The Champion

May 2011 , Page 50 

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The Fermentation Defense — When And How to Use It

By Andrew Mishlove

Sometimes a direct attack is the best defense. The fermentation defense is one method of attacking a blood alcohol test result. Simply put, fermentation of a blood sample in the test tube can cause a false high test result. Attacking the test result itself is difficult, but it should be in the repertoire of a skilled attorney.

This article will start with a case scenario and examine when and how to use a fermentation defense. The article will explore the basic science and literature underlying the defense, outline typical government responses to the defense and their weaknesses, and present sample cross-examinations. Finally, there will be a discussion concerning some limitations of the defense.

Case Scenario

Here is a case scenario that is typical not only of fermentation defense cases, but of DUI cases in general.

After a meeting with a customer, salesman Joe Client was on his way home when an officer stopped him for speeding. Officer Copper reported an odor of an alcoholic beverage,

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