Breath Test

Published on: January 6, 2016

Driver Cites Body Chemistry to Beat DUI Charge

An unusual medical condition enabled a woman in Albany, New York, to avoid conviction for driving under the influence. It makes you wonder whether people will start making appointments with their doctors as well as their lawyers after police charge them with DUI in Los Angeles.

ABC 7 News in San Francisco reported that the unnamed woman had a blood alcohol content of 0.33 (as measured by a breathalyzer) when police pulled her over in October 2014 for erratic driving. But the woman (unnamed because of medical confidentiality laws) said she had not had more than three drinks in six hours.

The woman’s lawyer, Joseph Marusak, first contacted Barbara Cordell of Penola College in Texas, who had published a study of a man who had “auto-brewery syndrome.” In this condition, the body’s digestive system converts ordinary foods—those with high carbohydrate content—into alcohol. (The intestines literally ferment them into alcohol.) In the case that Cordell studied, a 61-year-old man had suffered periods of drunkenness, despite the fact that he had not been drinking.

Published on: March 12, 2014

Colorado “Rolls Out” Anti-Marijuana DUI Safety Campaign

by Michael Kraut

Los Angeles DUI analysts are always keen to follow legal developments in the state of Colorado, which often stands on the “leading edge” of curious new DUI-related developments, legally and culturally.

Recently, Colorado passed a statewide law that legalized recreational marijuana use. However, the CO government wants to prevent stoned drivers from causing accidents on Rocky Mountain highways. To that end, the Colorado Department of Transportation just aired a series of TV ads as a part of an ambitious “drive high, get a DUI” safety campaign.

The CDOT campaign is rich with cheeky, gallows humor. One ad features a man trying to put up a TV set, which comes crashing down. The ad copy reads: “installing your TV while high is now legal … driving to get a new one isn’t.”

The Colorado State Patrol’s Chief of Police, Scott Hernandez, emphasized a “safety first” message: “as Coloradoans now have more access to marijuana, we want you to be aware that law enforcement is trained to identify impairment by all categories of drugs and alcohol.”

The CDOT limits blood marijuana to just 5 nanograms of THC (active) per milliliter of blood. A survey from September of last year found that more than one out of five Colorado drivers had driven after consuming or smoking marijuana within a month from when the survey was taken. That’s a crazily alarming statistic.

Advocates on both sides of the debate worry that the 5 nanogram limit may be too hard to enforce. One spokeswoman for the CDOT told USA Today “one hit could put someone over the limit.” Meanwhile, Mason Tvert, a spokesperson for the Marijuana Policy Project, told USA Today “too much evidence suggests that [the 5 nanogram limit] would result in people being unfairly convicted of a DUI when they are not actually impaired.”

In Los Angeles, driving under the influence of drugs can be charged as a crime per CVC Section 23152(a), which defines “under the influence” as an umbrella term — it includes not only alcohol but also drugs like marijuana, prescription narcotics, illegal drugs, and over-the-counter medications.

Authorities cannot use a breath test to measure the presence of marijuana or other drugs. Instead, they give suspected drivers urine or blood tests. Juries then examine these chemical analyses to determine guilt and sentencing.

For help defending against a Los Angeles DUI drug charge, call attorney Michael Kraut today with the Kraut Criminal & DUI Lawyers. Mr. Kraut has an excellent reputation; he served as a prosecutor for 14 years before working with defendants, so he really understands how prosecutors act and think.
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Published on: February 27, 2014

If Los Angeles DUI Breathalyzer Tests Are So Flawed, Then Why Do So Many Police Forces Use Them?

by Michael Kraut

If you’ve read our criticisms of Los Angeles DUI breathalyzer tests, you’ve hopefully been at least slightly convinced that these screening tools are less than flawless.

At the risk of being repetitious, breath test results can vary, depending on:

•   How deeply you blow into the machine;
•   The machine’s calibration;
•   Your metabolic rate of alcohol absorption;
•   How much food you ate;
•   Your genetics and metabolic history;
•   Whether you’re sick or on any kind of medications;
•   How much “mouth alcohol” is present;
•   Whether you’re producing ketone bodies — metabolic byproducts of certain diets — which can throw off breath test readings and lead to false positives;
•   Whether the officer who conducted your breath test made mistakes regarding calibration, cleaning the machine, documenting the process and so forth;
•   Whether the type of breathalyzer machine used was flawed.

Depending on what happened with the breath test, you may have potential defensive avenues. For instance, perhaps the police violated your Constitutional rights and pulled you over without a good reason or subjected you to unreasonable search and seizure.

How should you fight your Los Angeles DUI charges? The first rule is commonsensical: don’t try to figure this all out on your own. Trust the attorneys at the Kraut Criminal & DUI Lawyers to help you build a good strategy and contrive an effective defense.
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Published on: February 16, 2014

4 Potential Issues with Your Los Angeles DUI Breathalyzer Test Results

by Michael Kraut

You recently tested positive for DUI in Los Angeles via a breathalyzer test.

Perhaps you’re an underage driver who blew a relatively low 0.06% BAC. Your BAC level wouldn’t have been a problem, had you have been of legal drinking age. Or perhaps police stopped you at a checkpoint in Pasadena, and you blew a 0.09% – just over the legal limit – and performed less than stellarly on your field sobriety tests. Or maybe you blew an “extreme DUI” of 0.17%, after you got into an accident.

In all these situations, your Los Angeles DUI defense attorney may be able to challenge the results or accuracy of the breath test to reduce your penalties or potentially void them entirely. For instance, consider the “extreme DUI” example. Perhaps your lawyer can convince the court that you weren’t 0.17% but rather 0.14%. Even that may be enough to substantially reduce your penalties, such as jail time, fines, probation, alcohol school, etcetera.

Here are 4 common issues with breath tests:

1. Alcohol left over in your mouth.

Here’s a gross but true fact: alcohol can get stuck in between your teeth and in your mouth, depending on your dentition, your general oral health, and other factors. This “mouth alcohol” can throw off your BAC reading and cause it to read higher than it is, objectively.

2. You may have a slow alcohol metabolism.

The breath test doesn’t measure blood alcohol directly – it infers it. How long does it take you to absorb and metabolize alcohol? The breath test results may skew higher than your objective BAC level.

3. The strength of your exhale can skew the test results.

If you blow out “super hard” during the breath test, you can skew the BAC reading to be higher than accurate. This is one of the reasons why many law enforcement officials ask people to “blow deeply” into breath machines. They know that the deeper you blow, the higher your BAC reading will be, all other things being equal.

4. Other factors.

Potentially dozens of factors can throw off the breath test results, including:

•   Your breath’s temperature;
•   Whether or not you’re a diabetic or on an intense diet (ketone bodies created by low calorie and low carb diets can skew breath test results);
•   Whether you’ve ingested other chemicals that could throw off the breath test;
•   Whether you’re a man or a woman (men and woman absorb alcohol at different rates);
•   Whether the officer calibrated the breath test properly;
•   Whether the machine itself has inherent engineering flaws.

Of course, a breath test is not always challengeable, but you might be surprised by the sheer diversity of DUI defenses available to you.

Talk to a highly respected and experienced Los Angeles DUI criminal defense lawyer at the Kraut Criminal & DUI Lawyers to get a handle on your options. Attorney Kraut is an ex-D.A. He has a deep understanding of the prosecutorial process and great relationships in the system.
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Published on: February 6, 2014

Los Angeles DUI Analysis: Is the “Breathalyzer Equalizer” a Boon or a Bane for Road Safety?

by Michael Kraut

A new product has created an incredible amount of controversy and debate within the Los Angeles DUI prevention community. It’s called the “breathalyzer equalizer.” Developed by a DUI defense attorney and a state trooper, this product uses a powder to absorb “mouth alcohol” to make breathalyzer test results more accurate.

As we’ve discussed before on this blog, mouth alcohol can throw off the accuracy of breath test readings and lead to false positives and unnecessary arrests. The makers of this product argue that increased accuracy will lead to safer roads and fewer people falsely arrested and convicted. Critics, like Mothers Against Drunk Driving spokesperson, Berry Martin, call the product “unnecessary” and warn that its widespread use could “lead to dangerous circumstances.” Martin, a member of Georgia’s chapter of MADD, did not mince words: “you are putting drunks on the road…If you get caught, you could beat the test and that false sense of hope could lead to an accident. The accident could kill somebody.”

Would such a product lead to “false hope”?

Could this product cause harm?

These questions may not be simple to answer. Martin might have a point.

Paul Broft, a product representative, explained that “all [the Breathalyzer Equalizer] does is eliminate errors. What we are doing is protecting lives and careers.”

Let’s extrapolate from that logic. Imagine someone gets falsely convicted for DUI for having mouth alcohol, which pushes her BAC level above the 0.08% threshold. This leads to a conviction and unfair punishments, such as license suspension, jail time, etcetera. It also then leads to other indirect problems, such as the loss of her job, relationship issues, self-esteem problems and high insurance rates.

That might sound like a “bridge too far.” But now imagine hundreds of these “close call” DUI arrests occurring every year — hundreds of lives torn apart for no reason. As important as it is to stamp out problems like DUI recidivism, it’s also important to prevent nonsensical or unfair DUI arrests.

Of course, Martin’s point can also be correct. Depending on how this product is advertised and used, it could encourage drivers who are “on the bubble” to take a little extra risk. If you extrapolate that “little extra risk” over large time periods and large numbers of people, it could add up to something substantial and dangerous.

The point is that with products like this – as with changes to DUI laws and policy – you can never really know what changes will lead to what results in advance.

The good news is that your defense does not have to be confusing or complicated, particularly when you work with an experienced Los Angeles DUI defense lawyer at the Kraut Criminal & DUI Lawyers. Connect today with attorney Kraut and his capable team today to build your defense.
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