Austin DWI Attorney Blog

APD Proposes Cost-Saving Measures

Ken Gibson — Tue, 01 May 2012 14:14:52 -0600

The Austin Chronicle alerted us that the Austin Police Department is looking at the possibility of opening its own magistration and jail-booking facility and has even begun talks with City Management. Up until 2000-2001, Austin Police ran their own jail at 7^th and IH-35, however, APD now contracts with Travis County for this service. Every few years, and my guess it is at contact negotiations time, APD sends out a press release stating that they are thinking about opening their own jail. APD states that they will save money by doing this, but by the time they calculate the costs of the facility, jailers, magistrates, medical staff, food service, and transportation to and from court, just to name some of the major expenses, I think it is not too difficult to realize that it is just too cost prohibitive to attempt this. While it might look good on paper, I think it is just a negotiations ploy.

Austin Police Department Releases the List of Austin's Top DWI Bars

Ken Gibson — Thu, 29 Dec 2011 13:44:16 -0600

images.bimedia.net/documents/Copy+of+Top+Bar+Location+2011.xlsThe Top 20 DWI bars are:

Kung Fu Saloon (23 Arrests)
J Black's (17 Arrests)
Rain (15 Arrests)
The Ranch (14 Arrests)
Molotov (13 Arrests)
Thirsty Nickel (13 Arrests)
Oilcan Harry's (12 Arrests)
Sherlock's Baker St (11 Arrests)
Blind Pig Pub (10 Arrests)
Key Bar (10 Arrests)
Shakespeares (10 Arrests)
The Yellow Rose (10 Arrests)
Kiss & Fly (9 Arrests)
Antones (7 Arrests)
Cedar Street (4 Arrests)
Dizzy Rooster (7 Arrests)
Dogwood (7 Arrests)
Third Base (7 Arrests)
Weirdos (4 Arrests)
512 Bar (6 Arrests); Barbarella (6 Arrests); Barcelona (6 Arrests); Chuggin Monkey (6 Arrests); Jackalope (6 Arrests); La Preferida (6 Arrests); Lavaca Street Bar (6 Arrests); Parish (6 Arrests) (these bars tied for #20)

It is no coincidence that four of the top five bars are on or near West 6th street. The DWI Task Force Officers often sit right in front of GSD&M on 6th Street, and catch folks speeding towards Mopac.

While APD says that it uses this compiled list to decide where to put its Officers, it really is the chicken and the egg story. The question is, “Do they make more arrests because the officers are on 6th Street, or are there more officers on 6th Street, because that is where the DWIs are?”

The other wildcard in all of this is that most officers only ask “Where have you been drinking?” For all we know, they could have gone to that bar first, and only had one drink, and then moved on to somewhere else. This list is hardly statistically reliable to say the least. It makes for good publicity for APD, but I dare say, it has little value past that.

Austin Police Department Releases the List of Austin's Top DWI Bars

Ken Gibson — Thu, 29 Dec 2011 13:44:16 -0600

The Top 20 DWI bars are:

Kung Fu Saloon (23 Arrests)
J Black's (17 Arrests)
Rain (15 Arrests)
The Ranch (14 Arrests)
Molotov (13 Arrests)
Thirsty Nickel (13 Arrests)
Oilcan Harry's (12 Arrests)
Sherlock's Baker St (11 Arrests)
Blind Pig Pub (10 Arrests)
Key Bar (10 Arrests)
Shakespeares (10 Arrests)
The Yellow Rose (10 Arrests)
Kiss & Fly (9 Arrests)
Antones (7 Arrests)
Cedar Street (4 Arrests)
Dizzy Rooster (7 Arrests)
Dogwood (7 Arrests)
Third Base (7 Arrests)
Weirdos (4 Arrests)
512 Bar (6 Arrests); Barbarella (6 Arrests); Barcelona (6 Arrests); Chuggin Monkey (6 Arrests); Jackalope (6 Arrests); La Preferida (6 Arrests); Lavaca Street Bar (6 Arrests); Parish (6 Arrests) (these bars tied for #20)

Provide Blood or Breath and your DWI may turn into a Class A Misdemeanor

Ken Gibson — Tue, 13 Sep 2011 09:56:03 -0600

A new law, which is being called the “Extreme DWI Law”, took effect on September 1. This new law enhances the punishment for anyone with .15, or higher, alcohol content in their blood or breath, taking a DWI offense from a Class B to a Class A misdemeanor.

This new law carries with it a possible sentence of up to a year in jail and $4,000 in fines, even for first-timers.

This is just another example of the enhancement that can occur when you provide a breath or blood sample. If you don’t give a breath or blood sample, then the .15 enhancement is irrelevant.

Jail for First Time DWI Doesn't Prevent A Subsequent DWI

Ken Gibson — Wed, 24 Aug 2011 09:46:38 -0600

USA Today posted a good article about the fact that punishment for drunken driving among the states is inconsistent at best. Get arrested in Alaska, Tennessee or Georgia and you will face mandatory jail time for your first offense. These three states require mandatory sentences ranging from one to three days. Get arrested in California, Texas, Connecticut or Indiana and you won't face mandatory jail time for your first offense.

In some states, like Wisconsin, first-offense DWIs aren’t even considered a criminal matter. It's a civil infraction that results in a ticket. So far, there are no punishment guidelines for the states. It is up to each State's Legislature to figure out what the punishment range should be.

The article states that National research suggests jailing first-time offenders "has no impact" on whether they will do it again.

Sentencing guidelines drawn up in 2006 by federal highway officials and the National Institute on Alcohol Abuse and Alcoholism concur. "The available evidence suggests that as a specific deterrent, jail terms are extremely costly and no more effective in reducing (drunken driving) recidivism," the guidelines note.

DWI bills in the 82nd Legislature

Ken Gibson — Tue, 10 May 2011 08:48:23 -0600

In this session, like in previous one, some state legislators targeted drunk drivers but most of those proposals, seem to be going nowhere. Here are some of the bills and their status three weeks before the Legislature adjourns. .

Bill Goal Status

• SB 231 To revoke driving privileges of anyone with two convictions. In committee

• HB 99 Third-degree felony for anyone with a previous conviction. House calendar

• HB 101 A hotline to report suspected cases of impaired driving. In committee

• HB 189 Mandating ignition interlock for any DWI conviction. Attached to other bill

• HB 237 To mark driver’s license of anyone with a prior conviction. In committee

• HB 3477 Ten-year driver’s license suspension after five convictions. To full House

Fortunately, the Legislature seems distracted with cutting education funding, cutting back who can vote, and making sure the police don't give immigrants any protection from deportation even when they are witnesses to a crime, to care much about DWIs this session.

DWI Probation Program

Ken Gibson — Mon, 28 Mar 2011 19:06:12 -0600

San Antonio Express News ran a report last week of a Tarrant County DWI probation program called Felony Alcohol Intervention Project. It is designed for offenders with three or more DWIs. This program these repeat offenders to accept a “plea bargain for a seven-year prison sentence that is probated to four years. The goal of the program is to reduce the number of injuries and deaths from alcohol related accidents. Currently, there are 175 probationers with 10 graduates.

FAIP include the following requirements:

- 10 days jail

- work 40 hours a week

- Driver’s license suspense for 6 months to a year

- random urinalysis

- counseling and alcohol treatment; including daily meeting for the first 90 days

- ankle monitor that detects alcohol for the first 90 days

- attend court weekly for judicial review

- meet with their probation officer once a week

- community service at homeless shelters

While this may be good resolution for some folks, it is clearly not a one size fits all solution. Some case just need fighting, and not just a quick probation outcome. If this type of programs comes to Austin, we will sure look at on a client by client bases. Pleading guilty to a felony DWI is always an avenue of last resort.

Driver Responsibility Program Repealed?

Ken Gibson — Fri, 25 Mar 2011 13:09:30 -0600

The Texas Tribune reported this week that state lawmakers are considering eliminating the Driver Responsibility Program that was created in 2003 “to generate money and discourage unsafe driving.” The program tacks on a surcharge to drivers who get ticketed for various moving violations like driving while intoxicated, driving without insurance and driving without a license. Since inception, “DPS has been unable to collect more than $1 billion in fines they’ve issued” and have clogged Texas courtrooms with people who have failed to pay these fines. Rep. Lon Burman “argued that the surcharge program is unconstitutional because it puts drivers in double jeopardy, punishing them twice for the same offense.”

In hopes to collect on the $1 billion of unpaid fines, DPS has initiated an amnesty program for drivers “whose licenses have been suspended are eligible if they had a surcharge assessed between Sept. 30, 2004 and Dec. 31, 2008, and were delinquent on payments.” The amnesty program runs through April 17.

The Dallas Morning News also had a similar report which added that almost 60 percent of assessed surcharges have not been collected. It is estimated that the state receives $86 million a year in revenue from drivers who are paying the surcharges. And because the Texas Driver Responsibility Program is a large revenue source for the state, Rep. Berman has suggested a tax increase on cigarettes to make up for the lost revenue.

Austin Police Department has issued their list of the most frequented bars for suspected DWI drivers

Ken Gibson — Tue, 15 Mar 2011 15:36:12 -0600

The Austin Police Department has released its annual compilation of bars, clubs and restaurants that are most frequently named by motorists who are arrested for DWI. Police use the information when deciding what areas of Austin to target their enforcement.

Here’s the bar name, the address and the number of motorists who reported having their last drink at the locations for 2009:

J. Blacks, 710 W. Sixth Street - 27 DWI arrests

The Ranch, 708 W. Sixth Street - 22 DWI arrests

Rain, 217 W. Fourth Street - 17 DWI arrests

Maggie Mae's, 323 E. Sixth Street - 16 DWI arrests

Blind Pig, 317 E. Sixth Street - 16 DWI arrests

Oilcan Harry's, 211 W. Fourth Street - 15 DWI arrests

Fado, 214 W. Fourth Street - 15 DWI arrests

Pure, 419 E. Sixth Street - 13 DWI arrests

Cedar Street, 208 W. Fourth Street - 13 DWI arrests

Union Park, 612 W. Sixth Street - 12 DWI arrests

Fuel Nightclub, 607 Trinity Street - 12 DWI arrests

Lavaca Street Bar, 405 Lavaca Street - 12 DWI arrests

Key Bar, 617 W. Sixth Street - 12 DWI arrests

Jackalope, 404 E. Sixth Street - 12 DWI arrests

Sherlock's, 9012 Research Boulevard - 11 DWI arrests

Shakespeare's, 314 E. Sixth Street - 11 DWI arrests

Antones, 213 W. Fifth Street - 11 DWI arrests

Gingerman, 304 W. Fourth St., 10 DWI arrests

Lucky Lounge, 209 W. Fifth Street - 10 DWI arrests

Dizzy Rooster, 306 E. Sixth Street - 10 DWI arrests

The Yellow Rose, 6528 N. Lamar Boulevard - 10 DWI arrests

Charlie's, 1301 Lavaca Street - 10 DWI arrests

Groove, 101 W. Fifth Street - 10 DWI arrests

Ace's Lounge, 222 E. Sixth Street - 9 DWI arrests

Red Fez, 209 W. Fifth Street - 9 DWI arrests

Molotov, 719 W. Sixth Street - 8 DWI arrests

Qua, 213 W. Fourth Street - 8 DWI arrests

219 West, 219 W. Fourth Street - 8 DWI arrests

Six, 117 W. Fourth Street - 8 DWI arrests

Speakeasy, 412D Congress Avenue - 8 DWI arrests

Stubb's, 801 Red River - 8 DWI arrests

Little Woodrow's, 520 W. Sixth Street - 8 DWI arrests

Eddie V's, 301 E. Fifth Street - 8 DWI arrests

The Legislators are warming up to attack DWIs in Austin, TX

Ken Gibson — Tue, 05 Oct 2010 14:45:28 -0600

The Dallas Morning News reported that some Legislators are already beating their drums regarding their proposals to fight DWIs. In the past, Legislators have thought the only solution was to make the punishment for DWI more harsh. They are not realizing that this isn’t the answer.

The real issue is what works and what doesn’t. In the past, the Legislators just passed tougher and tougher laws. There was an attitude that if you put someone in jail long enough and fined them enough, they would change their behavior. This is what I call the Williamson County approach. But, Legislators are now realizing that this isn’t very effective. They have also tried to deter it by making it very expensive. The problem with that approach is that folks end up choosing jail over probation to save themselves money. Many folks in the system now realize the best way to deter the undesired behavior is to get folks in substance abuse treatment.

The two ideas that are certain to rear their ugly heads as road blocks and the requirement of Ignition Interlock on first time DWI offenders.

On a side note, one legislator out of Lewisville will be pitching an idea that if someone is convicted of a second DWI, then they should have their license permanently revoked. What she isn’t taking into consideration is that folks HAVE to be able to drive to work. Also, folks are going to drive, whether they have a license or not. And, if they don’t have a license, they won’t have insurance, so we end up with a bunch of non-licensed, non-insured folks on the road.

The main problem with roadblocks, is that every Legislator that has put for the idea has had to admit, that they just don’t work as well as roving patrols. So, if they don’t work as well, why do them. They are also more expensive to man, and bottling up traffic at 2:00 a.m., when folks are leaving the bars, just doesn’t seem very smart.

Increasing the Ignition Interlock requirements always seem to be on the Legislators' agenda. The problem with this idea is that it punishes the masses for the problems of the few. If a person has a drinking problem that would make the Ignition Interlock a good idea, the Judge can currently order it. The way the system works now, is on a case by case basis, where the Counseling and Education folks, the prosecutors, and the Judge can look at each case and make the determination as to what is appropriate. The IID folks want to remove the discretion from the Judge. The majority of folks arrested from DWI never reoffended, so we should leave it to the folks involved with each case to make the determination as to what is appropriate, not the Ignition Interlock companies that have lobbied the Legislators.

Travis County is going to start doing more blood draws at the jail

Ken Gibson — Tue, 11 May 2010 14:00:38 -0600

The Austin American Statesman reported today that the Travis County Commissioners voted to enter into an agreement between Travis County and the City of Austin that will allow for a phlebotomist to be at the jail from Tuesday night through Sunday morning. These folks have reported that they anticipate the cost of this service to be approximately $60,243 per year. What they are not taking into account is the added cost of having those folks present to testify in the cases for which they drew blood. I was told that they plan to contract with a "phlebotomy service", rather than hire a single phlebotomist. The logical nightmare will be when the actual person that took the blood no longer works at the contracted service. Further, who do they think is going to pay for their time.

The article states that the phlebotomist(s) will work from 9:00 p.m. to 5:00 a.m. Well, we shall see how they feel about waking up to be in court at 9:00 a.m. Further, who is going to pay for the blood to be tested. Chief Acevedo has been pushing for a full time no refusal policy, and I think this is just one step towards his goal. As I have stated in past posts, this isn't Williamson County. Folks, in general, are against people being held down and stabbed with a needle. Sooner or later, Acevedo will have to realize that. Either that, or maybe another city will consider him for their Chief, since Dallas apparently didn't want him.

Changes in DWI Law in Texas

Ken Gibson — Tue, 01 Sep 2009 14:56:56 -0600

As of today, September 1, two new laws go into force that deal with DWIs in Texas. Section 724.017 of the Transportation Code is now expended to allow more situations where police can do a forced blood draw without a warrant. Mandatory warrantless blood draws are now allowed if a person is arrested for DWI, or BWI, the person refuses to submit to the taking of a specimen volutarily, and: 1) an individual other than the person arrested has suffered bodily injury and was transported to a hospital or other medical facility for medical treatment; 2) the person is arrested for DWI with a child passenger under 15; 3) the officer has reliable information that the person has been previously convicted of DWI two or more times; or 4) the officer has reliable information that the person has been previously convicted of DWI with a child passenger under 15, intoxication assault, or intoxication manslaughter.

The Legislature also tried to give some assurance to the health care providers that actually draw the blood persuant to a blood warrant, or mandatory blood draw. Section 724.017 of the Transportation code was amended to provide protection to those who take blood specimens according to "recognized medical procedures." However, this change in the law DOES NOT relieve a person from lability for negligence in the taking of a blood specimen. And there lies the danger to anyone that takes blood under these intrusive warrant/warrantless blood draws.

Travis County Hospitals and Sheriff's Department have finally figured out that Forced Blood Draws are a bad idea. When will Chief Acevedo figure it out?

Ken Gibson — Sun, 11 Jan 2009 22:24:01 -0600

The Austin American Statesman reported in today's paper that Austin's Hospitals and the Travis County Sheriff's Department have informed the Austin Police Department (APD) that they will no longer collect blood for APD.

Travis County's central booking facility had been the place where APD took their suspected DWI folks for the forced blood draw. APD would rely on the Sheriff's nurses to do the forced blood draw. (If the person refused, they would literally strap them in a chair so that the person couldn't move their arms, and then stick them with the needle) The Sheriff's Department nurses stopped taking blood samples on January 1. The Sheriff's Department has finally realized that the nurses main function should be to treat inmates, not collect evidence. Further, they are deeply concerned about having to give nurse's overtime pay to appear in court after having been the one that draws the blood.

Since the Sheriff's Office stopped doing the blood draws, APD started taking suspects to the hospital for the blood draws. (I can't verifiy this, but I heard that the hospital was charging APD $400.00 per blood draw.) The Hospital representatives have now told APD they don't want them to bring suspects to jail for blood draws. The Hospital staff are worried about lawsuits, and are concerned because these types of blood draws are not being done for medical reasons. Further, the Hospitals are worried about who will pay for the nurse's time when they are called to court to testify about the procedure they used to draw the blood.

Chief Acevedo thinks he has figured out a way around these problems. APD contracted with a private phlebotomist to draw the blood of folks on Halloween weekend and New Years Eve. APD agreed to pay the phlebotomist for three eight hour shifts during these weekends. What APD didn't contract for was pay for this phlebotomist when she is drug into court to testify about the blood draws. I predict there will be a lot of screaming from the phlebotomist when she finally figures out that the money she received per hour will now be reduced by the number hours she has to sit in court.

In the Statesman article, an "expert in blood draws" states that "the state laws are clear that nurses and hospitals are protected from such suits. What the "expert" appears to be referencing is Section 724.017 of the Texas Transportation Code. The relevant section, section (b), states:

The person who takes the blood specimen under this chapter, or the hospital where the blood specimen is taken, is not liable for damages arising from the request or order of the peace officer to take the blood specimen as provided by this chapter if the blood specimen was taken according to recognized medical procedures.

However, this "expert" left out the final sentence to section (b):

This subsection does not relieve a person from liability for negligence in the taking of a blood specimen.

Now, what the "expert" seems to be forgetting is that it will ultimately be up to a fact finder (Judge or Jury) to determine if negligence took place.

Also, I bet no one informed the phlebotomists that they could be held liable for the blood draws either.

APD is treading on thin ice on this issue, and the sad part is, they either don't even realize it, or they just don't care.

Drink, Drive, Go to Jail maybe the policy, but it isn't the law!

Ken Gibson — Mon, 02 Jul 2007 10:19:43 -0600

This past weekend, the Gregg County, Texas sheriff issued a press release that stated that if you drink and drive this independence day weekend - you will go to jail.

In December 2006, Gregg County commissioners approved a grant to participate in the statewide “Drink, Drive, Go To Jail” campaign. This grant provides resources necessary to conduct DWI enforcement throughout the holiday periods to increase the arrests of folks that drink and drive.

Captain Ken Hartley with the Gregg County Sheriff’s Department says; “We’d just like to remind people to drive responsibly. Don’t drink and drive. Enforcement will be out there and it’s not worth that chance and certainly not taking a chance of hurting yourself or others.”

What they are totally ignoring is the fact that is not against the law to drink and then drive as long as you are at least 21 years of age, and you are not intoxicated. I believe that the Sheriff is setting up a great argument for the fact that people are going to be arrested that don’t meet the above criteria.

The police and prosecutors always want to lower the standard, but it just isn’t the law. Another example of the attempt to lower this standard is the “Buzzed driving is Drunk Driving” billboards. Neither Buzzed driving, nor Drunk Driving is the standard…..Intoxication is.

I certainly hope a defense attorney in Gregg County is paying attention to this and is willing to use this to show the juries there that THIS Sheriff’s deputies have the potential for making wrongful arrests.

While we all know the Austin Police practice a “Drink, Drive, Go to Jail” policy, the administration has been smart enough not to voice it publicly.

Tougher Punishments Are Not The Answer To Deter DWIs

Ken Gibson — Wed, 13 Jun 2007 16:43:24 -0600

University of Florida researchers have deteremined that tougher punishments may not be effective in deterring people from driving drunk.

Increasing the minimum jail time keeps few drunken drivers off the road and doesn't significantly prevent fatal car crashes, according to the study, published in the journal Accident Analysis & Prevention.

The researchers examined the changes in DWI laws and policies between 1976 and 2002. They also studied the rates of DWI arrests and fatal alcohol-related car crashes.

Alexander C. Wagenaar cq , lead author of the study and epidemiology professor in the UF College of Medicine, said researchers wanted to find out if stricter regulations deterred people from drinking and driving and if the number of accidents would drop in the population as a whole.

"We found out that's not the case," he said.

James C. Fell, director of traffic safety and enforcement programs for the Pacific Institute for Research and Evaluation in Maryland, said on average, statistics show that a person drives under the influence 50 to 200 times before he or she is caught or gets into a crash.

I have said over and over and over, we must move our resources into education, rather than punishment. Until the powers that be, the Legislature, figures this out, they will continue to increase punishments to no avail. I was once told that the two areas that Legislators love to go home and tout, is tax cuts and being tough on crime. Unfortunately, I guess that still holds true today.

Random Boat Stops and the 4th Amendment

Ken Gibson — Tue, 01 May 2007 14:57:01 -0600

§ 31.124 of the Texas Parks and Wildlife Code states, “an enforcement officer may stop and board a vessel . . . and may inspect the boat” to determine whether it is in compliance with the various provisions of the Code.

What this means for the average lake-goer is that an officer has the power to stop his or her boat without probable cause or a reasonable suspicion to believe that a crime has been or is about to be committed. Basically, a law enforcement officer may board any boat, for absolutely any reason and, once aboard, may legally come into contact with evidence of a possible crime, like boating while intoxicated.

The Court of Criminal Appeals of Texas recently discussed whether or not this statute violates the 4^th Amendment’s ban on illegal searches. The court held in Schenekl v. State that it does not.

It may be difficult to understand how a random stop, unsupported by probable cause, could be constitutional. The court, in making this determination, applied a two-prong test, weighing the State’s interest in the search against the individual’s right to personal security free from arbitrary interference by law enforcement.

The court held that the State has a strong interest in protecting its citizens and promoting water safety through random safety checks. The court decided that, in contrast, the level of intrusion to the individual during a random boat stop is minimal.

Thus, while it may seem counter-intuitive, the court held random safety checks of boats to be constitutional and not a violation of the 4^th Amendment. This information is certainly important to keep in mind while spending time at the lake this spring and summer.

Austin Police Department set to roll out new Bat Bus

Ken Gibson — Tue, 01 May 2007 10:48:41 -0600

The City of Austin has decided to replace their current BAT Bus(Breath Alcohol Test Bus) with a new improved BAT Bus.

The city agreed to buy a breath alcohol testing bus so officers don’t have to make the trip to the county jail.

The new Bat Bus will have to stations for Intoxilyzer 5000s as well as workstations for the officers to review the videotapes of the incident and prepare the offense reports.

Futher, there will be City Marshalls on hand to transport folks who have been arrested to the jail facility. This will allow officers like the one they call “the Machine” to get back on the street faster. The Machine currently holds the record for making 7 arrests in one night.

“Typical, DWI arrest takes between three and four hours,” Austin police Cmdr. Patti Robertson said. “It narrows it down. Takes off 3/4 of that time. They have all the paperwork, turns it over to the officers on the bus.”

DWI has become big business in Austin.

“We are at 800 per 100,000 people for DWI arrests…” Robertson said. “What that means is we are ……the highest in the state for DWI arrests. I think that speaks volumes.” It certainly does.

There are approximately 10 different agencies in and around Austin that are all competing for grant money related to DWIs. The question then becomes, “Could this possibly motivate officer to make more and more arrests?” My belief……ABSOLUTELY!

Can the Atkins diet affect the Breath Test?

Ken Gibson — Tue, 24 Apr 2007 11:31:54 -0600

A Virgin Atlantic Pilot found out the hard way that the Adkins diet can affect the breath test when he was removed from a transatlantic flight after failing a breathalyser test. He has finally been cleard of this charge after it was discovered that his low-carbohydrate diet triggered a false reading.

Subsequent blood tests on the pilot showed a blood-alcohol reading of just over a fifth of the limit set for airline pilots - which in turn is a quarter of the drink-drive level.

The pilot’s nightmare began when he went through the security checks for flight crew one of the guards thought he could smell alcohol on his breath.

The pilot was allowed to board the plane but about 45 minutes before take-off police got on the aircraft and breathalysed the pilot in the cockpit using a machine calibrated to aviation levels. The pilot failed this test and was escorted off the plane.

A standby crew was called and the pilot was taken to the police station, where blood tests were taken.

He was suspended from duty and released on bail.

The pilot’s blood was sent it to a laboratory where they found only a minimal blood alcohol reading. After the lab tested two more samples, he was exonerated.

Even non-drinkers are capable of producing trace elements of alcohol in their bloodstream, which would explain the level in the pilot’s blood.

The breathalyser reading was attributed to the pilot’s low–carbohydrate diet, which can affect the smell of a person’s breath and their metabolism.

Breathalysers mainly detect ethanol (the type of alcohol found in drinks) But some machines are unable to distinguish ethanol from acetone, a chemical that is produced by people on low-carbohydrate diets such as the Atkins diet. In normal circumstances this is not a problem but with the alcohol limit in the aviation industry is set at about a quarter of the normal “intoxication” level (.02) even these traces can result in a positive reading.

Where this is most likely to cause problems is when a person has been drinking, but not to the level of being intoxicated (.08). You then add the fact that the person is on a low carbohydrate diet, which will produce acetone in their breath, and there is a strong likelihood you will end up with a unreliable result from the breath testing machine.