It is a national problem to be sure.  It is an endemic and systemic problem.  It is a problem that is pervasive and well-known within the scientific community.  Yet, it is condoned.

In his latest blog post, Bob Keefer, a fellow member of the National College for DUI Defense, Inc and a true trailblazer in the state of  Virginia hits the proverbial nail on the head with his aptly titled "Virginia to Diabetics: We Don’t Care"

In part, he writes:

Research indicates that as many as one in seven drivers are diabetic. This figure includes drivers who may be affected but do not have an official diagnosis. Despite this fact, Virginia’s latest breath tester can’t tell the difference between diabetes and intoxication. Now, diabetics who drive in Virginia are being wrongly convicted of DWI. Worse, it appears that Virginia knew about this problem at the time it ordered the machine… and chose to cover it up.

When Virginia initially requested bids for a new evidentiary breath test device to determine blood alcohol content it correctly required the machine to distinguish among alcohols. This requirement was intended to prevent wrongful convictions. When the manufacturer Virginia wanted to hire admitted that its product could not meet this specification, officials quietly dropped the requirement but nonetheless trained operators, taught judges and represented to prosecutors that the machine performed as specified.

Drinking alcohol is called ethanol. Diabetics naturally produce another type of alcohol – isopropanol – in certain stages of the disease. [McShane’s note, this si due to the well known scientific phenomenon of the biotransformation of acetone to isopropanol during ketoacidosis-see AW Jones]. Even though Virginia’s breath tester is only supposed to measure blood alcohol content of ethanol it registers isopropanol on the breath of diabetics. This reading results in false evidence which in turn results in wrongful DWI convictions.

An ancient expression about the measure of a society’s morality is how it treats the sick. Diabetics have enough challenges without the threat of wrongful DWI conviction. Join me in challenging Virginia to cease this shameful practice.

I have written before and will state again…

When will the insanity of breath testing and the fallacy of accuracy, reliability and most importantly the specificity of these machines truly come to light? What will it take?

To rely on infrared spectrometry at wavelengths that are not unique as to ETOH is a sham!

To rely on a machine that no one can be confident of the results because it is not open source and truly vetted technology is a sham!

To rely on antiquated science is a sham!

It is time to use modern technology in a scientifically responsible and acceptable way wherein uncertainty budgets and acknowledged shortcomings are presented to juries and not hidden.

I will continue to answer the trumpet call of Bob Keefer and others to join in the fight to cease that shameful practice here for the benefit of all citizens accused of a Harrisburg DUI, a Carlisle DUI, a Lebanon DUI, a York DUI, a Chambersburg DUI, a Lancaster DUI, a Reading DUI and all Central Pennsylvania DUIs.

Justin McShane

PA DUI attorney Justin J. McShane is the President/CEO of The McShane Firm, LLC - Pennsylvania's top criminal law and DUI law firm. He is the highest rated DUI attorney in PA as rated by Avvo.com. Justin McShane is a double Board certified attorney. He is the first and so far the only Pennsylvania attorney to achieve American Bar Association recognized board certification in DUI defense from the National College for DUI Defense, Inc. He is also a Board Certified Criminal Trial Advocate by the National Board of Trial Advocacy, a Pennsylvania Supreme Court Approved Agency.