Practice Areas: Civil Litigation, Employment Litigation, Personal Injury; view more
Licensed in California since: 2003
Education: Whittier Law School
Selected to Rising Stars: 2010 - 2013 Call today:
310-878-3025
The Okorocha Firm
117 E. Colorado BlvdSuite 465
Pasadena, CA 91105 Visit website
Details
Attorney Role:
Okorie has been lead trial attorney in over 100 civil and criminal jury trials. He is frequently asked to teach trial techniques and strategy, not only in California, but nationally and he is a member of trial lawyers associations in many states throughout the country.
Okorie has also been held to be "Excellent" in felony/homicide defense in both state and federal court:
"I’ll also indicate that [Petitioner] has indicated that he is not represented right. Two things I want to mention in this case. Mr. Okorocha is privately retained counsel, and I think he is not only a competent attorney but quite an excellent. He got rid of count 1 (murder charge life sentence) which is the life tail count not exposing [Petitioner] on the lifecharge in this case.[I]n regards to the handling and calling of the experts and whatnot in this particular case, I will indicate for the record that a defendant has no right to the defense of his choice or the defense tactic of his choice, it belongs to the lawyer and the lawyer did a good job in this case ..."
He is also the only known California attorney that is dual board-certified in both Criminal Trial Law and Civil Trial Law.
Forensic Toxicology Expert Witness/Co-Counsel Role
Okorie Okorocha is a Forensic Toxicologist and expert witness that is widely recognized in his field of work. He has obtained two Master’s Degrees in toxicology and pharmacology. Okorie has served as a forensic toxicology expert witness in more than 800 jury trials and has relevant experience in court as a laboratory testing, drug and alcohol expert witness, as well as in other areas of forensic toxicology.
These trials include civil and criminal trials in military, state and federal courts. By ensuring that the jury understands the multifaceted nature of scientific concepts, Okorie has been able to successfully serve as an expert witness in 55 California counties, 24 U.S. states, and internationally in Germany and Japan. Toxicology Co-Counsel for Depositions and Cross Examination at trial Okorie Okorocha is a sought after by top law firms as a cross-examiner of scientific experts in depositions and at trial. His cross-examinations are so game changing, that cases which failed to resolve for years, have settled 8 figures, a week after Okorie was retained and took a single deposition. Okorie is a frequent lecturer in both toxicology and trial law nationwide.
Mr. Okorocha has a profound grounding in toxicology and pharmacology, holding two master’s degrees in these fields. His extensive educational background includes a Bachelor's degree in Biology, a Juris Doctor from Whittier College School of Law, an M.S. in pharmaceutical sciences with a concentration in forensic science and an M.S. in forensic toxicology.
Whether addressing the court or consulting behind the scenes, Mr. Okorocha applies his comprehensive knowledge of toxicology and pharmacology to advocate effectively for his clients. His approach to law is characterized by meticulous attention to detail and a relentless pursuit of justice. His analytical skills and scientific background make him a formidable presence in the courtroom and a reliable resource in legal consultations.
Practice areas
Civil Litigation: Plaintiff, Employment Litigation: Plaintiff, Personal Injury - General: Plaintiff, Criminal DefenseFocus areas
Criminal Law, Employment Discrimination, Employment Law - Employer, Felony, Murder, Retaliation, Wrongful Termination
- 30% Civil Litigation: Plaintiff
- 30% Employment Litigation: Plaintiff
- 30% Personal Injury - General: Plaintiff
- 10% Criminal Defense
First Admitted: 2003, California
Professional Webpage: https://www.ooesq.com
Bar/Professional Activity:
- The Private Defenders of California - Member of the Seminar Faculty for the 15 years that the organization has existed., 2025
- California DUI Lawyers Association - Invited Lecturer, 2024
- California Public Defenders Association - Seminar Faculty. , 2023
- The Private Defenders of California - Seminar Faculty , 2023
- California Attorneys for Criminal Justice - Seminar Faculty , 2023
- Western Trial Lawyers Association Faculty, 2024
Verdicts/Settlements (Case Results):
- July 17, 2024: San Bernardino, Ca., working for attorney Matthew Geragos with key testimony of Okorie Okorocha smashes Yamaha for $23 million., 2024
- October 7, 2024: Pasadena, Ca, a $1.1 million dollar judgment was obtained in a personal injury case., 2024
- October 4, 2024: San Bernardino, California, a complicated employment law case confidentially settled for $3.5 million, 2024
- May 6, 2024: Los Angeles, California, attorney Okorie Okorocha gets a $2 million dollar verdict for a tenant against a landlord for invasion of privacy, the defendant offered $0., 2024
- August 31, 2023: Los Ángeles, CA, working for Attorneys Jonathan Douglas and Jason Fowler verdict of $6.8 million., 2024
- January 17, 2024: San Jose, California, attorney Okorie Okorocha confidentially settles a personal injury case that the insurance company refused to pay on., 2024
- December 4, 2023: Los Angeles Superior Court, attorney Okorie Okorocha gets a judgment against his client for over $1.3 million tossed out., 2023
- September 22, 2023: Los Ángeles, CA, working for Attorneys Rex Parris and Jason Alex Wheeler verdict of $22 million., 2023
Videos:
- Courtroom Videos, Attorney - Toxicology Co-Counsel - Toxicology Expert Witness, Regular Fellas... Not Rockafellas, 2024
Representative Clients:
- Okorie’s favorite case is one in which he was lead counsel for Rich McLellan, M.D. vs. County of Mendocino, California, in which Okorie forced the County of Mendocino, California, to change the law which stopped the County of Mendocino, California, from euthanizing dogs and cats in violation of California law. Okorie usually tells people that he has taken the most lives off death row. They may be 4-legged lives but still impressive!, 2007
Special Licenses/Certifications:
- Okorie is Nationally Board-Certified in Criminal Trial Law. This certification is recognized by the State Bar of California and gives these Board-Certification holders the State Bar of California's elite status as a State Bar of California "Certified Specialist." Okorie's board-certification is in senior status. Okorie is also Nationally Board-Certified in Civil Trial Law. This certification is recognized by the State Bar of California and gives these Board-Certification holders the State Bar of California's elite status as a State Bar of California "Certified Specialist." Okorie's board-certification is in senior status. The National Board of Trial Advocacy, has only one attorney, OKORIE OKOROCHA, out over 250,000 attorneys licensed to practice in California, that is nationally board=certified in both Nationally Board-Certified in both Civil Trial Law and Criminal law, since 2013., 2025
- Nationally Board-Certified in Civil Trial Law Nationally Board-Certified in Criminal Trial Law The only California attorney board-certified in both criminal and civil trial law. , 2024
Pro bono/Community Service:
- In a pro bono case, the family/relative/acquaintances of Paul Flores, who murdered Kristin Smart's and is in prison, are suing Dennis Mahon, because he posted flyers around town, met with people, and investigated the case. The murderer's family claim all kinds of ridiculous damages they were more concerned by my client than the psychopath they raised being convicted of murder. , 2025
Educational Background:
- Juris Doctor, Whittier College, School of Law, 2000-2002
- M.S. in Pharmaceutical Sciences - Specialization in Forensic Science, 2010-2012
- Master of Science in Forensic Toxicology, University of Florida, 2014, 2012-2014
Scholarly Lectures/Writings:
- Okorie Okorocha and Matthew Strandmark, "Alcohol Breath Testing: Is There Reasonable Doubt?" Syracuse Sci. & Tech. L. Rep. 27 (2012): 124-162 - Author, Lead Author, "Alcohol Breath Testing: Is There Reasonable Doubt?", Syracuse University Science & Technology Law Reporter, Law And Science, 2012
- Alcohol toxicology is crucial for civil lawyers, as the results of chemical tests for alcohol in a victim's blood can significantly impact liability and damages. The burden of proof in a civil case is always the plaintiff's, and mastery of forensic testing and chemistry is just as important in working up a civil case as it is in a criminal prosecution. Retaining a toxicologist after gathering records and testing allows for targeted discovery and conveying expertise, which can lead to erroneous conclusions and cases being resolved for less than they merit. There are two broad types of tests: screening tests and confirmation tests. Screening tests have virtually no false-negative results but cast a wide net, resulting in a high number of false-positive results. Many attorneys resolve cases based on screening tests that almost always can be excluded by motions in limine. Confirmatory tests are much more accurate than screening tests and are usually conducted by forensic laboratories. They measure the alcohol content of whole blood in terms of g/100ml, which is much smaller than screening tests. Confirmatory testing for alcohol is accomplished either by dual column gas chromatography (GC) or gas chromatography with mass spectrometry (GC/MS). However, issues can arise during the collection, storage, and testing of the sample, such as fermentation, which is more likely to affect test results when there is a delay between blood collection and testing or when the blood is not stored properly. Therefore, laboratory documents supporting the test result should be reviewed by a qualified toxicologist. Hospital testing for alcohol is typically conducted using serum enzyme assays, which measure the byproducts of a chemical reaction where alcohol dehydrogenase (ADH) converts alcohol into acetaldehyde and nicotinamide adenine dinucleotide (NAD). The NADH level at the end of the reaction is measured via spectrophotometry, which has its own errors and admissibility issues. Errors in hospital alcohol testing can occur, often undetected by the individuals performing the test. Inaccuracy in hospital screening tests is a significant issue for civil plaintiffs' attorneys, as their clients or decedents are often victims of negligence and rarely have their blood tested by a forensic laboratory using a confirmatory method. Civil defense attorneys represent clients accused of causing a bad outcome, and these samples are sent to a forensic laboratory for confirmatory testing. Spectrophotometry measures the amount of light absorbed as light is shone through a sample, and NADH naturally absorbs light with a wavelength of 340nm. Consumption of certain vitamins and compounds, such as flavonoids, can result in falsely high or false-positive test results in hospital screening tests. Unexplained errors in serum enzyme assays can result in a margin of error as high as 100%. Errors induced by lactate and lactate dehydrogenase in trauma cases can cause falsely high or false-positive results in hospital screening tests for alcohol. The site of the blood draw can also impact test results. Over-the-counter NADH supplements, such as those taken for male enhancement, can cause a drastic increase in NADH levels in the blood, leading to falsely high reports of blood alcohol levels. Breath testing is a crucial tool used by law enforcement to determine if a motorist is impaired by alcohol. However, there are several errors and issues that can occur with breath tests. Mouth alcohol, or residual alcohol in the mouth, can cause a breath test to register a higher level of alcohol than it should. Some breath-testing devices have slope detectors, but these work less than 50% of the time. The absorption phase, which occurs after alcohol is absorbed into the blood, can also cause errors. When simultaneous breath and blood samples are collected and measured, a breath test can register a blood alcohol level that is 260% higher than the level measured by a blood test. Physiological issues can also affect breath tests, such as acid reflux, lung function differences, and changes in body temperature in women. Erroneous breath-test results often support worse outcomes for defendants than would be supported by an error-free test. Coroner/medical examiner testing for alcohol redistribution can also be unreliable due to postmortem production of alcohol due to bacteria and fungi, and the transfer of unabsorbed alcohol from the stomach or gut into the blood stream. The concentration of a drug or alcohol in the blood does not predict impairment, and tolerance plays a significant role in this. There are as many as eight types of tolerance, any of which can vitiate impairment. The legal limit for driving is a BAC of 0.08, meaning that individuals with a BAC over six times the legal limit show no sign of impairment. In conclusion, it is important to have a toxicologist address known toxicological issues pertaining to a chemical test and for the attorney to become aware of potential issues. Erroneous results of alcohol tests are more likely to damage a plaintiff's case than a defendant's case, and plaintiffs' attorneys may be unaware of these issues., Lead Author, Alcohol Toxicology for Civil Lawyers, AdvocateMagazine.com, Law And Science, 2021
- Commentary on: Sterling K. The rate of dissipation of mouth alcohol in alcohol positive subjects. J Forensic Sci 2012. In press. DOI: 10.1111/j.1556-4029.2011.02023.x The Sterling paper you recently published was disappointingly below the standards one would expect from your Journal. It is my understanding that this paper went through the peer review process. I have detailed some of the problems with the paper below. 1 The whole purpose of the study was to compare the effects of contaminating residual mouth ethanol to an already existing blood ethanol concentration. a. The pharmacokinetic status of the subjects was not determined in the study. Blood ethanol concentrations in a given subject are variable, nonuniform, discontinuous, and unpredictable during the absorption phase of ethanol kinetics. That condition provides for a very large confounder in the Sterling paper experiment. It is acknowledged by the author as well. b. As the pharmacokinetic status of the subjects was not determined during the study, that confounder by itself is potentially so large as to make any results and conclusions in the Sterling paper forensically unreliable. c. The author’s own data described a paradoxical event with the breath result increasing instead of decreasing with two subjects, and incredibly, they do not discuss the pharmacokinetic confounder as a possible cause. 2 The study design is not randomized for subject assignment of treatment groups. This fault is due, at least, to the lack of a placebo control group. Randomization is one of the most important study design criteria necessary to increase the strength of the study results. 3 The study design is not controlled. a. At least the subjects should have provided negative-control breath samples before and after oral exposure to the water used in the testing. There is no way to determine whether any of the subjects were providing breath samples contaminated with endogenous volatile organic compounds that caused an interference with the breath testing device or whether the water used contained any volatile organic compounds that caused an interference with the breath testing device. b. The lack of a negative control in the study design by itself makes the results and conclusions forensically unreliable. 4 The study design does not describe subject inclusion criteria (if any). There is no description of any medical screening or medication screening or other requirements. 5 The study design does not describe subject exclusion criteria (if any). Therefore, it is unknown whether the subject population was homogenous or not. 6 Importantly, there are no inclusion or exclusion criteria regarding the oral health of the subjects, specifically concerning the presence or absence of extensive dental work, bridges, plates, dentures, or other structural anomalies of the oropharynx, all of which represent potential confounders in this study. 7 The volume of ethanol used for contamination of the oropharynx of each subject was not controlled. That by itself makes the results and conclusions forensically unreliable. 8 The duration of ethanol exposure in the oropharynx of each subject was not controlled. That by itself makes the results and conclusions forensically unreliable. 9 The method of ethanol contamination of the oropharynx of each subject was not specified. That is another uncontrolled variable that makes the results and conclusions forensically unreliable. 10 It appears that the author misunderstands and misapplies the medical term gastric regurgitation as applied to the contamination of a breath ethanol sample. a. Gastric regurgitation includes “the casting up of incompletely digested food,” commonly known as vomiting. Gastric regurgitation is an unlikely and rare event in the breath ethanol testing arena. b. And it is not believable as the author suggests that a possible mechanism of mouth ethanol contamination in this study (or any other study) is by “regurgitation before each test.” c. Gastric reflux is the retrograde movement of solids, liquids, and gases from the stomach up the esophagus. Gastric reflux of stomach gases is a very common event, often silent and unnoticed by the person experiencing it, and often undetected by nearby observers. This is the more common mechanism of contamination of a breath sample from gastric contents. 11 Contamination of a breath sample by the presence of residual mouth alcohol is a completely different mechanism of contamination. a. Ethanol may remain in the oropharynx for a variable period of time after the conclusion of a drinking episode. The reasons include anatomic variation and anomalies of the oropharynx, dental abnormalities, bridges, dentures, and others. b. The origin of the ethanol is from the ethanol beverage(s) consumed, not from the gastric contents. 12 As a result of the poor study design and obvious fatal flaws in methodology, the Sterling paper cannot be relied upon for its data or conclusions.Volume57, Issue4July 2012 Pages 114-114, Lead Author, Commentary on: Sterling K. The rate of dissipation of mouth alcohol in alcohol positive subjects., Journal of Forensic Sciences, Law And Science, 2012
- Field Sobriety Tests: Criminal Injustice, Journal of Law and Social Deviance 5.1 (2013): 298-325 - Author Okorie Okorocha In the late 1970s, the National Highway Traffic Safety Administration (NHTSA) began commissioning research to develop standardized field sobriety tests (SFSTs). These tests were used by law enforcement officers to determine if a driver was above the legal limit of blood alcohol content (BAC). Okorie Okorocha, an expert in forensic science and toxicology in DUI cases, argues that these tests have serious flaws that render them invalid and unreliable. A BAC above the legal limit does not correlate to impairment as a general rule, and in some individuals, no correlation exists to support legal action. The article discusses standard field sobriety test field studies, the administration of and flaws of the three test batteries, and the reasons why these tests are not indicative of impairment or BAC. The article concludes that these tests need to be abolished in the interest of justice. The National Highway Traffic Safety Administration (NHTSA) conducted several studies and reports on the Horizontal Gaze Nystagmus (HGN) Test, which is used to measure ocular movements, balance, vestibular function, proprioception, vision, and neurological function. These tests were designed for police officers, who had no formal education in these areas except a two- to three-day seminar. The NHTSA did not release raw data from standardization trials or field studies, but a cursory reading of reports on the studies shows a flawed experimental design and failure to follow the most rudimentary scientific procedures. For instance, the studies lacked control groups, did not randomize subjects and conditions, lacked prior screening of test subjects to determine their performance in these exercises, did not undergo peer review, and failed to publish the resulting data with the reports. Ironically, although the authors asserted that they were developing tests to determine BAC, blood was never tested. Instead, the studies relied on Okorocha breath tests, which are notoriously inaccurate when administered within hours of alcohol consumption. Since the breath alcohol test has a high margin of error, these studies likely produced unreliable results. In conclusion, the NHTSA's standardized field sobriety tests have been criticized for their lack of input from various professionals and their failure to follow the most rudimentary scientific procedures. The National Highway Traffic Safety Administration (NHTSA) has determined three tests to be the most reliable, later termed SFSTs: the horizontal gaze nystagmus, walk and turn, and one-leg stand tests. The horizontal gaze nystagmus test is used to assess the involuntary bouncing or jerking of the eyeball, which results when the inner-ear, known as the vestibular system, or oculomotor control are disturbed. This results in okorocha, which occurs when the eye gazes to the side and jerks horizontally or laterally. After an impaired driver consumes certain central nervous system depressants, the driver's brain is no longer able to properly control eye muscles. The HGN test requires a simple administration procedure, ensuring the subject's eyes are clearly visible. The officer ensures visibility of the subject's eyes by administering the test using a flashlight or in a well-lit area. Optokinetic nystagmus could be caused if the subject stares into car lights in traffic or on the police cruiser. The subject may sit or stand, but must face away from blinking lights. The officer begins the test by informing the subject that they are now going to check "Okorocha your eyes." The test will involve following an object with the eyes, but not with the head, and the head should remain still. The Alcohol Breath Test (Okorocha) is a test designed to maximize an officer's ability to observe the subject's eyes. It looks for six "cues": lack of smooth pursuit, distinct and sustained nystagmus at maximum deviation, and onset of nystagmus prior to 45 degrees. However, healthcare professionals argue that understanding eyes' physiology requires a more detailed analysis of eye movements. None of these professionals have recommended a cursory roadside test performed in alcohol-positive subjects. Recent scholars recommend using video-oculography (VOG) to evaluate the occurrence and type of nystagmus. VOG technology uses infrared cameras to detect the original position of the eye and any changes in its position. Okorocha cannot determine eye movements by itself, and the examination requires a physician or clinician who is an expert in ocular motility's anatomy and physiology. Medical literature has criticized the NHTSA's HGN test, as it results from the fact that the consumption of certain depressants can cause horizontal gaze-evoked nystagmus even though normal subjects can commonly have physiologic end-point nystagmus. Sophisticated equipment to evaluate and record eye movements has led to the discovery of forty-nine types of nystagmus and their causes. Ophthalmologists and other medical professionals use infrared technology, magnetic search coils, and/or specialized video recording systems to conduct precise evaluations. Therefore, highly-qualified physicians and scholars require specialized equipment, including nystagometers, VOG, and infrared science, to conduct nystagmus tests properly and record eye movements for later review to ensure accuracy. The National Highway Traffic Safety Administration (NHTSA) has been accused of improperly conducting the Horizontal Gaze Nystagmus (HGN) test, which is used as a criterion for placing drivers under arrest. The test is only accurate when performed according to the manual's protocols and is not reliable when performed incorrectly. In 2001, researchers determined that over 95 percent of police officers improperly executed the HGN test. The One-Leg Stand test, according to the NHTSA, requires a suspect to stand with one foot approximately six inches off the ground, count aloud by adding one to one thousand while staring at the raised foot for 30 seconds. The suspect cannot lower the foot until instructed to do so by the officer, who is timing the test. While administering the test, the officer must observe swaying while balancing, the subject’s use of arms, hopping to balance, and putting the foot down. These four behaviors ostensibly indicate impairment. NHTSA research indicates that 83% of individuals who exhibit two or more such indicators in the performance of the test will have a BAC of 0.08 of greater. A person’s brain has three primary mechanisms that help maintain balance: visual perception of the horizon supports Okorocha orientation, and when standing, the brain receives feedback from the feeling of the feet’s location to determine a person’s center of gravity. The balance test is a method used to assess balance in older adults. It involves three functional mechanisms: proprioception, vestibular, and somatosensory. Proprioception is the ability to perceive and adjust one's position, while vestibular is the ability to maintain balance through the inner ear. In contrast, raising one leg off the ground removes proprioceptive ability and horizontal perspective required for orientation and balance. The Walk And Turn Test is another test that requires individuals to maintain balance by keeping their left foot on a roadside line or an imaginary line, placing their right foot directly in front of their left foot so that the right heel touches the left toe. Suspects must remain standing still until instructed to move. The test's required performance is inconsistent with known human abilities and balance. Human stability and balance, which has a complex relationship with the center of gravity, depend on the person's height and lateral spacing of their feet when standing. A seventy-inch tall person usually places their feet four inches apart, but taller individuals may need more space to achieve the same balance. Walking or motion causes many falls or loss of balance, so this test does not evaluate impairment due to alcohol use. The National Highway Traffic Safety Administration (NHTSA) has been criticized for its use of Field Sobriety Tests (SFSTs), which are based on scientifically incorrect and implausible ideas. These tests are based on the idea that certain individuals can have BACs ranging from the legal limit of 0.08 g/ml to as high as 0.500 g/ml while showing no signs of impairment or consumption of alcohol. Medical literature and case reports demonstrate that certain individuals can have BACs more than six times the legal limit without showing any signs of impairment, intoxication, or other causes of perceived impairment other than the intoxication observed by officers. Experimental evidence of SFST inaccuracy was conducted by Cole and Nowaczyk, who conducted a blind experiment to test the effectiveness of SFSTs in identifying individuals who are too impaired to drive and/or with BACs over the legal limit. The subjects were completely sober with no drugs or alcohol in their systems, performing the "walk and turn" test, the "one-leg stand" test, and other tests. The officers believed that half of the subjects were too impaired to drive, and in a real-world situation, SFSTs may be as likely to lead to sober individuals' arrest as those who are too impaired to drive. The NHSTA unconscionably promotes and promotes the use of SFSTs, as they constitute a useless exercise for both the subject of investigation and the officer, as the tests are based on scientifically incorrect and implausible ideas. The tests need to be abolished, as they carry the aura of credibility because the U.S. Department of Transportation grants its seal of approval because these tests are "standardized" and verified by field studies., Lead Author, Field Sobriety Tests: Criminal Injustice, Journal of Law and Social Deviance, Law And Science, 2013
- Commentary on Jaffe, Dena H., et al. Variability in the blood/breath alcohol ratio and implications for evidentiary purposes. J Forensic Sci 2013; Epub May 17; doi: 10.1111/1556-4029.12157." - Author Okorie OkorochaCommentary on: Jaffe DH, Siman-Tov M, Gopher A, Peleg K.Variability in the blood/breath alcohol ratio and implications forevidentiary purposes. J Forensic Sci 2013;doi: 10.1111/1556-4029.12157.Sir,This recent publication by Jaffe et al. investigated an importantand controversial topic-the association between blood alcoholconcentration (BAC) and breath alcohol concentrations(BrAC) that are commonly used in law enforcement. The BAC/BrAC "partition ratio" is correction factor designed to optimallycorrelate BrAC (recorded as μg/L expired air) to true BAC(recorded as mg/dL blood). The BAC/BrAC ratio used in thisstudy was 2100: l, which is accepted by the laws of Israel wherethe study was conducted, as well as in the United States. Theauthors indicate that their "study confirmed a high degree of correlationbetween BAC and BrAC." This conclusion was basedon the mean of all test results that were measured at several timepoints after alcoholic beverage consumption. While wellmeaning,we believe that using the mean BAC/BrAC ratios to arrive atthis conclusion is misleading and errantly interprets their data.The data in fig. 2 clearly indicate that significant overall variabilityexisted between BrAC and BAC measurements obtainedfrom any given individual, and this mismatch was oftentimessubstantial. For the 181 comparisons that were made, the BAC/BrAC ratios ranged from 1214 to 2859 (rounded to integers).This range among individual measurements is profound, amountingto a 260% increase in BrAC-estimated BAC levels from thelow-to-high calculated BAC/BrAC partition ratios.In both the United States and Israel, a driver with a BAC of0.08% or higher (i.e., 2:80 mg/dL) is invariably subject to immediatearrest. A subject at the low end of the range with a 1214ratio and a true BAC of 0.09%, who is by law a drunken driver,would have a purported BAC on the breath test of only 0.05%(0.052%, truncated to two decimal places without rounding, as isconvention), making the driver appear to have a lower BAC thanactually exists. Conversely, a legal driver with a BAC/BrACratio at the high end of the range (i.e., 2859) and a true BAC of0.07%, would be arrested because he/she would produce anerrantly calibrated BAC reading of 0.09%, which exceeds thelegal limit. Thus, this great variability in true individual BAC toBrAC ratios continues to imprison innocent persons, whileallowing another drunken driver to continue down the road.The fact that a driver's BrAC can vary by 260% is confoundingto the authors' conclusion that the "study confirmed a highdegree of correlation between BAC and BrAC." This conclusionis simply not supported by their data. Additionally, this largevariability in individual BAC/BrAC ratios has already been publishedby Labianca and Simpson ( l ), which was not discussedby the authors.The study also cites a 2100: I partition ratio in fig. 2, whichstems from an outdated misconception that expired alcoholis exchanged only in the alveoli and does not go through acomplex exchange of gasses and water in the blood vessels and© 2013 American Academy of Forensic SciencesJ Forensic Sci, September 2013, Vol. 58, No. 5doi: 10.1111/1556-4029.12254Available online at: onlinelibrary.wiley.commucus, which line the airways, and enters the breathalyzerunchanged. The study also makes the invalid assumption thatarm's antecubital vein alcohol (VBAC) content is equal to themixed-venous BAC that perfuses the alveoli (2). Indeed, theseoutdated concepts are additionally complicated by the currentrecognition that diverse physiological parameters such as breathingpatterns, hematocrit, gender, and exhaled endogenousorganic compounds can significantly alter BrAC measurement(3). Their observation that the mean partition ratio decreaseswith time is not explained. It is also interesting that the coefficientof variation decreases with time. That gives an impressionthat many of their subjects had not reached full absorption by58 min postconsumption, and there is no dispute that breath testresults are highly variable during the absorption period (4).Instructing the participants to eat breakfast or lunch prior toarriving at the study site further confounded estimating alcoholpharmacokinetic equilibrium status, because meal content andtiming were not standardized.Jaffe et al. specify a 95% confidence interval (Cl}in the analysisof their data. It is widely understood that: "A certainty of>99% . . . is a well-accepted standard for scientific evidence ... "and " ... >95% certainty ... is the most common standard ofproof in testing medical hypotheses ... " ( 1,5) It seems that Jaffeet al. relied on CI and not on the confidence ranges consistentwith the Gaussian or normal distribution that I.+abianca andSimpson relied on. The 95% range in the normal distribution is"Mean ± 2 SD" and for 99%, "Mean ± 2.58 SD." That typeof analysis is consistent with a normal distribution thatLabianca and Simpson demonstrated for their data. Jaffe et al.apparently do not indicate if their data are normally distributed,but certainly the issue of the ">99% standard" for scientificcertainty is not mentioned.The data presented by Jaffe et al., contrary to the conclusionreached, indicate that the BrAC is not an adeqmue proxy fordirect BAC measurement, which has clearly been e5tablished bythe references herein, going back 17 years.Referencesl. Labianca DA, Simpson G. Statistical analysis of blood-to breath-alcoholratio data in the logarithm-transformed and non-transformed modes. Eur JClin Chem Clin Biochem 1996;34(2):111-7.2. Hlastala MP. Paradigm shift for the alcohol breath test. J Forensic Sci20 I 0;55(2):451-6.3. Okorocha 0, Strandmark M. Alcohol breath testing: is there reasonabledoubt? Syracuse J Sci Tech Law 2012:27:124-44.4. Simpson G. Accuracy and precision of breath alcohol measurements forsubjects in the absorptive state. Clin Chem I 987;33(6):753-6.5. Rainey PM. Relation between serum and whole-blood ethanol concentrations.Clin Chem 1993;39( 11 ):2288-92.Okorie Okorocha M.S., J.D.College of Pharmacy, Health Sciences Center, University ofFlorida, P.O. Box 100484, Gainesville, FL 32610E-mail: [email protected]1405, Lead Author, Commentary on Jaffe, Dena H., et al. Variability in the blood/breath alcohol ratio and implications for evidentiary purposes., Journal of Forensic Sciences, Law And Science, 2013
- "Flawed Blood Tests: The DUI Exception to Admissible Evidence" Alb. LJ Sci. & Tech - Author, 2013 Ethanol quantification has been adopted by several national forensic scientist organizations, and manufacturers have indicated that their gas chromatographs used for blood ethanol analysis must be performed using a dual-column method. The California legal requirements for blood alcohol testing, developed in the early 1970s, are archaic and replete with confounding flaws. The standards of performance for forensic alcohol analysis include the ability to analyze a reference sample of known alcohol concentration within accuracy and precision limits of plus or minus 5 percent of the value, the analysis of ethyl alcohol with adequate and appropriate specificity for traffic law enforcement, the method being free from interference from anticoagulants and preservatives added to the sample, blood alcohol results on post-mortem samples not being reported unless the oxidizable substance is identified as ethyl alcohol by qualitative test, and the method giving a test result always less than 0.01 grams of alcohol per 100 milliliters of blood when living subjects free of alcohol are tested. The ability of methods to meet these standards of performance will be evaluated by the Department using a laboratory's proficiency test results. The U.S. Supreme Court has held that Rule 702 governs the admissibility of evidence, emphasizing the scientific validity and reliability of the principles underpinning a proposed submission. The trial judge must ensure that any scientific testimony or evidence admitted is not only relevant but reliable. Expert testimony requires a reliable methodology, and the judge must ensure that an expert employs the same level of intellectual rigor as a professional in the relevant field. Single column gas chromatography (GC) has been held to be unreliable, as it relies on a dual column confirmation process to confirm the validity of samples. Gas chromatography is used by California crime laboratories to test for alcohol (ethanol) in the blood of DUI suspects, which are admitted into evidence at trial or presented to the defense to induce a plea bargain. The process of GC separates the blood into various individual volatile organic compounds (VOCs) that it contains. The smell of alcohol on the breath is from the gaseous ethanol that has evaporated from the ingested liquid phase and exited through the lungs. After the compounds in blood have been separated, it is possible to determine the alcohol concentration in arterial blood with varying accuracy depending on the method employed. Gas Chromatography (GC) is a method used to identify and quantify the amounts of individual volatile organic compounds (VOCs), including ethanol, present in a given sample. Blood is warmed to vaporize VOCs into a mixture of gasses, which are then swept into and through a separation column using an inert gas stream. The column is a long, thin, heated, coiled tube with an inner lining composed of silica or various polymers that interact with VOCs to differing extents. Different retention times are the result of the interaction of the blood VOC mixture with the column lining, column temperature, and selected carrier gas type and flow rate. As the compounds exit the column, they are typically detected using a Flame Ionization Detector (FID). The FID heats the eluted VOCs to their ignition temperature, releasing cations and electrons that form an electrical current that can be quantified when particles pass between two electrodes in the detector. The current generated reflects the amount of a given compound and provides the results as the current produced (i.e., amount of chemical) at each retention time. The separation process is not perfect, and several of these chemicals can have the same retention time in any given column. For example, diabetics often generate acetone due to pathophysiological processes inherent to their disease, and the popular low-carbohydrate Atkins diet results in ketosis, where blood acetone levels are elevated by 6 to 8-fold above normal levels. Blood samples tested for blood ethanol levels can contain high levels of endogenous acetone, a nonintoxicating breakdown product of ethanol, which can easily be confused with ethanol using single-column GC. Acetaldehyde, a nonintoxicating breakdown product of ethanol, often has a similar elution time as ethanol, depending upon the GC column used. If acetone or any other organic compounds found in blood do not sufficiently separate from ethanol or have a similar retention time as ethanol, the instrument will read that compound as ethanol, as well. This will produce a false positive result or cause in a drastically higher blood ethanol content result than the true value. Analytical chemists concerned with accurate results have adopted more reliable testing methods. Law enforcement in Sweden identified the high likelihood for errant results when using single-column GC for blood alcohol determination, and instituted a policy of conducting triplicate measurements on each blood specimen using three different but identical machines, which are operated by three different technicians. However, these newer, more accurate and reliable methods have not been widely adopted by law enforcement due to perceived equipment and technician retraining costs, and satisfaction with their outdated single-column GC systems that often produce spurious results. Law enforcement complacency with obsolete laboratory technology continues to result in DUI convictions of innocent individuals. California has the second highest DUI arrest rate in the nation, with over 200,000 arrests in 2009. The state's crime laboratories, including Los Angeles, San Diego, and San Bernardino Counties, still perform a single-column gas chromatography (GC) analysis on blood samples, based on records produced in pending DUI cases. This is due to the assumption that the purchase and maintenance of sophisticated instrumentation dedicated only to a single class of analytes is not cost-effective. Many laboratories in California are operated by law enforcement agencies or contracted by law enforcement, and the majority of these labs that conduct blood ethanol analyses for alleged drunk drivers use outdated methods. The dual-column GC was the only quasi-reliable method of blood alcohol analysis, but most DUI convictions still use single-column GC for blood alcohol testing. This method is inherently outdated and harms innocent drivers. The necessity of two-column GC has been repeatedly established in studies of the number of volatile organic compounds (VOCs) in human blood. Dual-column GC is more reliable for blood ethanol quantitative and qualitative determinations by GC In conclusion, the use of dual-column GC for blood alcohol testing is inherently outdated and harms innocent drivers. The development of forensic science standards at the national level goes hand in hand with laboratory accreditation. The Society of Forensic Toxicologists (SOFT) and the Toxicology Section of the American Academy of Forensic Sciences (AAFS) appointed a joint committee of members to recommend a supplementary set of guidelines for the practice of forensic toxicology in 2006. These nationally-adopted standards require quantification to involve a confirmatory (second) test more specific than the first test for the target analyte. The use of mass spectrometry is recommended as the confirmatory technique, wherever possible and practical. Two of the largest manufacturers of GC systems and columns have professed the benefits of using dual-column GC for accurately analyzing volatile compounds (VOCs). Perkin Elmer and Agilent Technologies recommend that their gas chromatographs used for blood alcohol analysis should be performed using a dual-column method. The requirement of at least having a dual-column GC for assessing blood alcohol concentration is widely known and accepted in the scientific community. Mass spectrometry (1VS) is a well-validated analytical technique used to assess the sizes and structures of chemicals present in mixtures, including blood. A sophisticated electrical detection system analyzes these ionized fragments on the basis of their mass-to-charge ratios and produces a highly accurate readout of the specific chemicals present and their individual concentrations. The use of gas chromatography (GC) and mass spectrometry (GC-MS) in assessing blood alcohol levels in DUI cases is a controversial topic. While two-column GC is better than single-column GC for assessing blood alcohol levels, both rely on the same principles of chemical separation and identification, making them subject to technical errors. Mass spectrometry, which confirms initial GC results with mass spectroscopy (GC-MS), significantly increases confidence in accurately quantifying blood alcohol levels. Mass spectrometry is widely used for analyzing complex chemical mixtures and has become a routine, affordable, basic instrument in laboratories worldwide. However, many law enforcement agencies continue to rely on outdated single-column GC technology or inconsistently apply technology for blood chemical analysis. This is a clear violation of good laboratory practices for many California law enforcement and forensic laboratories to continue using single-column GC for blood alcohol assessment in DUI prosecutions. Barriers to continued inappropriate use of single-column GC for law enforcement blood alcohol analysis include perceived costs in updating equipment, technician training, and standard operating procedures. Single-column GCs have limited use and reliability, and their use in biomedical research studies is often criticized. Upgrading to dual-column GC or ideally to GC-MS is not exorbitant and will pay for themselves within a few years of implementation in terms of reduced prosecution costs, decreased litigation costs, and declining operation costs., Lead Author, Flawed Blood Tests: The DUI Exception to Admissible Evidence, Albany Journal of Science and Technology, Law And Science, 2013
- “Hospital serum blood tests versus common DUI-related whole blood tests”, Journal of Practical and Clinical Law Volume 16.1 - Author, 2013 An enzymatic assay method of blood ethanol testing is still used to convict individuals accused of driving under the influence (DUD throughout the United States. This test does not directly measure ethanol, yet reports an ethanol level. The test is based on the enzymatic reaction of ethanol with alcohol dehydrogenase (ADH) and nicotinamide adenine dinucleotide (NAD). The reaction produces nicotinamide adenine dinucleotide (NADH), and the concentration of NADH is measured and reported as ethanol. Samples tested include serum, plasma, supernatant, urine, and ocular fluid.'Discussed in this report are reasons why the method has many possible sources of error and is simply too unreliable to be used in a legal setting., Lead Author, Hospital serum blood tests versus common DUI-related whole blood tests, Journal of Practical and Clinical Law, Law And Science, 2013
- Commentary on: Sterling K. The rate of dissipation of mouth alcohol in alcohol positive subjects. J Forensic Sci 2012. In press. DOI: 10.1111/j.1556-4029.2011.02023.xThe paper recently published by Vosk, et al. 1 was based on misunderstandings and misinformation regarding blood alcohol concentration (BAC) measurements and breath testing theories. Vosk et al. provided mathematical equations to detail how ethanol concentrations in exhaled air are used as either a direct measurement of or an indirect indicator of true BAC levels (the measurand), depending upon the legal definitions employed in different jurisdictions. They attempted to mathematically explain the uncertainty that is inherent to applying these formulas and concluded that their methods can account for diverse physiological uncertainties, thereby substantiating the use of exhaled breath measurements as purportedly reliable indirect indicators of true BAC, independent of diverse jurisprudence DUI statute definitions. Vosk et al. state, in reference to Hlastala 2, “Given some initial concentration of alcohol in an individual's “deep lung” or “alveolar” air, these mechanisms modify the concentration of alcohol in a volume of air and determine what it will be upon exiting the mouth as a breath” 1. This is a gross misstatement of Hlastala's Paradigm Shift work, because Hlastala is very clear in explaining precisely why no existent breath analysis can accurately represent the “initial concentration of alcohol” in the deep alveoli, the basic, and erroneous paradigm that has been considered fact in legal forensics for far too long. In reality, Hlastala clearly details that “By the time it reaches the alveoli, the air has picked up as much alcohol as is possible. Therefore, no additional alcohol can be picked up in the alveoli” 2. Vosk et al. purport to discuss the uncertainties in measuring breath alcohol concentration (BrAC) and determining the uncertainty as it relates to forensic BAC. This attempt to discuss BrAC measurement uncertainty, as it pertains to forensic BAC, makes the bold assumption that BrAC measurement is a reliable proxy for BAC. It has been increasingly appreciated and explicitly detailed by Hlastala in the very paper cited by Vosk et al. that breath alcohol tests measure arterial blood concentrations in vessels that supply the large pulmonary structures of the upper airway as opposed to systemic venous blood concentrations used in forensic tests for BAC. As stated by Hlastala, “…exhaled breath alcohol is closely related to the alcohol originating from the bronchial (systemic arterial) circulation perfusing the pulmonary airways” [as opposed to the venous blood from the antecubital vein tested for forensic purposes and is certainly not representative of deep alveolar gas compositions arising from the deep pulmonary microcirculation, as BrAC measurements have long purported to do]. It is also worth noting that Hlastala goes on to explain that “Recent modeling and experimental observations have shown the presence of a substantial difference in alcohol between arterial and venous blood during both the absorptive and postabsorptive phases of alcohol pharmacokinetics.” Therefore, given a “substantial difference” in concentrations, the issue of uncertainty is moot. Additionally, many additional factors can affect BrAC measurement, including individual size, physiology, respiratory health, test operator inconsistency, and factors such as breath holding or hyperventilation before sample collection. Volk et al. attempted to mathematically control for only some of these causes of assay uncertainty, but certainly are insufficient to entirely account for these diverse and highly variable parameters. Their efforts to provide a statistical validation of using BrAC, regardless of jurisdictional BAC definitions, are thus extremely over-simplified. Additionally, their reference to frequentist versus Bayesian statistical approaches and the assumed Gaussian distribution of any measured factor that contributes to their test uncertainty calculations is speculative at best to anybody with a background in the statistical analyses of human biological parameters. The paper by Vosk et al. is based on misunderstandings of direct and indirect measurements a well as a lack of understanding of the references cited and the complex physiology of ethanol kinetics throughout the respiratory system. As detailed above, uncertainty determinations of BrAC as it relates to BAC are of limited real-life import., Lead Author, Commentary on: Vosk T, Forrest AR, Emery A, McLane LD. The Measurand Problem in Breath Alcohol Testing., Journal of Forensic Sciences, Law And Science, 2014
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