An Open Letter to Those Who Say “If You Don’t Want a DUI, Don’t Drink and Drive.”

I know you do not support impaired driving. I know you do not believe that people who are charged with or under investigation for impaired driving offences deserve all the legal support and protection that any other person accused or investigated for any other offence is constitutionally entitled to.

But you’re wrong. And I’d like to ask you to listen, because I want to change your mind.

Drinking and Driving is Not Always a Choice

It is a gross oversimplification to say that impaired driving offences only occur by choice. That people make the choice to drink, and then make the choice to get behind the wheel of their vehicle.

Many people who are charged with impaired driving offences are in that situation out of necessity. I have lost count of the number of people who have driven after consuming alcohol to escape a sexual or physical assault, an abusive partner, or to find a safe place to spend the night. It may surprise you, but it is not uncommon for survivors of abuse to turn to substance use to cope with the trauma they have experienced.

These people had no choice.

There are also those who get in their vehicles to drive when facing a life or death situation. For example, people who have to drive to get a dying friend to the hospital. Or those who drive because they cannot risk waiting for an ambulance.

These people also had no choice but to drive. And in those cases, courts excuse conduct that is truly involuntary.

Yes, I offer advice to people about how to protect themselves when involved in police investigations. And for people escaping violence who are not ready to disclose that they are survivors, they need these protections. Drinking and driving is not always a choice.

You Can Get a DUI With No Alcohol In Your Body

Now, I understand you might reject my position citing the rarity of those extreme cases of necessity. They are more common than you think. But even if I cannot persuade you of that, you need to recognize that you can get a DUI with absolutely no alcohol in your body.

False Readings Come From Common Substances You Eat and Drink:

There are numerous substances that can cause false readings on a breath test. For example, mouthwash, kombucha, hot cross buns, certain energy drinks, breath spray, and soya sauce can all cause elevated breath alcohol readings.

Some of you will probably argue that these substances only cause false readings if they are taken within fifteen minutes of the test, and so the likelihood of them affecting the results are slim. But that’s not the case at all. Studies have shown that having dental appliances (like braces, Invisalign, or dentures) can cause mouth alcohol to eliminate more slowly. The same is true for people who have oral cavities, like missing or loose filings, extracted teeth, or tooth cavities. These people can retain the alcohol in their mouth for longer than fifteen minutes.

And, please, do not forget that the law requires the test to be administered immediately after the officer stops a person, in the case of a mandatory demand, or immediately after the suspicion is formed in the case of a demand based on a suspicion that a person has alcohol in their body.

Some of you are probably thinking that the amount of alcohol introduced by these substances is negligible. But if you have a Class 5 license in British Columbia it is not illegal to drive with alcohol in your body. It is only illegal to drive with more than 50 milligrams of alcohol in 100 millilitres of blood. And the effect of mouth alcohol is only additive. This means that the alcohol that comes from an innocent source, like mouthwash or kombucha, is going to increase the results from what the true blood alcohol level is.

COVID-19 Is Increasing The Number of Innocent People Charged with DUI

Mouthwash use while driving has become common since evidence was released to show that gargling mouthwash can reduce the spread of COVID-19. The same reason that people wear masks – to protect others – has now been prompting many of my innocent clients to rinse with mouthwash right before being pulled over. Hand sanitizer is not different. Even simple topical use of hand sanitizer can affect a breathalyzer. Our own research has confirmed this phenomenon.

Imagine being a healthcare worker, or just a concerned member of the public, and failing a breathalyzer test due to cleaning your hands. In a pandemic. With absolutely no alcohol in your body. Would you tell that person that if they did not want a DUI they should not have consumed alcohol before driving? Would you tell that person they deserved what happened to them?

You Can Get a DUI If You’re Sick

Please understand. It’s not just the presence of interfering substances that can cause false readings. You can have a blood alcohol level below the legal limit, but your breath test can be falsely high due to having a fever. All breath testing devices use a mathematical formula that is based on the assumption that the breath is leaving the body at 34 degrees Celsius. But for people with a fever, that is not the case.

You cannot request a blood test instead of a breathalyzer. There is no legal right to that. So before you say “you can request a blood test instead,” know that you cannot. Once a legal demand to take a breathalyzer is given, you are legally obligated to comply.

It’s not as simple as saying, as I know you are tempted to say, “Don’t drive if you’re sick. Don’t drive if you have a fever.” People with chronic health conditions like lupus, lymphoma, or multiple sclerosis can have chronic fever, or recurring fever as a symptom of their illness. They aren’t affected in their ability to drive by the fever, but their breath test results are elevated.

Your Diet Can Cause a False Breathalyzer Result

Maybe you are one of the people who think that you should not consume any alcohol before driving, so that there is no additive effect from mouth alcohol.

Even if you are one of the lucky ones who has not consumed or used any products that cause false readings, you can still get a DUI just on the basis of your body’s natural process. Your body can cause you to get a DUI even if you have not touched a drop of alcohol.

People who are on the keto diet, practicing intermittent fasting, or suffering from eating disorders like anorexia and bulimia can enter a state of ketosis. This causes acetone production in the body. Roadside breathalyzers cannot distinguish between drinking alcohol (ethanol) and alcohols naturally produced by the body, like acetone and isopropanol.

And because breathalyzers are programmed to assume that alcohol from the bottom of your lungs has a proportional concentration of alcohol to that in your blood stream, the impacts of the naturally-occurring substances in a ketogenic body are emphasized. The amount of acetone or isopropanol that produces a failed result is much, much, much lower than the amount of drinking alcohol that would cause a failed test.

Do you want to tell people who are on diets or who have mental illness that they cannot drive either, since they don’t want to get a DUI?

Diabetes Can Cause a False Breathalyzer Result

What about people with diabetes? Should they also not drive?

There have been numerous studies that show that early diabetic ketoacidosis, which can occur in people who are pre-diabetic, diabetic with undiagnosed disease, or who are having uncontrolled blood sugar levels can produce false readings on a breathalyzer. Some analyses have even shown that there are high rates of false conviction for DUI for people with diabetes.

I know you, reader, do not believe that impaired drivers should get away with it. But is it worth the cost of wrongful convictions for innocent diabetics? Police training cannot rule out every possible source of a potential failed result on a breathalyzer.

Acid Reflux Disorders Can Cause False Breathalyzer Readings

Have you, the person who says “don’t drink and drive,” ever eaten a large meal? Or drank a carbonated beverage? If you have, you’ve probably experienced burping and regurgitation afterwards. A simple burp can cause a false reading on a breathalyzer. This is because it can bring up undigested alcohol vapours from the stomach and into the mouth, interfering with the test result.

If you have one glass of wine with dinner, then drive, and burp within fifteen minutes of when you take the test, you will get a falsely high reading and can face the consequences of an impaired driving allegation solely on the basis of a natural body function.

For people with acid reflux disease, heartburn, gastroesophageal reflux, rumination disorders, hyperacidity, hiatal hernia, or Barrett’s esophagus, this result can be elevated. Particularly in cases where people are still absorbing their alcohol, leakage of alcohol vapour through a loose sphincter valve or the regurgitation of undigested stomach contents into the esophagus without even having anything enter the mouth can elevate the results on a breathalyzer.

Your Job Can Get You a DUI

Indeed, even your job can impact whether you fail a breathalyzer. People like hairdressers, house painters, road builders, and others who come into contact with common chemical substances that have small concentrations of chemical alcohol compounds can build up underlying concentrations of those chemicals over time. Those chemical concentrations in the body are known as “occupational exposure.”

The occupational exposure to those chemicals can interfere with the breath test analysis, even on the most sophisticated breath test instruments.

Some Bodies Naturally Produce Alcohol

There is also a rare condition in which the human body creates fermentation in the stomach and produces false breathalyzer results. This is known as autobrewery syndrome. People can be charged with DUI after never having a drop of alcohol due to an increase in yeast production in their stomachs.

Unfortunately, this condition is often only diagnosed after someone faces a DUI or consequences of alleged alcohol intoxication or alcoholism. Imagine living your life with an undiagnosed illness that can easily be treated, but which makes you likely to get a DUI even when you have not consumed any alcohol. Before you say “if you don’t want a DUI, don’t drink and drive” spend a moment to think about people like that.

You Can Get a DUI For Protesting Your Innocence

Those of you who cite this line frequently are the same people who, I have found in my career, take the most offence when asked to take a breathalyzer test. I can no longer count the number of clients I have had who refuse to provide a breathalyzer sample on the basis of the fact that they did not drink, and they felt the test was wrong.

This is not isolated to people who have not consumed alcohol, but also includes people who feel they were stopped unlawfully or people who believe they were targeted or profiled by police. All those individuals that I have defended share one trait: a strong sense of moral fairness.

But impaired driving laws in Canada are not crafted on what is morally right. The law allows police officers to pull you over for no reason other than to see if you have a license. The law allows police officers to ask you to blow into a breathalyzer without any grounds whatsoever. That’s right, they can just stop you and ask you to blow.

And the consequences for refusing to provide a sample into a breathalyzer are the same as blowing over the legal limit, in the case of a roadside prohibition, and worse than an impaired driving conviction, in the case of a criminal charge. Reader, please understand, if you assert your innocence and refuse to blow because you had not been drinking you will face the harshest consequences for impaired driving in Canada.

When you say “If You Don’t Want a DUI, Don’t Drink and Drive” what you are really saying is “If you don’t want a DUI, don’t drink and drive or have diabetes and drive, or have a fever and drive, or have an eating disorder and drive, or be a hairdresser and drive, or be a painter and drive, or drive while Black, or use hand sanitizer or mouthwash or soya sauce or drink energy drinks or, or, or… and drive.” You may as well say “If you don’t want a DUI, don’t drive.”

But even that is not that simple.

You Can Get a DUI Even If You Do Not Drive

Even if you have not driven, simply being in or near your vehicle can cause you to get an impaired driving charge.

Some people feel that sleeping it off in their car is a safe course of action, because they are not driving. Their car becomes their bedroom. But even if you do not drive, simply being in your vehicle is enough to cause you to get a DUI.

In the Canadian Criminal Code there is a presumption that if you have the means to set the vehicle in motion and occupy the driver’s seat, you are considered to be “operating” the vehicle. This is even if you never intended to drive anywhere. If you sleep in your vehicle and are in the driver’s seat, then you are technically guilty of impaired driving even if you were trying to be responsible.

The solution is not as simple as sleeping in the back seat or the passenger seat, either. The Criminal Code prohibits impaired “operation” of a motor vehicle. Operating a motor vehicle can include simply having “care or control” of the vehicle. This can include innocent actions that fall short of actual driving but create a realistic risk that the vehicle could be set in motion. This can include being in the vehicle without a plan in place, sitting in the car to charge your phone before calling a taxi, or sleeping in the backseat until you feel safe to drive.

And the realistic risk of impaired driving or driving over the legal limit exists, as a matter of law, by virtue of a person with an impermissible concentration of alcohol in their body simply being in the vehicle.

That’s right, you can indeed get a DUI even if you never drove.

DUI Laws Are Discriminatory

I hope, reader, that you are understanding the unfairness of Canadian impaired driving laws. The laws we have in Canada do not account for all of these potential complicating factors, and the roadside enforcement protocols do not include the necessary steps to get a scientifically valid result.

You may not know this, reader, but if you are a woman you can drink less alcohol than a man and drive lawfully. Even though you may not feel any more impairing effects after a single glass of wine, a 150 pound woman who consumed a nine-ounce glass of wine will have a higher blood alcohol concentration than a 150 pound man consuming the same amount of alcohol.

Since you can get a DUI for being over the legal limit, without being impaired by alcohol, women are statistically more likely to get an impaired driving charge even if they are not impaired by alcohol, and even if they were biologically male their blood alcohol level would be below the legal limit.

This is because impaired driving thresholds – the Over 80 mg% standard – that we use in North America were developed by researchers in the 1950s, in Europe. The testing of the effects of alcohol on the body at different alcohol concentrations was done using predominantly Caucasian men, who were healthy, and who were in the age range of 20-40. The science has evolved very little since. Women, obese people, people of different ethnic origin, and people with underlying health concerns are affected differently by alcohol than the standard would suggest.

The impaired driving laws you so strenuously argue are important rely only on science that relates to a small proportion of the population.

Even those laws make little sense. Two 150 pound men can have very different blood alcohol concentrations after the same alcohol consumption based on their body fat content. A higher fat content will lead to a lower blood alcohol level, even though the level of impairment may be exactly the same.

And if the differences in gender, body fat content, and ethnicity are not enough to persuade you that the law’s foundation is discriminatory, this is only exacerbated in the case of trans individuals.

There have been no studies done on the impact of Hormone Replacement Therapy or gender confirmation surgery on how blood alcohol level is impacted. A person who was born biologically female but whose true gender is male may have a blood alcohol level associated with the wrong gender, and thus may be discriminated against in impaired driving and breath testing calculations on the basis of being transgendered.

The scientific foundation of the laws has never been revisited, even though it is based on flawed assumptions about biology and humanity.

So when you say to me that I should not defend people who are accused of impaired driving, because if you don’t want a DUI you should just not drink and drive, please know that it is just not that simple. When you say to me that I am advising drunks how to get off, people who could kill people, know that this is painting people who are at risk of wrongful conviction, wrongful punishment, and who are potentially discriminated against by the law, as criminals when they are innocent.

When you say “if you don’t want a DUI, don’t drink and drive” you are saying that you just do not care about other people.

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