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How to beat DUI charge
Lawyers to gather round
By Amanda Kerr
WILLIAMSBURG — The fallibility of breath alcohol tests used by police is the focus of a day-long conference here Friday.
Attorney Michael Tillotson, whose practice defends DUI drivers, organized the conference to educate attorneys about possible flaws that could lead to false blood-alcohol readings.
Attorneys, forensic consultants, pharmacists and doctors will expose problems with breath alcohol tests.
Tillotson said that certain medical conditions can cause a false reading.
Take acid reflux. Tillotson explained that alcohol coming up from the stomach into the esophagus can elevate a blood-alcohol reading. “The machine assumes it’s coming from the lungs,” he said.
Or consider diabetes. A certain breath machine no longer used in Virginia showed false readings from the chemical isopropanol that is sometimes produced by diabetics.
Tillotson said a newer machine called the ECIR II Intoximeter is supposed to detect isopropanol and differentiate it from ethanol, the smoking gun of drunkenness. The jury is still out on its reliability.
Alka Lohmann, program manager for calibration and training with the Virginia Department of Forensic Science, said she is familiar with the arguments Tillotson raised over the reliability of the Intoximeter.
Lohmann said that there are safeguards in the Intoximeter that can differentiate alcohol in the mouth caused by acid reflux from alcohol coming from the lungs. There are other safeguards meant to reduce false readings.
A breath test cannot be conducted for a period of 20 minutes if a suspect has belched or vomited because either can cause a false reading.
Two breath tests must be conducted at least two minutes apart. The two test readings must be within 0.02 of each other for tests to be valid. 0.08 is the legal limit.
“Because of all the safeguards [in the machine] and if all the procedures are followed, I have confidence in the number that has been reported,” Lohmann said. “I have yet to come across a medical condition that has affected someone’s [blood-alcohol-content].”
Medical conditions aren’t the only thing that can cause an incorrect reading. Tillotson claims a person’s temperature and varying ratios between alcohol in the lungs vs. the blood can cause false readings.
He also asserted that radio frequency interference might cause an inaccurate reading.
Lohmann said attorneys have argued for years that older machines that used analog needles could be thrown off by radio frequencies. She said the new machines don’t use analog needles and are immune to radio interference.
More than 60 attorneys from around the country have signed up to attend the conference at the Hilton Garden Inn. Issues surrounding the Intoximeter will enable them to present evidence to defend their clients.
“The bottom line is that in my practice I have felt absolutely that some clients are actually innocent,” he said. “They have been arrested because of getting a number on a machine. Because they are getting this number on this machine, they can be found guilty.”
The ramifications of a DUI are severe. “A conviction can be devastating for someone,” he said. “They can lose their career.” He added, “I’m not trying to get drunk drivers found not guilty. I’m trying to prevent truly innocent ones from getting convicted.”
Attorney Michael Tillotson, whose practice defends DUI drivers, organized the conference to educate attorneys about possible flaws that could lead to false blood-alcohol readings.
Attorneys, forensic consultants, pharmacists and doctors will expose problems with breath alcohol tests.
Tillotson said that certain medical conditions can cause a false reading.
Take acid reflux. Tillotson explained that alcohol coming up from the stomach into the esophagus can elevate a blood-alcohol reading. “The machine assumes it’s coming from the lungs,” he said.
Or consider diabetes. A certain breath machine no longer used in Virginia showed false readings from the chemical isopropanol that is sometimes produced by diabetics.
Tillotson said a newer machine called the ECIR II Intoximeter is supposed to detect isopropanol and differentiate it from ethanol, the smoking gun of drunkenness. The jury is still out on its reliability.
Alka Lohmann, program manager for calibration and training with the Virginia Department of Forensic Science, said she is familiar with the arguments Tillotson raised over the reliability of the Intoximeter.
Lohmann said that there are safeguards in the Intoximeter that can differentiate alcohol in the mouth caused by acid reflux from alcohol coming from the lungs. There are other safeguards meant to reduce false readings.
A breath test cannot be conducted for a period of 20 minutes if a suspect has belched or vomited because either can cause a false reading.
Two breath tests must be conducted at least two minutes apart. The two test readings must be within 0.02 of each other for tests to be valid. 0.08 is the legal limit.
“Because of all the safeguards [in the machine] and if all the procedures are followed, I have confidence in the number that has been reported,” Lohmann said. “I have yet to come across a medical condition that has affected someone’s [blood-alcohol-content].”
Medical conditions aren’t the only thing that can cause an incorrect reading. Tillotson claims a person’s temperature and varying ratios between alcohol in the lungs vs. the blood can cause false readings.
He also asserted that radio frequency interference might cause an inaccurate reading.
Lohmann said attorneys have argued for years that older machines that used analog needles could be thrown off by radio frequencies. She said the new machines don’t use analog needles and are immune to radio interference.
More than 60 attorneys from around the country have signed up to attend the conference at the Hilton Garden Inn. Issues surrounding the Intoximeter will enable them to present evidence to defend their clients.
“The bottom line is that in my practice I have felt absolutely that some clients are actually innocent,” he said. “They have been arrested because of getting a number on a machine. Because they are getting this number on this machine, they can be found guilty.”
The ramifications of a DUI are severe. “A conviction can be devastating for someone,” he said. “They can lose their career.” He added, “I’m not trying to get drunk drivers found not guilty. I’m trying to prevent truly innocent ones from getting convicted.”
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PD wrote on Sep 29, 2010 8:37 AM:
" As a police officer in this area for 25+ years, this "ruse" has been used unsuccessfully for attorneys for years. I'm surprised the Gazette is even covering this....
Bottom line....if you drink...don't drive. "
Bottom line....if you drink...don't drive. "
D wrote on Sep 29, 2010 8:59 AM:
" I am offended by the headline for this article. My sister lost her best friend to a drunk driver. I had only respect for the VA Gazette before this, but now I am questioning it. "
SNARKY wrote on Sep 29, 2010 9:24 AM:
" I took the focus as more of how to defend against falsely or improperly being charged. "
citizen wrote on Sep 29, 2010 10:43 AM:
" The better option is to opt for the blood test as it is more accurate. I did this, but it turned out I was really drunk and I was convicted anyway. "
SNARKY wrote on Sep 29, 2010 1:55 PM:
" No, it's not stupid. There are those who have not been drinking, but have been charged by over-zealous and or ill-trained cops. Mounting a defense will cost one a couple thousand dollars even if one is innocent. You sure as heck want your attorney to know about and understand what went wrong with your arrest. Too bad the 'Police Blotter' doesn't follow-up on the arrests they report. "
Been There wrote on Sep 29, 2010 9:12 PM:
" Let me tell you..no matter how you slice it...a drunk driver is dangerous and needs to be taken off the road. I recall a 19 year old being killed in James City County by a wrong way driver who was drunk!! The practices used here in Virginia are similar to those used around the country and they work. As for over-zealous or ill trained cops...most have video in the car (from what I see) and I'm sure the drunks and there defense attorneys must hate to see that in almost all cases the drunk is drunk and the arrest most likely saved someone. "
Porchmonkey4life wrote on Oct 1, 2010 2:05 AM:
" Of course a true drunk driver is a risk and should be taken off the road. But the law now has the legal limit set so ridiculously low, that it has undeniably caused many people to get charged falsely wth a DUI. Also as sorry as it may seem, the real truth is this has become more about cashing in on the money involved with DUI for the lawyers and the courts, under the pretense of saving lives. And for the uninformed people who think otherwise, just have a couple beers and take a drive around town after midnight. When you get pulled over for any reason at all, then you can see how fair the DUI process is for yourself. "
Mr. Gaga wrote on Oct 1, 2010 2:19 AM:
" I completely agree with the last comment. It's too easy to get falsely arrested for a dui today based just on a flimsy machine that can easily read a false number for a variety of reasons. And anyone who has been in this situation knows this to be true. Also with the costs being so insanely high, even if you are found innocent, its so obvious its about making money more than anything else they say it is. "
SNARKY wrote on Oct 1, 2010 3:02 PM:
" To 'Been There;' you may also recall having read in this paper or heard that it is not uncommon for the County Police to respond to subpoenas for video records that the 'equipment was inoperative' that day. It seems that our police commonly drive vehicles with defectice equipment which is a blatant breach of policy and regulation as well as transgression of the motor vehicle code. "
SNARKY wrote on Oct 1, 2010 4:48 PM:
" To Porchmonkey4life (llike the name BTW;) If you recall Candy Lightner, the founder of MADD, was against dropping the BAC level to point zero eight as being too low and would create new classes of criminals. She ulitimately found herslf convicted of 'drunk driving.'
Our esteemed state senator initially ran for delegate against the incumbent Bill Fears principally by villifying him and taking sound bites out of context over his opposition lowering the BAC from zero point one to it's current level which was the 'cause celeb at the time. Our senator, known to be a responsible LIGHT drinker fell victim to the current law. He was quoted as saying he didn't realize how little it took to be convicted of DUI. "
Our esteemed state senator initially ran for delegate against the incumbent Bill Fears principally by villifying him and taking sound bites out of context over his opposition lowering the BAC from zero point one to it's current level which was the 'cause celeb at the time. Our senator, known to be a responsible LIGHT drinker fell victim to the current law. He was quoted as saying he didn't realize how little it took to be convicted of DUI. "
michael wrote on Oct 2, 2010 7:30 AM:
" The machines are not infallable. Innocent people do get convicted based on false reslults. If the machines are so great why does the manufacturer and the state deny access to the machines by defense attorneys and independent experts?? Because DUI is a horrible crime, it makes it easy for the state to cover up the flaws in breath testing. Most people really don't care that the machine can be so wrong. Alka Lohman ignores the science she doesn't like. In my opinion the state's experts are intellectually dishonest. Unfortunately they are the one's who have the judges, the prosecutors and the police officer's ears! Best thing is not to drink and drive because you too may end up falsely convicted of a crime you didn't commit. "
Bottom Line wrote on Oct 8, 2010 10:56 AM:
" Bottom line is dont operate a vehicle after consuming alcohol. If you adhere to this one simple rule you wont have any problems. Life is about choices, and the consequences associated with those choices. Every time you get behind the wheel you are essentially pioloting a 2 ton bullet, would you give a loaded gun to a drunk person? I know I sure as hell wouldnt. I personally was out late one night with friends when I was in highschool and was asked to submit to a field sobriety test because we had parked in front of a bar in a strip mall. I told the officer to skip the field sobriety test and give me the breathalyzer so we could all be on our way. He did and it said BAC of 0.0, and that was the end of it. The ECIR II Intoximeter uses infared spectraphotometry which is an exact science and has bee used in other industries such as pharmaceutical manufacturing to quality control batches of drugs. Michael, please tell me who these peoples names are who have been falsley convicted and are you a scientist that understands IR spectraphtometery? For those of you who were caught with DUI red handed, let it be a learning experience to not do that again, quit crying because it was a choice you made. As for the attorneys, they are happy to take the accused's money because it is expensive to attempt to mitigate your charges and whether you lose or win your attorney still gets paid "
Jazzie wrote on Oct 11, 2010 10:05 AM:
" DUI is really a money making machine because DUIs account for about one-third of all criminal court cases!
Bail Bonds "
Bail Bonds "
So... wrote on Sep 29, 2010 8:29 AM: