Cases Give New Life to Defense that DUI Test Unfair to Women

by Sylvia Hsieh, Lawyers Weekly, page 3,
April 28, 2003:

"A little-used defense argument in DUI cases could be revived in light of two recent verdicts from Georgia acquitting female drivers.

The defense lawyers in both cases argued that a common breath-analysis machine used to measure the driver's blood-alcohol level, the Intox 5000, discriminates against women. Billy Spruell, the defense attorney in one of the cases, told Lawyers Weekly USA that the argument is "not unique" to Georgia. "Different versions of the same machine are used in other states, " he said.

Although comparable machines are universally used, the gender argument
has not been pursued as vigorously in other states. According to James Woodford, the defense expert who testified in both cases, the gender argument was successful in forcing Georgia to get rid of its former breath tester, the Intox 3000. The defense expert testified that Intox 5000 machines routinely score women artificially high because they don't take into account the "gender factor" -- differences between men and women in the way they metabolize alcohol. This argument is not new, said Gary Trichter, a Houston defense attorney and a dean of the National College for DUI Defense. "We always knew breath machines cheat when it comes to women," said Trichter. " This is just one example of the many problems with breath-test machines. They're geared toward the perfectly average person, but there is no perfectly average person." But other attorneys and experts said they had never heard of the argument, or studies supporting the claims. "You may be talking about the blood-alcohol-to-breath ratio being different in men and women; but it's still shaky ground to walk on , because there's across-the-board variability in blood-to-breath ratios, " said Edward Fiandach, a regent of the National college fro DUI Defense.

In some states, such as California, defense attorneys are prohibited by statute from challenging a breath-analysis machine's "partition ratio" -- the number used to translate the breath result into the blood-alcohol level of the individual. Two Female DriversIn one of the Georgia

cases, defendant Lisa Bufton of Atlanta was stopped by police for speeding while she was driving home from a birthday party with her husband. Bufton testified that she and her husband decided earlier in the evening that she would act as the "designated driver". She also testified that she had consumed two glasses of wine during the hour-and-a-half to two hours before driving home.

During the stop, a police officer administered a series of field sobriety tests, which were videotaped. She was then given a breath test that is not admissible as evidence, but can only be admitted as to whether it registered positive or negative for the presence of alcohol. Bufton was then handcuffed and taken to the police station. At that time, she was given the Intox 5000 breath test, which registered scores of 0.094 and 0.093. The state legal limit is 0.08. Bufton was charged with two counts of driving under the influence and one count of speeding. At trial, the jury saw a video of Bufton taking the field sobriety tests, including the horizontal gaze nystagmus, a nine-step walk and turn test, and standing on one leg for 30 seconds while counting.

"She passed everything. She was like a poster child for a sober person," said Spruell. After announcing its verdict of not guilty on all three counts, the jury of four men and two women added in a written statement their opinion that "the state's intox 5000 needs to be further evaluated for gender bias." In the second case, another female driver, Piyush Niak, was stopped at a roadblock while driving home after meeting friends for dinner and drinks. Her breath test registered .110 on the Intox 5000.

Niak's attorney, Charles Magarahan of Atlanta, suspected that the machine read artificially high for petite women. "I had noticed particularly small women would come into my office and claim they had two beers or two glasses of wine and they would get extraordinarily high results on the Intox 5000," he said.

Magarahan arranged for Woodford, his expert, to perform tests on his client using the same machine.

Woodford tested Niak and five other women by dosing each individual with a certain amount of alcohol so the breath test would be predictable. According to the Woodford study, the women consistently blew a higher blood-alcohol level than they should have give the amount they actually drank. Niak, who weighs 100 pounds, tested twice as high as her actual blood-alcohol, according to Magarahan, who argued at trial that Niak's actual blood-alcohol level the night of the arrest was .065, or half of what the Intox 5000 read. After a bench trial, the judge found Niak not guilty based on the study.

Overlooked Defense?

Experts on DUI defense said this argument is one of many possible challenges to any type of breath machine.

"It's not just the Intox 5000. That happens to be the most popular, but all infrared machines discriminate against women," said Lawrence Taylor of Long Beach, Calif., author of "Drunk Driving Defense." The main problem, defense lawyers argue, is that the machine makes a bunch of assumptions about the person being tested, assumptions which don't take into account individual differences. These differences can include gender, race and a seemingly infinite number of physiological differences affecting alcohol absorption rates, such as amount of fat, amount of red blood cells, presence of certain enzymes and level of hormones. "The people who designed the machine designed it to test the average white male. They're trying to pretend that every person they test is exactly the same," Taylor added.

The machines also make a basic assumption that the ratio of alcohol in the blood to the alcohol in the person's deep lung air, or breath, is 1,200:1. This ratio was based on research dealing only with young healthy white men. "The machine assumes this ratio is always the same, and that it's exactly the same for you, me and everyone else on earth," said Dr. Fran Gengo, a pharmacologist in Buffalo, N.Y., who has testified nationally in DUI cases for both sides. However, Gengo added that he was not familiar with studies proving that such assumptions discriminate against women.

"I'm unaware of anything in the literature that really demonstrates that a [breath analysis test] would systematically give a falsely high estimate of blood-alcohol in women," he said. But Taylor said there are four or five studies on the gender bias of breath machines.

"I'd say this argument is overlooked uniformly over the country. It's a pretty esoteric issue, " he said.

When And How

The argument shouldn't be used in every case, lawyers noted.

"Every woman is saying, 'That could be me.' But it's not a one size fits all," said Atlanta attorney William Head, who recently told a client this would not be a good argument in her case, where she tested 0.20 and was videotaped performing sobriety tests. Woodford added the argument would be difficult to make in other states, without specific studies performed on a given defendant.

"The prosecution would fight it, saying you haven't done controlled clinical studies," he said.

However, the state's expert could be cross-examined to discredit the machine based on assumptions the machine makes.

"You could call any medical doctor in any state to show that the blood volume [of alcohol] doesn't vary when a person gains or loses weight. If that's true, the crime lab's admission is obviously flawed on its face. The DUI scale is based on blood volume, but all the charts and graphs used by the crime lab are based on body weight," he said. According to Magarahan, a defense lawyer can also point out that the literature accompanying the Intox 5000 states that the machine assumes the subject is a 180-pound male. Although in the past breath machines had settings to account for individual traits, those functions were taken away to prevent police manipulation, Magarahan added.

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