 as being unimpaired. They should also have little difficulty correctly classifying subjects with the BAG levels of .15. In effect, 78 percent of the subjects fall into these extreme categories. Only 22 percent of the subjects were in the critical BAC range around .10. When the tests must differentiate in this critical range, they fail miserably. The overall accuracy rate of .80 is. misleading when over two-thirds of the decisions are “gimmies,” people with little or no alcohol or levels of .15.

For the remaining subjects, the officers have a 50/50 chance of being correct just on the basis of guessing. With the “easy” decisions and a guessing rate of .50, the reported 80 percent accuracy rate does not look exceptionally good. The question should not be how does the FST help officers correctly classify subjects 80 percent of the time. Instead, the question asked should be “Why doesn’t the FST do a better job helping the officers reach the correct decision?” In fact, the 1977 NHTSA report contains the following admonition, “Again, it should be pointed out that all the evidence from these data suggest it is unrealistic to attempt to use behavioral tests to discriminate BACS in a .02 margin around a given level” (P.41).

Myth 3: The FSTs are tests accepted by the scientific community.

Fact: Anastasi (1988) defines a test as being an objective and standardized measure of behavior, in the behavioral sciences, specific criteria must be met for a behavioral test to be accepted. The primary criteria include establishing the reliability, validity, and standardized administration of the test. Reliability and validity involve the consistency of test scores and the relationship of the score to the behavior it is designed to measure. Standardization includes uniformity of procedure in administering the test as well as the scoring of the test. For test scores to be meaningful the test conditions under which the tests are administered must not be causing differences in test scores. A test that has not been standardized or does not outline exact procedures for administration and scoring would not be considered a scientific test.

An important step in the standardization of a test is the development of norms and as the name suggests, a norm is the normal, average or typical score. Scores can only be interpreted by comparing them with scores obtained by others. There are no adequate norms for the FST battery. Common sense dictates and research supports the belief that motor skills decline with age. The FST, however, provides no basis for interpreting the results for individuals at various age levels. Although, manuals for DWl training suggest that tests should not be given to individuals who are 60 years of age or older or to a person more than 50 pounds overweight, it provides no information on how to evaluate the performance of a 45 year old versus a 20 year old (NHTSA, 1992).

Examiners cannot adequately interpret a score, unless they know the mean and the standard deviation of the distribution. NHTSA leads us to believe that the “norm” for a sober person would be a test score of 0; that is, no errors in performance. Yet, we know from the 1977 NHTSA study that all of the sober people in that study made at least one error. In fact, the mean number of error “cues” scored among the sober individuals was 10.56.3
Even if NHTSA’s claim that the FST is not a norm-referenced test, but rather a criterion-referenced test (that is, that a certain score (criterion point) indicates failure), there are no data indicating how this criterion score might vary as a function of age, gender, or motor coordination. Even, if such norms were produced from the NHTSA 1977 and 1981 studies, they would be of limited value given that they are based on laboratory testing, not testing in the field.


Myth 4: The field sobriety tests are reliable.

Fact: Reliability refers to the consistency n test scores. Reliability scores can range from a low of .00, which indicates no consistency, to 1 .00, which indicates perfect consistency. A test with a reliability value of .90 would indicate that 90 percent of the variability in the test scores is attributed to true differences in performance and 10 percent would be due to error. Most well-established tests (e.g., Wechsler scales for lQ, SAT, GRE) have reliability values greater than .90. The scientific community expects reliability coefficients to be in the upper .80s or .90s for a test to be scientifically reliable (Anastasi, 1958; Rosenthal & Rosnow, 1990).

The HGN, One-leg stand, and Walk-and-turn tests have test-retest reliabilities of .66, .72, and .61 respectively with a combined reliability of 77. This means that 34 percent of the HGN, 28 percent of the One-leg stand and 39 percent of the Walk-and-turn test scores can be attributed to errors in scoring. If 23 percent of the score on a breathalyzer depended on the manufacturer of the device, would it be allowed into evidence? Quite possibly the most telling lack of reliability of the FST battery is that when different officers tested the same subjects at the same dose level on different days, the reliability was only .59. This means that 41 percent of the score was due to error. These reliabilities are far too low to be useful in making important decisions. By contrast the reliability of the BAC machine readings was .96, indicating a high level of reliability.

Myth 5: The field sobriety tests are scientifically valid.

Fact: The 1977 NHTSA study reported the results in terms of validity coefficients. The validity coefficient for HGN, One-leg stand and Walk-and-turn tests was .67, .48, and .55 respectively with a combined validity coefficient of 67. For example, if the officer used the individual FSTs, the accuracy in predicting the BAC levels would increase by only 26 percent with the HGN test, 12 percent with the one-leg stand test and 16 percent with the walk-and-turn test. If all three tests were administered, accuracy in predicting BAC levels would improve by only 26 percent. The error in predicting BAG levels using the HGN, the one leg stand, and the walk-and-turn combined would be 74 percent as large as it would be by chance.

For the FST battery to be a valid predictor of BAC, it must not only identify individuals above a BAC level of .10 as “failing, “ but also identify individuals below .10 as “passing.” That is, the test must have discriminative power. In NHTSA’s own studies, a significant proportion of people who were below the .10 BAG standard in effect at that time were falsely viewed as being impaired. In the 1977 Burns and Moskowitz study, 46.5 percent of the “arrest” decisions by participating officers were incorrect. Of the 101 arrest decisions, 47 subjects had BAG levels less than .10. The authors, themselves conclude, “Obviously, an error rate of 46.5 percent in making arrests is not acceptable” (p.25).

In the follow-up study by Tharp et. Al. (1981), the false arrest rate was 32 percent. The primary reason for the decrease in false alarm from 46.5 percent in the ‘77 NHTSA study to 32 percent in the 1981 study was not due solely to the “new improved FST,” but partly to the distribution of subjects across the dose levels. In the ‘77 NHTSA study 27 percent of subjects were in the critical range (BAC in the middle range) and in the ‘81 NHTSA study only 22 percent of subjects were in the middle range. In other words the distribution in the ‘81 NHTSA study made discriminations easier. If the ‘81 NHTSA study had used the same distribution of BAC levels that were employed in the ‘77 NHTSA study, the false arrest rate would have been higher than 32 percent and probably would have matched the “unacceptable” 46.5 level of the ’77 NHTSA study. These validity scores are quite low and suggest that the FST battery is of little benefit for an officer determining BAC levels.

Myth 6: NHTSA has validated the FST in a field setting.

Fact: The 1977 and 1981 NHTSA studies were conducted in a laboratory setting. It is obvious that laboratory studies are very different from studies performed in a natural or field setting. Laboratories are quite different from real life situations. For example, the influence of alcohol on the individual depends greatly on the social context, as well as the expectations of the person. Subjects in these NHTSA studies were told not to eat eight hours prior to the testing. Test subjects were tested at 15-minute intervals, and the study began early in the morning. This would mean that many subjects had not eaten for long as 12 hours before being tested. It is doubtful that a person drinking in a natural setting would fast for hours and then consume alcohol at unknown ethanol levels.
Laboratories are artificial by nature and only gives an indication of what one might expect in a field setting. In the conclusions of the 1981 NHTSA study, the authors recommended that the field sobriety test should be validated in the field for 18 months and in various localities across the nation. The 1983 NHTSA study by Anderson, et al., the purported “field validation” of the FST battery, did not meet those recommendations, A 3-month study was conducted in a limited number of locations on the east coast. Dr. Bums has testified on cross examination4 that the FST has never been adequately field tested. Most importantly the FST has never been standardized or validated in a field getting.

Myth 7: The NHTSA studies have been published in Peer Reviewed Journals.

Fact: Neither of the 1977 or 1981 NHTSA studies has been published in a scientific peer-reviewed journal. The publications have been limited to technical reports issued by NHTSA. Dr. Burns has admitted on cross examination3 that the method and results sections were too lengthy to be published in a scientific journal. Based on this logic lengthy but important studies would never be published. It is difficult to see how the NHTSA could claim that the FST Is accepted in the scientific community, when results of studies on the validation of the FST have never appeared in a scientific peer reviewed journal, which is’ a basic requirement for acceptance by the scientific community.

Myth 8: There is a consistent relationship between BAC levels and driving impairment.

Fact: The literature on the effects of alcohol is so diverse that one can only conclude that any demanding task may be impaired at almost any BAC level. Research indicates that there are substantial individual variations in the metabolism of alcohol which would, most likely affect performance. Performance is also affected by individual differences and individuals with identical BAC levels, may very well have different levels of impairment (Hurst and Bagley, 1972; Moskowitz, Daily and Henderson, 1974). Many studies involving the influence of alcohol on impairment find a rather significant number of subjects whose performance actually increases after the consumption of alcohol. In a study conducted under the auspices of the California Highway Patrol and various law enforcement agencies, Giguire (1985) found that 17 percent of his subjects with doses calculated to achieve BAG levels of .10 improved driving performance on a closed course. Mangarin & Standery (1989) also found no effects of alcohol dose on a video driving performance despite an unusually high dose calculated to achieve a BAG of .16. These studies and others suggest a complex relationship between BAC levels and performance and offers little support for setting specific BAC impairment levels and certainly does not support the assumption that BAG levels could be used as a substitute criteria for driving impairment.

Myth 9: People who are not impaired can “pass” the Field Sobriety Tests.

Fact: Cole and Nowaczyk (1991) had 21 adults perform field sobriety tests who were completely alcohol free, as confirmed by breath tests. The subjects were given six tests including a heel to toe test and a one leg stand test. None of the subjects was under the extreme pressure that is associated with a roadside detention situation. Two separate groups of law enforcement officers gathered at different times to judge the performance of the participants. These were actual police officers who had received standard training in the observation and Identification of intoxicated drivers. The officers were then asked to identify individuals who had too much to drink to drive. Of 147 responses by the police officers, 68 of those responses (46 percent) indicated that a completely sober person was too intoxicated to drive, The average police experience was 12 years. Interestingly, the officer with the least experience had the fewest wrong responses.

Compton (1985) found false positive rates for totally alcohol free participants to be as high as 54 percent for some police departments. In the 1981 NHTSA study 18 percent of alcohol-free subjects and 31 percent of subjects with BAC levels of .05 were judged to be impaired. Clearly, there is a strong tendency for certified alcohol-free participants to fail Field Sobriety Tests.

Myth 10: The Horizontal Gaze Nystagmus (HGN) Test is the most sensitive test for measuring Impairment.

Fact: Because the HGN test is a physiological task unlike the other Field Sobriety Tests which are psychomotor, divided-attention tasks, it is sometimes viewed as being the most sensitive of the three tests. Also, some of NHTSA’S research indicates it has the strongest relationship with BAC (e.g., Burns & Moskowitz, 1977 (p. 17]; Anderson, et at., 1983 (Table 2]). Yet, some of NHTSA’s own data raise question marks about its ability to discriminate among individuals with different BAG levels.

In a report commissioned by NHTSA, Snapper, Seaver and Schwartz (1981) reviewed the Burns & Moskowitz study and conclude, “Nystagmus, on the other hand was not a highly-rated test. ... First, Burns and Moskowitz evaluated tests with respect to the relationship between performance on the test and blood alcohol concentration (BAC). A close relationship between these two variables does not necessarily imply a close relationship between performance on the nystagmus test and driving performance, or between test performance and accidents. Specifically, it is not apparent that performance on the nystagmus test reflects, any skills related to driving. In addition, examining a driver for nystagmus may be difficult operationally and somewhat unsafe. Scoring is quite subjective and would require careful training for the test administrator” (p. 4-4).

The difficulty in scoring is illustrated in the Tharp, et al. study where we find a weak relationship between an officers ability to judge the angle of nystagmus onset and the actual angle as measured by a machine. Officers are instructed that onset of nystagmus before 45 degrees of eye movement to the outside is an indication of a BAC above .10. Yet, we find that of the 10 officers who participated in the Tharp et al. study, 5 had correlation coefficients less than .44, with 2 in the .23 to .26 range. This indicates little relationship between what the officers judged .the angle of onset to be and what the machine actually recorded as the angle of onset,

The 45 degree angle of onset itself is troubling. Based on NHTSA’s own research, a 45 degree angle corresponds to a BAC of approximately .05 or .06, not .10 (Tharp, et al., 1981). A more appropriate angle, based on their findings, is 41 or 40 degrees not 45 degrees. A BAC level of .08 would correspond to an angle of onset of approximately 43 degrees. The task for the officer to detect such small changes is quite daunting, if not impossible.

Follow-up research on impairment and performance with the HON has shown it can lead officers to falsely conclude a person has a BAG above .10 when it is not. Compton, in a NHTSA study (1985), reported the findings of a study where individuals were stopped at simulated sobriety checkpoints. The subjects, dosed to different BAC levels, were encouraged to act as though they were not impaired. The officers gave “failing” scores (4 points or higher) to 15 percent of the sober individuals and 64 percent of those with BAC levels between .05 and .09 (the average BAC level in this condition was .07).

Giguire (1985) had 24 Navy personnel drive on a closed course under sober and intoxicated conditions. In addition to evaluating their driving performance, Giguire had officers administer the Field Sobriety Tests. Of the 13 subjects with BACs below .10 (between .064 and .099), 12 showed evidence of impairment based on the HGN. The HGON is not as accurate a test for determining BAG as NHTSA would like you to believe.

Conclusion

Because of its widespread use, the FST battery has been assumed to be a reliable and valid predictor of driving impairment. NHTSA has done little to dispel that assumption. Law enforcement cannot be blamed for its use of the FST battery. Training documents refer to NHTSA reports and provide what appears to be supporting evidence for the validity of the FST battery. In addition, there is little doubt that individuals who have high BAC levels will have difficulty performing the FST battery. However, what the law enforcement community and courts fail to realize is that the FST battery may mislead the officer on the road to incorrectly judge individuals who are not impaired. The FST battery to be valid must discriminate accurately between the impaired and non-impaired driver, NHTSA’s own research on that issue (Anderson, et. al., 1983; Bums & Moskowitz, 1977; Tharp, et al. 1981) has not been subjected to peer review by the scientific community. In addition, a careful reading of the reports themselves provides support for the inadequacy of the FST battery. The reports include low reliability estimates for the tests, false arrest rates between 32 and 46.5 percent, and a field test of the FST battery that was flawed. Because officers in many cases had breathalyzer results at the time of the arrest. NHTSA clearly ignored the printed recommendations of its own researchers in conducting that field study.


What is needed is a careful examination of the complex relationships among motor coordination tasks, BAG level and driving impairment. Tests should be developed based on our understanding of these relationships. The current method of selecting the “best of what is out there” is not serving the public well.

References

Anderson, I.E., Schweitz,R. M. & Snyder, M. 8. (1983). Field evaluation of a behavioral battery for DWI. Final Report, DOT-HS-806-676, 1983.

Anastasi, A. (1988). Psychological Testing, Sixth edition. NY: Macmillan Press.

Burns, M. & Moskowitz, H. (1977). Psychophysical tests for DWI arrest. Final Report, DOT-HS-802-424, NHTSA, 1977.

CoIdwelI, B. B., Penner, D. W., Smith, H. W., Lucas, 0. H. W., Rodgers, R. F. & Darroch F. (1958). Effect of ingestion of distilled spirits on automobile driving skill. Quartery Journal of Studies on Alcohol, 19, 590-616.

Cole, R. M. & Cole, S. N. (1991). New proof that field sobriety tests are “failure designed.” OWl Journal, 6(2), 1-5.

Cole, S. & Nowaczyk, S. H. (1994). Field sobriety tests: are they designed for failure? Perceptual and Motor Skills, 79, 99-104.

Compton, R. P. (1955). Pilot test of selected DWI detection procedures for use at sobriety checkpoints. Final Report, DOT- H S_806-724.

Giguire, W. (1985). Impairment caused by moderate blood alcohol levels in a closed course: preliminary demonstration. In S. Kaye & G. Meier (Eds.), Alcohol, Drugs and Traffic Safety. Proceedings 9th International Conference.

Hurst, P.M. and BagIey, S.K. Acute adaptation to the effects of alcohol. Quart. J. Stud. Alc., 33, 358-378, 1972.

Moskowitz, H., Daily, J. And Henderson, A. Acute tolerance to behavioral impairment by alcohol in moderate and heavy drinkers. DOT-NHTSA,TM (L) - 4970/013/00, 64 pp., 1974.

Moskowitz, H. & Robinson, C. (1987). Driving-related skills impairment at low blood alcohol levels. In P. C. Noordzij & A. Roczbach (Eds.), Alcohol, drugs and traffic safety. Elsevier Science Publishers. pp. 79-86.

Moskowitz, H. & Robinson, C. (1988). Effects of low doses of alcohol on driving-related skills: a review of the evidence. Final Report, DOT-HS-807-280.

NHTSA, National Highway Traffic Safety Administration (1992). DWl Detection and Standardized Field Sobriety Testing. DOT- PB94-780 228.

Rosenthal, A. & Rosnow, R. L. (1991). Essentials of Behavioral Research. (2nd ed.) New York: McGraw-Hill.

Snapper, K. J., Seaver, D. A., & Schwartz, J. P. (1981). An assessment of behavioral tests to detect impaired drivers. Final Report, DOT-HS-806-211.

Tharp, V., Burns, M. & Moskowitz, H. (1981). Development and field test of psychophysical tests for DWI arrests. Final Report, DOT-HS-805-864.

Alcohol Cravings Induced via Increased Serotonin

Alcohol Cravings Induced via Increased Serotonin
by Ann Blake Tracy, Director, ICFDA

There is an alarming connection between alcoholism and the various prescription drugs that increase serotonin. The most popular of those drugs are: PROZAC, ZOLOFT, PAXIL, LUVOX, SERZONE, EFFEXOR, ANAFRANIL, and the new diet pills, FEN-PHEN and REDUX. For seven years numerous reports have been made by reformed alcoholics (some for 15 years and longer) who are being "driven" to alcohol again after being prescribed one of these drugs. And many other patients who had no previous history of alcoholism have continued to report an "overwhelming compulsion" to drink while using these drugs.
(A few personal accounts: #1 A young woman, a recovering alcoholic, reported that during the eight month period she had been using Prozac she found it necessary to attend AA meetings every day in order to fight off the strong compulsions to begin drinking again. #2 In the Southeastern United States a middle aged psychologist, also a recovering alcoholic, after being prescribed Prozac, found herself needing to attend AA meetings morning, noon, and night to keep from destroying the sobriety she had achieved. #3 A young father, who was Mormon and had never before in his life used alcohol, found himself drinking Ever Clear and exhibiting bizarre as well as violent behavior, after being prescribed Prozac and Ritalin. #4 A young mother who had never used alcohol before began drinking large amounts within weeks of being prescribed Prozac and quickly found herself committed to a mental institution due to the psychotic behavior that resulted. Added to her Prozac prescription were anti-psychotic meds and electric shock treatments. She then began to experience seizures and was started on anti-seizure meds. #5 A concerned neighbor reported her friend was drinking straight Vodka on a regular basis after being prescribed Zoloft. #6 A daughter reported her father, sober for 15 years, began drinking again on Prozac. The consistant report from these patients has been an "overwhelming craving or compulsion" for alcohol.)
For some time we did not have specific medical documentation to help us understand why this was happening. Could it be that Prozac, Zoloft, Paxil, etc., being mood altering substances, were removing the inhibitions that individuals had placed upon themselves to stop their additions? But beyond this mood altering effect of Prozac, etc., there seemed to be a physiological cause for this alcoholic obsession as well. There were reports of people who rarely drank before Prozac, etc., consuming excessive amounts of alcohol after starting usage of these various drugs. For example we have the case of a young newly wed in Southern Utah who was given Prozac for a hormonal imbalance. Before that time she would have two or three social drinks a year, yet soon after being prescribed Prozac she began bringing alcohol home by the case. Many similar reports followed.
Could it be that because these drugs have such a strong adverse effect upon the pancreas [Manufacturer's warnings include such side effects as hypoglycemia, diabetes and pancreatitis.] they are producing a potent disruption in the body's blood sugar balance? This would in turn cause a "craving" for alcohol as the body reaches out for a "quick fix" to raise the blood sugar level thus triggering a vicious self-perpetuating cycle as the alcohol pushes the blood sugar level even lower after the brief high it produces. This means that those suffering a tendency toward alcoholism or any other blood sugar disorder would suffer the most disastrous repercussions of Prozac, etc., (including psychosis, suicidal ideation and violence) much faster than most. Patient reports support this conclusion.
In November of 1994 Yale published a study that gave us one answer to the alcohol cravings associated with these drugs. The study demonstrated that an increase in brain levels of either of two neurotransmitters (brain hormones), serotonin or noradrenalin, produces: #1 a craving for alcohol, #2 anger, #3 anxiety. They found this to be especially true for those who have a history of alcoholism. All of the drugs listed above are designed in one way or another to increase serotonin which in turn also increases noradrenalin. Anyone who has a history of alcoholism should heed the warning contained in these reports. And anyone who has developed a problem with alcoholism while using these drugs deserves answers as to why they have experienced such an overwhelming compulsion to drink.
America already has an estimated 10 -15 million alcoholics. To increase that number with a reaction from prescription drugs which causes a compulsion to drink is a tragedy! What a sad state of affairs that drugs which are actually being promoted as a treatment for alcoholism have the potential to create alcohol craving behavior. This is not only frightening, but absurd. It is heart-rending to listen to those who have had years of sobriety destroyed almost overnight or those who have never touched alcohol before Prozac, yet began drinking compulsively due to a medication prescribed by doctors unfamiliar with this connection. By chemically inducing an overwhelming urge to drink this effect also causes patients to mix alcohol with these powerful drugs. When alcohol and drugs are combined, one can compound the effects of the other so the resulting impairment is far worse than if the two were taken separately...even small amounts, mixed with some medicines, will deaden your senses or change your perceptions which can lead to psychotic behavior, seizures, etc. Those in this situation need to be made aware that they are not alone, and that this is a common report which is now substantiated by medical documentation. They also need to understand that it is possible to very gradually withdraw from these drugs and overcome these adverse drug reactions.
For an in depth exploration of this subject see the book PROZAC: PANACEA OR PANDORA? by Ann Blake Tracy. For order information call 1-800-280-0730 or visit the website.
Other references for this material: Krystal JH, Webb; E, Cooney N.; et al., "Specificity of Ethanol-like Effects Elicited in Serotonergic and Noradrenergic Mechanisms," ARCHIVES OF GENERAL PSYCHIATRY, Vol. 51, Issue 11, pgs 898-911. (This is the Yale study mentioned above.); In a study conducted by Liisa Ahtee and Kalervo Eriksson (Physiology and Behavior, Vol. 8, pp. 123-126, 1972) rats which preferred alcohol had 15-20% higher concentrations of serotonin in the brain.

DUI FIELD TESTS AND DIABETICS

Diabetics commonly experience hypoglycemia (low blood sugar levels). And what are the symptoms? Slow and slurred speech, poor balance, impaired motor control, staggering, drowsiness, flushed face, disorientation -- in other words, the classic symptoms of alcohol intoxication. This individual will look and act like a drunk driver to the officer, and will certainly fail any DUI "field sobriety tests". As one expert has observed, "Hypoglycemia (abnormally low levels of blood glucose) is frequently seen in connection with driving error on this nation’s roads and highways...Even more frequent are unjustified DUIs or DWIs, stemming from hypoglycemic symptoms that can closely mimic those of a drunk driver." From "Hypoglycemia: Driving Under the Influence" in 8(1) Medical and Toxicological Information Review Sept. 2003.
Canadian scientists have reported that "approximately 200 compounds have been detected in the human breath." Manolis, The Diagnostic Potential of Breath Analysis, 29(1) Clinical Chemistry 5 (1983).
This study confirmed the presence of acetone on the breath in diabetics and in persons on a diet " associated with a weight reduction of about one-half pound per week." Id. at 9. Another study has confirmed that diabetics may give false indications of intoxication. In Brick, Diabetes, Breath Acetone and Breathalyzer Accuracy: A Case Study, 9(1) Alcohol, Drugs and Driving (1993), a researcher found that expired ketones in the breath of an untreated diabetic can contribute to erroneously high breath-alcohol readings. Further, the acetone on the breath from ketoacidosis will result in an odor of alcohol. Finally, behavioral patterns of a diabetic whose blood-sugar level has dropped will include slurred speech, slow gait, impaired motor control, fumbling hand movements, and mental confusion--all symptomatic of intoxication.
Acetone may also be found on the breath of perfectly normal, healthy individuals. Yet, acetone is one of the compounds that will be detected on many breath analyzing instruments as ethanol. In the Intoxilyzer, for example, it is detected because acetone absorbs infrared energy in the 3.38 to 3.40 micron range--the same range where ethanol is found. Therefore, if acetone were introduced into the Intoxilyzer, the machine would simply register the presence of alcohol despite its absence. If an individual had 525 micrograms per liter of acetone in the breath, he would register a blood-alcohol level of .02 to .03 percent. Thus, if an individual with a true blood-alcohol level of .08 percent had that amount of acetone, the Intoxilyzer would register in the area of .l0 to .11 percent.
The National Highway Traffic Safety Administration has published a report entitled The Likelihood of Acetone Interference in Breath Alcohol Measurement (DOT HS--806-922). The report basically summarizes scientific literature on the subject, concluding that normal individuals have insignificant levels of acetone on their breath. The data indicated, however, that dieters can have higher levels and that diabetics not in control of their blood-sugar had levels hundreds or even thousands of times higher than normal
a study confirming the effects of acetone in diabetics can be found in Mormann, Olsen, Sakshaug, and Morland, Measurement of Ethanol by Alkomat Breath Analyzer; Chemical Specificity and the Influence of Lung Function, Breath Technique and Environmental Temperature, 25 Blutalkohol 153 (1988). Diabetic subjects in that study also were found to have acetone levels sufficient to produce breath-alcohol readings of .06 percent.

Breath testing machines, such as the Intoxilyzer 5000, suffer from a little-known design defect: they do not actually measure alcohol! Rather, they use infrared beams of light which are absorbed by any chemical compound (including ethyl alcohol) in the breath which contains the "methyl group" in its molecular structure; the more absorption, the higher the blood-alcohol reading. The machine is programmed to assume that the compound is "probably" alcohol. Unfortunately, thousands of compounds containing the methyl group can register as alcohol. One of these is "acetone". And a well-documented by-product of hypoglycemia is a state called "ketoacidosis", which causes the production of acetones in the breath. In other words, the Breathalyzer will read significant levels of alcohol on a diabetic’s breath where there may be little or none. See, for example, Brick, "Diabetes, Breath Acetone and Breathalyzer Accuracy: A Case Study", 9(1) Alcohol, Drugs and Driving (1993).
Fact: roughly one in seven sober drivers on the road suffers from diabetes.