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

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.

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

A new law, which is being called the EscortFox, 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.

Can the Atkins diet affect the Breath Test?

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.