00001:01 02 03 04 CALIFORNIA 05 DRIVING UNDER THE INFLUENCE 06 LAWYERS ASSOCIATION 07 08 09 10 11 MAY 20, 2006 12 SAN FRANCISCO, CALIFORNIA 13 FISHERMAN'S WHARF - HYATT HOTEL 14 15 16 17 REPORTER'S TRANSCRIPT OF SPEAKER PRESENTATION BY 18 ALAN WAYNE JONES, PH.D., DSC 19 20 21 22 23 Transcribed By Charlotte C. Roche 24 Certified Shorthand Reporter License No. 4486 25 State of California\par 00002:01 P R O C E E D I N G S\par 02 03 THE MODERATOR: Okay, folks, those of you\par 04 that are standing up in the back, if you'd take your\par 05 seats, we're about ready to go. Come on in, take your\par 06 seats.\par 07 Our next speaker is Dr. Wayne Jones --\par 08 If you'd have a seat, please. Those of you\par 09 in the back, please sit down. Darn, this includes you.\par 10 I guess I can't get his attention.\par 11 This is Dr. Wayne Jones. Dr. Jones is one\par 12 of the preeminent scientists in the field of forensic\par 13 alcohol research. He's published many peer-review\par 14 articles, most of which we are very familiar.\par 15 In fact, one of his articles on what we call\par 16 "margin of errors" is contained in my materials. And\par 17 Dr. Jones is going to be speaking to us today on various\par 18 aspects of scientific alcohol testing.\par 19 And I'd like for you to all please welcome\par 20 from Sweden Dr. Wayne Jones (applause).\par 21 DR. JONES: Well, thank you very much. And\par 22 it's nice to be here in California, my favorite state.\par 23 First of all I think I have to thank the\par 24 California D.U.I. Lawyers Association for inviting me to\par 25 participate in this meeting.\par 00003:01 Primarily Josh Dale, he was the driving force\par 02 behind getting me over here. But I also want to thank\par 03 the president, Ron Jackson, for the introduction. Even\par 04 the past president, Randy K. Moore, who I've known for\par 05 quite a few years.\par 06 And again, of course, the one and only\par 07 Vince Tucci, who is a rising star in this business.\par 08 The title was given to me by Josh, so I tried\par 09 to work around this title. Although my research over the\par 10 past 30 years was focused extensively on alcohol and\par 11 D.U.I., in the last five years I've been very interested\par 12 in other drugs than alcohol, both illicit drugs and licit\par 13 drugs or medication.\par 14 And the last part of my talk I'm going to\par 15 give some information about this, because in Sweden where\par 16 I live we have a zero-tolerance law now for scheduled\par 17 drugs.\par 18 It's not only illicit drugs like\par 19 methamphetamine or cannabis, but even the prescription\par 20 drugs. If the person has been overdosing or abusing\par 21 these substances, I mean, abuse of certain drugs is quite\par 22 widespread.\par 23 So, this is my title that Josh gave me, and\par 24 I've put some material around this title. So, if you\par 25 take too much alcohol or your own drug, you can risk\par 00004:01 getting in trouble with that police car (indicating).\par 02 As I say, as was mentioned by Ron, I'm from\par 03 Sweden; but I was born in Wales, which is part of\par 04 Great Britain.\par 05 There is Wales. So, I was born there. But\par 06 I've been living in Sweden longer than I lived in Wales.\par 07 So, I guess I have a rather strange dialect just now.\par 08 Because I use Swedish language all the day, testifying in\par 09 court has to be done in Swedish.\par 10 This is what Sweden looks like. It's about\par 11 the size of California in area, but it only has nine\par 12 million inhabitants. We have more people living in L.A.\par 13 than you have in Sweden.\par 14 Those dots, by the way, on the map here,\par 15 that's where the evidential breath alcohol tests are\par 16 located. And most of them that you see are in this\par 17 vicinity, and this vicinity, and down in the south. And\par 18 the reason for that you'll see shortly.\par 19 That's where the major cities are, Stockholm\par 20 is the capital, Malmo is the big town in the south, with\par 21 a bridge between Copenhagen in Denmark. And Gothenburg 22 on the West Coast. 23 Have you been to Sweden? Not many. A few. 24 I guess you own a Volvo car, anyway, some of you. Or a 25 Saab as well. They used to be Swedish cars. They're now 00005:01 owned by Ford and General Motors. 02 But Sweden's a nice, clean country. And if 03 you have ever the chance, you should really take a visit 04 there. 05 In the north, in the summer, we have the 06 midnight sun. It never it gets dark. Unfortunately it's 07 all mosquitoes in the north, so, if you're allergic to 08 mosquitoes, avoid the north of Sweden at least in the 09 summer. 10 We're interested in traffic crashes, what 11 causes traffic crashes. And there are three elements, I 12 think, in every trash crash. 13 The first I think is the vehicle. I mean, 14 you can have steering on your car. Maybe the brakes 15 fail. Or if you're driving too fast, you might be 16 involved in a crash. 17 The environment could also have an element in 18 the crash. It's raining, snowing, ice on the roads, it 19 can cause a crash. 20 And again, the third element, the one that 21 we're interested in here is the driver and what 22 influences the driver to drive. 23 By the way, on the front cover of my hand-out 24 I show these two drugs. This one is A-1, this one, this 25 is ethanol, and that is alcohol. And how many know what 00006:01 this one is? It's a medicinal drug which we're seeing 02 now a very big extent of this drug in traffic crashes in 03 Sweden. 04 THE AUDIENCE: Vicodin. Vicodin. 05 DR. JONES: Keep thinking about it till the 06 end of the lecture, there may be a prize for the one who 07 gets it right. 08 So, what causes the driver to drive poorly? 09 Well, I mean, sleep loss. Fatigue is a large problem on 10 drivers. Long-distance truck drivers. If you're getting 11 on in age, up in your 80s, you can still drive but you 12 react quite differently compared to how you did in 13 your 20s or 30s. 14 Infirmity, could be various medical 15 conditions that can influence our driving ability. 16 And experience, of course, in driving. 17 Novice drivers are obviously a bigger risk in traffic 18 than experienced drivers, and that's why many states have 19 a .02 for novice drivers. 20 I can tell you in Sweden we have a .02 for 21 all drivers. So, all our per se limit in Sweden is .02. 22 Obviously you can't enforce a limit like that using field 23 sobriety tests because they just aren't sensitive enough 24 for that. We use D.B.T.s, what we call it. 25 Cell phones cause traffic crashes. There's a 00007:01 review article now that just came out looking at the 02 epidemiology of traffic crashes caused by using a cell 03 phone. 04 But today we wanted to deal with three other 05 things that can unfortunately impair a driver's ability 06 to drive safely, and one is alcohol, illicit drugs, and 07 even medication. 08 And these three together are a cause of many 09 crashes on our roads. And that's why we have to have 10 legislation to try to prevent people driving under the 11 influence of these things. 12 The driving under the influence then could be 13 caused by alcohol; and ethanol is the primary alcohol, 14 but you can even be impaired by drinking isopropanol. 15 Some people who are on skid row may get drunk drinking 16 isopropyl alcohol. 17 I wouldn't recommend drinking this alcohol, 18 ethanol alcohol, it's very deadly, unless you get 19 treatment very quickly. 20 And then the drugs range are: Illicit drugs 21 like methamphetamine, cocaine and cannibus, G.H.P. and 22 Ecstasy and drugs like that; but also licit drugs or 23 prescription drugs. 24 And road rage has been said to be caused by 25 people taking anabolic steriods. Some people sniff 00008:01 solvents to get a high. So, organic solvents like 02 gasoline, glue, toluene and acetone, in fact they can 03 cause impairment. 04 And we shouldn't forget the hangover or the 05 aftereffects of alcohol and drug use. Is that gonna also 06 cause impairment, even if the level in your blood is not 07 measureable? You could be -- have anxiety or slow 08 reaction time or fatigue caused by your heavy drinking 09 the night before. 10 So enforcement of these laws regarding 11 alcohol and other drugs are either based on chemistry or 12 on behavior. 13 And behavior-based laws look closely at the 14 driving performance of the individual; the signs and 15 symptoms of alcohol or drug influence when he's 16 apprehended by the police; also the so-called field 17 sobriety tests, the one-leg stand, the walk-and-turn, and 18 the gaze nystagmus. 19 In some jurisdictions the suspect's examined 20 by the physician who has to make a judgment on whether 21 the person is under the influence of alcohol or drugs. 22 And for the drugs, police officers are trained for 23 so-called D.R.E.s. 24 I don't really believe in a lot of the 25 behavioral testing. My feeling is that you have to use 00009:01 chemistry to test for these substances. 02 You could never, in my opinion, justify 03 convicting someone for a D.U.I.D. or a D.U.I. based on 04 only behavioral evidence. 05 You have to have the chemistry or the 06 toxicology to support that. And that entails starting 07 with a P.B.T. at the roadside, only a presumptive test, 08 of course. 09 There's a lot of interest now in analyzing 10 drugs besides alcohol in saliva. So the police in the 11 future may have a saliva test to test at the roadside if 12 they suspect the person's been taking illicit drugs. 13 If the roadside test is positive, the next 14 step is an evidential test at a police station. And 15 again, as you know, evidential testing -- for good or for 16 bad, probably for bad -- is being used at the roadside in 17 this state and in other states but also in Sweden. 18 And finally if you don't have the breath 19 test, you have to have a sample of blood for analysis of 20 alcohol on drugs. And that is the evidence that I much 21 prefer to see in a D.U.I. or a D.U.I.D. case. 22 Using a flow chart -- I know it might work 23 in Sweden, I know it might not work like this in this 24 country or in this state -- but in Sweden the police can 25 conduct random controls of motorists. 00010:01 So either you've committed a traffic 02 violation, speeding, crossing a double-yellow line or 03 something like that; or you're in a random control; or 04 you're involved in a crash. 05 With that background, the police can ask you 06 to blow into your P.B.T. They don't need any field 07 sobriety evidence. If they have that suspicion, you can 08 be asked to blow in the P.B.T. it's best if you do it. 09 If it's negative, the P.B.T., but the officer 10 sees that there's some signs of other drug use -- maybe 11 the guy has dilated pupils, which is a sign of perhaps 12 taking stimulants; maybe he has pinpoint pupils, which is 13 a sign of taking opiates -- or other signs on the driver, 14 you can be taken down and asked to give a blood sample or 15 be examined by a D.R.E. in this country. 16 If the roadside test is negative, that is, 17 there's no alcohol in the man's system, then there's no 18 further action. 19 If the test is positive, the P.B.T., you're 20 taken to the police station and asked to give an 21 evidential test. 22 If you refuse the evidential test, that 23 doesn't help really because the next thing the policeman 24 will do is to call in two of his colleagues who weighs 25 about 150 pounds each, you know, or maybe 200 pounds, and 00011:01 they take your blood sample by force. 02 And that's allowed, you're allowed to do 03 that, if you you're suspected of a D.U.I. in Sweden. 04 So refusal doesn't really help you in this 05 situation. They'll get the blood sample from toxicology 06 anyway. 07 So that's the pattern in Sweden, from the 08 roadside up to the test at the laboratory. 09 I want to mention something which I've 10 written about, as Ron Jackson mentioned, this notion of 11 uncertainty in a chemical test. 12 And I've been the first to admit there is 13 uncertainty. There are errors that can creep into a 14 chemical test. 15 And I think if you have a per se law, in 16 other words, with a razor sharp difference in penalty -- 17 above the limit, you're guilty; below the limit, no 18 charges -- if you have that kind of legislation, you 19 really need to consider uncertainty in the methods you 20 use to enforce that law. 21 And as this example shows you here, here's 22 the blood-alcohol scale, from a 0.2 to a .081, that's 23 grounds for being prosecuted for D.U.I. if the statute 24 says .08. If the result comes back .075, .079, that's 25 below the limit. Acquittal. No charges. 00012:01 But in terms of pharmacology, there's no 02 difference between those two numbers. Someone with 03 a .085 is just as dangerous or safe as someone with 04 a .075. 05 So, I don't think that a jury would convict 06 when they know that in that test you're making, there is 07 an error or there is an uncertainty. 08 And I've written about that in many of my 09 articles. And put into words: Measurement errors are 10 inherent in all my methods of analysis, simply because 11 it's impossible to repeat exactly the sequence of events 12 necessary to make the measurements. 13 You will allow for measurement error or 14 uncertainty by making a deduction from the average result 15 analysis, thus compensating for any inherent error or 16 uncertainty. 17 And I'll show you how we do that in Sweden. 18 And again, another basic assumption is that 19 if you're using a chemical technical method to get 20 evidence for prosecution, a person is not punished for a 21 crime because of error or uncertainty in the methods and 22 procedures used. 23 The degree of uncertainty is very important 24 when the result is close to some reference point or 25 threshold value. 00013:01 And when a decision is made as to whether 02 or not the result was above or below the limit, I'm 03 referring to the .08 in this state, it used to be .10, 04 in Europe it's maybe .05 in most countries. 05 And to bolster this argument about 06 uncertainty, you could quote from the famous Adel Burk 07 decision in the Supreme Court. These are the so-called 08 four criteria in that judgment. 09 And I'd like to talk about the importance of 10 peer review, but also this third one here is very 11 important regarding uncertainty or error rate. 12 And five years ago it was something, I 13 pointed this out to my friend, Bubba Head, who's sitting 14 in the back there, and I said "Why don't you 'demand' 15 that the prosecution in these cases that you are 16 defending, what if you 'demand' that they allow for 17 uncertainty?" 18 And he said "Well, look, that's Yankee law. 19 I come from Georgia." 20 But I think there's a lot of case law out 21 there now where they're really demanding that an 22 allowance is made for this uncertainty. 23 And even the prosecution experts, I think, 24 would have to admit there is uncertainty. 25 And this is very well illustrated in this 00014:01 slide. I know power point's used quite a bit these days 02 in trial, jury trials, so this is a very good example. 03 Let's say you lined up five instruments, five 04 breath analyzers, whichever one you want to choose. And 05 the suspect, the D.U.I. suspect, he blew in all five of 06 them in rapid succession. 07 These are numbers you would get, .075, .080, 08 .090, .075, .085. Is this man above or below .08? And 09 ask, ask a jury that. 10 And they'll say, "Well, if he blew in this 11 instrument he's above .08, he's .09; but if he blew in 12 this instrument, he's below .08." 13 Would you convict that person? I wouldn't, 14 not without an allowance for uncertainty. 15 They're all within .02, and that's the 16 criteria used when you blow twice into the same 17 instrument. 18 This is a guy blowing into five instruments, 19 all of the same manufacture, all calibrated in the same 20 way, but you're getting five different numbers. 21 And why do they differ, these numbers? Any 22 idea why these numbers differ? 23 THE WITNESS: Volume and duration? 24 MR. JONES: Right. It's a biological factor 25 here. Maybe he's exhaling for a different length of time 00015:01 in this instrument, compared to this instrument. 02 There's also inherent instrument differences, 03 the calibration of the instruments is not exact. So 04 there is uncertainty in these measurements. And with a 05 per se law, this uncertainty needs to be considered. 06 How do you consider, how do you allow for it 07 then? What mechanisms can we envision to allow for 08 uncertainty? 09 Well, in many states they say "We have a weak 10 truncate, the third decimal." But the third decimal 11 could be a zero or a "9". So the guy with a "9" as a 12 third decimal doesn't get much benefit from that. 13 Where do we report duplicate of two tests? 14 We'll do a duplicate test and take the lower of the two. 15 But that doesn't help much if you get the same number 16 twice, which is possible these days. 17 You can make a deduction from the average of 18 two tests. And this is the method I recommend, making an 19 up-front deduction from the average of two test results, 20 whether it's two breath-test results or whether it's two 21 blood-test results. 22 It's also important to remember uncertainty 23 increases as the concentration increases. You probably 24 know some states, maybe even in this state, they have a 25 two-tier or a sliding-scale penalty scale. 00016:01 The penalty can be more severe at higher 02 concentrations. You may lose your license for three 03 years as opposed to one year. So, that needs to be 04 considered when you're contemplating uncertainty. 05 And now we note in Sweden, as shown here, 06 that's a typical printout, if you like, for the Swedish 07 D.U.I., straight from the instrument and translated into 08 English. 09 So, the guy blows twice. He blew a .095, 10 then three minutes later -- actually another six minutes, 11 we've extended the time to six minutes, he blew a .095. 12 So, the best estimate of the average 13 alcohol on his breath is the average of these two, .090. 14 Because of the uncertainty I've spoken about, 15 we make the 15 percent deduction. That's printed out on 16 the form. Deduction, 15 percent of that, .013; 17 prosecution B.R.A.C., .077. 18 And if you want to, they could truncate the 19 third decimal. 20 So in this state that person wouldn't be 21 prosecuted for a D.U.I., not based on this evidence 22 anyway. 23 Because after the deduction is made, he is 24 below the legal limit. And you could say that his result 25 is at least .077 with 99.9 percent confidence. 00017:01 So, that's my recommendation to deal with 02 this notion of uncertainty; it's to up-front admit it, 03 calculate the size of it, and deduct it. I think we've 04 side stepped a lot of unnecessary challenges by admitting 05 this uncertainty up front. 06 Because when you have a D.U.I. law which is 07 per se and which is based on a chemical test, I think the 08 individual and society have the right to demand that this 09 test has high precision. 10 That means repeatability, reproducibility, 11 high accuracy, high selectivity for what you're 12 analyzing -- in this case ethanol -- and a high degree of 13 quality control over the whole system of chemical 14 testing. 15 These terms are useful to define sometimes. 16 Ask maybe the prosecution expert if he knows what 17 "accuracy" means. I'll bet you that many of them confuse 18 accuracy with "precision." 19 Precision means agreement of replicated 20 tests. Nothing to do with accuracy. 21 Accuracy means closeness to the true value or 22 a target value. And many people, even toxicologists, 23 tend to confuse these two terms. 24 Some other examples of what's debated and 25 discussed in the court cases, I'm going to focus a little 00018:01 bit on one issue which just cropped up in the last few 02 weeks, the looming interfering substances. 03 The technology we have today for breath 04 testing for alcohol is quite sophisticated, to say the 05 least. 06 I mean, in the days of the breathalyzer, and 07 I guess you remember this instrument, the chemical 08 ampule, the yellow chemical in tube -- it's now 09 obsolete -- but that served well for many, many years. 10 Then came gastrometography. Wasn't very 11 practical. Used by the police officers. But it never 12 really survived. Then came semiconductors, not specific 13 for alcohol. They didn't survive. 14 Then came infrared devices, which we have 15 today. The 5000 is an example and now the 8000. Data 16 Master also uses infrared, used in some states. 17 The Alco Sensor, the Alco Meter and the 18 Alco Test, they're electrochemistry or fuel celled. An 19 example I want to show you later deals with that method 20 of measuring. It's a Combi Unit up there. Combines both 21 metric chemistry and infrared, made by Drager Alpha 22 Test 7110 Mark IV. 23 The Intoxilyzer people, C.M.I., they've gone 24 now from the 5000 to the 8000. But I wonder why. What 25 motivated them to make that move? Of course they did 00019:01 increase the price of their unit, I suppose, by a 02 thousand dollars. 03 But was there a reason? Was there some 04 scientific reason to make that change with the 5000 which 05 was a three-filter -- actually a four-filter run by 3.5 06 microns to a two-filter instrument, 3.4/9.5. 07 They argued, I guess, it's because of 08 interfering substances. But no science. They never 09 published any science to motivate this change. 10 I don't believe that there could be an 11 interfering substance that gives you a .08 masquerading 12 as ethanol. 13 But the likelihood of it being partly 14 interferent and partly alcohol, that's another story. 15 I can give you several examples of an interferent of 16 a .02 together with a .07 ethanol gives you a .09. 17 So unless they give a probability of an 18 interferent not being detected in the breath, along with 19 alcohol. 20 What threshold these instruments are set at. 21 They say "Our instrument can detect acetone, 22 our instruments can detect isopropanol, our instrument 23 can detect toluene." But what threshold values of 24 toluene, of acetone, isopropanol? 25 They don't tell you. And that needs to be 00020:01 asked of them, how to account for this interference. 02 Let's say "What's in the breath," let's say 03 "What's in the breath of the healthy person these days?" 04 Well, it's going to be to a lot of oxygen, nitrogen, 05 helic acids. 06 But they have no infrared absorption bands so 07 they are important. Carbon dioxide is there, that's 08 absorbed infrared. Water vapor's there, but we've got 09 the wrong wavelengths. 10 And there's a lot of other stuff in the 11 breath. Endogenous volatiles, the primary ones are 12 acetone, which you may smell sometimes on the breath of a 13 diabetic who hasn't been taking insulin properly or 14 someone on a ketogenic diet, the Atkins Diet for example. 15 Isoprene is there in the breath. And there 16 could be many polutants in the environment. Maybe they 17 did work with organic solvents. They could be inhaled 18 and then exhaled in the breath. 19 But some of the criteria to be classified as 20 an interferent is that it must be a gas or a vapor, at 21 normal body temperature and pressure. Otherwise it's a 22 no-no from the beginning as an interferent. 23 It must be present in the breath in a high 24 enough concentration to make a difference, to give you a 25 signal on the instrument. 00021:01 I mentioned isoprene on the last slide. That 02 would interfere with an infrared analyzer, but the 03 concentration on the breath is too small is to make a 04 difference. 05 And the infrared spectra of the interferent 06 must match that of ethanol at the critical wavelengths. 07 So there's not much really that fulfills this criteria. 08 But looking at endogenous compounds, these 09 are things that the body produces during normal 10 metabolism, the number one is going to be acetone. 11 There's amonia in the breath. Nethane is in 12 the breath, especially in some people who have problems 13 with digestion, carbohydrates. They produce Nethane. 14 Acetolyte is there. That's a metabolite of ethanol. But 15 again, my research has shown that the concentration is 16 very, very low. 17 The exogenous substances depends on the 18 occupational exposure limits to various work places. 19 Many people use protective equipment, it's a 20 law to use protective equipment like a face mask. 21 People abuse solvents. Of course they sniff 22 all kinds of material. There's a good paper out there 23 you should read. 24 I skipped a citation here, that's short of 25 "Journal of Alcohol Toxicology," J.A.T., 2004. 00022:01 They tested 589 people -- that's a lot of 02 people -- who came to hospital for emergency treatment, 03 and they tested what was in the breath of these people. 04 And the main finding was acetone. Carbon monoxide. Many 05 people smoked so carbon monoxide was there. 06 So it's worth getting that article. This is 07 a case that just cropped up a week ago or so ago, so, 08 this isn't in your handout. 09 This, you'll all recognize this, there's a 10 couple of examples outside. These are the alcohol 11 interlock ignition devices. 12 And these are the being fitted now in 13 Sweden's public transport vehicles like buses and trains 14 and other public transport vehicles. 15 Even private cars they're being installed in. 16 You get a lower insurance if you have one of these in 17 your car. And some people are working at that. 18 So, this guy was going to start his bus. He 19 was a bus driver. And you blew into the interlock. And 20 it said whatever it says. 21 He couldn't start it. It started to: Red 22 lights started to blink or whatever, and he couldn't 23 start the bus. 24 So, he went to his supervisor and said "I 25 couldn't start the bus"; who said "Have you been 00023:01 drinking?" 02 He said, "No, I haven't; I've been a 03 tea-totaler for 40 years." Anyway, they didn't believe 04 him, of course. 05 And he was sent home from his work, and the 06 trade unions were involved, and they were discussing 07 whether to fire the guy for breaking this rule they have 08 about having to have a PAS on this before he could start 09 the vehicle. 10 Because the threshold is set very low. It's 11 set around about a .02 grams percent. 12 So, he turned to his physician or a physician 13 in the hospital in Stockholm. And he had been on a 14 ketogenic diet during this time. 15 And this is basically electrochemistry. 16 You've got a positive result. He's an alleged 17 tea-totaler. And he was using a ketogenic diet and 18 suffered from ketosis, which means ketones in the blood. 19 And among these ketones is acetone. 20 And the physician couldn't explain why this 21 instrument gave a signal for acetone when it doesn't. 22 Because acetone doesn't give a signal on this instrument. 23 But isopropanol does. And this same 24 technology is used in the Alco Sensor, the Alco Test, and 25 the Intoximeter E.C.I.R. 00024:01 They all use this electrochemistry, so they 02 all would give a signal for 2-propanol, isopropanol. 03 And the mechanism is shown on this slide. 04 One consequence of eating-low carbohydrate 05 diets is that you have to have calories, and the body 06 breaks down fat, and fat goes through a process called 07 lipolysis, the free fatty acids. And they are converted 08 turn by ketosis in a ketone body. 09 One of these is acetone. The others are 10 things called beta hydroxy buterate and acetyl acetate 11 (phonetic). Acetone is then eiter mixed in the breath or 12 with the urine and it gets oxidized. This is a very slow 13 process. 14 So when there's excess acetone in the blood, 15 it can even be reduced to isopropanol. So this goes in 16 two directions, either backwards to isopropanol or 17 forwards to hydroxy metabolites. 18 So the reason that guy got a positive signal 19 on his alcohol ignition interlock was because in his 20 blood, besides acetone, there was a significant amount of 21 isopropanol. And that's important, I think. 22 When I testified on his behalf to explain 23 this to the -- his employers in the south of Sweden, they 24 reinstated him immediately. 25 So, be wary of that. Acetone itself doesn't 00025:01 give a signal on electrochemical instruments. But its 02 metabolite, isopropanol, does. You can easily get a .02 03 isopropanol if you're on a ketogenic diet. 04 Unfortunately that came up quite recently, so 05 I haven't had time to bring a handout even. 06 But we should remember that people are 07 different, in the way they look, in their size, in their 08 amount of fat. And this biological variation needs to be 09 considered when we deal with expert testimony in drug and 10 alcohol related cases. 11 Not only what in happens to alcohol in the 12 body, but even in the way they are. Like this old lady, 13 she could never blow into a P.B.T. or an evidential test. 14 As you probably know, there's an enormous 15 increase in the number of refusals or failures to provide 16 breath. 17 This is a breakdown from a 2005 article on 18 the internet from the N.H.T.S.A. in Washington, showing a 19 statewide breakdown in refusal rates for evidential 20 breath testing. 21 In California apparently the people are very 22 kind out here. They willingly provide a breath test. 23 But in Rhode Island, 80 percent don't. 24 Whether this is a refusal, that is, you're 25 saying, "No, I'm not gonna blow, I hate all cops, I don't 26 00026:01 blow in this instrument," that's to me a refusal. 02 But if a person attempts to provide a sample 03 and is unable to do that, that's I define a failure to 04 provide. There's a big difference there between an 05 outright refusal and a failure to provide. 06 And in Sweden we find that some people just 07 cannot possibly provide a sample. This is the data from 08 the Intoxilyzer 5000. There's a function of age of the 09 individual and gender. 10 So the light bars are women and the black 11 bars are men (indicating). From this age group up to 12 the 50s to 60s age group. And you see women in this age 13 group, about 30 percent failed to provide a sample in the 14 Intoxilyzer 5000. 15 And there's not only an age bias, there's 16 even a gender bias. 17 And it didn't help these people because they 18 got a blood sample instead. But there certainly are 19 people out there who honestly just cannot provide a 20 sample in this modern-day evidential equipment. 21 And this was published in one of our articles 22 in '96. People with diseases, they just have no chance 23 to provide a sample, whether it's asthma, which is 24 widespread, or even chronic obstructive poulmonary 25 disease, C.O.P.D., they'd need to use these salbutomol or 26 27 00027:01 sprays (phonetic). 02 And when these inhalants are in combination 03 with the alcohol, it's one challenge that's being raised 04 from time to time. 05 They just cannot have enough fortified 06 capacity to satisfy the pressure, the time, and the 07 duration of the exhalation. 08 In the Intoxilyzer 5000, you have to blow for 09 at least six seconds continuously with a certain flow 10 range to trigger the instrument. 11 People with this, lung diseases, just cannot 12 provide a proper sample. 13 And as you know, Dr. Mike Hlastala has 14 written and lectured a lot about these problems with the 15 exchange of gases in the upper airways. 16 His theory is the alcohol in its entirety is 17 coming from the upper airways and not down through the 18 alveolar parts of the lung. He feels that that more or 19 less invalidates the use of breath-testing for alcohol. 20 This is an interesting graph from a person 21 with asthma. You notice we're measuring two things here. 22 On this scale we're measuring breath alcohol. This is 23 the breath-alcohol graph. 24 On this scale we're measuring flow rate in 25 liters per second. 00028:01 So this asthmatic is a woman actually. She 02 can only reach the high enough flow rate for about one 03 second. And then it dropped down to a low flow rate, and 04 she couldn't provide a sample. 05 Her alcohol level, the alcohol was there. 06 Here's the plateau of alcohol in this lady. About a .02 07 in our units of many grams or liters. Actually it's not 08 a .2 units. It's a fraction of that. 09 But the important thing here is to see that 10 her lung characteristics couldn't fulfill the subject 11 tolerance. 12 You never really reach a plateau when you 13 blow continuously into a breath analyzer. The longer you 14 blow, the higher the reading is going to be in the end. 15 But after the first two or three seconds, you reach 16 about 80 percent of the final value. 17 So even a very bad breath test gives you a 18 good idea of that person's alveolar alcohol 19 concentration. So blowing for ten seconds doesn't 20 increase the alcohol concentration much more. 21 The first two seconds are the most important. 22 These are examples of curves with mouth alcohol. Because 23 the mouth alcohol detected on these instruments are not 24 good. 25 They may be good if you swirl up whiskey in 00029:01 your mouth and then blow afterwards. Then they'll flag 02 mouth-alcohol. If you swirled whiskey in your mouth, 03 then wait five or six minutes, and then blow into the 04 instrument, although you have mouth-alcohol, the 05 instrument doesn't flag it as mouth-alcohol. 06 So these mouth-alcohol detectors, the 07 algorithms in them are not the best. They're not doing 08 the job they're designed to do. 09 This is an example of what it would look like 10 when they're not of mouth-alcohol. There's no 11 mouth-alcohol on this individual. 12 In the same individual, at 10 minutes and 13 at 8.5 minutes after drinking or washing your mouth with 14 whiskey, then you have a wavy curve, it's easy to pick up 15 these as mouth-alcohol. But this isn't so easy. 16 This is another individual now. He doesn't 17 have these kind of wavy curves. These are his alcohol 18 curves. They look perfect. But it's ten minutes after 19 having whiskey in the mouth. 20 So whether that would be flagged as 21 mouth-alcohol, I don't think it would. His normal 22 alcohol, it takes about 15 minutes for mouth-alcohol to 23 disappear. 24 So slope detectors then, on the majority of 25 these instruments that I've tested anyway, they aren't 00030:01 doing the job they're intended to do. But when they -- 02 When the State People test this slope 03 detector, they either spray their throats with some 04 alcohol, and then blow immediately into the instrument, 05 then it flags mouth-alcohol; or they put some alcohol in 06 their mouth, spit it out, and then blow into the 07 instrument, and then they'll find mouth-alcohol. 08 But that's not the dangerous mouth-alcohol. 09 The dangerous mouth-alcohol is the alcohol 10 that comes up from their stomach during the GERD attack. 11 That's the dangerous mouth-alcohol. 12 That's what the instrument should be 13 detecting. But unfortunately it doesn't. 14 So we need to do some more experiments, I 15 think, to see how fast alcohol, after you ingest it, how 16 fast it disappears from the stomach. This ability of not 17 to -- 18 This failure to provide a sample is causing a 19 disturbance in New Jersey. They've replaced their 20 Breathalyzer 900 with this instrument. And after that a 21 large number of people have just failed to give a proper 22 sample. 23 There's going to be a big hearing before a 24 judge in New Jersey to see what's going on there. 25 Because it seems to me something has gone wrong there, 00031:01 that there are so many people suddenly failing to provide 02 a sample when they've changed instruments. 03 Here's an experiment we did with that same 04 Alco Test device. This is where the person consumes some 05 alcohol, up to about quite a long level, .03, and he took 06 whiskey in his mouth, and swirled whiskey in his mouth, 07 and then spat it out. 08 And every 90 seconds he blew again into the 09 breath analyzer. And it flagged mouth-alcohol, 10 mouth-alcohol, mouth-alcohol. But then it said nothing. 11 It said it accepted the breath from this individual at 12 that time. 13 It's pretty obvious, I think, it's 14 mouth-alcohol there, but the instrument isn't seeing it. 15 It's not flagging it as mouth-alcohol. That's the 16 dangerous mouth-alcohol. 17 And after another half an hour or so, they 18 washed out their mouth with 6.5 percent alcohol and blew 19 in the instrument every 90 seconds. None of them were 20 detected as mouth-alcohol. The instrument accepted all 21 of them. 22 Then they took chocolate liquers in the 23 mouth. Chocolates with alcohol in them. And the 24 instrument didn't pick up either of these as 25 mouth-alcohol. 00032:01 So, I think it's a good example that even on 02 one of the most modern instruments that we have today, 03 the Alpha Breath 7110, it's not picking up the dangerous 04 mouth-alcohol. 05 Other issues that I've researched over the 06 years about forensic alcohol work is the pharmakinetics 07 of alcohol. 08 Some of the things we need to see is the rise 09 in the B.A.C. after the last drink before the peak is 10 reached, the time it takes to reach the peak after the 11 last drink, and the burnoff rate. The slope of that 12 declining phase. 13 Those three things are very important in 14 forensic alcohol litigation. 15 Putting a figure on the time of reaching the 16 maximum is very, very difficult. It could vary from 5 17 minutes to 150 minutes, depending on the individual, 18 depending on his drinking, and depending primarily on how 19 his stomach functions, the so-called gastric emptying. 20 So, many factors impinge on this absorption 21 rate. Speed of drinking. Time of day. In the morning 22 you absorb faster than the evening. 23 Blood glucose influences absorption rate. A 24 low blood-glucose, you absorb faster than a high 25 blood-glucose. 00033:01 Liquor is absorbed faster than beer. Beer 02 contains carbohydrates. There's also a weak gap, a kind 03 of alcohol. 04 C02 content plays a role. Buffer capacity of 05 wines, and food particularly, is very important. That 06 delays stomach emptying. It gives you a long updrawn 07 peak, up to maybe two hours or two and a half hours 08 before you peak. 09 Medication you take may influence gastric 10 emptying. Simple drugs like Zantac, Tagamet, they could 11 influence stomach emptying and the time you reach peak. 12 This is an example of an experiment we did 13 of three men, all about the same weight, 80 kilograms, 14 about 170 pounds. 15 They drank about six ounces of whiskey in an 16 hour, and then tested him at this time, and he blew 17 a .052. 18 And I could see only that he was a little bit 19 euphoric. I could see he had a drink. He wasn't in any 20 way under the influence. 21 But you could see he was happy and he was 22 talkative. Alcohol was having its desired effects on the 23 individual. 24 This individual, the same. Same amount of 25 whiskey. A little bit lighter weight. Same drinking 00034:01 time. He blew a .049, pretty close to this one. And he 02 also, you could see he was euphoric and talkative and 03 happy. 04 This other guy, same amount of whiskey, a 05 little bit heavier, he only blew a .011. How could we 06 ever predict that he would blow a .011? Totally 07 impossible. 08 And you couldn't see anything on him. There 09 was no idea he'd been drinking. He himself couldn't feel 10 the effects of alcohol. 11 So he was having, in my opinion, a pyloric 12 spasm. This pyloric sphincter, which is a muscle that 13 controls the stomach emptying, has been closed off. 14 So, for this person the absorption's taking 15 place in the stomach and not through the duodenum. 16 That's where the absorption is faster. 17 In these two people the alcohol was going out 18 into the duodenum and the small intestine. In the 19 individual case, you could never predict if someone was 20 going to have a pyloric spasm. 21 So be very, very wary about predicting when 22 you're going to reach your peak on the alcohol curve 23 after drinking. 24 People normally say that about 20 percent of 25 the alcohol you drink is absorbed through the stomach 00035:01 and 80 percent through the duodenum or the jejunum and 02 the small intestine. 03 There is no experiments out there to verify 04 these numbers. A lot of stuff in the literature is 05 there, but there's no real evidential backing in 06 peer-review journals. 07 And even in peer-review journals, don't 08 believe everything you read because genic science has a 09 tendency to escape the peer reviewers. 10 Let's say you gave the same person alcohol on 11 ten occasions. Would you expect to find the same burnoff 12 rate on those ten occasions? 13 Maybe naively you would say, yes, you would. 14 It's the same person. Why should he have a different 15 burnoff rate? 16 This experiment's been done and you didn't 17 get -- we didn't get the same burnoff rate. I didn't do 18 the experiment, but it was done by other some pretty 19 reliable people. 20 And here's the example that they showed. A 21 man who was 23 years old and he drank 40 grams of 22 alcohol -- I can't give you that in ounces just now -- 23 but in five minutes, on an empty stomach, when they 24 looked at the shape of the curve, starting 100 minutes 25 later. 00036:01 So his average burnoff rate was .0157, which 02 is the one we've learned from Widmark, .015. But the 03 range in those ten tests was .014 to .020. 04 So this, that kind of ballpark, even in the 05 same individual. Different individuals, there will be a 06 much bigger range, of course. 07 How about the other important Widmark factor? 08 We talked about the beater factor, the burnoff rate. The 09 other factor in the last column, the Widmark factor, the 10 rogue factor. 11 I wonder what rogue factor these people have. 12 I mean, Widmark said the rogue factor for men was 13 something like .68. Today people normally use about .70. 14 And for women Widmark said it was .55. But today many 15 people use .60. 16 Would that woman have a rogue factor of .60 17 or .55? I don't think so (indicating). 18 Would that man have a rogue factor of .7? 19 Very muscular. Muscles contain a lot of water. And 20 alcohol is likely to be diluted in the water. 21 So, my hunch is that this guy maybe has a 22 rogue of .8 or .05. I've never tested that kind of 23 muscular individual, but my hunch would be that kind of 24 ball park. 25 This lady's rogue, a hundred would able to be 00037:01 closer to probably .45 than to .55. Why is that? 02 Why is that? Well, you can see she's going 03 to have -- she's gone on an Atkins Diet or something, 04 maybe a gastric bypass. And she's pretty obese. And fat 05 doesn't dissolve alcohol. 06 This guy, well, he hasn't got his driving 07 license, I guess, so there's no issue. 08 And this woman, doubtful if she'd be able to 09 drive, actually, with that level of infirmity. And he 10 may also have a normal rogue factor. 11 So, we have to be really very careful when we 12 do the rogue factor in court to calculate someone's 13 expected B.A.C. 14 And I'll give you a good example of that now. 15 Remember Widmark's work was done back in the '30s. 16 We didn't have McDonald's then. Did we? 17 McDonald's in the '30s? Kentucky Fried Chicken in 18 the '30s? And all the other fast-food places. 19 There might have been in this country, but 20 there certainly wasn't in Sweden in the '30s. 21 So we have 10 women and 20 men. That's not 22 many people. This is a study we've just done and also 23 it's pretty new. I was curious to know what the rogue 24 factor might be in obese people. So, we have a man who 25 was not obese. 00038:01 And how do you measure obesity? We use 02 something called body mass index. And I'll get back to 03 that shortly. 04 This man had a body mass index of point -- 05 of 19. He was a little bit underweight actually for his 06 height. And his body mass index was a ratio between body 07 weight in kilograms, divided by height in meters, 08 squared. Height times height, if you like. 09 This woman had a body mass index of 32. She 10 was obese. We gave the alcohol intravenously to avoid 11 problems with gastric emptying and first-pass metabolism. 12 She had a rogue of a .45. 13 The burnoff rate was normal, .015. The rogue 14 was .45. If she'd been grossly obese with a body mass 15 index that was up to something like 35 or even 38, I 16 wonder what the rogue factor would be then? We don't 17 know. It hasn't been done. 18 This guy has a slow burnoff rate, .011. And 19 a pretty normal rogue factor, .70. 20 So I just got some, based on this preliminary 21 study, I got some research funding to look at rogue 22 factors in obesity. And funny enough it's never been 23 done before, after all these years. 24 I couldn't find a published article dealing 25 with rogue factors in obesity, despite the problem that 00039:01 obesity causes today for ill health and longevity. 02 Here's the little formula -- again this isn't 03 in the hand-out unfortunately -- but here's the formula 04 for calculating the body mass index when the job is done. 05 It's simply the body weight in kilograms, 06 divided by the height in meters squared. If you're 07 above 25, you're overweight. And I know you don't work 08 with kilograms, don't even work with meters; but you work 09 with pounds and you work with inches. 10 And we use this formula to plug into the 11 formula your body weight in pounds, divided by .45. You 12 plug in your height in inches, point 255, 254. Do the 13 same thing again, and you multiply them together and get 14 the body mass index. 15 And you could play around with this and see 16 what your own body mass index is. I mean, it's in these 17 ranges, your ideal weight for height is around 20 to -- 18 or 25. Between 25 and 29 or 30 you're overweight. 19 And I'm actually overweight for my height, 20 when I plugged my own numbers in to this equation. And 21 if you're above 30, as this woman was, you're clinically 22 obese. 23 If you're above 40, you're morbidly obese. 24 And the only thing really then is to have a gastric 25 bypass. 00040:01 So, that's the formula for body mass index. 02 And why not, next time you have a client who you're 03 defending, plug in his dimensions into that formula and 04 see if you can argue in court for a lower rogue factor if 05 the issue happens to be the more blood-alcohol you get 06 after one or two beers or whatever. 07 These are some examples to show you how the 08 "C" Max. The "C" Max is the highest concentration 09 reached. And the "T" Max is the time to the "C" Max, how 10 that can vary. 11 This is a big experiment of 48 men, who all 12 drunk whiskey on an empty stomach. Notice the "C" Max 13 varied from about -- in the U-units, .13 to a .06. Two 14 forward differences in "C" Max. 15 The "T" Max was from something like 5 minutes 16 or 10 minutes up to 120 minutes. That's 12 times. 17 That's a 12 times difference in the "T" max. 18 And how could I predict that before doing the 19 experiment? We just can't. 20 And that's why I think you have to in a... 21 in a criminal trial -- when beyond the reasonable doubt 22 is the criteria -- you have to allow for this kind of 23 variability, when you see these kinds of experiments 24 don't just give an average burnoff rate, an average rogue 25 factor, an average time to maximum. 00041:01 You have to allow for variability and then 02 let the courts decide what they want to believe. 03 Again, other examples of the same amount of 04 alcohol, a small dose, .3 gram per kilogram, on an empty 05 stomach, 60 minutes after eating a breakfast, and then 60 06 minutes after breakfast and taking an aspirin, a drug we 07 introduced as well. 08 The lime shirt (phonetic) is for each 09 individual. Really very close on an empty stomach. But 10 look at the variability when you introduce food in the 11 stomach. In the experiment, it was one hour after 12 breakfast. 13 So variability, variability, variability. 14 Don't forget it. 15 I never, ever really try to get engaged in 16 making forward predictions about what B.A.C. we ought to 17 expect three hours after someone has drank a certain 18 amount of alcohol. 19 You know nothing about first-pass metabolism. 20 Have you heard that term before? First pass metabolism? 21 It means the breakdown of alcohol during the first 22 passage of the blood through the stomach and through the 23 liver. 24 So someday alcohol can be broken down and 25 give you a first-pass effect. And if -- you can reduced 00042:01 the amount of alcohol by 20 percent if you drink alcohol 02 after food. 03 I don't even like getting engaged in 04 retrograde. If you only have one blood sample or one 05 breath sample, you never know where you are on the 06 alcohol curve; so, how do you know if it was going up or 07 going down when that sample was drawn? 08 If you have two samples going down, you can 09 say that, okay, he's going down between those two time 10 points. But do you know where he was going before this 11 one was taken? Could it be going up? 12 So two samples don't help in that respect. 13 THE MODERATOR: You've got 10 minutes. 14 DR. JONES: Yeah. 15 So retrograde is a, in my opinion, a dubious 16 practice and I avoid it whenever possible. So don't get 17 engaged in retrogrades. 18 We looked a couple of years ago at the 19 burnoff rate of alcohol in drunk drivers. It was based 20 on double-blood samples. We come up with an average 21 number of .019. You may say, "Well, why; why it's 22 higher; why isn't it higher than .015?" 23 Widmark I'm talking about. He did the work 24 with drunk drivers. It's higher on drunk drivers. And 25 many of these are alcoholics, so, they have the more 00043:01 rapid burnoff rates. So, they bring up the average 02 from .015 in moderate drinkers to .019 in drunk drivers. 03 But I don't use that number in retrograde. I 04 use a range. And the range would be .009 to .029. That 05 would cover, I think, the vast majority of people in that 06 population. 07 These are showing times to reach peak alcohol 08 level after drinking. And many people peak early, but 09 some peak late. 10 You never know if your client's a late peaker 11 or an early peaker. You have to allow for variations. 12 Another example of time of peak. Again, it 13 varies. Some people peak early, 30 minutes, 60 minutes. 14 Some people peak late, 90 minutes, 120 minutes. 15 Breath testing, probably being used today 16 more often than blood testing. I mean, the main 17 advantage is it's not invasive. You don't have to get a 18 doctor or a nurse to stick a needle in someone. 19 And the police seem to like evidential breath 20 testing. But they're also using something called graded 21 penalties, if you have .20. 22 But you have to ask them: Is the method 23 linear over that range? The calibration control is at 24 one point, normally at .08. 25 How do you know it's linear at .16 or .26? 00044:01 There has to be proof, in my opinion, that 02 the device they're using is linear if they're using 03 graded penalties. 04 They also have to make a grade deduction if 05 the alcohol concentration is bigger, as I said in the 06 beginning. 07 Blood-breath ratio, forget it, it's a moving 08 target. Could be almost anything. It's arbitrarily 09 defined. 10 We always had the blood limit, .08. This is 11 the assumed breath-blood ratio. So if you divide this 12 out, you end up with .08 grams for two-ten liters. So 13 it's in the static blood, when you define the threshold 14 level in these units. 15 I want to say something about other drugs 16 before I finish. 17 These are the later-phase done in Sweden. 18 Alleged drinking alcohol "after" driving. You've got the 19 hip-flask defense. And the onus on here is on the 20 prosecution. 21 He'll say "Yeah, I crashed the car; but I'm 22 so upset, so nervous, I had to take a drink after I 23 crashed my car." And then the prosecution then must 24 misprove that. 25 Other drugs than alcohol, as I say, it's 00045:01 become one of my main... one of my main interests in the 02 last few years, because we have a zero tolerance for 03 prescribed drugs in Sweden and many other states. In 04 this country it's going in that direction. 05 We have to distinguish between social drugs, 06 coffee, nicotine and alcohol; the illicit drugs listed 07 here; and even the prescription drugs, which are also 08 very dangerous and can impair performance and driving 09 skills. 10 These are some of the most common ones that 11 you know about, Ecstasy and cannabis. In some countries 12 they're more liberal. They may want to be moved over to 13 social drugs. But I don't think it will happen in Sweden 14 and probably not here. 15 In Holland they want to go with cannabis use, 16 you can buy cannabis almost anywhere. 17 I read a lot of medical journals, and they 18 spend a fortune in publicizing their drugs. This is one 19 in JAMA recently I saw. Do you know what drug they're 20 advertising. 21 THE AUDIENCE: Viagra. Viagra. 22 DR. JONES: You've got it. 23 You've got it. These are some things you 24 should get if you don't have them. It's a website here. 25 It's not clear on the slide, www.walshgroup.org. 00046:01 You go into this website, you can download 02 these two reports. They're worth getting ahold of. This 03 one deals with D.U.I.D. laws in different parts of this 04 country. 05 And this deals with the feasibility of per se 06 D.U.I.D. laws. That's going to be the future, I think, 07 for "drug," drug-driving. 08 But www.walshgroup.org has been paid for by 09 your taxes, so, you can just download these reports. And 10 I understand 14 states now have some kind of per se 11 D.U.I.D. laws. These are the countries in Europe that 12 have per se I.D., D.U.I.D. laws. 13 Sweden even includes scheduled medicinal 14 drugs, and so does Poland. But most of the other 15 countries only include the illicit drugs. 16 These are the scheduling that's used in 17 Sweden. Schedule 1 is the drugs which normally have 18 medical -- valid medical application like L.S.D., 19 mescaline, marijuana. I think that's debatable, I guess, 20 today. Designer drugs like Ecstasy. 21 Group 2 is the drugs which are 22 dependence-producing without a minimal medical 23 application, like amphetimine or narcolepsy or attention 24 deficit disorders. 25 Group 3 are the strong analgesics like 00047:01 Profoxiphine and Codeine. 02 And Group 4 are the sedatives like 03 benzodiazepines. 04 And there are also Group 5 drugs, but I can't 05 give you some names of those off the top of my head. 06 I saw this in the Swedish newspaper in the 07 last few weeks. "Narcotics Legal in Mexico." Apparently 08 in Mexico you can legally use narcotic drugs, and then 09 maybe drive back home with a positive carbox C.T.U.C. in 10 your urine. 11 Drugs stay around a lot different than 12 alcohol. These are some numbers, it's in the handout. 13 How long will we detect drugs in urine? A lot longer 14 than in blood. 15 Some drugs like T.H.C., detected for several 16 weeks after one use of marijuana. 17 So these are in the handouts. Depends on 18 lipid soluability of the substances. T.H.C. is very 19 lipid soluable in the half-life of the substance. 20 These are some of the typical scheduled drugs 21 that we see in traffic cases in Sweden. So, we need to 22 learn a lot more about these other drugs. 23 This is a simple blood-plasma distribution of 24 alcohol, 1.15. Do you know what this is for Diazepam? 25 What the blood-plasma distribution is? 1.8. Not 1.15. 00048:01 There's much more Diazepam in the blood plasma than there 02 is in the whole blood. 03 That needs to be considered when you're 04 interpreting whether someone is within some kind of 05 threshold level for using a prescription drug. 06 Zero concentrations, they don't exist. When 07 we talk about zero concentration, you're talking about 08 this term, L.O.Q., limit of quantitation. 09 That's the minimum amount you can measure in 10 a blood sample with analytical certainty. And that is 11 the threshold limit when you enforce a zero tolerance for 12 other drugs. 13 So there's ultimately something there, but 14 it's not above that L.O.Q. So, that becomes the 15 threshold limit. 16 It's not written in the law, it's in the 17 laboratory notebooks. The L.O.Q. must be stated for each 18 substance they analyze. 19 Don't fall into the trap of accepting the 20 screening test as an evidential test. Everything starts 21 with screening. Immunizing screening. 22 Overly presumptive test of a drug. 23 Presumptive means it could be there, it could not be 24 there. You have to verify every screening result using 25 much more sophisticated technology such as G.C.M.S. or 00049:01 L.C.M.S. or G.C.N.B.D. or G.C.-FIB detectors on the 02 gastromatograph. 03 So don't accept a positive immunizing 04 screening as proof that somebody's been using an illicit 05 drug. Always ask for verification. 06 These are the main drugs we see in the 07 Swedish D.U.I. cases. A lot of them are poly drug users. 08 And here's an example of a poly drug user, a woman, she 09 had no ethanol, she has a small amount of amphetamine. 10 Some Phen/Fen, another kind of stimulant in the blood. 11 Some T.H.C. in the blood, she'd been smoking marijuana or 12 cannabis. 13 She had some Morphine in the blood. Codeine 14 in the blood. Sixosin (phonetic) of Morphine you see, 15 that means she had taken heroin. 16 Morphine in the urine, Codeine in the urine, 17 T.H.C. in the blood, and diazepam in the blood. Big, big 18 concentrations. 19 What did the doctor find? Slightly debatable 20 for a stimulant or depressant drugs in the system. With 21 all of that in her system, she must have had an enormous 22 tolerance for those drugs. 23 So urine only proves that you've been using 24 the bad substance. It doesn't say anything whatsoever 25 about under the influence or impairment. Don't forget 00050:01 that. 02 Recidivism is enormous in the D.U.I.D. cases 03 in Sweden. Within four years 50 percent of them are 04 taken again for the same D.U.I.D. Some of them, many 05 times, up to 12, 13, 14 times, they've been taken for 06 D.U.I.D. 07 There's a lot of issues, I think, left that 08 we have to quickly go through on these. You've got them 09 in the handout. 10 Tolerance development is quite different for 11 these drugs than it is for alcohol, poly drug use, immune 12 asonasal (phonetic) screening tests, without 13 verification. 14 Metabolites are not active pharmacologically 15 in many cases. The time of last test; the last use of 16 the drug cannot be defined precisely from the blood 17 concentration. 18 And they can be excreted in the urine for 19 days or weeks after the last use of the drug, 20 particularly amphetamine and carboxy T.H.C. And certain 21 prescription drugs may be metabolized to effect amino 22 methamphetamine in the body. 23 That could give you a positive screening for 24 amino methamphetamine if you took a medicinal drug. 25 Duplicates we talk about in breath testing or 00051:01 blood testing for alcohol, but do you get duplicates for 02 other drugs? Ask the question. Was that drug measured 03 in duplicate? 04 Any uncertainty allowed for other drugs? 05 Nope. No uncertainty allowed here. 06 Was the concentration of the drug in the 07 therapeutic range for that substance? 08 I mentioned the plasma-blood distribution 09 ranges. We don't know what they are for those drugs. We 10 only mentioned alcohol. How about stability? They don't 11 know. 12 Re-analyze a sample after one month to see if 13 we could find any Zone B clone in the blood sample. It 14 won't be there. 15 So, thanks for listening, and I hope you have 16 some good luck with your endeavors (applause.) 17 That formula by the way, by the way, that I 18 showed you, was a big drug, we see a lot now in the 19 traffic in Sweden, Zambadine or Ambien. Gives really a 20 very potent, hypnotic sleep at night. 21 But if you take it at the wrong time of the 22 day or overuse it, you're going to be a big danger in the 23 traffic. 24 Thank you. 25 THE MODERATOR: Thank you, Wayne. We have 00052:01 one questions. 02 THE AUDIENCE: Wayne, could you comment 03 briefly about dry gas tubes accuracy checks with fuel 04 cell devices as compared to using wet-bed simulators? 05 MR. JONES: Well, the standard has always 06 been, the gold standard -- 07 THE MODERATOR: The question was to comment 08 on the use of dry gas simulators and wet simulators in 09 breath testing. 10 DR. JONES: The gold standard's always been 11 the wet bed. Because it's wet, the breath. You're 12 measuring out in the breath and it's actually a water 13 vapor. 14 So, you have a standard which mimics, if you 15 like, your biological sample. Breath as opposed to 16 wet-bed simulator. 17 But the dry tubes, the dry gas tubes, there's 18 no water vapor in those. They're also very sensitive for 19 altitude variations. So the altitude can influence the 20 number you get on the instrument. That has to be 21 considered when you're looking at targeted value on the 22 dry gas. 23 I think that what these dry gases are used 24 for primarily is, I think the primary calibration's done 25 still today by a wet bed. The dry gases are being used 00053:01 to control the calibration in the field. 02 I prefer, I am old fashioned, but I still 03 prefer the wet-bed simulator because, as I say, it's as 04 close as you can come to mimicking the human breath. 05 That's what I have on that. 06 THE MODERATOR: Thank you very much, Doctor. 07 DR. JONES: Thank you. 08 THE MODERATOR: He'll be around, you can ask 09 questions during the break. We're going to take 15 10 minutes. Be back at, well, 2:35. 11 (End of recorded proceedings.) 12 ---oOo--- 13 14 15 16 17 18 19 20 21 22 23 24 25 00054:01 STATE OF CALIFORNIA 02 COUNTY OF ALAMEDA 03 04 I, the undersigned, a Certified Shorthand 05 Reporter of the State of California, hereby certify that 06 I personally did not attend these proceedings; that these 07 proceedings were represented to me as having been held at 08 the time and place stated; that I cannot personally 09 attest to the identities of the persons speaking in these 10 proceedings but they are identified herein; that the 11 statements made were stenographically reported by 12 me from D.V.D. recording and were thereafter transcribed 13 by me to the best of my ability and discernment; and that 14 there were several indiscernible or inaudible passages. 15 I further certify that I am not an attorney 16 for any party in any proceeding, nor am I in any way 17 interested in the outcome of any cause named or discussed 18 herein. 19 IN WITNESS WHEREOF, I have hereunto set my 20 hand this 13th day of March 2007. 21 22 23 arlotte C. Roche, C.S.R. #4486 24 State of California 25