Exposure to some toxic chemicals can cause falsely elevated alcohol levels on chemical tests. These toxins include acetone, toluene, some paints and paint solvents, and other forms of alcohol such as methanol and isopropanol. See Defenses that will require your testimony. If you and your DUI attorney decide that you should testify at your DUI trial, and you have been exposed to such chemicals, your DUI attorney will question you about your exposure.
Below are some questions that a DUI lawyer might pose to a client about his or her exposure to toxic chemicals that may have affected DUI chemical test results. The questions cover three areas: (1) the type of chemicals and nature of exposure, (2) drinking alcohol to alleviate symptoms caused by the exposure, and (3) the defendant’s failure to take safety precautions.
DUI ATTORNEY: John, what kind of work do you do?
DEFENDANT: I am a furniture stripper.
DUI ATTORNEY: What does that entail?
DEFENDANT: I use solvents to remove old paint, stain, varnish etc. from chairs or whatever and then refinish them.
DUI ATTORNEY: How do you remove the finish?
DEFENDANT: We use highly potent chemicals.
DUI ATTORNEY: Do you have a list of those chemicals with you?
DUI ATTORNEY: Do you need to refer to the list to tell us about them?
DEFENDANT: It depends. I know what we call them, but if you want to know the chemical name, or what they are made of, I would have to refresh my memory by looking at them.
DUI ATTORNEY: Okay, if you need to do so then tell us?
DUI ATTORNEY: What is the most basic substance you use?
Now the DUI defense lawyer will have the client go through each substance he uses in his work. The client will be asked what name he calls the substance, its actual chemical name, and finally, what it is made from and what it does.
DUI ATTORNEY: John, you have spent the last half an hour explaining to us that you are routinely around some very toxic chemicals.
DEFENDANT: I am.
DUI ATTORNEY: And you told us that they are all slowly killing you.
DEFENDANT: Well I don’t look at it that way, but I guess you are correct.
DUI ATTORNEY: Why do you do this?
DEFENDANT: I love my work. I have always loved repairing old furniture.
DUI ATTORNEY: What safety precautions are supposed to be used?
DEFENDANT: We are supposed to use full breathing apparatus.
DUI ATTORNEY: Do you?
People who work with toxic chemicals will often consume alcohol to feel better. While this may sound absurd, it is true and medically correct. Toluenes and acetones are very toxic. The body breaks them down into large amounts of isopropyl alcohol and other less toxic byproducts.
Now, isopropyl alcohol is still toxic to humans. The first course of treatment for isopropyl alcohol poisoning is ethyl alcohol or ethanol, the kind of alcohol in alcoholic beverages. The ethanol helps the body break down the isopropyl alcohol.
People who work with these toxic chemicals may experience nausea, headaches, and other symptoms after a day of work. And drinking a couple of beers may alleviate these symptoms.
DUI ATTORNEY: John, you told us you had two beers after you got off work?
DUI ATTORNEY: And you told the officer you did so to make you feel better?
DUI ATTORNEY: Now, just like the DA, the jurors and the judge, the officer was skeptical of this practice?
DEFENDANT: Skeptical is putting it nicely.
DUI ATTORNEY: Well where did you learn to do this?
DEFENDANT: It is just known around the job. We all get a headache or nauseous feeling at the end of the day and a couple of beers make that go away.
DUI ATTORNEY: Well John, I bet you, and everyone else, would be surprised to learn that medically you are right?
DEFENDANT: Excuse me?
DUI ATTORNEY: If I told you that the chemicals you have been exposed to are broken down into other compounds, and one of them is isopropyl alcohol, and that large amounts of isopropyl alcohol cause those feelings and further, that medical doctors use ethyl alcohol to combat isopropyl poisoning, then you would understand you were actually following a medical protocol?
Defense: Judge, I will link all that up through my expert.
The prosecution will jump on any failure of a DUI defendant to take proper safety precautions. The prosecution will try to make it look like the defendant is lying about the failure to take full precautions, or is at fault for not doing so.
The DUI defense attorney will prepare defendant to explain to the jury that life is just not as simple as the DA would have the jury believe. We all know what we are supposed to do to be safe, and yet many of us take shortcuts. How many of us regularly download the updates for our computers?
DUI ATTORNEY: John, the DA pointed out that the simple cloth mask you wear is not sufficient, is that true?
DUI ATTORNEY: Why don’t you wear the correct equipment?
DEFENDANT: Well it is a matter of time and money. If I was to put on and take off all that gear every time I did a job, I would only get one or two done a day. I would not be able to make a living that way. So, I take my chances on the safety gear.
DUI ATTORNEY: Is that smart?
DEFENDANT: Obviously not, but it is what we have to do to make ends meet.
This same approach can be used whether you are an auto worker, or painter, or in any other occupation that exposes you to these types of toxic chemicals.