December 18, 2014

The Holiday Season, Drinking and Driving, Tolerance and the Mellanby Effect, Pt. 1

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Over Thanksgiving weekend the California Highway Patrol arrested 60 people in San Diego County for suspicion of DUI. 903 drivers were arrested for DUI statewide. Earlier in the evening, before heading out, how many of those people arrested for DUI planned on getting arrested that evening?

This post will continue with two assumptions about people arrested for DUI. First, that no one sets out for their evening plans anticipating getting a DUI- DUIs are a crime of ignorance. Some people maintain that DUI drivers are trying to get away with it, and this may be so. But we will maintain that the majority of people arrested for drinking and driving never intended to be in the condition they were in. The second assumption is that even drivers that get a DUI are still against drunk driving. The majority of my clients express feelings of guilt before any other emotion. Of course, feelings of guilt is separate from being found guilty in a court of law.

But, even with these assumptions, most people have a backup plan earlier in the evening, or at least the ability not to drive. That is, getting a cab, calling a friend for a ride or finding an alternative place to sleep for the evening. One of the reasons why people still drive is because they "feel fine." After reviewing thousands of police reports working for the San Diego City Attorney's Office, most defendants appear to be quite honest in their self-assessment (it's how many drinks consumed that may be less accurate).

The state's experts often claim that this is because alcohol impairs mental ability first, and physical ability second. So even if they aren't stumbling, drinkers can't process information the same and may not be able to recognize that they are impaired. Or, the state's expert will state that alcohol increases risk taking behavior. So even a drinker may recognize that he or she is impaired, but drive anyway. However, another answer may have to do with a type of tolerance.

Tolerance, in its most common understanding, is really acquired tolerance. At the risk of being redundant, acquired tolerance is tolerance that is acquired over time by repeated exposure to the same drug, stimulant or substance. A person that regularly consumes alcoholic beverages acquires a tolerance to alcohol. The effect of acquired tolerance is that the drinker must consume a greater amount of alcohol in order to achieve the desired effect.

Tolerance, from a jury trial strategy perspective, is a mixed benefit. On one hand, tolerance may assist the jury in understanding why the defendant was not under the influence for purposes of driving (VC 23152(a)) regardless of the BAC, because she has acquired tolerance- the social aspect of her job is a necessity for her drug sales position, for instance. On the other hand, the jury may just as likely envision the defendant drinking and driving every weekend.

What the state's expert conveniently leaves out, is what's called acute tolerance. Acute tolerance is tolerance that is displayed over a single exposure to a drug. For alcohol, this is during a single night of drinking. As soon as the brain is exposed to a drug, compensatory changes immediately take effect. This means that with the first drink, the brain is initially exposed to alcohol and the effect is more significant. The more the brain is exposed to alcohol, the more effective the brain's compensatory changes. This means the effect of alcohol is greater at the beginning of a night of drinking than towards the end.

This was first discovered in 1919 by researcher E. Mellanby and is called the Mellanby Effect. In the next blog post, the Mellanby Effect will be discussed in greater detail, specifically in relation to alcohol and a night of drinking.

Until the next post, always be mindful of the effects of alcohol, and trust your friends over your own self-assessment. Remember, alcohol is a tricky drug and even if you've been drinking for a number of years, one mistake can lead to a lifetime of regret.

During the Holiday Season, if you find yourself in need of an experienced, knowledgeable DUI defense attorney, call (619) 259-0384 (0DUI). Maybe call the night before a big, celebratory evening, as opposed to the morning after. It may be the best holiday gift you receive all season.


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The acronyms DUI, DWI, OMVI and OVI all refer to the same thing: operating a vehicle under the influence of alcohol or drugs. The most commonly used terms are DUI, an acronym for Driving Under the Influence, and DWI, an acronym for Driving While Impaired.
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