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Cases Give New Life to Defense that DUI Test Unfair to Women

Cases Give New Life to Defense that DUI Test Unfair to Women

by Sylvia Hsieh, Lawyers Weekly, page 3,
April 28, 2003:

"A little-used defense argument in DUI cases could be revived in light of two recent verdicts from Georgia acquitting female drivers.

The defense lawyers in both cases argued that a common breath-analysis machine used to measure the driver's blood-alcohol level, the Intox 5000, discriminates against women. Billy Spruell, the defense attorney in one of the cases, told Lawyers Weekly USA that the argument is "not unique" to Georgia. "Different versions of the same machine are used in other states, " he said.

Although comparable machines are universally used, the gender argument
has not been pursued as vigorously in other states. According to James Woodford, the defense expert who testified in both cases, the gender argument was successful in forcing Georgia to get rid of its former breath tester, the Intox 3000. The defense expert testified that Intox 5000 machines routinely score women artificially high because they don't take into account the "gender factor" -- differences between men and women in the way they metabolize alcohol. This argument is not new, said Gary Trichter, a Houston defense attorney and a dean of the National College for DUI Defense. "We always knew breath machines cheat when it comes to women," said Trichter. " This is just one example of the many problems with breath-test machines. They're geared toward the perfectly average person, but there is no perfectly average person." But other attorneys and experts said they had never heard of the argument, or studies supporting the claims. "You may be talking about the blood-alcohol-to-breath ratio being different in men and women; but it's still shaky ground to walk on , because there's across-the-board variability in blood-to-breath ratios, " said Edward Fiandach, a regent of the National college fro DUI Defense.

In some states, such as California, defense attorneys are prohibited by statute from challenging a breath-analysis machine's "partition ratio" -- the number used to translate the breath result into the blood-alcohol level of the individual. Two Female DriversIn one of the Georgia

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