Even though everyone in the DC government, from the DC Council to the prosecutors at the Office of the Attorney General, knows that alcohol in the urine has a “loose correlation” to intoxication, that urinalysis is unreliable, people are still regularly prosecuted and convicted of driving under the influence (DUI) base on their urine scores.
Back in June of 2011, DC Chief Toxicologist Lucas Zarwell of the Office of the Chief Medical Examiner, stated under oath to the DC Council that urine testing cannot reliably determine impairment or blood alcohol levels. In response to a question from council member Phil Mendelson, Mr. Zarwell testified as follows:
MENDELSON. How accurate is urine testing for measuring blood alcohol content?
ZARWELL. It’s not.
Upon council member Mendelson’s questioning, Mr. Zarwell further explained:
MENDELSON. If a urine sample is taken from me and there’s a high concentration of alcohol in it . . . doesn’t that suggest that I’m intoxicated?
ZARWELL. It can. That depends on the officer’s observations. It can help, I believe, be associated with that. But if you’re going to look at urine concentrations of alcohol and science, there’s a very loose correlation. There have been several studies on it. But currently, if you’re just voiding your urine or urinating into a cup, that does not correlate to a blood concentration. It could be much higher, as much as 40% higher.
MENDELSON. What’s the “it” there? What could be higher?
ZARWELL. The urine concentration could be higher than your blood alcohol concentration, it could be lower than your blood alcohol concentration. . . .
It’s an old way of doing things. . . . It’s better to have an officer’s observations to be able to say, yes, we’ve got alcohol present. . . .
But there’s no doubt from a scientific standpoint that blood and breath are a better indicator of, the best indicator to see what kind of effect alcohol is having on the brain. Because the blood is circulating the brain and that’s where the drug is having its effect and that’s where we’re seeing levels of impairment. And this has been studied heavily in the community.
If you’re interested, you should watch the video. While there was a time that the government prosecutors did not attempt to introduce urine scores, I believe primarily because of confrontation and scheduling issues, that time seems to be over.
I think it’s unconscionable that the government is using these urine-alcohol scores in per se DUI prosecutions knowing that they are unreliable. Even worse, DC judges have been denying motions to exclude these scores as unreliable by saying that the DC Council is presumed to have considered the evidence in passing the per se DUI laws (a presumption that is demonstrably false). All we as defense attorneys can do is continue to file these motions in the hope that one day we will be successful. And I continue to aggressively fight this fight for my clients.