DUI/DWI/OUI - Related Terms and Definitions

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absorptive state—the period of time, often several hours, between the consumption and absorption of alcohol by the body. Given the uneven distribution of alcohol within the body during this absorptive state, determining BAC levels during this period can prove problematic.

accident—if personal injury or property damage occurs as a result of drunk driving, different or more severe legal penalties will result.

accomplice to drunk driving—in some states, the accomplice statutes (and attendant liability) will apply to drunk driving offenses and likewise to those aiding in such crimes.

acetaldehyde—produced as the body’s metabolism breaks down ethanol. Can be erroneously detected as alcohol and deliver falsely high blood alcohol readings. Dieters and diabetics can have abnormally high acetaldehyde levels.

acetone—an organic compound commonly found in the breath that can be inappropriately read as alcohol by the Intoxilyzer.

acid reflux (heartburn)—a condition by which acidic fluid or gasses in the stomach are introduced into the esophagus, often delivering abnormally high levels of mouth alcohol and potentially resulting in falsely high breath alcohol readings.

Administrative License Revocation (or Administrative License Suspension)—this law provides for prompt administrative license suspension of offenders who fail a BAC test by registering above the illegal limit or refuse to submit to a test.

air bag propellants—used by manufacturers to help activate air bags. If inhaled during an accident, these particles can be absorbed by the body and eventually exhaled, potentially triggering false alcohol readings.

air blank—a breath sample that is known to contain no alcohol. The use of an air blank is common in breath-alcohol testing, and all evidential breath-alcohol testing devices have a testing mode for blank analysis. Sources for contamination of an air blank include: used mouthpieces; the breath tube inlet being in close proximity to a heavily contaminated or intoxicated subject; or the recent use of solvents or cleaning compounds in the vicinity of the breath test devices.

alcohol screening device—types of instruments used by officers in the field to obtain initial indications of blood-alcohol levels.

alternative sentencing—some states have passed laws offering rehabilitation programs of various types as an alternative to the usual penal sanctions.

ambient air—air which, under ideal circumstances, contains no alcohol vapors and is used to purge contaminated air from the chamber (of such devices as the Intoxilyzer) prior to retesting.

anemia—may result in falsely high blood alcohol levels.

antacids—scientific research indicates that antacids change the gastric acidity in the stomach, which can lead to alcohol production by resident bacteria and elevated blood-alcohol readings.

anti-plea bargaining—a statute, case law or policy that prohibits plea bargaining or reducing an alcohol-related offense to a non-alcohol related offense.

anxiety—the psycho-physiological effects of anxiety may affect field sobriety test performance.

arraignment—at this time, the court will provide counsel (and defendant, if present) with a formal complaint, a police report, blood test results (if available), pre-trial or trial dates will be established, bail status reviewed (if applicable) and unless there is a motion to dismiss, a plea will be entered.

attempted drunk driving—under certain circumstances, such as when a person is sitting behind the wheel of a vehicle that is not moving, courts have upheld convictions.

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bifurcation of trial—the only way the almost certain prejudicial effect of prior convictions can be avoided. The jury first decides if the defendant committed the offense. Only if they find him guilty are they then told of the prior convictions and instructed, after receiving additional evidence, to decide beyond a reasonable doubt if the prior conviction exists.

breathalyzer—most of the breath testing devices using this name have been discontinued (and hence the term), except for the Breathalyzer 7410, manufactured by National Draeger.

BAC (Breath Alcohol Computer) DataMaster—these devices utilize infrared technology and five models were originally manufactured. Now discontinued, these devices are still in service in some jurisdictions. Once popular with law enforcement for their low cost and operating convenience, the DataMaster’s accuracy and dependability became a frequent target for defense council.

breath analysis—there are numerous issues confronting defense council and prosecutors in this arena – including (but not limited to), the type of equipment used, procedures employed by law enforcement and lab personnel, the physical condition of the test subject, chain of custody and numerous scientific criteria. Breathalyzer 900, 900A, 1000 and 2000 – one of the most common breath test machines which utilizes a wet chemical method of breath analysis rather than infrared spectrophotometry. Although this machine has long been discontinued, it is still in use in many jurisdictions, particularly rural areas. One of the chief problems with the Breathalyzer is that it is nonspecific to alcohol. In other words, any volatile organic substance, such as turpentine, may register as blood alcohol. In addition all Breathalyzer models but the 900 are susceptible to radio frequency interference.

blood analysis—generally regarded as the most accurate method of determining BAC levels and typically employing either gas chromatography, dichromate or enzymatic reaction.

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Candida albicans—a microorganism commonly found in the human body that is capable of producing ethyl alcohol in stored blood.
chain of custody as part of the foundation for introduction into evidence of the results of any blood-alcohol tests, the prosecution must be able to trace exactly where the chemical sample was at all times, in whose custody it was at all times and that it was properly labeled and stored. However, many courts only require “substantial compliance” in establishing chain of custody.

child endangerment—applies in some states when a minor is an occupant of a vehicle at the time of a drunk driving offense.

citizen informant—informant cases rely upon a “tip” to law enforcement from a citizen observing a vehicle they believe is being driven by an intoxicated individual. These cases often present other important legal issues that require further exploration by defense counsel.

civil liability—typically, a drunk driving conviction constitutes negligence per se and as such, civil liability automatically applies for any damages caused by such unlawful conduct. In some instances, punitive damages may also be applied if it can be proved the driver had wanton and reckless disregard for human life.

commercial drivers—BAC standards are lower, plus additional criminal penalties or license suspensions often apply. The Commercial Motor Vehicle Safety Act mandates a six month license suspension, a one-year commercial vehicle suspension and a lifetime prohibition upon a second conviction. Employers must also be notified of any convictions or suspensions.

common carriers—federal statutes mandate felony status for anyone operating a common carrier under the influence of alcohol or drugs.

Corpus Rule—as in all criminal prosecutions, evidence of a defendant’s incriminating statements in a drunk driving case may not be introduced until there has been sufficient independent evidence presented to establish a prima facie case.

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dram shop—a term referring to the liability of establishments arising out of the sale of alcohol to obviously intoxicated persons (or minor) who subsequently cause death or injury to third-parties as a result of alcohol-related
crashes.

defective complaint—when a prosecutor’s complaint lacks compliance with that jurisdiction’s formal requirements.

deportation—can result for resident aliens convicted of a felony, which is why the issue of a felony drunk driving case carries special significance in such instances.

delayed testing—many states have rules governing the time limitations for chemical testing and set forth consequences for noncompliance. The longer the period that passes between the time the suspect is observed driving and the time he is given an evidentiary chemical test, the less reliable the projected estimate of his blood-alcohol concentration when driving.

dichromate—a method for analyzing blood samples for alcohol content. However, it is not specific for ethyl alcohol and can falsely report other compounds as alcohol.

direct breath statutes—many states have adopted direct breath statutes in an attempt to avoid the scientific reality of variable partition ratios.

divided attention test—a field sobriety test that tests the ability to coordinate physical and mental tasks at the same time.

double jeopardy—prohibits a second prosecution on the same charges after either acquittal or conviction and prevents multiple punishments for the same offense. Criminal prosecution for driving under the influence of alcohol following an administrative license suspension (or vice versa) traditionally does not constitute double jeopardy.

Draeger/Brethalyzer 7110—new breath machine featuring increased specificity through combining fuel cell and infrared analysis with improved filtering, calibration and
data collection.

Driver’s Privacy Protection Act of 1994—prohibits the dissemination of personal information obtained by the state in connection with a motor vehicle record except under specified circumstances. This Act has been duplicated in the legislation of most states.

driving—one element of the traditional DUI offense. While some state statutes use the word “driving,” others use the term “operating” or “being in physical control.” Therefore, what constitutes driving varies in each jurisdiction. In many jurisdictions it is not necessary to prove that, in fact, the individual was driving—only that the officer had reasonable grounds for believing so.

driving while impaired—some state statutes have adopted “driving while impaired” as a lesser degree of the offense of driving under the influence of alcohol, affording leeway to law enforcement agencies in making arrests in those cases where there may be some doubt about convicting the defendant of the more serious charge.

drugs—driving under the influence of drugs or narcotics is, in most jurisdictions, treated similarly to driving under the influence of alcohol. Some states have statutes dealing exclusively with this offense, while others cover it with alternative language in comprehensive drunk driving statutes.

drunk—as used in public drunk statutes, refers to a person who is so inebriated that he is incapable of caring for his own safety.

duress defense—similar to the necessity defense but requires, in addition to other elements, that the defendant had a reasonable and good faith belief that he had to commit the offense in order to avoid serious injury or death.

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endogenous ethanol—alcohol manufactured internally by an individual’s body. Although rare, scientists have observed the occurrence of small amounts of alcohol in the blood and tissue of abstaining individuals.

enhancements—sentence enhancements refer to statutes that provide for additional penalties, usually when a drunk driving offense is combined with reckless behavior; such as, when BAC is over a certain percentage, refusal to take a chemical test, speeding, causing an accident/injury or when minor children are passengers, as examples.

ethanol/ethyl alcohol—grain alcohol. The concentration of alcohol in an individual’s body depends on the amount of water contained in the body.

exigent circumstance—an exception to the Fourth Amendment, such as when courts allow blood tests without a warrant because of the level with which alcohol dissipates from the bloodstream.

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felony drunk driving—under certain circumstances the misdemeanor offense of driving under the influence of alcohol will be treated as a felony (e.g., when drunk driving results in substantial bodily harm or death).

fermentation—naturally occurs in the vial of a blood sample and in some instances may help produce falsely high BAC levels. As such, the degree of care taken with these specimens must be followed closely by defense counsel.

field sobriety tests—tests generally administered by an officer at the scene of the arrest to determine if there is probable cause to arrest the individual for drunk driving. These tests evaluate physical and mental performance and eye impairment and include, for example, walking a line heel-to-toe, one leg stand, finger to nose test, reverse counting, alphabet recitation, and horizontal gaze nystagmus. Field sobriety test results can be helpful to defense counsel where an officer places heavy reliance on these tests because they are superficial tests used to merely gauge blood alcohol content.

forceful seizure of blood sample—some states have passed legislation providing that no chemical sample may be taken from a suspect if he refuses to cooperate. These provisions are similar to the implied consent laws and the suspect’s driver’s license may be revoked or suspended for refusing to provide a sample. Some states provide by statute that if the person is physically unable to submit to the breath test, a blood test must be given.

foreign prior convictions—a prior out-of-state conviction may be used to enhance a defendant’s sentence for a subsequent conviction.

forfeiture of vehicle—a small but increasing amount of states are enacting legislation permitting the temporary impounding of the vehicle used by the convicted drunk driver, usually for a 30 day period.

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gas chromatograph—a device containing a computer system for the analysis of blood samples for blood-alcohol concentration. This is the most common method of analysis.

gross negligence—depending upon the specific state statue, a DUI conviction may require that the prosecution prove that the defendant was acting grossly negligent in his operation of the vehicle.

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hearing—in addition to court proceedings, an administrative hearing, commonly conducted by department of motor vehicles, may be held in order to confirm whether grounds for license suspension exist.

heartburn—a potential source for mouth-alcohol contamination and a corresponding false-high breath-machine reading. Heartburn is usually caused by a medical condition known as a hiatus hernia often found in the elderly, pregnant and overweight individuals.

hematocrit—a potential source of error in breath-alcohol analysis. Whole blood is made up of solid particles suspended in liquid. The percentage by volume of the solid particles is called the hematocrit of the blood. Breath machines report a falsely high blood alcohol reading for persons who have blood with a high hematocrit.

Henry’s Law—as applied to breath testing, states that the concentration of alcohol in the deep lung air is directly proportional to the concentration of alcohol in the blood surrounding the air sacs.

highway—most drunk driving statues require that the driving be done on certain kinds of roads in order to constitute an offense, such as “any public highway” or “highways and elsewhere throughout the state.” Defense counsel should establish whether the client was actually driving on the type of road specified by the statute.

horizontal gaze nystagmus—one of the standardized field sobriety tests wherein officers gauge the jerking of the eyes as they gaze to the side at various angles.

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ignition interlock—a device that prevents a driver from starting a vehicle without first breathing into a breath analyzing device and getting a negative reading (e.g., Guardian Interlock, Safety Interlock and Lincoln Co-Driver).

implied consent—implied consent laws, which vary by state, require drivers to submit to a chemical test when requested as a condition of being granted the privilege of driving. These laws authorize suspension or revocation of the driver’s license by the arresting officer where (1) the driver refuses to take a blood-alcohol test or (2) the driver’s blood-alcohol test reflects a blood-alcohol concentration of at least .08 or .10 percent. Non-compliance with a state’s implied consent laws by the officer may be grounds for preclusion of revocation or suspension of a defendant’s license.

impoundment/forfeiture—an increasing number of states are enacting legislation permitting the temporary impounding of the vehicle used by a convicted drunk driver (usually 30 days) or even confiscation and eventual sale.

inchoate liability—a few jurisdictions have begun to expand criminal liability and seek sanctions for attempting and/or aiding and abetting the commission of driving under the influence.

independent blood sample—some jurisdictions give the defendant the right to obtain a sample of blood or urine for independent analysis. Denial of the right to obtain a sample for independent analysis may include suppression of the prosecution’s blood-alcohol evidence or dismissal of the charges.

industrial compounds—some commonly encountered chemical compounds may be falsely detected as alcohol by breath testing instruments.

infrared—the majority of breath machines utilize the infrared spectrophotometric method of analysis. However, the primary weakness of this method is that it will falsely register other chemical compounds as ethyl alcohol.

insanity—a potential, although very rarely successful, defense to drunk driving charges. Depending upon a particular state’s definition of insanity, a defendant may be able to argue insanity as a defense.

insulin—an enzyme inhibitor needed for the digestive system to break down foods for absorption in the body. A lack of insulin production by the body may result in a condition called diabetes, which can affect blood alcohol analysis.

intent—neither the intent to become intoxicated nor the intent to operate a motor vehicle need be established to convict an individual of drunk driving.

intoxication—see under the influence of alcohol.

Intoxilyzer 5000—the most commonly used breath test machine in the United States. It is sold in a number of different permutations some of which represent improvements in design and others being state-specific versions to satisfy local requirements. It utilizes the infrared spectrophotomeric method of analysis (i.e., infrared absorption) and thus is particularly susceptible to problems of non-specificity.

Intoximeter 3000—this breath test machine features a computer that has been incorporated directly into the instrument and has an electrical conductivity cell (“Taguchi cell”) which theoretically will distinguish acetone and acetaldehyde from ethanol, thus avoiding some of the specificity problems of infrared analysis. This device has been recently discontinued and replaced with the new Intoximeter EC-IR, a device which uses dual infrared and fuel cell technology, but has received limited acceptance among law enforcement agencies. However, because of the Intoximeter 3000’s wide acceptance and rugged design, it can be expected to be encountered for many years to come.

involuntary intoxication—a potential defense to DUI (e.g., where intoxication was caused by force or threat of force from a second party). Each state has a different approach to the application of this defense.

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judicial estoppel—a legal doctrine that provides that when a party assumes a certain position in a legal proceeding, that party is estopped from assuming a contrary position in a subsequent legal proceeding.

juvenile prior convictions—prior juvenile convictions may be used to enhance punishment for a subsequent DUI conviction. Depending upon the laws of the jurisdiction, an alleged juvenile conviction may not legally constitute a prior conviction.

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ketoacidosis—a physical state, often associated with diabetes, where the body burns fat as opposed to carbohydrates as a source of fuel, producing ketones. Ketones can cause bad breath which can be confused with the odor of alcohol and will register as ethyl alcohol on most breath machines, producing a falsely high blood-alcohol reading.

Kozelka-Hines method—see dichromate.

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license suspension—see Administrative License Revocation/Suspension.

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manslaughter—or “vehicular homicide” is a serious felony that occurs when there is a death that is caused by driving under the influence of alcohol. Depending upon the circumstances, some states may treat manslaughter as a misdemeanor.

metabolism—the body’s ability to break alcohol down affects an individual’s blood-alcohol level.

misdemeanor drunk driving arrest—usually occurs when the offense, or at least the driving element, was not committed in the officer’s presence (e.g., the officer arrives at the scene of an accident and arrests the driver). Counsel may argue that this arrest was without lawful authority and seek suppression of evidence obtained thereafter.

mistake of fact defense—a rare but complete defense of criminal conduct that may be available, under certain circumstances, where the defendant honestly and reasonably believed that his blood-alcohol concentration was below the legal limit.

modified position of attention—a common field sobriety test designed to detect swaying in the suspect, presumably a symptom of intoxication. A scientific study has concluded that even high doses of alcohol have little effect on body sway.

motor vehicle—as used in the drunk driving statutes clearly encompasses automobiles, trucks and motorcycles. However, depending upon the jurisdiction, motor vehicles may include mopeds, snowmobiles, tractors and even lawnmowers if driven on roads or highways.

mouth alcohol—mouth alcohol can exist in a number of ways such as when the subject burps, belches, hiccups or regurgitates within 15 or 20 minutes of being tested or uses a mouthwash, cough syrup or breath spray. This alcohol can contaminate the expired breath captured by the machine and elevate the test results radically and is therefore one of the most prevalent causes of error in breath-alcohol analysis.

multiple prior convictions—more severe punishments are commonly imposed for repeat offenders which may result in elevation of the offense to a felony or state-prison status where the requisite number of prior convictions exist.

multiple punishment—a single act that is concurrently prosecuted and punished as two or more separate criminal offenses (e.g., driving while intoxicated, speeding, reckless driving, etc.).

murder—some jurisdictions view homicide proximately caused by drunk driving as murder.

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narcotics—driving under the influence of drugs or narcotics is treated similarly to driving under the influence of alcohol in most jurisdictions. In addition, an individual may be charged with operating a motor vehicle under the combined effects of drugs and alcohol.

necessity defense—in rare cases a defendant may successfully argue that they knowingly drove a vehicle while under the influence of alcohol or drugs in order to save someone’s life or property from immediate danger. However, if there existed a legal alternative to drunk driving, this defense will fail.

negative scoring—a scoring system often used by officers conducting a field sobriety test whereby the officer subtracts points for mistakes the suspect makes, but fails to add points when the suspect does something right. This approach may unfairly place the subject in a “no win” situation.

noncompliance with testing regulations—most states have a statutory scheme for regulating the chemical testing of drunk driving suspects and statutory noncompliance may result in suppression of evidence.

non-impairment evidence—in some jurisdictions such evidence may be admissible to challenge the accuracy of chemical test results.

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odor of alcohol on breath—the most dependably recurring symptom in an officer’s report and therefore the most damaging to a defendant. While alcohol itself has little or no odor, the odor of the flavorings can be deceptive as to the strength or amount drunk.

one leg stand—a common field sobriety test wherein a suspect is instructed to stand on one leg for approximately 30 seconds, with the other leg held out at 45 degree angle.

operating—used by some state statutes in lieu of the term “driving,” the definition of which can vary from jurisdiction to jurisdiction. It generally is given a broader meaning than driving and can include starting the engine or manipulating the mechanical or electrical devices of a standing vehicle.

oral blood—blood in the mouth may affect the breath machine’s reading because the alcohol in the blood will be breathed directly into the machine rather than being measured as part of the alcohol in the breath processed by the lungs.

OUI/OUII—in some states, the offense of drunk driving is termed “operating under the influence of intoxicants.”

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partition ratio—a formula used in the determination of the individual’s blood-alcohol level, using the breath-alcohol level, which relies upon certain scientific presumptions. However, the blood-breath partition ratio may vary considerably among individuals. Therefore, reliance upon a presumed ratio may produce an incorrect blood-alcohol reading.

passive alcohol sensor—a term that covers a variety of different instruments increasingly being used by police officers in the field to obtain initial indications of blood-alcohol levels.

per se laws—drunk driving statues passed by state legislatures wherein the crime consists of having a designated level of alcohol in the blood (.08 or .10 percent) while driving. Previously, state statutes treated the results of blood-alcohol tests as evidence from which a rebuttable presumption of intoxication is drawn. Under per se laws, the evidence becomes the crime itself.

per se suspension—state statutes that require suspension of the driver’s license where the blood-alcohol level is .08 or .10 percent. Suspension determinations are made pursuant to an administrative hearing.

physician patient privilege—assuming that the physician patient privilege is recognized in a jurisdiction, and applicable to criminal cases, counsel for the defendant may prevent testimony from the doctor who observed the defendant’s level of intoxication during treatment.

plasma—the liquid portion of the blood. The concentration of alcohol in plasma can be significantly higher than the concentration of alcohol in whole blood containing plasma and solid particles, therefore the type of blood sample used for testing blood-alcohol should be scrutinized.

plea bargaining—a process during which counsel for the defendant has informal discussions with the prosecutor regarding the strengths and weaknesses of the case to arrive at a mutually acceptable disposal of the case, subject to final approval by the judge. Often a defendant will obtain a less severe punishment for pleading guilty early on as opposed to that which would result from a finding of guilty at trial.

preliminary breath tests—used by police officers in the field to obtain initial indications of blood-alcohol levels. While some of these devices simply detect the presence of alcohol in the subject, others indicate specific levels of blood-alcohol concentration. The two types of PBT’s used today are fuel cell devices and Taguchi gas sensor devices.

pre-plea probation report—a report written pursuant to a probation department investigation setting forth the details of the offense, the defendant’s record, and the details of his present and past private and professional life. Often the judge will insist on reviewing the report prior to committing to a sentence.

presumption of intoxication—all 50 states have laws establishing statutory presumptions from the results of chemical tests given to drunk driving suspects (.08 or .10 percent). In other words, an individual is presumed intoxicated at .10 percent or more of alcohol in the blood by weight.

probable cause—reasonable grounds for presuming guilt in someone charged with a crime. Lack of probable cause to believe that a crime had been committed may be asserted as grounds for suppression of all ensuing observations and evidence.

probation violation hearing—a hearing held to determine whether the defendant has violated the terms and conditions of probation imposed in an earlier drunk driving case. A defendant’s rights at such a hearing are considerably less than they are a trial.

prosecutorial burden—a defendant’s initial burden of producing evidence that a prior conviction was constitutionally invalid does not shift the prosecution’s ultimate burden of proof of the existence of a prior conviction.

pupil reaction—an eye impairment test involving the shining of a flashlight into a suspect’s eyes in order to observe the speed of pupil contraction. This field sobriety test is increasingly being replaced or used in conjunction with the horizontal gaze nystagmus test.

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racial differences—scientific literature clearly indicates a racial (i.e., genetic) difference in the effects of alcohol.

radio frequency interference—can cause specific breath testing apparatus to render false results. Although newer breath test machines may be equipped with an RFI detector, these detectors are not reliable.
reckless driving—one of several potential grounds for increased penalties.

refusal evidence—evidence of a subject’s refusal to submit to a chemical test can effect the trial because of the jury’s tendency to view the refusal as an inference of consciousness of guilt. Wherever possible, counsel should move to suppress evidence of the refusal.

retrograde extrapolation—the majority of states have enacted statutes whereby the blood-alcohol level at the time the test was administered is presumed to be the same as the level at the time the defendants were driving. However, this presumption is rebuttable and the defense must offer evidence that the defendant’s blood-alcohol at the time he was driving was lower than the level at the time he was tested.

right to counsel—some states do recognize a constitutional right to counsel when a DUI suspect is requested to participate in chemical testing.

right to jury trial—only five states do not permit jury trials for drunk driving cases which involve maximum sentences of six months incarceration: Nevada, Louisiana, Mississippi, New Jersey and New Mexico.

roadblocks—the United States Supreme Court has held that roadblocks or checkpoints do not violate the Fourth Amendment’s prohibition against unreasonable searches and seizures. However, many state courts have held that such roadblocks violate the state’s constitution. In addition, depending upon the circumstances, roadblocks may violate state and federal driver protection provisions (e.g., The Driver’s Privacy Protection Act of 1994).

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Safety Interlock—one brand of device that prevents a driver from starting a vehicle without first breathing into a breath analyzing device and getting a negative reading. According to a study conducted by the National Highway Traffic Safety Administration, most of these devices are not very accurate at low and moderate blood-alcohol levels.

saliva effect—mouth alcohol is a problem in analyzing a breath sample because the alcohol in the saliva is being breathed directly into the machine as opposed to being filtered by passage through the lungs. A breath test machine applying the partition ratio will greatly magnify the amount of alcohol in the saliva and give an improper test result.

sentencing—in most drunk driving cases, the provisions of a sentence will involve at least some or all of the following: fine; jail time; suspension; restriction or revocation of license; attendance at drunk driving classes; and probation (supervised or informal).

sex differences—women are generally more susceptible to the effects of alcohol than men due to relative size, greater body fat and less water than men. In addition, research indicates that women have significantly lower amounts of an enzyme that provides a protective barrier in the stomach by breaking alcohol down before it circulates into the body.

simulator calibration—the accuracy of a breath machine is dependent upon the accuracy of its calibration which is accomplished through the use of a simulator solution of alcohol and water. However, for a variety of reasons relating to the make up and handling of the solution, it can falsely calibrate a breath device.

slope detector—a device which theoretically determines whether there is alcohol or an interfering substance present in the mouth.

smoking—cigarette smoking can influence the absorption of alcohol in the body and therefore affect the validity of attempts at retrograde extrapolation.

sobriety checkpoints—see roadblocks.

statutory enhancements statutes providing for increased penalties where specific criteria exist such as: high blood-alcohol concentration; refusing to submit to chemical testing; speeding and/or reckless driving; child endangerment; and accident or injury.

stop and snatch laws—laws permitting the arresting officer to immediately confiscate the driver’s license and serve a notice of suspension.

suspension of license—see Administrative License Suspension.

sweat-patch test—a method of measuring alcohol consumption over a period of up to three days that has potential applications in alcohol treatment programs and in court-supervised probation.

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Taguchi gas sensor devices—one type of portable breath test using a sensor that attracts alcohol in the breath, increasing its electrical conductivity; the more alcohol, the more electricity flows and the higher the reading. This device will detect and register as ethanol many other chemical compounds, providing a false reading. Another problem is that the device sensitivity varies according to the temperature in the environment and in the unit, and may register alcohol in the air (e.g., from the breath of passengers in the suspect’s car).

three strikes—see multiple prior convictions.

toluene—a common chemical compound found in paints, thinner, cleaning solvents and petroleum products that, if inhaled, can be retained in the membranes of the throat and lungs for up to three weeks. Toluene is detected by any infrared breath machine as alcohol, falsely raising blood-alcohol levels.

Tyndall effect—the scattering of light by the particles within a chamber. Baking soda and talc used to pack air bags can be inhaled by the suspect upon deployment and exhaled in to breath machines, deflecting the light beams in the machine and producing a higher blood-alcohol reading.

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under the influence of alcohol—the physical state in which alcohol has so far affected the nervous system, brain or muscles so as to impair the ability to operate a vehicle in a manner like that of an ordinary prudent and cautious person under like conditions in the full possession of his faculties using reasonable care. Some state statutes refer instead to driving in an “intoxicated condition,” or “driving while intoxicated,” or “operating under the influence of intoxicants.”

Uniform Vehicle Code—most states have adopted the Code’s recommended blood-alcohol presumptive levels of intoxication at .10 percent or more of alcohol in the blood by weight.

unlawful arrest—related to but distinct from the issue of probable cause to arrest. Unlawful arrest may occur, for example, when the officer may be out of his jurisdiction or the offense may not have been committed in his presence. However, some state statutes may permit the officer, under certain circumstances, to make an arrest where the offense was committed outside of his presence.

urinalysis—the chemical analysis of a subject’s urine. This is the least accurate and reliable of the three methods of blood-alcohol analysis (i.e., urine, blood and breath tests) and a completely undependable procedure especially where voiding of the bladder has not taken place 15 or 20minutes before the sample is obtained.

urine-to-blood ratio—a basic problem inherent in urinalysis is the underlying presumption that the concentration of alcohol in the urine at the time of secretion is 1.33 times greater that the concentration in the blood. However, any given individual’s ratio can vary from as little as 0.8:1 to as much as 2.0:1 or even more used mouthpieces may contain particles or vapors from the previous user, thus falsely elevating the reading. The failure to replace the mouthpiece should be argued as grounds for suppression of the results.

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vehicle—see motor vehicle.

vehicular homicide—a term used by some states for a felony that occurs when there is a death that is caused by driving under the influence of alcohol.

venous blood—blood samples are commonly withdrawn from the vein rather than the artery. Yet the content of venous blood can be quite different from the content of arterial blood in a subject at a given time and it is the blood in the arteries that is carrying alcohol into the brain, resulting in intoxication.

verbal field sobriety tests—a drunk driving suspect cannot, after being placed in custody and without a Miranda advisement and waiver, be asked any questions to test his mental state. Such a test may be self-incriminating because it forces the suspect to disclose information that would reveal whether his mental processes were confused.

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walk-and-turn—a standardized field sobriety test that (1) requires the subject to balance heel-to-toe while listening to instructions and (2) requires that the subject take nine heel-to-toe steps along a line, turn around, and take nine heel-to-toe steps back.

walk-the-line—the most commonly encountered field sobriety test wherein the subject walks along a line or crack in the pavement and, at the end of line, he is directed to pivot and return.

Widmark r factor—a means of measuring the alcohol absorbed by the body beyond that found in the bloodstream. Specifically, it is a designation of a ratio between the concentration of alcohol in the whole body divided by the concentration of alcohol in the blood. For men, this ratio averages about .67, with a range of .46 to .86; women usually have a somewhat lower ratio, due to their larger proportion of fatty tissue.

Widmark Factor B—the rate of disappearance of alcohol from the body by oxidation of the liver.

willful misconduct—done either with knowledge that serious injury probably will result or with a wanton and reckless disregard of the possible results. While the mere consumption of alcohol would not, of itself, be sufficient to establish willfulness, intoxication as defined by the applicable statues would probably be sufficient. Many jurisdictions have “guest statutes” where the owner-passenger may sue the guest-driver for damages. However, the guest statute’s bar against recovery can be avoided if the guest-driver is civilly proven to have engaged in willful misconduct.

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zero tolerance—new statutes aimed at young drivers, applying an automatic license suspension to a driver of a certain age with any blood-alcohol concentration.

zinc deficiency—research appears to indicate that a high blood-alcohol level may not be indicative of alcohol consumption, but rather may be caused by a deficiency of zinc in the blood. Individuals with an insufficient amount of zinc in their diet will have higher peak blood-alcohol concentrations, and the alcohol will remain in their blood for a longer period of time.

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DUI/DWI/OUI - Related Terms and Definitions

"Cave quid dicis, quando, et cui: Beware what you say, when, and to whom"

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