Alcohol Interlock Curriculum:

1. Alcohol Interlock Curriculum: Legal Concerns

2. Legal Concerns • This section contains information about the following issues that offenders may raise to avoid sanctions for alcohol-positive readings or to avoid the imposition of the device: • 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 • Offenders may challenge the accuracy of breath test readings captured by the alcohol interlock. • For this reason, it is important that program authorities have a good understanding of how alcohol is metabolized by the human body. • “Alcohol” is the name of a family of closely-related and naturally-occurring chemicals.

4. Alcohol and the human body • Ingestible alcohol is known as ethyl alcohol or ethanol. • Ethanol is a central nervous system depressant. • It does not affect a person until it reaches a person’s central nervous system (e.g., the brain, brain stem and spinal cord). • Ethanol reaches the brain through the blood.

5. Alcohol and the human body • Absorption of alcohol. • Alcohol can be ingested in a variety of ways. In most cases, it is ingested orally. • Drinking on an empty stomach creates an ideal circumstance for rapid absorption. • When alcohol gets into an empty stomach, about 20% of it will make its way directly through the walls of the stomach. • The remaining 80% will pass directly through the stomach into the lower intestine from where it is readily absorbed into the blood.

6. Alcohol and the human body • Absorption of alcohol. • When the brain senses food in the stomach, it commands a small muscle at the base of the stomach (the pylorus or pyloric valve) to cut off the passage of the stomach contents to the small intestine. • Food and any alcohol remain trapped in the stomach. • Some of this alcohol will begin to break down chemically. • For this reason, a drinker’s BAC will not climb as high as it would have if he or she had been drinking on an empty stomach.

7. Alcohol and the human body • Distribution. • Alcohol has an affinity for water but is less soluble in fat. • Once in the blood, alcohol is distributed throughout the body in proportion with water content. • Research shows that there are some important differences in the way that alcohol is distributed in men and women. • A Swedish pioneer in alcohol research, E.M.P. Widmark, determined that the typical male body is about 68% water; the typical female body has only about 55% water. • As a result, when a man and a woman drink exactly the same amount of alcohol under the same circumstances, the woman’s BAC will be higher.

8. Alcohol and the human body • Elimination of alcohol. • As soon as alcohol enters the bloodstream the body starts to rid itself of the alcohol. • Some alcohol (about 2-10%) is expelled by the body in a person’s breath, urine, sweat, and tears. • The majority of alcohol is eliminated through the process of metabolism. Alcohol reacts with oxygen in the body and changes into carbon dioxide and water both of which are directly expelled from the body.

9. Alcohol and the human body • Elimination of alcohol. • Most of the metabolizing of the alcohol takes place in the liver. • The speed of this reaction varies somewhat from person to person, and even from time to time for any given person. On average, a person’s BAC will drop by about 0.015 per hour. • There is nothing that can be done to speed up the metabolism or the process of elimination. Drinking coffee, exercise, deep breathing or a cold shower will NOT speed up the elimination process.

10. 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.

11. 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. • As such, “the likelihood of anyone testing positive from alcohol from cooked bread consumption, let alone becoming intoxicated, is therefore remote” (Logan and Distefano 1998).

12. Attributing breath samples to drivers • Offenders may suggest that other drivers are responsible for alcohol-positive readings captured by the alcohol interlock. • At present, it is not possible to attribute the results of a specific breath test to a particular driver. • Breath pulse, hum tone, and other features on some devices can limit the extent to which other drivers are able operate the vehicle. • In some instances, the onus may also be put on offenders to demonstrate that they are not responsible for the violation. • Manufacturers are currently investigating various methods to accurately identify the driver. Picture identification is currently being piloted in some jurisdictions.

13. Expert witness testimony • In some impaired driving cases, it may be necessary to identify an expert witness. • 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. • A key issue that is frequently raised in this situation is “who can be or should be called as a expert witness in the hearing”.

14. Expert witness testimony • 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.

15. Expert witness testimony • In selecting a suitable candidate for an expert witness, it is also important to consider the subject matter that the expert will testify about. • The nature of the type of information that is needed by the court can help determine who is most suitable to provide testimony.

16. Expert witness testimony • With regard to alcohol interlocks, if the issue is one of tampering or circumvention, then perhaps a person who is familiar with the installation process or the downloading of the data would be an appropriate choice. • If the issue pertained to the meaning of the test results collected by the device, then a person with expertise in breath testing and analysis, or the management of the data may be more suitable.

17. Expert witness testimony • Key questions to consider: • What are the person’s qualifications or credentials? • Where did they gain their knowledge or experience? Was the knowledge gained in a classroom or from hands-on experience working? • 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 in leading or recognized journals? • 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?

18. Expert witness testimony • Other issues that it may be useful to consider include: • How articulate is the witness? • How effectively does the person present information? • Is the witness an independent and/or unbiased witness? • A person that is employed by or receives income from a alcohol interlock device manufacturer may not be considered independent and unbiased. • It is important to determine whether this person has a vested interest in the outcome of the case.

19. Impact on family members • In order to avoid the alcohol interlock, an offender may suggest that the device may pose an inconvenience to family members, particularly in a single-vehicle family. • Research shows 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 alcohol interlock has had positive benefits for family life as a result of the offender’s reduced drinking.

20. Providing a sufficient breath sample • Some offenders may suggest they are unable to blow into the alcohol interlock device in order to avoid the sanction. • NHTSA specifications in the U.S. require a minimum of 1.5 litres of breath. • Canadian guidelines (2008) require a minimum value for breath volume is between 0.7 and 1.2 litres. The upper threshold for breath volume falls between 1.5 and 2.0 litres. • Offenders who suffer from asthma can provide a sufficient sample for testing and devices can be adjusted to require a reduced volume.

21. Providing a sufficient breath sample • 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 (Patten 2007). • Offenders who have undergone a tracheotomy, have chronic pulmonary disease, or other severe breathing disorders may encounter difficulty providing a sufficient sample.

22. Costs • Some offenders may suggest that they cannot afford the alcohol interlock device because of cost of the program. • Alcohol interlock programs are generally user-pay. • The cost to offenders is approximately US $70.00 for installation and between US $60.00 and $90.00 per month for monitoring. • The daily cost of this sanction is $3.00-$4.00 (or the cost of a drink), which is well below the cost of other incapacitation systems such as incarceration or electronic monitoring.

23. Costs • As a means to encourage and facilitate participation in the programs, some judges are able to reduce or even waive fines for offenders who install the device. • In a few states, indigent funding schemes are already in place and more programs are moving in this direction (e.g., New Mexico). • An offender should not be precluded from participation in an alcohol interlock program because of cost.

24. Determining indigency • For those states with funding for indigent offenders, there is no standard strategy utilized 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); and • State definition of financial hardship or according to salary level (e.g., MD).

25. 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.

26. 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.

27. 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. 13.05.2009