Alcohol Interlock Curriculum:

1. Alcohol Interlock Curriculum: Legal Concerns Handout

2. Legal Concerns • This section contains the following information: • Alcohol and the human body • Mouth alcohol • Food and the alcohol interlock • Attributing breath samples to drivers • Expert witness testimony • Impact on family members • Providing a sufficient breath sample • Costs associated with the alcohol interlock • Determining indigency • Conclusions

3. Alcohol and the human body • Ingestible alcohol, known as ethyl alcohol or ethanol, is the type of alcohol that is found in a standard drink of beer, wine, or liquor. • Ethanol is a central nervous depressant that enters the bloodstream after being ingested (typically orally) and absorbed within the body. • Alcohol has an affinity for water. Brain tissue has a fairly high water content so it receives a substantial share of the distributed alcohol.

4. Alcohol and the human body • Research shows that the male body is about 68% water; the female body is about 55%. • Women also have more body fat; alcohol is less soluble in fat. • Therefore, when a man and woman drink exactly the same amount of alcohol under the same circumstances, the woman’s BAC will be higher because women have a lower water content and are generally smaller in size.

5. Alcohol and the human body • The majority of alcohol that is consumed is eliminated by the body through the process of metabolism. Most of this takes place in the liver. • The speed at which this occurs can vary based on person and time. On average, a person’s BAC will drop by 0.015 per hour. • Once alcohol has been consumed, there is nothing that can be done to speed up the metabolism or the process of elimination.

6. Mouth alcohol Offenders may claim that alcohol-positive readings are due to mouth alcohol in an effort to avoid sanctions. Consuming some foods, medication, or hygiene products immediately prior to taking the breath test can result in an alcohol-positive test. To avoid this problem, drivers should not to consume products with alcohol 5 minutes prior to providing a breath sample. Residual mouth alcohol will dissipate within a few minutes of consumption as it is absorbed into the body or taken up by saliva. Rinsing the mouth with water will also help remove traces of mouth alcohol.

7. Food and the alcohol interlock Some foods (e.g., chocolate donuts, some breads) can produce endogenous (internally produced) alcohol. This alcohol is unlikely to be produced in sufficient quantities to result in an alcohol-positive breath sample. For example, an individual would be required to consume 3 lbs. of bread to reach a BAC equivalent to that of a single 12 oz. beer with 4% alcohol.

8. Attributing breath samples to drivers • It has not been possible to attribute the results of a specific breath test to a particular driver. • Breath pulse, hum tone and similar features on some devices can limit the extent to which other drivers are able operate the vehicle as these techniques are difficult to master without receiving the proper instruction. • Manufacturers are currently investigating various methods by which drivers could be accurately identified, such as picture identification.

9. Expert witness testimony • As a general rule, an expert is needed to testify when there is a need to discuss scientific, technical, or other specialized knowledge as part of a hearing or case. • In making a determination about an “expert” there are several factors to consider: • First, there are court rules and case law in each state regarding what is required of an expert witness. • Second, there is a requirement that the witness possess specialized knowledge that is relevant to the case. An expert can be someone that has, through education, experience, training, or observation, obtained the necessary knowledge on the topic over a reasonable period of time.

10. Expert witness testimony • It is important to determine the subject matter that the expert will testify about in order to identify a suitable candidate. • Key questions to consider: • What are the person’s qualifications or credentials? • Where did they gain their knowledge or experience? • Has the person conducted research in this area? What kind of research? • Has the person authored peer reviewed articles or studies about alcohol interlock devices? • Does the person possess any licenses or certificates demonstrating their knowledge or expertise? • Has the person previously been an expert witness in the courtroom on this issue?

11. Expert witness testimony • Other issues that are not related to specialized expertise may include: • Whether the witness is articulate; • Whether the witness can effectively convey relevant expertise; and, • Whether the witness can be considered independent and/or unbiased. • While not critical in most jurisdictions, some states expect that the witness is independent. • A person that is employed by or receives income from a company that makes alcohol interlock devices may not be considered independent and unbiased.

12. Impact on family members • An alcohol interlock may be an inconvenience to family members, particularly in a single-vehicle family. • Research suggests that family members generally agree that the inconvenience of using the alcohol interlock device is a preferred alternative to other sanctions (Beirness et al. 2007). • Some families report that the device has had positive benefits for family life as a result of the offender’s reduced drinking.

13. Providing a sufficient breath sample • NHTSA standards in the U.S. require a minimum of 1.5 litres of breath. • Even offenders who suffer from asthma can provide a sufficient sample for testing and devices can be adjusted to require a reduced volume. • A U.S. study of more than 1,500 spirometer (lung capacity) tests found that approximately 2.5% of adults would be medically incapable of delivering an appropriate sample at this volume (Patton 2007). • Offenders who have undergone a tracheotomy, have chronic pulmonary disease, or other severe breathing disorders may encounter difficulty providing a sufficient sample.

14. Costs • The cost to offenders to have the alcohol interlock device installed is approximately US $70.00 and between US $60.00 and $90.00 per month for monitoring. • The cost of this sanction is $3.00-$4.00 per day (or the cost of a drink). • In some jurisdictions, these costs may be defrayed by the courts by allocating a portion of the fine towards these costs or by waiving/reducing fines. • In a few states indigent funding schemes are already in place and more programs are moving in this direction (e.g., New Mexico).

15. Determining indigency • For those states with funding for indigent offenders, there is no standard strategy to determine indigency. • Strategies may include: • discretion of the court (e.g., TX); • qualification for a public defender (e.g., MN); • qualification for food stamps (e.g., was considered in CO); • Federal poverty guidelines (e.g., MI) • State definition of financial hardship or according to salary level (e.g., MD).

16. Conclusions • Legal challenges are commonly raised by defence counsel and often involve trying to provide alternate explanations for alcohol-positive readings. • These explanations can relate to how alcohol is metabolized in the body, mouth alcohol, the way that foods produce positive readings, and how other drivers may be responsible for positive readings. • Alcohol is metabolized in the body through the stomach and into the bloodstream. It is then distributed throughout the body. • Once alcohol is consumed, there is nothing that can be done to speed up the metabolism of the process of elimination.

17. Conclusions • In order to avoid a positive reading as a result of mouth alcohol, individuals should avoid consuming any food, medications, or hygiene products prior to providing a breath sample. • Some foods (e.g., chocolate donuts or bread) can produce endogenous alcohol but it is unlikely that it will be produced in sufficient quantities to result in a positive sample. • Breath samples cannot be attributed to individual drivers at present. Photo identification devices are currently being tested. • An expert witness may be necessary in court hearings to testify to the reliability of alcohol interlocks. Experts should have specialized knowledge of the device. They should not have a vested interest in trial outcomes.

18. Conclusions • Research has demonstrated that the alcohol interlock is not an inconvenience to family members and instead is viewed as having positive benefits (Beirness et al. 2007). • Almost all individuals are able to provide sufficient breath samples under the current guidelines (1.5 litres). A doctor can determine a person’s capacity to comply with the breath volume requirement. • The daily cost of the alcohol interlock is approximately $3.00-$4.00 which makes it an affordable option for most individuals. • Currently, there is no standard strategy utilized to determine indigency and different states have developed their own measures. • Offenders should not be precluded from participation because of cost. 13.05.2009