DWI Common Courtroom Mistruths

DWI Common Courtroom Mistruths

Jurors don’t realize that most police officers and prosecutors have no idea what they are really talking about when it comes to HGN and breath testing in the courtroom. Cops take a 24 hour NHTSA course and walk away thinking if the government sponsors this it must be right. The truth is there is very little science to the HGN (don’t get me started on the rest of the circus acts). I will address two very common mistruths.

1. Can caffeine and fatigue cause HGN ? Cops always answer no. They are wrong. There are 38 cited causes for HGN they have been recognized by the courts: “They include: (1) problems with the inner ear labyrinth; (2) irrigating the ears with warm or cold water under peculiar weather conditions; (3) influenza; (4) streptococcus infection; (5) vertigo; (6) measles; (7) syphilis; (8) arteriosclerosis; (9) muscular dystrophy; (10) multiple sclerosis; (11) Kerchiefs syndrome; (12) brain

hemorrhage; (13) epilepsy; (14) hypertension; (15) motion sickness; (16) sunstroke; (17) eye strain; (18) eye muscle fatigue; (19) glaucoma; (20) changes in atmospheric pressure; (21) consumption of excessive amounts of caffeine; (22) excessive exposure to nicotine; (23) aspirin; (24) circadian rhythms; (25) acute trauma to the head; (26) chronic trauma to the head; (27) some prescription drugs, tranquilizers, pain medications, anti-consultants; (28) barbiturates; (29) disorders of the vestibular apparatus and brain stem; (30) cerebellum dysfunction; (31) heredity; (32) diet; (33) toxins; (34) exposure to solvents, PCBS, dry cleaning fumes, carbon monoxide; (34) extreme chilling; (35) eye muscle imbalance; (36) lesions; (37) continuous movement of the visual field past the eyes, i.e., looking from a moving train; and (38) antihistamine use.” Schultz v. State, 664 A.2d 60, 77 (Md.App. 1995), citing, inter alia, Mark A. Rouleau, Unreliability of the Horizontal Gaze Nystagmus Test, 4 AmJur. Proof of Facts 3d 439 (1989); Louise J. Gordy & Roscoe N. Gray, 3A Attorney 'sTextbook of Medicine §§ 84.63 and 84.64 (1990).

Other great resources that second the opinion in Schultz include the famous Horn case by Federal Judge Grimm, 185 F.Supp.2d 530 (D.Md 2002) . In it he tears down the walls of false science behind all the sfst(s): “Dr. Burns is perhaps the most ardent advocate of the SFSTs at issue in this case, having participated in the original NHTSA studies that developed them, and thereafter as an ubiquitous-and peripatetic-prosecution expert witness testifying in favor of their accuracy and reliability in a host of state cases, over a course of many years. See cases cited infra at pp. 552 - 553. Despite her enthusiasm for the tests that she helped to develop, few, if any, courts have agreed with her that the SFSTs, taken alone or collectively, are sufficiently reliable to be used as direct evidence of specific BAC…”

Dr. Booker wrote a great article on HGN that is scientifically peer reviewed (of which none of the Dr. Burns SFST research is):Booker, J. L. (2001). End-position nystagmus as an indictor of ethanol intoxication. Science and Justice, 41(2), 113-116. Other excellent ones that are eye opening which should be mandatory reading for all judges include: Nowaczyk, R. H., & Cole, S. (1995). Separating myth from fact: A review of research on the field sobriety tests. The Champion, 19(7), 40-43. Rubenzer, S. J. (2003a). The psychometrics and science of the standardized field sobriety tests, Part 1. The Champion, 27(4), 48-54.Rubenzer, S. J. (2003b). The psychometrics and science of the standardized field sobriety tests, Part 2 The Champion, 27(5), 40-44Booker, J. L. (2004). The Horizontal Gaze Nystagmus test: Fraudulent science in the American courts. Science & Justice, 44(3), 133-139.

2. The second big lie that gets asked in breath test cases is: “Is it true that the longer you blow the higher the score and why is that ?” The state scientist always answers: “Yes, but that is because you are getting deep lung air which is more accurate.” Not true. It is true that the longer you blow, the higher the score but it is not true that the alcohol value will be more accurate because you are getting deep lung air. The problem starts with a faulty premise. Breath testing is not an accurate reflection of one’s true alcohol value in the blood. Dr. Michael Hlastala is the world’s most qualified scientist when it comes to pulmonology and alcohol breath testing. He is so well respected that I was in his presence when an esteemed Borkenstein faculty member Rod Gullberg (for those who don’t know Borkenstein is where they train government scientists) asked Dr. Hlastala if he would consider getting involved with the Borkenstein training. Dr. Hlastala has many published works on the issues of actual breath exchange and alcohol. To quote him “No alcohol originates from the pulmonary circulation in the alveoli. The fact that alcohol comes primarily from the airways is why the breath alcohol concentration can be so easily changed by changing the breathing pattern. This contributes to the very large variation in the alcohol breath test readings obtainedfrom actual subjects.” It should be mandatory that all judges be familiar withas required readings his works and others that include (just for starters):

	Dynamics of soluble gas exchange in the airways III. Single-exhalation breathing maneuver. by Steven C. George, Albert L. Babb, and Michael P. Hlastala.1993. Soluble gas exchange in the pulmonary airways of sheep. by Schimmel, Carmel, Susan L. Bernard, Joseph C. Anderson, Nayak L. Polissar, S. Lakshminarayan, and Michael P. Hlastala. 2003 Modeling soluble gas exchange in the airways and alveoli. by Joseph C. Anderson, Albert L. Babb, and Michael P. Hlastala, 2003 Conducting airway gas exchange: diffusion-related differences in inert gas elimination. by Erik R. Swenson, H. Thomas Robertson, Nayak L. Pollisar, Mical E. Middaugh, and Michael P. Hlastala. 1992 Diffusion of nonelectrolytes in the canine trachea: effect of tight junction. by Steven C. George, Albert L. Babb, Mark E. Deffebach, and Michael P. Hlastala. 1996 A fractal analysis of the radial distribution of bronchial capillaries around large airways. by Joseph C. Anderson, Albert L. Babb, and Michael P. Hlastala. 2005 Accurate measurement of blood alcohol concentration with isothermal rebreathing. by J. Ohlsson, D.D. Ralph, M.A. Mandelkorn, A. L. Babb, and M. P. Hlastala, 1990 Modeling steady-state inert gas exchange in the canine trachea. by Steven C. George, Jennifer E. Souders, Albert L. Babb, and Michael P. Hlastala. 1995 Tracheal gas exchange: perfusion-related differences in inert gas elimination. by Jennifer E. Souders, Steven C. George, Nayak L. Polissar, Erik R. Swenson, and Michael P. Hlastala. 1995
Alcohol Breath Test	Paradigm Shift for the Alcohol Breath Test. by Michael P. Hlastala, Ph.D. (Requires Adobe Acrobat Reader)
	Physiological Errors Associated with Alcohol Breath Testing, by Michael P. Hlastala, Ph.D. (Requires Adobe Acrobat Reader)
	"Alcohol Breath Test -- A Review" by Hlastala, MP. (Requires Adobe Acrobat Reader)
	Invited Editorial on "The Alcohol Breath Test", by Michael P. Hlastala, Ph.D.
	Breathing-Related Limitations to the Alcohol Breath Test, by Michael P. Hlastala, Ph.D. (Requires Adobe Acrobat Reader)
	The Impact of Breathing Pattern and Lung Size on the Alcohol Breath Test, by Michael P. Hlastala and Joseph C. Anderson. In Annals of Biomedical Engineering. (Requires Adobe Acrobat Reader)
	The Alcohol Breath Test is Biased against Individuals with Smaller Lung Volume, by Michael P. Hlastala; in Law & Science 23(11): 1-5, 2008. (Requires Adobe Acrobat Reader)
	Breath Tests and Airway Gas Exchange, by Anderson, JC and MP Hlastala. (Requires Adobe Acrobat Reader)