Drinking to keep warm

Time for a little humor and science...

A Missouri man was arrested for driving while intoxicated after he lost control of his car on an icy road. The motorist, Thomas Drummond, insisted that he was sober at the time of the accident and only drank afterward in an attempt to keep warm.

A southeast Missouri man has been acquitted of drunk driving after claiming that he consumed alcohol to keep warm after - but not before - he lost control of his vehicle on an icy road.

Thomas Drummond of Jackson told a court that he had been driving home after a night out with friends last February when his vehicle veered off the slick highway and into a culvert. Drummond says he was not intoxicated while driving, but that he was by the time emergency workers arrived more than two hours later.

The Southeast Missourian reports a jury acquitted Drummond last week.

Defense attorney Stephen Wilson says it was a set of facts you don't see every day.

(Thanks to the Associated Press.)

Of course the only problem is that alcohol will not keep you warm in the cold. What alcohol actually does is dilate the capillaries. And in extremely cold conditions, that is a recipe for disaster.

When we get cold our bodies react by pulling blood in toward the core of the body in an attempt to keep our core organs functioning. To do this, the capillaries in our extremities contract to reduce the flow of blood to our hands and feet. By drinking alcohol we increase the flow of blood to our extremities (which makes our fingers and toes feel warmer) and that causes our core body temperature to fall.

So, if you find yourself stuck in a snow drift, you might be better off passing on the brandy bottle around the St. Bernard's neck.

Mythbusters tackle alcohol myths

I caught a rerun of Mythbusters on the DVR the other night that dealt with intoxication myths. The boys decided to test whether there was any way to sober up faster than just passing the time.

Alcohol Myths (Oct. Alcohol Myths (Oct. 22, 2008) Is there such thing as "beer goggles"? Can running on a treadmill or slapping someone's face help to sober up a drunk person? Can an ancient medieval weapon really fire 200 arrows over 500 yards?

Click here to see the episode.

In order to test the remedies the boys used an agility test from NASA. They would trace a pattern with a marker and time themselves. They would both trace the pattern after drinking. Then one would try a "remedy" and the other would be the control. They would then trace another pattern afterward (each pattern was different but they were all the same length and had the same number of turns.

First up was coffee. Jamie and Adam both drank until they blew a .07 on the portable breath tester. Then they both traced a pattern. Jamie drank coffee. Five minutes later they traced the pattern. The scores for both Jamie and Adam increased from the first to second test. Coffee as a "remedy" to sober up was busted.

Next up was exercise. After drinking themselves to a .09 frenzy, Adam climbed aboard the treadmill and damn near killed himself. Adam's score on the tracing test increased after the exercise while Jamie's remained the same. They decided that exercise as a remedy to intoxication was plausible.

Now it was Jamie's turn to dunk his head into a bucket of ice water. The boys drank till they hit .08 and Jamie stuck his head in the ice-cold water. The scores on the tracing test were the same for both Jamie and Adam. Thinking about dunking your head in a bucket of ice to sober up? Think again. Busted.

The final remedy was The Slap. After getting their BAC's back up to the limit, Adam stood still while Jamie slapped him so hard his face looked like rubber. The slap sobered Adam up as his score on the tracing test improved. Jamie's, though, was worse. The verdict? Plausible.

Adam then made an interesting comment along the lines that exercise and slapping the face were shown to counter the effects of intoxication as demonstrated by the tracing test and the Breathalyzer. Now I can't speak to that last statement because we were never shown the PBT readings after the boys tested the "remedies" but the results of their tests challenge the notion that the only way to sober up is to sleep it off.

My advice is to take it with a grain of salt.

Oxygenated alcohol speeds up elimination

Take heart, serious drinkers. According to Korean scientists In-hwan Baek, Byung-yo Lee and Kwang-il Kwon, upping the amount of dissolved oxygen in alcohol from 8 parts per million to 25 parts per million speeds up the elimination rate of alcohol.

In a study, 49 participants consumed 12 ounces of 40 proof vodka (?) which scientists said was the equivalent of four shots (I think that should be eight shots) and their elimination rates were measured. The group that drank the "low oxygen" vodka eliminated the alcohol from their bloodstream in five hours while the group that drank the "oxygenated" vodka eliminated it 27 minutes faster. Those that drank the "oxygenated" vodka also reached an alcohol concentration of .05 faster than those who drank the regular vodka.

According to my calculations, tripling the oxygen levels in vodka increased the elimination rate by a little under 10%. If we accept the state's expert's testimony that the "average" elimination rate is .015 an hour, that works out to an elimination rate of .0165 instead. Not a great deal - but possibly enough to be the difference on a borderline breath test.

It remains to be seen whether those results can be duplicated with regular strength drinks.

I can't wait to see the marketing campaign should oxygenated alcohol hit the American market.

Seeing might just be believing

Earlier this month, police in Clarence, NY pulled over Michael Bartz for driving 59 mph in a 45 mph zone. That Mr. Bartz was speeding wasn't newsworthy. Blowing a .30 on the state's breath test machine, on the other hand, was.

The newspaper article states that a 160 lb. man would have to consume 11 alcoholic drinks in an hour to reach a .30. My Alcopro Drink Wheel tells me that it would take 13 drinks to achieve that blood alcohol concentration. Either way, that's a lot of alcohol in a short amount of time.

According to the Phoenix House's "Facts on Tap" website, these are the effects and behaviors you would expect to see at various blood alcohol concentrations:

BAL .02%-.03%: You feel mildly relaxed and maybe a little lightheaded. Your inhibitions are slightly loosened, and whatever mood you were in before you started drinking may be mildly intensified.

BAL .05%-.06%: You feel warm and relaxed. If you're the shy type when you're sober, you lose your feelings of shyness. Your behavior may become exaggerated, making you talk louder or faster or act bolder than usual. Emotions are intensified, so your good moods are better and your bad moods are worse. You may also feel a mild sense of euphoria.

BAL .08%-.09%: You believe you're functioning better than you actually are. At this level, you may start to slur your speech. Your sense of balance is probably off, and your motor skills are starting to become impaired. Your ability to see and hear clearly is diminished. Your judgment is being affected, so it's difficult for you to decide whether or not to continue drinking. Your ability to evaluate sexual situations is impaired. Students may jokingly refer to this state of mind as beer goggles,but this BAL can have serious repercussions. See the pages on Sex and Alcohol: A Risky Relationship for how to protect yourself.

BAL .10%-.12%: At this level, you feel euphoric, but you lack coordination and balance. Your motor skills are markedly impaired, as are your judgment and memory. You probably don't remember how many drinks you've had. Your emotions are exaggerated, and some people become loud, aggressive, or belligerent. If you're a guy, you may have trouble getting an erection when your BAL is this high.

BAL .14%-.17%: Your euphoric feelings may give way to unpleasant feelings. You have difficulty talking, walking, or even standing. Your judgment and perception are severely impaired. You may become more aggressive, and there is an increased risk of accidentally injuring yourself or others. This is the point when you may experience a blackout.

BAL .20%: You feel confused, dazed, or otherwise disoriented. You need help to stand up or walk. If you hurt yourself at this point, you probably won't realize it because you won't feel pain. If you are aware you've injured yourself, chances are you won't do anything about it. At this point you may experience nausea and/or start vomiting (keep in mind that for some people, a lower blood alcohol level than .20% may cause vomiting). Your gag reflex is impaired, so you could choke if you do throw up. Since blackouts are likely at this level, you may not remember any of this.

BAL .25%: All mental, physical, and sensory functions are severely impaired. You're emotionally numb. There's an increased risk of asphyxiation from choking on vomit and of seriously injuring yourself by falling or other accidents.

BAL .30%: You're in a stupor. You have little comprehension of where you are. You may suddenly pass out at this point and be difficult to awaken. (But don't kid yourself: Passing out can also occur at lower BALs. But, at lower blood alcohol levels, you may decide You've had enough to drink and go "pass out." With an alarming BAL like .30%, your body will be deciding to pass out for you.) In February 1996, an 18-year-old student died of alcohol poisoning with a BAL of .31% after attending two parties the night before.

So, according to research conducted by the Phoenix House, Mr. Bartz should not have been able to operate a motor vehicle at that blood alcohol concentration. Could the state's breath test machine have been wrong? Did Mr. Bartz' blood alcohol concentration increase after he was stopped? If he had been drinking while driving, did the alcohol in his mouth affect the test result?

Dr. Kurt Dubowski, considered by many to be an expert in the field of alcohol testing, put together this chart showing the effects of alcohol on the body at various concentrations:

BAC (g/100 ml of blood or g/210 l of breath)	Stage	Clinical symptoms
0.01 - 0.05	Subclinical	Behavior nearly normal by ordinary observation
0.03 - 0.12	Euphoria	Mild euphoria, sociability, talkitiveness Increased self-confidence; decreased inhibitions Diminution of attention, judgment and control Beginning of sensory-motor impairment Loss of efficiency in finer performance tests
0.09 - 0.25	Excitement	Emotional instability; loss of critical judgment Impairment of perception, memory and comprehension Decreased sensitory response; increased reaction time Reduced visual acuity; peripheral vision and glare recovery Sensory-motor incoordination; impaired balance Drowsiness
0.18 - 0.30	Confusion	Disorientation, mental confusion; dizziness Exaggerated emotional states Disturbances of vision and of perception of color, form, motion and dimensions Increased pain threshold Increased muscular incoordination; staggering gait; slurred speech Apathy, lethargy
0.25 - 0.40	Stupor	General inertia; approaching loss of motor functions Markedly decreased response to stimuli Marked muscular incoordination; inability to stand or walk Vomiting; incontinence Impaired consciousness; sleep or stupor
0.35 - 0.50	Coma	Complete unconsciousness Depressed or abolished reflexes Subnormal body temperature Incontinence Impairment of circulation and respiration Possible death
0.45 +	Death	Death from respiratory arrest

The National Highway Traffic Safety Administration (NHTSA) includes a chart entitled "Common Signs of Alcohol Influence" is its DWI Detection and Standardized Field Sobriety Testing training manual -- the book that most law enforcement agencies use to train their officers in the administration and evaluation of police coordination exercises.

Here are the effects and behaviors at various blood alcohol concentrations per NHTSA:

.03 Slowed reactions

.05 Increased risk taking

.08 Impaired vision

.10 Poor coordination

Once again there are questions about the accuracy of Mr. Bartz' breath test. While the article notes that Mr. Bartz failed the coordination exercises administered by the police (that's a big surprise), it also states that officers found nothing out of the ordinary until they conducted the breath test.

A high breath test may be grounds for some attorneys to recommend an immediate plea because they see no way to win the case. It can also be an opportunity to turn the state's evidence and witnesses against the state and use them to your advantage.

Need to sober up? Take a pill

British scientists are working on developing a synthetic alcohol substitute whose effects could be reversed by taking a pill. Professor David Nutt of Imperial College London is working with benzodiazepines to identify the one with the closest match to alcohol. Diazepam, the chief ingredient in Valium, is a benzodiazepine.

The good professor said he's conducted experiments with various benzodiazepines in which he was under sedation and then lecturing five minutes later. As the drugs in question are controlled substances, any commercial application would require licensing.

According to Professor Nutt the drug would replace alcohol in wine, spirits and beer. Ingesting the drug would cause mild euphoria and its effects would be reversible upon taking a pill. The drug would allow people to drink and then sober up in time to drive home.

Until further experimentation is undertaken, however, no one knows what, if any, the long term effect of taking benzodiazepines would have on the brain and body.

As an aside, Professor Nutt was dismissed as chairman of Britain's Advisory Committee on the Misuse of Drugs due to his criticism of the government's move to toughen marijuana laws. Nutt said he believes illegal drugs should be classified based upon actual evidence of the harm they cause.

I guess I just don't always play well with others

Growing up in Texas I learned at an early age that if you've got a problem with someone for what they said or did, you talk to that person about it. Face to face. It was called being a man (or in this age of enlightenment -- being an adult). Attacking someone anonymously was, and remains, the act of a coward.

I had to deal with a coward down in Fort Bend County this morning. While I don't know with absolute certainty who that coward is, I have a pretty damn good idea. And if that coward is reading this post, I would appreciate it if you would act like an adult and acknowledge yourself. I'm not holding my breath, however.

I had a client appearing on an arraignment setting on a second DWI. After the docket was called, the bailiff (and I want to make this crystal clear -- the bailiff who was involved in this situation handled everything professionally and treated everyone involved with the utmost respect) took my client into the back hall and asked me to come with him. It turned out that Judge Lowery had signed an order revoking my client's bond for an alleged violation of a bond condition that the assistant prosecutor couldn't even point out.

That same prosecutor told me my client had two options this morning: he could accept her offer or he could go into custody until a new bond was set.

I asked the prosecutor if we could approach the judge to discuss this alleged violation and she said no. She told me that only the judge who signed the revocation order could hear the matter. So I headed upstairs to find out when we could get a hearing scheduled. On the way out I told the assistant prosecutor she had a problem with her probable cause affidavit and that we would need to approach the judge on that issue as well.

So up to Judge Lowery's court I went. Just before it was my turn to approach the bench, who should appear out of nowhere? Oh my, it was the assistant prosecutor! She and the judge proceeded to have a conversation -- I think it's a fair bet that they were discussing my client's case without my being present. Oh, what's a little ex parte communication between friends, anyway?

Judge Lowery then told me that we would have to go back downstairs to request a bond hearing after the sitting judge returned from out of town. Interestingly enough, on the revocation order, the judge had written that there would be no new bond until a hearing was held but then it would be set at a given amount with enumerated conditions. First the verdict, then the hearing?

Now it's back to the original court where we approach the judge on my motion to dismiss the information due to an invalid probable cause affidavit. During our time before the judge, the assistant prosecutor not only mislead the court on the purpose of our appearance in court this morning -- she also proceeded to argue a motion that wasn't before the court. Of course we should have a pretty good idea of how my motion before the bench fared. Ironically enough, without being asked, the judge set the bond at the amount listed in the revocation order along with the listed conditions.

As I left the courtroom the bailiff (the same gentleman I mentioned previously) asked me to come outside to the hallway so we could talk. I knew this couldn't be good. I know I was being a pain in the backside of the court and the prosecutor -- but that's my job -- but I couldn't think of anything I had done that would fall outside the lines. What happened next shocked me.

The bailiff told me that Judge Lowery told him that another attorney told her that I had alcohol on my breath. I told the bailiff that I had not been drinking. He told me he didn't want to take me in for public intoxication (WTF?) and asked if I thought I was okay to drive. I assured him I was. He then told me he didn't think I was drunk because he heard me arguing the law to the judge. I told him I knew he was only doing his job and I left -- steamed beyond all belief.

Now who is this coward of whom I speak? Before I approached Judge Lowery I was among my brethren on the defense bar. The only other attorney at the bench when I approached was the assistant prosecutor.

I'm not going to sit here and tell the world that an assistant prosecutor in Fort Bend County slandered me before the bench -- behind my back, no less. I'm not going to sit here and tell the world that an assistant prosecutor in Fort Bend County tried to have me arrested because I wouldn't roll over. I will say this much, however. If Judge Susan Lowery thought I was intoxicated or smelled of alcohol in court this morning - she didn't have the decency to tell me to my face.

I have a damn good idea who the coward is. I'm also willing to bet that he or she isn't going to come forward anytime soon. Always remember that a brave man dies but once while a coward dies a thousand times.

Loss of normal use...

According to the DWI statute in Texas, the state can prove a citizen is intoxicated in one of three ways:

1. Loss of the normal use of one's mental faculties due to the introduction of
alcohol, a drug, a controlled substance, or a combination thereof, into the
body;
2. Loss of the normal use of one's physical faculties due to the introduction of alcohol, a drug, a controlled substance, or a combination thereof, into the body; or
3. Having an alcohol concentration of .08 or higher.

There are two training manuals that are a must have for any lawyer who practices DWI defense in Texas - DWI Detection and Standardized Field Sobriety Testing (published by NHTSA) and the Texas Breath Alcohol Testing Program Operator Manual (published by the Texas Department of Public Safety).

Both of these manuals may be used to impeach the state's witnesses on the subject of "loss of normal use." A criminal defense attorney who knows what he's doing can cross-examine the state's witnesses with these manuals through the "learned treatise" exception to the hearsay rule.

According to the breath test manual, "[i]t is not the alcohol in the peripheral areas of the body which impairs a person's coordination, but the alcohol concentration in the CNS (central nervous system) tissue." This seems to indicate that it's not the concentration of alcohol in a person's breath that is critical -- it's the concentration of alcohol in a person's central nervous system (brain, brain stem and spinal cord) that is critical.

The breath test manual goes on to state that "[t]he first effect of alcohol is the impairment of judgment." That's because "[a]lcohol affects the brain in reverse order of how the brain develops." In other words, the higher level brain functions, such as judgment, logic and reason are affected before the lower level brain functions, such as breathing and digestion. According to the breath test manual, "[p]sychomotor skills are motor actions (physical faculties) proceeding directly from mental activity."

The NHTSA manual states that alcohol "doesn't affect a person until it gets into their central nervous system, i.e. the brain, brain stem and spinal cord."

This is important because the manuals the state uses to train its experts tell us that alcohol affects one's mental faculties before it affect's one's physical faculties. Thus, evidence indicating the citizen accused had the use of his mental faculties at the time of driving can be used to refute the state's argument that if a person performs poorly on the police coordination exercises, he must be intoxicated.

Now when you ask the arresting officer or the state's breath test expert whether alcohol affects one's mental or physical faculties first, and he tells the jury alcohol affects them both equally, you can pull out your manuals and read the training material that contradicts his "expert" testimony. But in order to do that, you have to know what's in those manuals.

If you're defending citizens accused of DWI, and you don't want to commit malpractice, you need to get those manuals ASAP.