A DUI Attorney Tries for False Positives on Alcohol Monitoring Devices

A DUI Attorney Tries for False Positives on Alcohol Monitoring Devices

Alcohol monitoring devices (like ignition interlock devices) are not foolproof. Or are they? One DUI attorney puts them to the test with many commonly used excuses by those being monitored.


Episode Transcript

Dillon 
When somebody is dealing with a DUI conviction, often times they will be forced to — it's the blow-and-go ignition interlock device. We've talked a lot about it on the program. Jonathan Rands in-studio this morning here on the Legal Docket, by the way. Ignition interlock device, which means you have to give a breath sample to a device in your car before you can drive, right?

Jonathan
Yes.

Dillon
But there's more to it than just that.

Jonathan
Yeah.

Dillon
Because they —

Jonathan
Well —

Dillon
Frankly, to be a little graphic, they test your pee and stuff like that too, right?

Jonathan
And galvanic skin response if you're using a —

Dillon
What the heck is that?

Jonathan
— if you're using a transdermal alcohol monitoring device.

Dillon
Mm.

Jonathan
By the way, love the new studio they've crammed us into here. [Laughing]

Dillon
[Laughing] They relegated us to the little tiny box in the back of the building. It doesn't matter at all; it goes to the same transmitter, right? 

Jonathan
I guess so. It's just that I've never been this close to you before. [laughing]

Dillon
[laughing] Stay away from me; I'm cowering up against the soundboard over here. But you had a colleague, I guess, in the business. A DUI defense attorney down south who decided to test these things. The question is, is it even accurate? And we've heard, and I think we've even talked about it on this program before, people who have said that they've had these false positives. That they hadn't drank, but the thing said, nope, you're positive; you can't drive.

Jonathan
There's that, but there's more to it than that because recently there has been more litigation, especially when it comes to anyone with a prior DUI arrest or conviction, in terms of not just being court ordered to install and ignition interlock on any motor that they drive pre-trial, pre-department of licensing, pre-conviction, but the courts also have the authority, and quite frequently do, will order a person to not only abstain from alcohol but order them to undergo urinalysis testing, breath or blood testing, is what the order says. But generally, you're supposed to use the least invasive method, which is either breath or urine.

And some counties, particularly Island County is fond of this, so is San Juan County of ordering not only an ignition interlock on any vehicle that you drive, but also to make sure that you comply with the court order on abstinence have you, I'm going to use the word 'install', but it's not really install, but have you install a transdermal alcohol device around your ankle. Also known as a SCRAM device. S-C-R-A-M, I forget what the acronym stands for, but ultimately it's an ankle bracelet that continuously monitors secretion from your skin.

Dillon
Because the idea is you're never supposed to be drinking. And it's just the blow-and-go, the ignition interlock device, you could in theory drink and just stay away from your vehicle, you'd still be in violation of the order on you.

Jonathan
True. Because every court on any DUI charge will order you as a condition of release to not possess, or to not consume alcohol, not necessarily possess it. But not to consume alcohol and even in Snohomish County I always thought the orders were interesting because they would say, don't consume alcohol. Then they would say, don't consume alcohol and drive and be over a 0.08. And so an ignition interlock, if imposed in that particular situation would monitor, or keep a person in line as far as consuming and driving. But since the orders are generically, universally, sorry, not generically. Universally across the state to not consume alcohol and not drive unless validly licensed, those are minimum conditions, but when a person has priors a court will often have to, by statute, order and ignition interlock. And most courts will also order, to make sure a person conforms to the court order to not consume, some other form of monitoring device such as random urinalysis through the probation department. Or such as I just described as putting a bracelet on. 

The bracelet is extremely expensive. It's about $100 a week.

Dillon
As far as what they make you pay if you have to wear it.

Jonathan
That is what you pay out of pocket. So you pay for an installation of an ignition interlock for about $100 / month. If you're ordered to undergo alcohol testing on a regular basis, not through probation, but through and ignition interlock company — there's a company out there called Smart Start — and I'll talk a little more about them in a moment. But they have a program where they actually have a handheld device — portable breath test device that you keep with you. It's set up to be programmed with windows of breath testing. So usually it's about every 2.5 - 3 hours and you have 2 hours to give a breath sample in that window. So they set it up, we want you tested six times a day. And you get 2 hours to provide a breath sample because it's not necessarily with you, but it's designed — it's about the same size as a cell phone, maybe a little thicker —  to go with you. And it beeps and you look at it and go, ok, it's time for a breath test. And you give a breath sample. And it's wirelessly connected to cell phone towers and it reports back and collects data. And it's gets downloaded and again is another way to keep tabs on someone to get them from consuming alcohol.

So with all of these methods, frequently there are violations. Before the photo enabled ignition interlock requirements came into effect, we'd have ignition interlocks and there would be a violation. But you could never tell who it was. And so one of the ways, that if it was truly your buddy driving the car or your sister or your brother, the way that we would contest it, would be to have an affidavit file, then say, I used Jane Smith's car. I'd been consuming alcohol. I moved it, or I drove it. That was me; that wasn't her. But now to avoid that, they are photo enabled. 

So a colleague of mine decided he was going to put the technology to the test and just see as the subject of one for a period of about 120 days. He stopped consuming alcohol on Labor Day.

Dillon
So he did this just this year.

Jonathan
He did this just this year, yeah. The only time that he drank, which was sort of planned but it was because he wanted to see what he needed to, but the only time that he drank was on election night.

[laughing]

Dillon
Good night to do that.

Jonathan
And he drank very little. But ultimately he put a lot of these technologies to the test. And he started talking about or explaining to me what he did with an ignition interlock device. They're very quick to install. They take about a half hour to an hour. The calibration of them, at least through this company, seems to be very quick. Seems to be fairly reliable. And he also seemed to spend a lot of time trying to get a false positive or a positive on it without necessarily drinking. We frequently hear, well I used mouthwash that morning and I went out to the car and it didn't work.

So he took documented pictures of himself and videos of himself driving. What he would do is leave work in the morning, start the car, do all of his rolling starts and then at a certain point, he went through he said 2 big bottles of mouthwash over a period of about a week. And throughout the day no matter where he went, from point A to point B he would just hold mouthwash in his mouth. And basically, he had a funny story about how painful it is after a certain period of time.

Dillon
Yeah, that stuff burns.

Jonathan
Never was able to get it to fail —

Dillon
Really.

Jonathan
— with mouthwash. And in fact, the difficult thing with mouthwash is finding a brand that uses alcohol now. He said that in order to find one that had any measurable amounts of alcohol in it, he had to go way down on the bottom shelf on the left-hand side — you know, very unpopular stuff. And so that was interesting.

Dillon
Blowing that excuse out of the water. 

Jonathan
Kinda. And I think he's really just doing it in terms of, you know, no scientific experiment is completely valid with a subject of one. But anecdotally he wanted to know what our clients go through. It's not a bad idea. I think every defense attorney who practices what we practice in terms of DUI defense should sit through and 8-hour class. Should sit through a victim impact panel. We really should know what our clients are subject to or undergoing. Simply because, well I think it pays to know. Now, I'm not going to go out and put an IID in my car, but ultimately he also wanted to test the theory of a malfunction. He had a fairly new Buick push button start, and that sometimes that can be a question of how poorly they work with those. And I'll agree I've seen and I've talked to some installers, they do have some trouble with some cars, but it's the exception rather than the rule.

The next testing he did was he got his urinalysis clean clear — multiple tests over and over again. And then just decided to start playing around with it.

Dillon
One thing at a time.

Jonathan
One thing at a time. And the one "wives tale" is poppy seeds.

Dillon
I remember hearing that as a kid. Having my mom have to explain that where — I remember there was some truck driver and something happened, you know, somebody ran into him, and he was worried. He was like, oh I had poppy seed muffins for breakfast, are they going to say that I was on drugs.

Jonathan
Well, the answer is yes and no. Because first of all —

Dillon
Well, that's comforting.

Jonathan
It takes a whole lot, it takes a whole lot in order to do it. And the other thing that people don't necessarily understand is initially, the first urinalysis undergoes a screener test. And a screener test, if you visualize what happens when you go to the airport and you're walking through a metal detector. The metal detector doesn't actually tell you what it is. It just says there's metal on you, right? And then you're screened out for a secondary. And you know, you can consider that as other testing. And oh, there's a pocket knife or there's this or that. So first of all, when you undergo an initial testing of the urine. It's just a screening. And that's what pops positive. If there's enough poppy seeds ingested to give at least a hit that there's something like this. And then later on, when they do a subsequent analysis through gas chromatography, which we've talked about before, that will actually give you the levels. And those levels are extremely low and hard to find and certainly would never put anyone in violations. But the initial screeners absolutely will. But if somebody comes in and says, not only did my initial urinalysis pop positive, but the subsequent testing showed that it was at this level, well, it can't necessarily be poppy seeds because what my colleague did was he said, well, I'm just kind of health conscious so he went to Costco and he says, each of these muffins is 1000 calories. And he wasn't going to eat an entire dozen of them or Costco size. So what he did was he just went straight to the seed shelf, or the shelf where the spices are and got himself a regular size McKormicks poppy seeds. 

Dillon
He didn't do a shot of poppy seeds, did he? That's like the cinnamon challenge. A poppy seed challenge. People could choke on that.

Jonathan
No, he said he poured them all into a protein shake, threw them in the blender and ingested them that way. But he did it in two intervals—in the morning and in the afternoon. But it took, I think it was a 3-ounce container, of just solid poppy seeds.

Dillon
That's a lot of poppy seeds [laughing]

Jonathan
But, I mean, it's true.

Dillon
Talk about putting it on the line for science and for the law.

Jonathan
Right. And as he was fond of saying, a subject of one is never forensically reliable on any scientific experiment. But it at least holds water in terms of will you initially screen for it. Sure, but is it going to be enough to come back under the more rigorous testing and be used for a potential violation hearing. Probably not. How are we doing for time?

Dillon
It is time for a quick break here in just a moment.

Jonathan
That is a nice thing about this studio is I can see a lot.d

Dillon
Yeah, you can see too much from where you're at there. You can see the clock ticking. Jonathan Rands, but the way, our guest here on the Legal Docket this Sunday morning. So I'm assuming he tested some more things? Do we have more? I'm intrigued by the whole homemade test thing. 

Jonathan
Yeah, he did.

Dillon
I want to hear more about this, but we have to take that time out.

Jonathan
I'll tell you a little bit about his alcohol testing on that same device and then another.

Dillon
Oh right! On election night. We've got that coming up here. This is the Legal Docket on KGMI News Talk 790. Jonathan Rands, our guest. He's a local DUI attorney. He practices in Fairhaven. If you'd like to reach his practice, (360) 306-8136. I'll repeat that number in just a moment. His website is jrandslaw.com. Rands, Jonathan Rands, Rands is spelled r-a-n-d-s. Very very simply jrandslaw.com. Check it out online. And as promised one more time, the phone number (360) 306-8136. Stay with us. More on how one lawyer decided to test some equipment on his own. I love this kind of a story. Jonathan Rands stays with us for the next segment here.

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Dillon
Ok, these ignition interlock devices, we've been talking about them on the program. Also the good old urinalysis, a.k.a. testing people's urine for drugs.

Jonathan
Pee.

Dillon
Their pee, yes, very exciting. And this other device too that you're talking about. Which I don't know a ton about this ankle bracelet, ankle thing that tests your skin. That's just alcohol, though.

Jonathan
It's just alcohol because alcohol, unlike other drugs, a large percent of alcohol is eliminated through your liver. A small, I think it's 90% of alcohol is eliminated through your liver. 5-6% is eliminated through your breath and the remaining alcohol is eliminated through your sweat. And when it's eliminated through your liver, I mean it's excreted through your body through urine. So we get, by and large, the majority goes through your liver and it's eliminated from your body physically through urine, which is why that's a good subsequent testing for at least having consumed. it's never a good amount for determining when it was in your body within two hours of driving because you can hold your urine for a very long time and it's an indication of having consumed. And the rest comes out through breath and through sweat.

So the anklet, if you will, the nice thing about it is it's consistently absorbing. So if you see the readout on this, what it's doing is it's always hooked up electronically, and if not, it's always recording and will download — kind of think of like a spool of paper with a needle on it, like a polygraph detector if you will — and the way it reads out is that it should be just flatlining over the hours. And that shows what you're excreting is nothing or nothing detectable. And then when alcohol is ingested and your body eliminates it, it will show that your body is eliminating it. So you can't really pinpoint ingestion or the time of ingestion. It can just pinpoint excretion, meaning in some way, shape, or form, you had contact. 

So talking about these urinalyses as well, the other thing that my colleague did, is that he used three giant jars, in one week, of hand sanitizer. Because a lot of times —

Dillon
I was just going to ask about hand sanitizer with all of this experimentation.

Jonathan
Because a lot of times we get people wondering or people saying well, how is my urinalysis? I'm a nurse or a nurse practitioner this, and I use hand sanitizer all day long. Well, my colleague said every time that —

Dillon
So the theory there is that you're absorbing it through your skin and it's ending up in your blood kind of  —

Jonathan
Correct. Well, not in your blood. Your body's absorbing it, and then eliminating it through your urine, meaning you'll pop positive for alcohol that way.

Dillon
Ok, right.

Jonathan
His answer was no. He basically made fun of himself about being the cleanest human being for a period there where every chance he got, he was cleaning his hands.

Dillon
With alcohol hand sanitizer.

Jonathan
Yep. And couldn't get it to go. And the most interesting part of this was what we learned or what he learned, and a lot of people don't know this, and we'll do a little brief science here. When you ingest alcohol, to your body it's a poison. Alcohol is a poison, as much as we know it is something other than that. 

Dillon
Right

Jonathan
And I think we've all been through the experience of hearing about somebody's who's undergone alcohol poisoning or something like that. So the first thing your body does when it interacts with a poison is it releases and antidote. And the antidote is what's called the EtG. Now I can't pronounce the long name for what your body produces for what we call EtG, so bear with me a moment, but your body doesn't really know how much alcohol is coming into your body. So what it does is just makes an enormous amount of the antidote EtG. And what you measure in urinalysis is that body response. You can't actually measure alcohol after the fact through your urine. All you can measure is what kind of antibodies your body created when you had contact with it. And there is a threshold. There's a 100ng, a 250ng, 500ng. And what that means, it's only going to measure antibodies that exceed that threshold. Ok? We're not measuring alcohol, we're just saying the cutoff is whatever they decide to do it at. And quite frequently, the average is 500ng, meaning if there's antibodies that your body's produced, we're not going to give a positive EtG test if it's below 500ng. 

So he was zero for weeks and weeks and weeks. Three times a week he was going in, he was testing. And on election night he had 3 ounces of gin. He didn't mix it with anything.

Dillon
And that's what, two shots, right?

Jonathan
Well, 3 ounces would be a shot and a half. Well, three individual... three shots.

Dillon
Ok. 

Jonathan
Is that what you said?

Dillon
Well, is a shot 1 ounce or 1.5 ounces? 

Jonathan
A shot is 1 ounce. 80 proof alcohol —

Dillon
Maybe that's why my drinks are so strong.

Jonathan
And that's considered — so 1 ounce of 80 proof is considered one drink for scientific purposes.

Dillon
Ok.

Jonathan
He measured out 3 ounces in one glass. He did not want to drink more than that, but he wanted a drink for reasons of scientific experiment and the other stuff that was going on. But he's not a gin drinker, so he didn't want it to be pleasurable. He gutted it out; drank it and the next day his results were 15/16/17,000ng of the EtG. And that was just with 3 ounces on an isolated drinking episode.

Dillon
Is that going to be a lot more, though, if your body isn't used to doing it? If you've been dry for so long?

Jonathan
Not necessarily. You drink more than that and you're going to have more because you continually put it in and your body just says this poison isn't stopping. I'm going to keep producing, producing, producing. 

Dillon
Right.

Jonathan
So that really is one way that you can truly give a positive. I mean, I've really short-circuited his story here, but I also know that we're out of time. It's difficult to trick the technology that they're using. Now again, it's not fool proof. I'm sure that there are the anomalies out there, but at least in his experience, it was an interesting session to sit and talk with him in terms of what he'd undergone in the name of science.

Dillon
Absolutely. 

Jonathan
The other thing is, you've got to get the cooperation of the proper places to do it. So it's not something we can do just on a regular basis, but he had a pretty good relationship with the treatment agency down there and with the ignition interlock place down there. And he shared this with me pre-seminar that we were at. And ultimately —

Dillon
They probably want to know too.

Jonathan
Well, not only that, but it's advertising to them. He went to them and said, I'll talk at the seminar. We educate over 300 attorneys every year at the seminar and it'll give you some free advertising. It was easier for him to do it. But ultimately everything was done the way that a client or defendant would have it done. I mean, for anecdotal purposes, there you have it. It's kind of interesting stuff.

Dillon
Local DUI attorney Jonathan Rands. We are out of time. Thanks for joining us this half hour. Interesting story. But don't try this at home, I guess is probably the caveat.

Jonathan
No, and there's some really good scientific literature out there that actually debunks what his findings were, meaning you should never take action or somebody's liberty when you don't have really accurate testing. All we're using is screening devices, remember. These are things that tell you something might be amiss and further testing might need to happen.

Dillon
Jonathan Rands practices in Fairhaven. (360) 306-8136 is the phone number for his office. His website is jrandslaw.com. Very easy to find online and lots of great resources and info on that website. Jonathan thanks for being here.

Jonathan
Thanks for having me.


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