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    89.5 Defenses And Defense Theories Regarding Blood Alcohol Testing

    89.5.1 Drunk Driving: Breath Test -- Jury To Determine Weight
    89.5.2 Drunk Driving: Defense Theory That Police Improperly Failed To Advise Defendant That The Breath Sample Would Not Be Retained
    89.5.3 Drunk Driving: Failure To Advise Defendant Of Right To An Independent Test
    89.5.4 Drunk Driving: Prosecution Must Prove Accuracy Of Blood Alcohol Test Beyond A Reasonable Doubt
    89.5.5 Drunk Driving: Blood Alcohol Level Does Not Create Presumption Of Guilt Or Shift Burden Of Proof
    89.5.6 Drunk Driving: Presumption Of Innocence Remains Even If Blood Alcohol Level Is 0.05% Or More
    89.5.7 Drunk Driving: Presumption In Favor Of Defendant From Blood Alcohol Below 0.05% Should Be Mandatory
    89.5.8 Drunk Driving: Improper To Instruct On Rebuttable Presumption In Favor Of Defendant From Blood Alcohol Below 0.05%
    89.5.9 Drunk Driving: Reversible Error To Instruct On Presumption When Blood Alcohol Level Is Less Than Statutory Minimum
    89.5.10 Drunk Driving: Challenge To Partition Ratio Presumption
    89.5.11 Drunk Driving: Challenge To Admissibility Of The Fact That Defendant Refused To Take The Sobriety Test
    89.5.12 Drunk Driving: Chain Of Custody Challenge To Blood Alcohol Test
    89.5.13 Drunk Driving: Rising Blood Alcohol Defense -- Theory That Blood Alcohol Level Was Lower At Time Of Driving Than When Tested
    89.5.14 Drunk Driving: Defense Theory That Defendant’s Driving Was Not Impaired Even Though His Blood Alcohol Level Was Above The Statutory Limit
    89.5.15 Drunk Driving: Additional Defenses And Defense Theories
    89.5.16 Drunk Driving: Expert Witness On HGN Test -- Psychologist vs. Medical Doctor
    89.5.17 Drunk Driving (DUI): Breathalyzer Gender Bias

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RATIONALE: Without a cautionary instruction the jury may tend to give undue weight to the blood alcohol testing evidence which may be viewed as having an aura of infallible reliability. The jurors should understand that they must ultimately decide whether or not to credit the test results.

POINTS AND AUTHORITIES: See State v. Clark (OR 1979) 593 P2d 123, 127-28; Omohundro v. Arlington County (VA 1953) 75 SE2d 496, 498.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.3; 5.7].

RESEARCH NOTES:

See generally, FORECITE National™ 305.4.10 [Drunk Driving].

    You are not required to accept the blood alcohol testing results.  It is for you, the jury, to decide what weight, if any, to give such evidence.

[Cf. UNIFORM CRIMINAL JURY INSTRUCTIONS (OREGON), UCrJI 2709 [Breath Test Evidence] (Oregon State Bar, 10/94).]

    You are not bound by the results of the blood alcohol testing. Such testing does not raise any presumption that the defendant is guilty The weight, if any, to be given the blood alcohol test evidence is for you to determine.  You are the sole and exclusive judge of the testimony and the weight, if any, which it is to be given. 

[See generally State v. Clark (OR 1979) 593 P2d 123, 127-28; cf. Reiff, Drunk Driving and Related Vehicular Offenses 2d Ed. (Lexis, 1999) § 17-5(h), p. 390.]

    The mere use of the word "test," as in a field sobriety test or physical sobriety test, without evidence of a scientific foundation for the [procedure] [so-called "test"], does not give any more scientific significance to the result of the sobriety exercise than any other routine daily activity such as "testing" water temperature.

[See Reiff, Drunk Driving and Related Vehicular Offenses 2d Ed. (Lexis, 1999) § 17-5(j), pp. 390-391.]

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RATIONALE: The jury should be permitted to consider, against the prosecution, the fact that the police failed to give the defendant notice that the breath test sample would not be preserved.

POINTS AND AUTHORITIES: In People v. Alvarado (CA 1986) 181 CA3d Supp 1, 6 [226 CR 329], the court held that when evidence is presented that the notice requirements of the California statute (California Vehicle Code § 23157.5) were violated by the arresting officer, "the defendant would be entitled to a jury instruction, advising the jury of the provisions of [Vehicle Code § 23157.5], and permitting the jury to consider the officer's failure to advise the defendant of his rights as a factor bearing on the credibility of the officer and the accuracy of the breath test administered by the officer or at his direction." (Alvarado, 181 CA3d Supp at 5-6; Rucker & Overland, California Criminal Forms & Instructions (1983) § 44:38A.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.1; 6.1].

RESEARCH NOTES:

See generally, FORECITE National™ 305.4.10 [Drunk Driving].

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RATIONALE: Failing to advise the defendant of his/her right to procure a timely blood sample for independent testing effectively denies the defendant the opportunity to defend and therefore exclusion of the evidence or special instruction may be required.

POINTS AND AUTHORITIES: Advising the defendant as to his or her testing rights has been recognized as an important duty of the police.

    For example, in New Jersey, "[o]nce a defendant has submitted to the breathalyzer test, he is entitled to a reasonable opportunity to attempt to procure a timely and independent sample of his blood. To refuse him a reasonable opportunity is to deny him the only opportunity he has to defend himself against the charge." (State v. Nicastro (NJ 1986) 527 A2d 492, 496; see also State v. Turpin (WA 1980) 620 P2d 990.)

    "[T]he statutory right to have an independent examination and the obligation of the police to advise [the] defendant of that right would be meaningless if there are no means to implement the statute." (State v. Hicks (NJ 1988) 550 A2d 512, 516. [Emphasis added.])

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 6.1].

RESEARCH NOTES:

See generally, FORECITE National™ 305.4.10 [Drunk Driving].

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RATIONALE: The defendant should be entitled to a theory of the case instruction requiring the prosecution to prove the test was accurate beyond a reasonable doubt.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 5.8].

RESEARCH NOTES:

See generally, FORECITE National™ 305.4.10 [Drunk Driving].

    The defendant has introduced evidence for the purpose of showing that the blood alcohol determination by the police was inaccurate because [his] [her] blood alcohol level was really __________ rather than the level reported by the police test.

    If you have a reasonable doubt as to the accuracy of the police test, you must give the defendant the benefit of that doubt and find that the police test was incorrect. The inaccuracy of the police test may be sufficient by itself to raise a reasonable doubt as to whether the defendant was under the influence.

[Source: FORECITE National™.]

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RATIONALE: Absent a cautionary instruction the jury may not understand that the defendant's blood alcohol level does not create a presumption of guilt and does not reduce or shift the prosecution's burden to prove all elements of the charge beyond a reasonable doubt.

POINTS AND AUTHORITIES: There are typically two theories or offenses included in drunk driving offenses. One requires the defendant to drive, control or operate a vehicle while "intoxicated" or "under the influence." The other requires a specific blood alcohol level. (See Reiff, Drunk Driving and Related Vehicular Offenses 2d Ed. (Lexis, 1999) § 2-1. pp. 5-9.) The former uses a subjective measure of impairment, while the other uses an objective measure. (See e.g., Burg v. Municipal Court (CA 1983) 35 C3d 257, 264-65 [198 CR 145].)

    The statutory "presumptions" based on blood alcohol levels may be relevant as to whether the defendant was "under the influence." However, regardless of any such presumption or inference, the prosecution is required to prove beyond a reasonable doubt that the defendant drove while "intoxicated" or "under the influence." (In re Winship (1970) 397 US 358, 364 [90 SCt 1068; 25 LEd2d 368].) And this, of course, requires the jury to presume that the defendant was not under the influence. (Ibid.)

    Hence, requiring the jury to conclude that the defendant was intoxicated or under the influence based on a specific blood alcohol level is an improper mandatory presumption. (See Francis v. Franklin (1985) 471 US 307, 317-18 [105 SCt1965; 85 LEd2d 344] [mandatory rebuttable presumption just as unconstitutional as conclusive presumption because it shifts burden of persuasion to defendant]; see also Ulster County Court v. Allen (1979) 442 US 140, 156 [99 SCt 2213; 60 LEd2d 777] [the presumption "must not undermine the factfinder's responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt"]; State v. Leverett (MT 1990) 799 P2d 119, 123 [mandatory rebuttable presumption based on blood alcohol level was unconstitutional].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.2].

Annotation, Validity, Construction, And Application Of Statutes Directly Proscribing Driving With Blood-Alcohol Level In Excess Of Established Percentage, 54 ALR4th 149.

See also generally, FORECITE National™ 305.4.10 [Drunk Driving].

    The prosecution is required to prove all elements of the charge beyond a reasonable doubt including that defendant drove while under the influence. This requires you to presume that the defendant was not under the influence unless the prosecution proves the contrary beyond a reasonable doubt.

    You may consider the defendant's blood alcohol level at the time of the chemical analysis of the defendant's blood, breath or urine in determining whether or not the prosecution has met its burden. However, you must not consider any particular blood alcohol level, no matter how high, as conclusively proving that the defendant was under the influence.

    Even if the evidence establishes beyond a reasonable doubt that at the time of the chemical analysis of the defendant's blood, breath or urine there was _____ [insert percentage] or more by weight of alcohol in the defendant's blood, you need not infer that the defendant was under the influence of an alcoholic beverage at the time of the alleged offense.

[Source: FORECITE National™.]

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RATIONALE: Because the prosecution's burden of proof remains regardless of the defendant's blood alcohol level, it may mislead the jury to instruct that no presumption arises when the blood alcohol level is between 0.05% and 0.08% (0.10%).

POINTS AND AUTHORITIES: Typically statutes provide that no presumption for or against the defendant being under the influence shall arise from blood alcohol levels which are 0.05% or more but less than 0.08% (or 0.10%). (See Reiff, Drunk Driving and Related Vehicular Offenses 2d Ed. (Lexis, 1999) § 7.4.) The problem with this provision is that the jury is already required to presume that the defendant was not under the influence by virtue of the prosecution's burden to prove every element of the charge beyond a reasonable doubt. (In re Winship (1970) 397 US 358, 364 [90 SCt 1068; 25 LEd2d 368].) Therefore, even if blood alcohol levels of 0.05% or more but less than 0.08% (or 0.10%) do not give rise to any statutory presumption, the defendant's underlying presumption of innocence still remains intact and the jury should be so instructed. In other words, any instruction based on this matter must be carefully drafted to avoid implying that for blood alcohol levels between 0.05% and 0.08% (or 0.10%) the prosecution and defense burdens are equally balanced as implied by the statutory language.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.2].

RESEARCH NOTES:

See generally, FORECITE National™ 305.4.10 [Drunk Driving].

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PRACTICE NOTE: In People v. Gallardo (CA 1994) 22 CA4th 489, 495-96 [27 CR2d 502], the court held that the California statute (Vehicle Code § 23155(a)(1)) created a rebuttable rather than mandatory presumption that the defendant was not under the influence if his or her blood alcohol level was less than 0.05%. (See also State v. Pitner (VT 1991) 596 A2d 344, 345.) In so concluding, Gallardo suggested several reasons why logically the statute should be considered a rebuttable presumption.

    However, Gallardo did not consider the fact that if the statute is read to create a rebuttable presumption, it is meaningless because the defendant is already presumed innocent by virtue of the prosecution's burden to prove every element of the charge beyond a reasonable doubt. (In re Winship (1970) 397 US 358, 364 [90 SCt 1068; 25 LEd2d 368].) Any instruction upon such a presumption would simply be restating the prosecution's burden in a more specific context. Indeed, instruction upon such a presumption could actually dilute the prosecution's burden of proof since it could imply to the jury that the defendant must prove his or her alcohol level to be below 0.05% before the presumption of innocence would apply.

    Therefore, despite the factors discussed by Gallardo, it would be meaningless, if not misleading, to instruct the jury that the presumption is rebuttable. Since statutes must not be interpreted to lead to absurd results (People v. Belleci (CA 1979) 24 C3d 879, 884 [157 CR 503]), and since any ambiguity in a statute must be resolved in favor of the defendant (People v. Belmontes (CA 1983) 34 C3d 335, 346 [193 CR 882]), such a statute should be construed as a mandatory presumption in favor of the defendant.

RESEARCH NOTES:

See generally, FORECITE National™ 305.4.10 [Drunk Driving].

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RATIONALE: Instructing the jury regarding a presumption in favor of the defendant based on a certain blood alcohol level could mislead the jury by suggesting that the presumption of innocence only applies when the defendant's blood alcohol level is below a certain level.

POINTS AND AUTHORITIES: Some statutes provide that if the defendant's blood alcohol was less than 0.05% "it shall be presumed that the person was not under the influence of an alcoholic beverage at the time of the alleged offense." (See e.g., California Vehicle Code § 23155(a)(1); see also Armstrong v. State (OK 1956) 300 P2d 766, 769; State v. McDonald (SD 1988) 421 NW2d 492, 496 [blood alcohol content of 0.05 percent or less gives rise to a presumed fact that the defendant was not under the influence].)

    However, to predicate the presumption upon proof of some other condition precedent, such as a certain blood alcohol level, would dilute the prosecution's underlying burden to prove all elements of the charge which is not independent upon any condition precedent. (See In re Winship (1970) 397 US 358, 364 [25 LEd2d 368; 90 SCt 1068].) In other words, notwithstanding any such statutory presumption, it is always presumed that the defendant was not under the influence. (Ibid.) An instruction which implies that this presumption only applies when the blood alcohol level is less than 0.05% would, therefore, implicate the defendant's right to trial by jury and due process. (U.S. Constitution, 6th and 14th Amendments.) Hence, Sample Instruction # 1 below is not conditioned on the 0.05% blood alcohol.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.2].

RESEARCH NOTES:

See generally, FORECITE National™ 305.4.10 [Drunk Driving].

    You are instructed that you must presume that the defendant was not under the influence of alcohol at the time of the alleged offense. You are bound by this presumption unless the prosecution overcomes the presumption by proof beyond a reasonable doubt to the contrary.

[Source: FORECITE National™.]

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    89.5.9    Drunk Driving: Reversible Error To Instruct On Presumption When Blood Alcohol Level Is Less Than Statutory Minimum

PRACTICE NOTE: In People v. Wood (CA 1989) 207 CA3d Supp 11 [255 CR 537], the defendant's blood test produced results of .089 and .09. (Id. at 14.) The trial court instructed the jury that it must presume the defendant to be under the influence of alcohol if his blood alcohol level was .10% or more. [Now the level is 0.08% or more.] The reviewing court held that it was reversible error to give the instruction because it is error to give an instruction which correctly states a principle of law which has no application to the facts of the case. (Id. at 15.)

    The court concluded that the error was prejudicial because the defendant's blood alcohol readings were so close to the .10% level that they allowed the jury to "borrow" the 0.10% presumption.

RESEARCH NOTES:

See generally, FORECITE National™ 305.4.10 [Drunk Driving].

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PRACTICE NOTE: The machine used in a breath test is designed to convert the percentage of alcohol in the breath to alcohol in the blood by using a blood-to-breath partition ratio of 2100/1 as dictated by the State. (People v. Oliver (CA 1989) 215 CA3d Supp 1, 3 [264 CR 89].) While the California legislature has not enacted a statutory presumption as to the correct partition ratio, the courts have held that a defendant is presumed to have a 2100/1 blood-to-breath partition ratio, unless he presents evidence to the contrary. (Oliver, 215 CA3d Supp at 5-6.)

    In People v. Herst (CA 1987) 197 CA3d Supp 1, 3-4 [243 CR 83], the court held that such contrary evidence is presented by the defense the prosecution may obtain an instruction informing the jury of the presumption.

    However, where the defendant presents expert testimony that a person's blood-to-breath partition ratio varies over time and does not remain constant, it is error to give the presumption instruction. "The fact presumed by the instruction -- constancy of one's partition ratio -- is [placed] in doubt." (People v. McDonald (CA 1988) 206 CA3d 877, 884 [254 CR 384]; see also People v. Lepine (CA 1989) 215 CA3d 91, 99 [263 CR 543]; People v. Thompson (CA 1989) 215 CA3d Supp 7, 13-14 [265 CR 105].) The expert testimony need not relate specifically to the defendant's own petition ratio; general evidence about the variability of this ratio is sufficient. (Lepine, 215 CA3d at 98-101.)

    Moreover, in People v. Cortes (CA 1989) 214 CA3d Supp 12, 19 [263 CR 113], the court found "no basis for a presumption such as implied in Herst." The Cortes court reasoned that even in the absence of specific partition ratio evidence, a lower partition ratio could be inferred from factors such as the amount of alcohol consumed or the defendant's driving behavior and field sobriety tests were consistent with sobriety.

    However, in People v. Bransford (CA 1994) 8 C4th 885, 893 [35 CR2d 613], the court held that evidence of individual variance in partition ratios for converting breath-alcohol level to blood-alcohol level is not admissible. (See also Guthrie v. Jones (AZ 2002) 43 P3d 601 [variation among individuals regarding the relationship between the percentage of alcohol in one's breath and the percentage of alcohol in one's blood is irrelevant in a prosecution for so-called "per se" drunk driving but is relevant in a prosecution for driving while impaired].)

Annotation, Challenges To Use Of Breath Tests For Drunk Drivers Based On Claim That Partition Or Conversion Ratio Between Measured Breath Alcohol And Actual Blood Alcohol Is Inaccurate, 90 ALR4th 155.

See also generally, FORECITE National™ 305.4.10 [Drunk Driving].

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PRACTICE NOTE: In South Dakota v. Neville (1983) 459 US 553 [103 SCt 916; 74 LEd2d 748] the United States Supreme Court ruled that a suspect's refusal to submit to a post-arrest blood alcohol test could be admitted at trial even though the police failed to warn the suspect that the refusal could be used against him in court. The court reasoned that the 5th Amendment privilege against compelled self incrimination was inapplicable because, given the painless nature of the test, there was no compulsion to refuse, and the Due Process Clause was not violated because the suspect was not misled into believing that the refusal was a "safe harbor" free of adverse consequences. (Id. at 565)

    However, other jurisdictions have held the refusal to be inadmissible. For example, in Opinion of the Justices to Senate (MA 1992) 591 NE2d 1073, it was reasoned that "[i]n the ordinary case a prosecutor would seek to introduce refusal evidence to show, and would argue if permitted, that a defendant's refusal is the equivalent of his statement, 'I have had so much to drink that I know or at least suspect that I am unable to pass the test.’ [Citation.]" (591 NE2d at 1077.) The justices concluded that refusal was evidence of the accused's thought process and therefore was testimonial in nature. (Id.; see also City of Seattle v. Stalsbroten (WA 1998) 957 P2d 260, 260 [driver's refusal to perform a voluntary field sobriety test is testimonial in nature and protected by 5th Amendment].)

    Moreover, to compel the accused to choose between taking the sobriety test and perhaps producing potentially incriminating real evidence, and refusing to take it and have adverse testimonial evidence used against him at trial, would unconstitutionally compel an accused to furnish evidence against himself or herself. (See Commonwealth v. Zevitas (MA 1994) 639 NE2d 1076, 1079; but see People v. Roberts (CA 1992) 2 C4th 271, 310-11 [6 CR2d 276] [holding that evidence and instruction on refusal to take blood test does not impact 5th Amendment].)

RESEARCH NOTES:

See generally, FORECITE National™ 305.4.10 [Drunk Driving].

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PRACTICE NOTE: A report of a blood alcohol test by the state crime laboratory may not be admissible against a defendant charged with driving while under influence of alcohol, in absence of evidence identifying the blood sample analyzed with the defendant and showing the chain of custody from the time the sample was taken to the time it was analyzed. (See Pittman v. State (GA 1964) 139 SE2d 507, 510; see also Jones v. City of Summerdale (AL 1996) 677 So2d 1289, 1291 [there must always be a showing of continuous chain of custody as to both subject person and sample taken from him]; Novak v. District of Columbia (DC App. 1947) 160 F2d 588 [urine sample not admissible where question regarding chain of custody and no evidence that sample was the defendant’s]; State v. Smith (OH 1996) 676 NE2d 192 [failure to comply with refrigeration requirement]; State v. Cribb (SC 1992) 426 SE2d 306, 310 [trial judge abused his discretion in admitting the blood alcohol test into evidence because the chain of custody for the blood sample was not established]; but see State v. Smith (SC 1996) 482 SE2d 777 [proof of chain of custody need not negate all possibility of tampering; where arresting officer took sample to his home and left it in his uncontrolled refrigerator before analysis, that fact went to weight, not admissibility].)

See Manual On Recurring Problems In Criminal Trials [Chain of Custody: General Principles].

See also generally, FORECITE National™ 305.4.10 [Drunk Driving].

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RATIONALE: The blood alcohol test measures the level after the defendant has stopped driving while most statutes require proof of the blood alcohol level during driving. Hence, because it may be necessary to extrapolate from the testing blood alcohol level to estimate the driving level, an explanatory instruction on this issue may be appropriate.

POINTS AND AUTHORITIES: "While statutes punish an individual for driving at or above a prescribed blood alcohol level, or for driving while intoxicated to the extent that her normal faculties are impaired (and using the breath test results to prove impairment), your client's breath test will always be conducted at some point after her operation of the motor vehicle has ceased. Therefore, the test result will actually provide evidence of your client's blood alcohol level not at the time she drove the car but at the time of the testing, raising a question as to her specific reading at the time of the offense." (Reiff, Drunk Driving and Related Vehicular Offenses 2d Ed. (Lexis, 1999) § 7-2(a), p. 122; see also Lemond v. Commonwealth (VA 1995) 454 SE2d 31, 35 [where the defendant's breath test results were linked to the time of driving by expert testimony]; cf. State v. Bashaw (MN 1995) 531 NW2d 203, 208 [court erred by excluding evidence of the defendant's post-accident drinking].)

    Hence, expert testimony and special instruction may be necessary in this regard. (See generally State v. Conway (OR 1985) 707 P2d 618; Mireles v. Texas Dept. of Public Safety (TX 1998) 993 SW2d 426, 429; Taylor v. Commonwealth (VA 1991) 404 SE2d 78, 80 [presumption incorrect in light of unrefuted expert testimony that breath test measures the amount of alcohol in the blood at the time of the test].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

RESEARCH NOTES:

See generally, FORECITE National™ 305.4.10 [Drunk Driving].

SAMPLE INSTRUCTION # 1:

    Evidence has been received that, within ______ hours after the defendant’s alleged [driving] [operating] of a motor vehicle, a sample of the defendant’s [breath] [blood] [urine] was taken. An analysis of the sample has also been received. Evidence has also been received as to how the body absorbs and eliminates alcohol. Consider the evidence regarding the analysis of the [breath] [blood] [urine] sample and the evidence of how the body absorbs and eliminates alcohol along with all the other evidence in the case.  It is up to you to decide how much weight, if any, to give this evidence.

[See WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 234 [Blood-Alcohol Curve] (University of Wisconsin Law School, 2000).]

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RATIONALE: Without an explanatory instruction the jury may tend to disregard the presumption of innocence and equate the prima facie blood alcohol level with guilt.

POINTS AND AUTHORITIES: Reiff, Drunk Driving and Related Vehicular Offenses 2d Ed. (Lexis, 1999) § 17-4(b), p. 387.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.2; 4.1; 5.7 ].

RESEARCH NOTES:

See generally, FORECITE National™ 305.4.10 [Drunk Driving].

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PRACTICE NOTE:  State v. Torres (NM 1999) 976 P2d 20 held that HGN (Horizontal Gaze Nystagmus) test evidence must meet a test for the admission of expert scientific evidence like that set out in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 US 579 [113 SCt 2786; 125 LEd2d 469] .

    In State v. Lasworth (NM 2002) 42 P3d 844, the state had presented the testimony of one of the original researchers in the HGN studies conducted by the National Highway Traffic Safety Administration. The trial court held that that the expert testimony was not sufficient to support the admission of the test evidence of the defendant's performance on the test in his drunk driving trial.  The Lasworth court held that, as a psychologist rather than a medical doctor, the state's witness was not an expert on the physiological mechanisms that are affected by alcohol ingestion and result in the HGN behavior. 

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PRACTICE NOTE A small, but growing number of women are winning court cases after arguing the breathalyzer device (Intoxilyzer 5000) has a built-in gender bias, making it appear as if they’ve had more to drink than they really have. Georgia attorney Billy Spruell has argued, supported by studies by Chattanooga Biochemist, Dr. James Woodford, that the Intoxilyzer 5000 was calibrated to measure men, who metabolize alcohol differently than women by keeping less of it on their breath. For additional information on this defense theory see WXIA-TV Atlanta’s News 11 report, "Lawyer: Breathalyzer Has Gender Bias:" http://www.11alive.com/news/news_article.aspx?storyid=38899.

"Drunk Driving Defense Tested" http://www.11alive.com/news/news_article.aspx?storyid=38967

or go to Dr. Woodford’s website at http://www.mindspring.com/~woodford/