Haskin Law

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Arguing Gender Bias of DUI Test Wins Case

By TASGOLA KARLA BRUNER
The Atlanta Journal-Constitution

Lisa Bufton of Woodstock was acquitted in a DUI case last month.

Two glasses of merlot put a Cherokee County woman in the middle of a dispute over how to accurately measure whether females are legally intoxicated.

The jury in Lisa Bufton’s drunken driving case acquitted her last month after her attorney argued the breath analysis instrument used by Georgia law enforcement personnel gives falsely high readings when used on women. The Cherokee County jurors said the Intoxilyzer 5000 should be “further evaluated for gender bias.”

Bufton’s lawyer, Atlanta attorney Billy Spruell, said the Intoxilyzer 5000 is calibrated to men’s physiology and the way men’s bodies metabolize alcohol. Women metabolize alcohol in a different way, he argued.

But the machine’s manufacturer says the instrument’s readings for women are accurate.

Bufton, 38, of Woodstock was charged with driving under the influence when she was stopped by a Cherokee County sheriff’s deputy last May after leaving a dinner party with her husband. Bufton said she drank two glasses of wine during a five-hour period that evening. Over the same period, she drank glasses of water and ate a full dinner. The Intoxilyzer 5000 measured her alcohol level at 0.093 grams per 210 liters of breath. Georgia defines intoxication at 0.08 or above.

“I knew I was innocent,” said Bufton.

She said she didn’t know she could have asked the deputy to take her to a hospital for a blood alcohol test.

The gender-bias defense is “ridiculous,” said Tom Myers, regional sales manager at CMI Inc., the Kentucky-based company that manufactures the instrument for about half of the United States. “The instrument doesn’t care if it’s a man or a woman.”

Jim Panter, a Georgia Bureau of Investigation chemist, agreed.

“Women are registering higher because they are higher, because of the way they distribute alcohol,” he said. “The differences in the way alcohol is treated in males and females is due to the fact that females tend to have more fat tissue. Therefore, with the same weight, they put more alcohol in the blood than males do.”

Battling over formula

In court, Tennessee chemist James Woodford testified that women given measured amounts of alcohol register higher on breath tests with the Intoxilyzer 5000 than they are supposed to according to a standard weight-versus-drinks chart.

“If you take a man and woman and they’re both the same size, give them the same amount of alcohol and you test them on a man’s scale, [the woman] is going to be too high,” said attorney Spruell.
Woodford said, “Fat tissue plays a small part, but it doesn’t account for the high margin of difference between what equal-sized women and men who drink same amount register with the Intoxilyzer 5000.”
Woodford said the design of the Intoxilyzer 5000 and interpretation of its printouts are based on a 1930s formula that considers men’s metabolism. He said extensive tests weren’t done on women because of fear that heavy doses of alcohol would damage their reproductive health.

Cherokee County Solicitor General David Cannon Jr. criticized Woodford’s study for involving fewer than 10 people. He also criticized Woodford for not supporting his findings with blood tests from his subjects.

“I think he misled the jury,” Cannon said.

Woodford said women’s differences should be considered when analyzing their breath, but Panter, who trains law enforcement personnel to use the Intoxilyzer 5000, disagreed.

“The purpose of the instrument is to tell you the alcohol concentration in a person’s system, and it’s doing that by measuring alcohol in your breath,” he said.

“If your breath has alcohol concentration of 0.08, the law says you shouldn’t be driving a car. Whether you’re male or female, you’re going to be impaired to a certain degree at that level.”

Spreading the word

The gender-bias defense is not new in Georgia, Panter said. But he called the Bufton decision the first successful use of it he has seen in his 20-plus-year career.
“Usually the jury has the common sense to realize the argument is bogus,” he said.

The gender-bias argument has received some recent press in national law magazines, where it has been called a novel DUI defense. The success of a few DUI attorneys in Georgia has caught the attention of their colleagues, more of whom are expected to begin using the defense.

At their quarterly meeting in June, DUI attorneys will learn how.

Now that she has been acquitted, Bufton plans to set up a Web site to tell women about the gender-bias defense.

Although she spent about $9,000 on her case, she said she isn’t bitter about the experience because she sees herself as an “instrument” to make sure DUI tests aren’t biased against women.
She calls her case a “waste of taxpayers’ money.”

Spruell said not every woman who has been accused of driving under the influence of alcohol is a candidate for the gender-bias argument. He said the women need close to a 0.08 reading.
But he wants all women to be aware of it.

“Women are going to have to get used to the idea that if you don’t stand up for yourself, hell, the men aren’t going to stand up for you,” he said.

Bufton can be reached by e-mail at point08women@bellsouth.net

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