Lawyers Journal

Probationers rarely take extraordinary steps to demonstrate that they did not violate the terms of their probation when confronted by a machine that suggests that they consumed alcohol. Such was the case in the Commonwealth v. Anthony Galluccio probation surrender case in January of 2010, currently under appeal to the Appeals Court.¹ In preparing this article, I reviewed the probation surrender hearing transcript, the hearing exhibits, technical specifications for the fuel cell in an alcohol breath-testing device, over 20 scientific journals which documented the science of EtG testing for ethanol use,² and the appellate brief filed by Charles Ogletree.³

On Friday, Dec. 18, 2009, former Massachusetts state Sen. Anthony D. Galluccio was placed on probation in a matter that involved leaving the scene of an accident. The court ordered him to remain alcohol free, and submit to random testing for alcohol.

In the afternoon of Monday, Dec. 21, 2009, Galluccio was working in his home office when Cambridge's chief probation officer arrived at his home in order to install a device referred to as a "Sobrietor." The Sobrietor is a machine that obtains, measures and reports the alcohol content of a breath sample from the probationer. The machine verifies the identity of the person through a voice recognition system built into the machine.⁴

At the surrender hearing, Michael Jacobs, the program manager for the Boston Electronic Monitoring Center who installed the Sobrietor, testified about his interactions with Galluccio - that he did not observe any of the indicia of alcoholic beverages - no odor of an alcoholic beverage, no slurred speech, glassy eyes or any indication of impairment.

Jacobs testified at the probation surrender hearing that when Galluccio first learned that the Sobrietor reported positive results, that Galluccio asked for a blood test. Galluccio could not have his blood tested without the permission of the Probation Department, and his requests that day were not allowed.

The Sobrietor is not an evidentiary testing device.⁵ By regulation, results from a Sobrietor breath test are not admissible in a criminal trial.⁶ When an approved evidentiary machine is used to test breath for alcohol, such measurements are acknowledged to be imprecise.⁷

Galluccio's first test registered a .037 on the Sobrietor. Three minutes after the first reading, a second value of .033 was obtained on the same Sobrietor. If these two readings were precise and accurate, then Galluccio would have been eliminating ethanol from his body at a rate of .004 in three minutes, or .08 per hour. An elimination rate of .08 g/dL per hour would be unprecedented in the science,⁸ and the rate is more likely attributed to the error in the reported results themselves.

If Galluccio had been tested on an evidentiary machine, a second reading at or between a .01 and a .059 would have been a "precise" measurement by Massachusetts standards, and would have reported the lower of the two measurements (either a .01, .02 or a .03).⁹ The Sobrietor is not certified to this degree of precision, but is configured by default so that results at or below a .025 are considered to be below the level of detection for the machine.¹⁰

The Sobrietor evidence was the sole evidence of a violation of probation, the court found he violated the condition that required he abstain from alcohol, and Galluccio was sentenced to a year in the house of correction. His motion for a stay of sentence was denied.

In criminal driving under the influence cases, a defendant has the right to be "immediately" seen by a physician, for the purpose of having an independent test.¹¹ Such due process rights exist because measurement of blood is the "gold standard" scientific method for measuring the amount of ethanol in the blood of a subject.¹²

The need to be tested immediately is important. In the Commonwealth v. Colturi decision, the Supreme Judicial Court defined a three-hour interval between driving and measuring alcohol on the driver's breath to be a reasonable time to take a measurement of ethanol.¹³

The Massachusetts legal press recently reported "SJC justice: 'Melendez-Diaz' doesn't apply to OUI case," discussing why a blood test can be introduced at a DUI trial without a live witness after the medical records are subpoenaed by the commonwealth.¹⁴ While the Commonwealth v. Parmenter decision might be seen to chill the exercise of an independent test (after all, the government may know about the test, and may even have transported the defendant to the hospital), an independent test is likely to be distinguished from Parmenter, in that the independent test was performed explicitly for a court proceeding. Whether the commonwealth would be entitled to the test results, or would know absent introduction by the defendant that they were not favorable, has yet to be determined.

Of perhaps greater concern is the illusory nature of the right to an independent test. In probation matters, it is rare for the probation officer to be present when a Sobrietor tests positive, even rarer for the probationer to ask for an independent blood test, and perhaps even rarer for the probation officer to remember that request and testify that the probationer asked for an independent test.¹⁵

The logistics of obtaining an independent test are often insurmountable. Most physicians do not draw blood in their offices. Most DUI arrests occur between midnight and 4 a.m., and at that time of morning, the only physicians on duty are in an emergency room at a hospital. Getting to see a physician by navigating through the triage of an emergency room, being seen by a doctor, making an appointment for a blood draw, and having blood drawn for a blood test - all within the three hours mandated by Colturi for relevance - is difficult during the daylight hours, and is likely impossible in the early hours of the morning. Fortunately, there are tests that can look back more than three hours.

There is often confusion over what is prohibited when a probationer is required to remain "alcohol free." The judiciary's use of the term "alcohol" is often assumed to mean the chemical compound "ethanol" or "ethyl alcohol." Ethanol is the form of alcohol found in distilled spirits, beer and wine. There are more than 1,500 chemical compounds in the alcohol family¹⁶ that have nothing to do with alcoholic beverages.

Since a probationer is prohibited from having "ethanol" in their body, the first question is how ethanol might come to be present in the body. The most obvious way is by drinking a beverage such as beer, wine or spirits. But this is not the only way that ethanol can enter the body through the mouth.

Other drinks are not ethanol free, despite the commonly held belief that they are. For example, Diet Seven-Up¹⁷ contains ethanol in small portions. High-energy drinks, such as Monster and 180 Energy, contain several times as much ethanol as Diet Seven-Up. Some foods contain ethanol, such as breads, pizza, English muffins, wheat bread and apple walnut roll (in increasing concentrations).¹⁸ While you are not likely to become impaired from the ethanol in these drinks and foods, you will not remain alcohol free if you eat or drink them.

Ethanol is generated when sugars are fermented, and this can occur in the human body when yeast and carbohydrates are present. This has been inconsistently demonstrated at DUI seminars and workshops, with some results above the legal limit (.08 g/100 ml) on varieties of pizza, Wonder Bread or hot dog rolls.¹⁹

Ethanol can be absorbed into the body in other ways as well. Ethanol is medically administered as an antidote for some poisons.²⁰ A material safety datasheet for ethanol describes the effects of inhalation of ethanol fumes, which can result in coma or death in high concentrations, and will result in absorption of ethanol into the body in lower concentrations.²¹ Finally, small amounts of ethanol are absorbed when hand sanitizers, such as Purell,²² are applied to the skin.

Some manufacturers of machines designed to detect ethanol on the breath have freely interchanged the term "alcohol" and "ethanol" in their literature and training. The interchangeability of the two terms has been introduced into the statutes in many states, including Massachusetts.²³ The historic intoxication provision has always required impairment from "intoxicating liquor" or an enumerated drug, yet the newer "per se" prohibition is for "alcohol" in the body, not "ethanol."

In 2004, the National Highway Transportation Safety Administration quietly announced its new mission with regard to approving machines that are designed to measure ethanol in the breath.²⁴ In placing machines on the conforming products list, which Massachusetts relies upon for approval, NHTSA no longer requires measurement of "intoxicating liquor" or "ethanol." Approved machines now measure and report any kind of alcohol.

There are two basic classes of machines that measure human breath for alcohol. One class uses infrared light, and takes advantage of the manner in which molecules behave with respect to energy from that light. These machines are the only ones authorized by the Office of Alcohol Testing.²⁵

The second class of machines uses an electrochemical fuel cell to measure alcohol. The Sobrietor used in the Galluccio surrender is one of these devices. Fuel cells respond to different kinds of "alcohol." While the judge and most lawyers laughed at the proposition that toothpaste would register on the Sobrietor, Sensodyne toothpaste (the kind shown by Galluccio to the probation officer when the positive results were first detected) has Sorbitol as a main ingredient.²⁶ Sorbitol is an alcohol,²⁷ as are most chemicals that end in the sound "-ol," such as menthol.

The Boston Herald confirmed that toothpaste does register on a fuel cell breath test machine that it purchased, but that the readings went away after several minutes.²⁸ Jacobs gave no special instructions to Galluccio regarding any interference that might elevate readings on the Sobrietor. If a whitening toothpaste is partially retained in the mouth, to extend the whitening affect, then a positive reading on the Sobrietor is not such a silly possibility.

In the case of other probationers, the random request for a test could arrive just as the probationer was brushing their teeth. If the probationer supplies a prompt sample, the procedure would result in a false positive test. If an unexplained positive result were reported, it would not be unreasonable for a probationer to try to clear their mouth of whatever was causing the reading, and that could result in brushing one's teeth. Using mouthwash before a sample is far worse.

Of greater concern in this case, and not raised at the hearing or in the appeal, is the manner in which the Sobrietor came to be set up in Galluccio's home. The issues of repair of the machine were well developed in the appeal, and are of concern, as are the issues that the machine is not an approved device in Massachusetts.

Assuming that Sobrietors work correctly, Galluccio's situation bears a significant risk of contamination from the chemicals used to "clean" the device after it was received from another department the day Galluccio got it. The mask on the device resembles a court stenographer's mask, and if cleaning is done to sanitize and kill germs,²⁹ then the cleaning chemicals could linger on the mask.

The Sobrietor manufacturer purchases its fuel cells from Draeger,³⁰ and these fuel cells respond to alcohols other than ethanol.³¹ If the cleaning was done in this manner,³² then one would expect the machine to respond exactly as it did in the Galluccio matter.³³

Galluccio was not allowed to provide a contemporaneous blood sample to rebut the readings of the Sobrietor. Within a few days, Galluccio was able to submit biological samples at a forensic center, which supervised the collection of samples of urine and hair, so that these biological samples could be evaluated for ethyl glucuronide, or EtG. EtG is produced in the liver when ethanol is metabolized. Absence of EtG can confirm the absence of ethanol several days after a suspected incorrect breath measurement is reported.³⁴

Courts routinely accept the results of tests for metabolites of substances, rather than the substances themselves. Such is the manner in which cocaine is routinely tested and reported, through a urine screen that tests for the metabolite benzoylecgonine, rather than for the cocaine itself.³⁵

In the last year for which statistics were published by probation, 184,775 urine samples were tested by Massachusetts probation departments for the metabolite of cocaine.³⁶ These tests produce immediate results, by means of chemical reactions to strips of test paper that are exposed to the urine sample. The probationer has an opportunity to request a more specific and scientific analysis, using a GC/MS (gas chromatograh/mass spec) test. It is with some irony that the court in the Galluccio matter found the testing of biological samples for the metabolite of a substance to be controversial, when the court routinely accepts tests for the metabolite of cocaine, using a detection mechanism that is not as accurate as what was used in Galluccio's case.³⁷

EtG testing is controversial because of false positives. A very small amount of EtG can mean that an alcoholic drink was consumed several days ago, or that Purell hand sanitizer was recently used.³⁸ A zero reading of EtG in a subject's urine or blood can only mean that the individual did not have any ethanol in their system within a three-day look-back. Assuming that the analysis was performed in a competent lab, by competent scientists, and that collection of samples was performed correctly, the proper chain of custody was maintained, and that there is no evidence of tampering with the hair, urine or blood - then a zero reading is generally accepted as scientific proof of abstinence for a window of 72 hours.

Galluccio had samples of hair and urine taken by a forensic lab in Boston, and those samples were properly preserved and transported to two labs,³⁹ where the results for both hair and urine resulted in a zero reading for EtG.⁴⁰

The Massachusetts Appeals Court will soon decide whether a positive result on the Sobrietor, which conflicts with observations of the probation officer and zero results from laboratory-tested urine and hair, is sufficient to support a finding of a violation of probation. Attorneys who practice in the area of probation surrenders should know that EtG tests permit the analysis of biological samples well after the client has naturally eliminated all traces of ethanol in their system.

For the client who drinks, but claims they were not drinking that night, EtG testing may be of limited value. For the client who claims they never drink or have not had an alcoholic beverage in many days or weeks, EtG testing may be one of the only ways to challenge an evidential breath test or a breath test on a machine like the Sobrietor.

The Author

Thomas E. Workman Jr. teaches Scientific Evidence at the University of Massachusetts Law School at Dartmouth. He testifies on breath testing science and has published on the topic of breath testing for ethanol in Suffolk Law School's Journal of High Technology Law. He was retained by and consulted with friends of Anthony D. Galluccio, but did not consult with counsel at trial or on appeal, and he was not compensated for writing this article.

Notes

¹ Commonwealth v. Gallucio, No. 2010-P-0327 (Mass. App. Ct. 2010). Galluccio is represented on appeal by Harvard Law Professor Charles Ogletree. The government was recently granted a 40-day extension to file its reply brief, and Galluccio's motion for a stay of sentence was denied. The current case status is available at the Appeals Court Web site. Supreme Judicial Court and Appeals Court of Massachusetts, Public Case Information, www.ma-appellatecourts.org/search_number.php?dno=2010-P-0327&get=Search (last visited June 9, 2010).

² The author is indebted to attorney Justin McShane of Harrisburg, Pa., for his assistance in providing articles from scientific journals that described the science of EtG detection, a method of detecting ethanol use in a multiple-day window of time.

³ The probation surrender hearing was before Judge Nestor on Jan. 4, 2010. The hearing transcript is 254 pages, and the defendant-appellant's brief is 48 pages.

⁴ A video of the Sobrietor used for probation is available on Youtube. Youtube, Sobrietor Demonstration, www.youtube.com/watch?v=wUrq-34Yc2k.

⁵ The Office of Alcohol Testing maintains the list of approved machines that can be used to test human breath. 501 MASS. CODE REGS. 2.38 (2010) sets forth the requirements that machines must meet to be approved, which includes the presence of a machine on the National Highway Safety Transportation Administration's conforming products list, as published in the federal register.

⁶ Code of Massachusetts Regulations 501 CMR 2.38 requires that only machines that employ infrared technology be utilized to test human breath for ethanol, which prohibits the use of breath testing machines that utilize a fuel cell as their measurement mechanism. The Sobrietor uses a fuel cell to measure alcohol.

⁷ 501 MASS. CODE REGS. 2.57 (2010) requires the reporting of the lower of two samples which, after truncation to two digits, agree with one another by .02. Thus a .037 and a .010 would be said to be in compliance, and a .01 would be reported.

⁸ GARRIOTT'S MEDICOLEGAL ASPECTS OF ALCOHOL, Fifth Edition, Section 3.7 Characteristics of Blood-Alcohol Curves, A W Jones, page 95. The highest elimination rates observed are in the .03 range, well below the .08 value observed if the Sobrietor readings were correct.

⁹ Id.

¹⁰ Sobrietor User Manual, page 34 (provided as Page 44 of the Appellant's Exhibits, filed with his brief), states that the Sobrietor "can detect down to .010 percent; however, following up on indications of less than .025 is generally discouraged unless the officer can perform an on-site test using a Personal Breath Test within 15 to 30 minutes" and at page 16 "The lowest level that Sobrietor can detect and report is .010, but the default setting is .025."

¹¹ MGL Chapter 263: Section 5A. Driving while intoxicated; right to medical examination; notice
"Section 5A. A person held in custody at a police station or other place of detention, charged with operating a motor vehicle while under the influence of intoxicating liquor, shall have the right, at his request and at his expense, to be examined immediately by a physician selected by him. The police official in charge of such station or place of detention, or his designee, shall inform him of such right immediately upon being booked, and shall afford him a reasonable opportunity to exercise it."

¹² GARRIOTT'S MEDICOLEGAL ASPECTS OF ALCOHOL, Fifth Edition, Section 3.4 (D) Analysis of Ethanol in Body Fluids, A W Jones.

¹³ Commonwealth v. Colturi, 448 Mass. 809, 818, 864 N.E.2d 498 (2007).

¹⁴ Jack Dew, SJC Justice: 'Melendez-Diaz' Doesn't Apply to OUI Case, MASS. LAWYERS WEEKLY, April 26, 2010

¹⁵ The probation officer who installed the Sobrietor testified at the probation surrender, and testified that Galluccio had asked for an independent blood test. Most probation surrender hearings proceed without the testimony of a percipient witness (as to the breath test) from the probation department.

¹⁶ Probation surrender transcript testimony of Dr Ernest D Lykissa, page 154, line 16-17.

¹⁷ Material presented by Dr Barry Logan at the May 2009 Borkenstein Institute in Indianapolis, Indiana. Taken from the author's course material when he attended the course.

¹⁸ Id. Apple Walnut Roll contained just under 1 percent ethanol by weight and a Hostess Twinkie contained .03 percent, or one-thirtieth as much ethanol by weight. Eating either would violate a court-imposed condition that one "abstain from alcohol."

¹⁹ The author has personally witnessed a breath test over the .08 legal limit, after the subject ate several slices of deluxe pizza, and drank no alcoholic beverages.

²⁰ Brent R. Ekins, Douglas E. Rollins & Douglas P. Duffy et al., Standardized Treatment of Severe Methanol Poisoning With Ethanol and Hemodialysis, 142 W.J. MED. 337. 337-340 (Mar. 1985) available at www.ncbi.nlm.nih.gov/pmc/articles/PMC1306022/ (last visited June 9, 2010).

²¹ North American Fire Arts Association, Material Safety Data Sheet, available at www.nafaa.org/ethanol.pdf (last visited June 9, 2010). Those who work around chemicals that contain ethanol, such as hair dressers, are susceptible to inhalation of fumes containing ethanol, and they will develop levels of ethanol in their bodies as a result of their employment.

²² FAQs for Purell from the manufacturing, according to Answer #9, Purell is 62 percent ethyl alcohol.

²³ MASS. GEN. LAWS ch. 90 § 24(1)(a)(1) (2010) states: "Whoever … operates a motor vehicle with a percentage, by weight, of alcohol in their blood of eight one-hundredths or greater, or while under the influence of intoxicating liquor, or of marijuana … shall be punished" (emphasis added).

²⁴ The NHTSA "expanded the definition of alcohol to include other low molecular weight alcohols, including methyl and isopropyl." 69 Fed. Reg. 42237, (July 14, 2004)

²⁵ 501 MASS. CODE REGS. 2.38.

²⁶ Sorbitol, a sugar alcohol, is a main ingredient according to the Physician's Desk Reference for non-prescription drugs. See Drugs.com, Sensodyne Original Flavor Patient Advice Including Side Effects, www.drugs.com/pdr/sensodyne-original-flavor.html (last visited June 9, 2010).

²⁷ See http://en.wikipedia.org/wiki/Sorbitol (last visited June 9, 2010).

²⁸ Joe Dwinell, Anthony Galluccio's Alibi Just Evaporates, BOSTON HERALD, Dec. 25, 2009. The Herald "experiment" demonstrates that it is possible to place toothpaste in the mouth of one individual, wait an unspecified period of minutes, and then blow into a different machine that utilizes a fuel cell, and not register any alcohol reading. To suggest that one can conclude that Galluccio's toothpaste did not cause any reading is scientifically irresponsible, in the author's opinion. In real scientific testing, as in FDA drug approvals, we never let the proponent do their own testing on a subject population of one person, that being the proponent. Such an FDA approval process, which is important, would be deemed irresponsible.

²⁹ The Sobrietor Manual, entered into evidence as Exhibit 4 at page 34: "The area of the handset that comes into contact with the face can be cleaned with hospital foam disinfectant, a solution of bleach and water, or alcohol swabs." (emphasis added).

³⁰ According to an affidavit entered into evidence as Exhibit 8, authored by an officer of the company that manufactures the Sobrietor.

³¹ According to training provided by Draeger, the 9510 and 7110 use the same fuel cell. The Draeger 7110, which by affidavit introduced by the commonwealth in Galluccio's surrender matter as Exhibit 8, uses the same fuel cell as the Sobrietor. The Draeger 9510 manual, at page 14, contains charts that show the fuel cell response to alcohols which are not ethanol.

³² Isopropanol is known to be a problem for machines like the Sobrietor. See A.W. Jones & S. Rössner, False-Positive Breath-Alcohol Test after a Ketogenic Diet, 31 INT'L J. OF OBESITY 559, 559-61 (2007). Dr. A.W. Jones documented the experience of a dieting patient who was unable to operate a motor vehicle equipped with an ignition interlock, because of false positives associated with the diet-induced production of isopropanol. Id. The driver was a subject who had never drunk intoxicating liquor, the ignition interlock was not installed because of any prior activity of that driver, and the documented false-positive caused an ignition interlock to disable a motor vehicle driven by him. Id. Both the Sobrietor and the fuel cell used in ignition interlocks evaluate the breath in the same way, and both would interpret isopropanol as "alcohol." Id.

³³ If isopropyl alcohol was used to sanitize the mask, and if Galluccio got a unit that normally would have sat on the shelf for a time, he would have received a unit that still had isopropyl alcohol in the mask. That alcohol could have accounted for the low readings which rapidly declined, and then disappeared. Because of the special processing Galluccio received, other probationers are not likely to experience this problem.

³⁴ EtG has a half-life of two to three hours, which means that it can be found in the hair and urine for a period of several days after the ethanol was metabolized. See John P. Allen, Pekka Sillanaukee & Nuria Strid et al., Biomarkers of Heavy Drinking, in ASSESSING ALCOHOL PROBLEMS: A GUIDE FOR CLINICIANS AND RESEARCHERS, 41 & Table 2 (John P. Allen & Veronic B. Wilson eds., 2003).

³⁵ Massachusetts probation does not test for cocaine, but rather for the metabolite of cocaine. See Sam Bellistri, Phyllis Bucio-Nutaro & Jonathan Randall, Massachusetts Community Corrections Drug Testing Protocol, 21, (2001).

³⁶ Steven V. Price, Utilization of Community Corrections Centers Statistical Report, FY 2008, vi (Jan., 2009), available at www.mass.gov/courts/admin/occ/fy2008report.pdf (last visited June 9, 2010).

³⁷ Galluccio's hair and urine were tested with the more scientific GC/MS method, which is generally considered to be the gold standard for measuring metabolites for cocaine and ethanol in biological samples.

³⁸ Gregory Skipper, Frieder Wurst & Wolfgang Weinmann et al., Ethanol Based Hand Sanitizing Gel Vapor Causes Positive Alcohol Marker, Ethylglucuronide (EtG), and Positive Breathalizer, available at http://etg.weebly.com/uploads/7/4/7/5/74751/ethgel.study.pdf.

³⁹ While Galluccio's urine was shipped Fed Ex with an ice pack, EtG is stable in the urine at room temperature. Friedrich Wurst, Christoph Kempter & Stephan Siedl et al., Ethyl Glucuronide - A Marker of Alcohol Consumption and a Relapse Marker with Clinical and Forensic Implications, 34 ALCOHOL & ALCOHOLISM 71, 75 (1999) available at alcalc.oxfordjournals.org/cgi/reprint/34/1/71.pdf.
"Furthermore we have investigated the stability of EtG in urine by measuring and remeasuring the ethanol metabolite [EtG] in a sample at room temperature every hour for 140 h. As shown in Fig. 2, the results fall within a very narrow range. This stability will be particularly useful for storage and transport if use of the EtG test becomes widespread."
Id. at 75.

⁴⁰ Hair from the head grows about half an inch a month, so that hair samples of a half an inch in length can demonstrate abstinence for a month. Hairfinder, How Fast Does Hair Grow, www.hairfinder.com/hairquestions/how_fast_does_hair_grow.htm (last visited June 9, 2010).