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Daniel Hynes New Hampshire Lawyer

Daniel Hynes - New Hampshire Lawyer - Information on Alcohol

The Following information by Daniel Hynes Esq. is taken from his DWI book Drunk Driving & Drugged driving defense in N.H. - Defense Lawyer edition.

Get more information at: http://www.nhdwiguy.com/dwi-book.html

8.1 Properties of Alcohol

There are a few types of Alcohol. Methanol (Methyl alcohol / wood alcohol), Ethanol (ethyl alcohol / grain alcohol / Alcohol fit for human consumption), Propanol (Isopropyl alcohol / rubbing alcohol), Butanol (Butyl alcohol), and Ethanediol (Ethylene glycol / antifreeze)[1].

Other over-the-counter products, such as mouth wash, contain a form of alcohol. Listerine® is 26.9% alcohol[2].

For purposes of this book, and for DWI, we will be referring to Ethyl alcohol.

Note, however, the other types of alcohol, besides ethanol, may be in one’s system. See the Chapter regarding Chemical tests, which addresses this in more detail.

Alcohol itself has no odor/ a faint smell. It is actually the congeners that are added to the alcohol which give it its smell. Most officers will recognize this on cross examination. Accordingly, police reports may more accurately say an odor of an alcohol beverage, as opposed to an odor of alcohol. If you ask the officer which beverage, or which congeners he smelled, you likely will not get an informative answer (which can be a good thing).

Alcohol is formed through a process known as fermentation. Fermentation is carried out by many bacteria and yeasts. This is important, because alcohol can ferment in the yeast of a blood sample that was not properly stored or obtained.

Alcohol is categorized in the depressant class of drugs. To affect the brain, and in turn the body, alcohol must be absorbed into the blood stream and circulated throughout the body.

8.2 “Proof” of alcohol

The proof of an alcoholic beverage is its alcohol content x2. So, a drink that is 80 proof will be 40% alcohol.

Typically, most beers are around 5% alcohol, wine around 18%, and distilled spirits 40-50%. A rough rule of thumb is that one 12 oz. glass of beer, one half glass of wine, and one shot of vodka/distilled spirit, will all be around the same alcohol content, commonly referred to as one drink.

8.3 Absorption

This is the phase when alcohol is being absorbed into various organs and blood of the body. Alcohol is mainly absorbed through the entire gastrointestinal (GI) tract[3]. Of the entire GI tract, most of the alcohol is absorbed through the small intestine[4].

Besides internal absorption, alcohol can also be absorbed through the skin. One could possibly use a hand lotion that contains alcohol and have the alcohol then be present in the body. Besides producing a BAC, it would also produce the affects that alcohol that should occur as if the alcohol were consumed orally.

After orally consuming alcohol, it travels down the esophagus and enters the stomach. “As it arrives in the stomach, a small portion of the dose (25%) is absorbed via passive diffusion from the stomach into the blood. The remainder of the alcohol is absorbed from the small intestine… through the mesenteric veins, into the portal vein, to the liver, where the major site of oxidation occurs.[5]

8.3.1 Factors Affecting Absorption

Alcohol gets absorbed differently from person to person. A rough estimate is each drink equals around .015 BAC and takes about an hour to absorb. Again, everyone is different. Ranges of 15 minutes to 6 hours have been reported[6]. There are many factors that affect the rate of absorption Food

People who eat on an empty stomach will absorb alcohol quicker. This is due in part to the food acting like a sponge in the stomach. “Food delays the gastric emptying time of alcohol, and decreases the availability of alcohol in the blood stream due to the slow gastric emptying[7]”.

Further, peak BAC is lower with a full stomach than an empty stomach[8]. And, therefore one also will generally eliminate the alcohol faster[9].

Note, however, some studies show no difference in the BA curve between people who consume alcohol on an empty stomach or a full stomach[10]. Speed of Ingestion of Alcohol

If someone drinks the alcohol all at once, instead of over time, this may affect the rate of absorption and elimination[11]. Cigarette Smoking

“Cigarette smoking during or close in time to a meal has been found to slow gastric emptying and increase the time to reach maximum absorption.[12] Type of Alcohol

The type of alcohol, and its proof, can have an affect on absorption time and peak BAC[13]. Gender

Generally, women will have a higher BAC than men if both consume the same amount. This is due in part to women generally weighing less, and having higher body fat ration and less body water[14]. Age

People over 50 may take longer to have a peak alcohol value[15]. Drugs

Many different drugs can not only combine with alcohol to increase its effect, but also can affect the rate of absorption. Weight

The more someone weighs, the lower their BAC will be as compared to someone who weighs less, assuming everything else is equal.

8.4 Distribution

This is the phase where alcohol has been transferred to the blood and is being distributed throughout the body.

8.5 Elimination

Alcohol is a poison. Accordingly, the body wants to get rid of it, and it is also broken down. This process is called elimination. Elimination occurs through the oxidation of alcohol by different enzymes[16]. Over 90% of alcohol is oxidized in the liver, and the remainder is excreted unchanged through the lungs or urine[17]. Alcohol can also be eliminated through sweat, tears, breast milk, and pretty much any excretion.

The number one thing that contributes to elimination is time. Over time, alcohol will be eliminated from the body.

Practice Note

Officers will often ask someone how much they had to drink. But do not as often ask over what period of time. The amount of time is just as important as the amount consumed to determine a BAC. One can reasonably have a six pack over the course of an entire night and still have a BAC of zero.

8.5.1 Elimination Rate

The rate at which alcohol leaves the body is referred to as an elimination rate. It is different in everyone, and even changes in the same person. The average elimination rate is .015 -.020 per hour[18].

8.5.2 Factors affecting elimination rate

Many things that affect the elimination rate are the same things that affect absorption rates. They include gender, amount/ type of alcohol ingested, and any food ingested.

8.5.3 Food

Food in the stomach can lower the elimination rate[19].

8.5.4 Fructose

Consuming fructose can accelerate elimination. One study has shown it can even speed it up by up to 80%[20]. In fact, hospitals will use fructose to detoxify[21].

8.5.5 Chronic Alcoholics

“Chronic alcoholics experience permanent changes to their oxidizing enzymes[22]”. Generally, the elimination rate will be higher and can be up to 54% faster[23].

8.6 Peak BAC

All of the phases will generally have some overlap to them, primarily, because alcohol is generally consumed over time. Even if one drinks really quickly, the phases still will have some overlap, but it should/could be brief.

One way to think of it is to fill a plastic cup with water, and poke a hole in the bottom and put a very narrow straw in it. As the alcohol is sitting in the cup it will be in the absorption phase. As it enters the straw, it will be distributing. As it leaves the other end of the straw, it will be eliminating. Because the alcohol takes time to both absorb and eliminate, while some alcohol is being absorbed, the alcohol that was in there previously can now be eliminated.

As long as elimination occurs faster than one is absorbing, the BAC will be going down. If the body is absorbing more alcohol than it is eliminating, or the body has not yet started to eliminate, the BAC will be going up (Also referred to as rising BAC).

At some point in this formula, there will be an equilibrium. That point is the peak BAC, or maximum BAC. The problem in determining this peak BAC, is that besides gender, weight, and age, the BAC of a given individual is constantly changing. While it is often referred to as a straight line on a graph, that is not necessarily the case

This BAC curve “may contain fluctuations, be linear, pseudo-linear, or even exponential in characteristics. During the metabolism process, short-term fluctuation and spiking in the “linear” curve and curve irregularities are common.[24]

8.6.1 Zig Zag Effect

If one stops drinking alcohol, it is expected that the BAC drop will be constant, or at least always be dropping. This is not necessarily the case. The zig-zag effect can be seen most readily in studies where many samples are taken in short intervals. Studies have shown subjects tested every 5 minutes can have fluctuation as much as .03 in less than 10 minutes[25].

8.7 Widmark Formula / Hypothesis

The Widmark hypothesis is a formula to determine BAC based upon certain variables. It works in a linear/ “zero-order” manner. Meaning, for each hour a constant amount of alcohol is eliminated[26]. The alternative process, “first-order” implies a changing amount, such as a curve on a graph[27].

My research has shown different formulas being used, so if the State or expert uses the Widmark formula, ask specifically which formula they are using, and what values they are giving to the variables.

One version of the formula is:

N = f(W, r,Ct ,β , t, z)[28]

N = amount consumed
W = body weight
r = the volume of distribution (a constant)
Ct = blood alcohol concentration (BAC)
β = the alcohol elimination rate
t = time since the first drink
z = the fluid ounces of alcohol per drink

I have seen different values be used for both r and β. Ideally, a range should be used to give a fair representation of what the variables might be. “r” should take into account gender, but again different experts may use different values.

In a study, the author found the 7 variables in the formula are both additive and multiplicative. Using the general method of error propagation, the author found the 2CV ( coefficient of variation) is +/- 25% for determining the number of drinks, and +/- 42 % variation for determining estimated BAC[29].

8.8 Retrograde extrapolation

Retrograde extrapolation is the process of figuring out what the BAC at the time of driving, or any other given time is, based upon a BAC at a later date, such as when a blood/breath test was administered.

In order to make a retrograde calculation, one must assume absorption and elimination rates (which then includes food eaten, gender, weight, etc.), when the alcohol was consumed, the amount of alcohol and concentration, and the Widmark “r” factor.

The value of the prior BAC will be based upon averages. It is impossible to determine an exact BAC at any given time due to all of the factors. Certain factors, like absorption and elimination rate can never be precisely known.

While retrograde extrapolation may be accurate (enough) during the post absorption phase, the margin of error greatly increases if the BAC is to be calculated at a time when the person is in the absorptive phase[30].

8.9 Impairment due to Alcohol

While the first half of the chapter was more devoted to BACs, and therefore more useful to a Per Se DWI charge, this part deals with how alcohol impairs someone. This is more beneficial to a charge where the State must prove impairment (to any degree in N.H.) due to alcohol.

It is important to note that while alcohol will affect everyone, it will not affect everyone in the same way. People can build up a tolerance to alcohol, meaning it would require a greater amount of alcohol to impair them as compared to a non-drinker.

“While divided attention has been shown to have the beginning of an effect on some subjects at a .02% (BAC) level, this does not mean that the person is impaired for driving at .02%. The following analogy may help explain the concept. After a person eats dinner, the person’s overall walking around weight may be slightly increased. Clinically, there is a measurable effect from the eating of dinner. This does not mean, however, that if the person drove after dinner his driving would be affected by the meal[31]”.

“At BA levels over .10%, virtually all behavioral skills are impaired by alcohol. Between .06% to .10% there is a grey area, with most people starting to have impairment for driving at .08%. However, there is no consistent evidence for impairment of any behavior in most individuals at levels below .05%[32]”. NHTSA, however would disagree. See: Driver Characteristics and Impairment at Various BACs [33], claiming “Alcohol significantly impaired performance on some measures at all examined BACs from 0.02% to 0.10%.”

Alcohol can make someone a better driver?


For a chart showing what sort of impairment might be expected at certain BAC levels, see Stages of

Acute Alcoholic Influence/Intoxication, by Dr. Kurt M. Dubowski, found at http://www.borkensteincourse.org/faculty%20documents/dub_stages.pdf

8.9.1 Factors that may affect impairment Tolerance

One who has a tolerance to alcohol can do fairly well on field sobriety tests even at a high BAC. Studies have shown 20% of people with a BAC of .20 showed no signs of clinical intoxication, and in a separate study 53% exhibited little clinical evidence of impairment at .30[35]. 0.30 Is typically enough to cause coma and death.

Similar to other drugs, with tolerance, the drug effect will lessen, and if the dose is increased the original affect can be achieved. Besides these biological affects, with behavioral tolerance one can learn to mask the outward effects of intoxication[36]. Food

Just as food affects absorption and elimination, it can also affect impairment.[37]

[1] Garriott’sMedicolegal Aspects of Alcohol 5th Edition (2009) (hereafter referenced as Alc). Ch.1 pg. 3

[2] Alc 1-7

[3] Alc 2-5

[4] Id.

[5] Id.

[6] Alc 2-6

[7] Id.

[8] Id at 2-7

[9] Id.

[10] Watkins RL, Adler EV, The Effect of Food on Alcohol Absorption and Elimination Patterns, J Forensic Sci, 1993 38(2):285-291. As citied in Alc 2-7

[11] Alc at 2-7

[12] Alc 2-8

[13] Id.

[14] http://www.justia.com/criminal/drunk-driving-dui-dwi/docs/physiology-of-alcohol.html

[15] Alc 2-9

[16] Alc 2-13

[17] Id.

[18] Id.

[19] Alc 2-16

[20] Sprandel U, Troger HD, Liebhardt EW, Zollner N, Acceleration of Ethanol Elimination with Fructose in Man, Nutr Metab, 1980, 24(5):324-330, p 324. As cited in alc 2-17

[21] Alc at 2-17

[22] Alc 2-18

[23] Id.

[24] Alc 2-20

[25] Dubowski, K.M., Absorption, Distribution and Elimination of Alcohol: Highway Safety Aspects, J. Stud. Alc., Supp. 10, July, 1985, pp 98-108, p 104. As cited in alc 2-20

[26] Alc 2-15

[27] Id.

[28] http://breathtest.wsp.wa.gov/SupportDocs%5CStudies_&_Articles%5CWidmarks%20Equation%2003-07-2002.pdf

[29] Rod G Gullberg Estimating the uncertainty associated with Widmark’s equation as commonly applied in forensic toxicology, Forensic Science International 172 (2007) 33-39, as cited by Alc 10-9

[30] Alc 9-12

[31] Alc 2-21

[32] Mitchell MC, Alcohol-Induced Impairment of Central Nervous System Function: Behavioral Skills Involved in Driving. J Stud Alcohol Suppl, 1985, 10:109-116.. As cited by alc 2-22

[33] Driver Characteristics and Impairment at Various BACs, Moskowitz et al, August 2000.

[34] Alcohol Toxicology for Prosecutors, APRI Pg 9 (2003)

[35] Alc 2-24

[36] Alc 2-24

[37] Alc at 2-26