Tuesday, September 25, 2007

Chemicals in Smokeless Tobacco cause false positive reading on Intoximter

California DUI / Drunk Driving criminal defense lawyers take note:

Defendant, a building contractor, was charged with DUI and driving without a tag. Defendant submitted to three field sobriety tests, and the State trooper testified that the subject failed all three tests. The Defendant was given an Alco-sensor test that showed positive for alcohol. An Intoximeter 3000 test given by the same trooper, showed 0.20%. The test results were in evidence.

After the jury was impaneled and the issue was joined, Defendant moved to limit testimony to a "less safe" case, because the City proceeded to trial on the Uniform Traffic Citations, rather than an accusation. Because the DUI citation only mentioned 40-6-391(a)(1), the motion sought to eliminate any other type of DUI as a means by which the Defendant could be convicted. Relying on Kevinezz v. State, 265 Ga. 78, 454 S.E.2d 441 (1995) cited by the defense, the Court excluded any reference to an (a)(4) DUI count (per se) for driving with an unlawful blood alcohol level.

The trial (and pre-trial motions) lasted all or part of three days, ending at 6:00 p.m. on April 20, 1995. Defendant brought in numerous fact and expert witnesses to prove that the test result on the Intoximeter 3000 was likely erroneous, due to the Defendant's exposure to glue and paint thinner while working on a construction job. Moreover, Defendant testified that he had "a pinch between his cheek and gum" (Copenhagen) when tested, and Phil Hancock (former Director of the Implied Consent breath testing unit of the GBI prior to Jim Panter) testified that he had run experiments which proved that the chemicals in smokeless tobacco could actually cause a "false positive" reading on an Intoximeter 3000. TFC Jack Denny (the area supervisor who serviced and repaired the Intox 3000 machine) testified that all Intox 3000 operators were trained to not offer a breath test to any subject who had been exposed to paint fumes or similar volatile chemicals, due to the fact that an Intox 3000 could not tell the difference between alcohol and these chemicals. The Defendant's clothing, shoes and vehicle had evidence of paint materials, and Defendant also told the officer that he had just left work where he was painting.

A co-worker testified that he had been with Defendant continuously on the day in question from 8:00 a.m. to 5:00 p.m. and that Defendant did not consume any alcoholic beverages. Defendant was stopped at 6:32 p.m. while en route home from the job site. Under cross-examination, the co-worker said that in the four years he had known and worked with Defendant he had never known him to have a single drink of alcohol.

After twenty minutes of deliberation, Defendant was acquitted of both the DUI and driving without a tag.


Kiefer Sutherland's/Jack Bauer's California DUI criminal defense attorney may wish to consider his smoke habit.