Fight A DUI

ESPN has an article today about Souksangouane Phengsene, 50, who was arrested early Sunday and charged with felony drunk driving. What makes this case notable is that six years ago, Phengsene was driving the wrong way on Highway 100 in Minnesota when he hit 30-year-old athlete Malik Sealy, killing him, and was convicted of felony criminal vehicular homicide due to his BAC of 0.19. This is his third DUI/DWI arrest, having been convicted of DWI in Iowa in 1997.

A legal blunder by the prosecutor prompted a judge Monday to dismiss DUI charges against a Centre Hall man. 

David Baird Jr., 39, of 351 Greens Valley Road, had been charged with DUI and a summary following an arrest earlier this year. Police said he had a blood alcohol content of .30 percent, more than three times the legal limit to drive in Pennsylvania.

However, during his trial Monday, Centre County Assistant District Attorney Lance Marshall failed to ask a police witness to identify Baird as the defendant.

Defense attorney Phil Masorti, realizing Marshall’s error, asked for and was granted a dismissal of the charges by Centre County Judge Bradley P. Lunsford.

Baird cannot be retried.

Alcohol effects everyone differently, and often times effects individuals differently depending on the conditions of their drinking. Clearly, many factors play a role in how drunk one gets, and what their BAC may be after a round of drinks. This article will attempt to explain many of the factors, and hopefully help you understand why things are the way they are.

 Alcohol Absorption Into The Body

Alcohol is a complex substance, absorbed from all parts of the GI tract by simple diffusion into the blood. If food is present in the stomach, the alcohol will be absorbed primarily by the intestines rather than the stomache, resulting in a lower and delayed BAC peak. The larger the meal and the closer in time between eating and drinking, the lower the peak BAC - studies have shown that anywhere from a 9% to 23% reduction over drinking alone. The type of food has not been shown to have any measurable influence.

Drink strength has also been shown to affect absorption, with drinks below 10% and 30% being absorbed most rapidly. Drinks less than 10% are less concentrated and more difficult to absorb due to literal volume of alcohol, while drinks over 30% tend to irritate the GI tract linings, causing increased mucous and delayed absorption. As was the case with food, the delayed absorption will cause a later peak, though in this scenario, the increased drink strength will not cause a small peak BAC, but will just push it back in time.

Distribution Throughout The Body

Alcohol is carried through the body in the blood, with an equilibrium eventually being reached such that all points in the system contain an approximately equal concentration of alcohol. The concentration differs, though based on a number of factors. Because alcohol has a high affinity for water, it tends to accumulate in body tissues and fluids in proportions related to the amount of water they contain. In the human body, this is generally proportional to body fat. In general, a person with low percentage of body fat will have a lower BAC than a person with a higher percentage body fat.

In general, women tend to have a higher percentage of body fat and, consequently, will have higher BAC for the same number of drinks. This is a generalization, and does not hold true for a woman who may be very fit, or a man who is somewhat obese. Similarly, for people of the same weight, a person with higher muscle mass will be less effected than a person with more body fat.

The issue of body fat is generally secondary to issues of total body weight. One’s BAC is generally based on total concentration - the total amount of alcohol divided by the total body water. A larger person will generally have more body water, which will cause a lower concentration, and a lower BAC.

Removing Alcohol From The Body

The liver is the primary organ for removing alcohol from the blood, removing over 95% with the rest leaving through breath, urine, sweat, feces, and saliva. Healthy people metabolize alcohol at a fairly consistent rate - generally about one drink per hour. Several other factors can influence this rate, and this rate tends to increase as the BAC is either very high or very low.

Two types of tolerance also come into play with alcohol - metabolic tolerance and functional tolerance. In metabolic tolerance, the liver reacts to greater consumption by producing more alcohol dehydrogenase - the enzyme that metabolizes alcohol - which can result in significantly faster metabolization. Metabolic tolerance is responsible for up to 72% more alcohol being eliminated from the system of a habitual drinker than an average drinker, but also contributes to the destruction of the liver. Functional tolerance allows a body to seem less intoxicated than a person with lower tolerance, causing a heavy drinker with a high BAC to seem less intoxicated than an average drinker with a much lower BAC. However, laws in most states consider the BAC as the primary evidence in DUI and DWI charges, causing a seemingly functional person to be guilty of a DUI for violating the legal limit even when the body seems to handle the alcohol.

Finally, while unexplained to date, studies have shown that women eliminate alcohol from their bodies at a rate nearly 10% higher than average men. However, this faster elimination rate is secondary to the higher general BAC women are likely to experience due to factors above.

Other Factors: Drugs, Fatigue, Health

Because alcohol is a depressant, any depressant drug will increase the effects of alcohol by as much as 10 times, and other drugs may cause unpredictable interactions (such as damage to the stomach lining and decreased blood clotting when alcohol is mixed with aspirin and liver damage when alcohol is mixed with acetaminophen).

Fatigue causes many of the same effects as intoxication, causing symptoms to be amplified or confused. Additionally, your liver is less efficient when overly tired, so drinking the same amount of alcohol will result in a higher BAC than when you’re rested.

When ill, most people suffer from some level of dehydration. Dehydration has a number of side-effects that cause a higher BAC - primarily, less water in the body causes the same amount of alcohol to create a higher concentration, causing a greater intoxication, and higher measurable BAC. Also, dehydration can decrease the efficiency of your liver, causing a higher and longer BAC peak than if you were not ill.

Virginia Tech has some useful information for estimating your BAC to help you determine how much alcohol you have likely consumed, so that you can know when to stop, or when not to drive. Remember: the easiest way to fight a DUI is not to get arrested in the first place. Lots of charts focus on the number of ‘drinks’, but everyone knows that not all alcohol is created equal. Some beer has more alcohol than others, hard alcohol varies greatly in alcohol content. So, the first step in estimating your BAC is to figure out how many “standard drinks” you’re likely to have.

First, some helpful pictures:

 First, figure out how many “standard drinks” you’re likely to have (based on the left tables above - for example, a 1.25oz shot at 50% alcohol is 1.25 standard drinks) , then use the table for men and women to see how many drinks your body type can handle.

Remember: other factors can change your BAC, so use common sense. If you haven’t eaten, or are on medications, or using various drugs, your BAC may react differently than the charts indicate.

The Times-Herald reports that the Newnan, Georgia Police Department has set a goal for 271 DUI arrests through 2006 - an increase of 10% of their 2005 arrests (246). To date, they’ve made 227 arrests within city limits, a pace that should meet and pass that goal. Much of the reason for this increase was an increased priority of license checks, according to Sgt Nat Brown of the NPD. They also increased patrol in high traffic areas and attended advanced DUI enforcement training to help officers spot a DUI and conduct safer arrests.

A 31-year-old man is facing vehicular homicide charges for the allegedly drunk-driving related deaths of a Marine and his pregnant wife in Los Angeles.

Police say Jose Onesimo Cruz was fleeing a wreck with another motorist on Saturday night when he ran a red light and struck the car with 19-year-old Jimmy Guzman his 18-year-old wife Maria Goya inside.

Guzman was a Marine scheduled to be deployed to Iraq in December. Goya was seven months pregnant. Both died from their injuries.

Police say Cruz’s pickup truck had earlier hit another car, whose driver chased him for three miles. He allegedly ran a light and hit Guzman and Goya’s car during that chase

The following points were written by California DUI Lawyer Howard M. Van Elgort ( www.santa-cruz-dui-lawyer.com ), and appear at http://preferredconsumer.com/legal/articles/fight_dui_arrest.html with some other insightful commentary. Many of these are more likely to be seen in practice than those on our 30 Ways To Fight A DUI article.

1. Did the police officer have a “reasonable suspicion” to justify a vehicle stop and detention for drunk driving.
2. Did the police officer observe the person driving in an erratic manner or in violation of the vehicle code? Did the officer observe any driving?
3. Did the police have “probable cause” to arrest the suspect for DUI (drunk driving or driving under the influence of alcohol and/or drugs)?
4. Did the officer observe sufficient “objective symptoms” of intoxication to conduct a DUI (drunk driving) investigation?
5. Did the arresting officer properly administer the field sobriety tests (FST’s) or balance and coordination test to determine whether or not to arrest the suspect for drunk driving or driving under the influence (DUI)?
6. Was any in-field breath test administered in the proper manner and was the machine used in proper working order?
7. Was an additional chemical test (blood or breath) conducted according to required procedures in the taking, handling and analysis of these samples?
8. Was the equipment used to analyze test samples in proper working order and maintained in accordance with regulations?
9. Were the test samples analyzed and the result reported according to state regulations, by a licensed laboratory, and in a scientifically approved manner?
10. Was the arrestee’s blood alcohol level rising or falling at the time of driving and at the time of the chemical test sample.
11. Were their any physiological reasons that would cause a false result on the breath machine (i.e.: GERD, residual mouth alcohol, heartburn, acid reflux disease, etc.)?

Having your alcohol with a sugar free artificial sweetened mixer may cut calories, but it will also cause your blood alcohol levels to spike unusually high, a recent study shows.

The findings, published in the September issue of the American Journal of Medicine, are based on an experiment with eight healthy young men. The volunteers had their blood alcohol levels measured repeatedly in each of two conditions: once after having a vodka beverage made with a sugary mixer, and once after drinking the same amount of vodka with an artificially sweetened mixer. The researchers also used ultrasound tests to measure each volunteer’s rate of stomach emptying after having the drink.

They found that with the diet mixer, the men’s stomachs emptied about 15 minutes sooner than when they drank the regular mixer, and that blood alcohol levels peaked at around the same time - 30 minutes after having the drink - regardless of which mixer was used. The difference, however, was that alcohol levels surged higher with the low-calorie mixer (to 0.05 percent, on average, versus 0.03 percent with the naturally sweetened mixer).

In many jurisdictions, the difference between having two drinks artificially sweetened drinks and two naturally sweetened drinks could mean the difference between a DUI and a safe drive home. Also notable is that women’s BAC generally soars higher than men, and that women are generally more likely to drink diet mixers in order to cut calories, making them especially susceptible to unexpectedly high BAC levels.