Use of Toxicology Reports in the Defense of Drug and Alcohol Cases

Many DWI cases are now becoming “DWI – combined drug and alcohol” cases, and a DWI involving drugs can carry automatic 1 year revocation even if you get probation, it falls under the Missouri abuse and lose laws. It is easy to be charged as a combined drug alcohol case, we see it when clients are stopped with prescription medication they legally possess or clients suspected of having marijuana in their system; particularity with the rise of prescription drug abuse and the quasi legalization of marijuana. Toxicology reports and detailed fact analysis is required to defense these cases.

Below is an excerot of a toxicology report for a DWI – Drugs and Alcohol case involving Alcohol, XLR-11(synthetic marijuana), and herbal supplements. Our client name has been change, but reports and experts like this  are  a major line of defense in these cases, a step all good criminal lawyers should take.

Ethanol (alcohol) Analysis:

Trooper Patrick Harms recorded the time of initial contact as 21:58 hours (9:58 pm) on 9 February 2013 when he observed Defendant’s vehicle drifting into the adjacent lane once before returning to its original lane. Trooper Harms then immediately stopped Defendant’s vehicle. Trooper Harms recorded some parts of the “Field Sobriety Test” (performed at the roadside at night under conditions of “strong wind gusts”), which reflected his suspicion for impaired driving by Defendant. The “Field Sobriety Test” has not been scientifically validated and contains numerous subjective assessments by the arresting officer. It serves only to document the arresting officer’s suspicion. It is not proof of intoxication, and it requires objective laboratory testing to determine the presence and quantity of alcohol (if present).

Trooper Harms also recorded a “Positive Breath Test”, which can only be interpreted as a qualitative (but not quantitative) test, and it likewise requires objective testing. The police report does not state the device used for the “positive breath test”, the form of the result, or the calibration and maintenance history of the device.

Defendant had blood drawn at St. Joseph’s Hospital at the order of the arresting officer. Blood drawn at 2320 hrs (80 minutes after the arrest) yielded a whole blood alcohol concentration of 0.040%. A second sample obtained 30 minutes later at 2350 yielded a blood alcohol concentration of 0.032%. These two values are well below the statutory limit of 0.080%. Together these two values establish Defendant’s elimination rate for alcohol. A decline of 0.008% over 30 minutes gives an elimination rate of 0.016%/ per hour.

Humans eliminate alcohol at a constant and linear rate (zero order kinetics) and metabolize the same quantity of alcohol for each interval of time after the peak concentration. Defendant’s elimination rate of 0.016% per hour is in the expected range of 0.015 to 0.020% per hour for people who are not alcoholics. Ignoring the possibility that at the time of the arrest Defendant could still have been absorbing recently ingested alcohol and could have reached his peak blood alcohol concentration sometime between the time of the arrest and the first blood draw, one can back-calculate his blood alcohol concentration using this elimination rate:

80 minutes = 1-1/3 hours or 1.33 hours

1.33 hours x 0.016 % per hour = 0.021% (change in BAC from the arrest to first blood draw)

0.021% + 0.040% = 0.061% (BAC at time of arrest)

Therefore, Defendant’s BAC at the time of the arrest was well below the legal limit of 0.080%.

XLR-11 (Synthetic Marijuana)

Defendant’s blood was tested by Gas Chromatography / Mass Spectroscopy (GC/MS) for known drugs of abuse. The GC/MS performed by the MSHP Forensic Laboratory was negative, but the MSHP Forensic Laboratory did not measure newer synthetic cannabinoids. The blood sample was then sent to National Medical Laboratories (NMS) in Willow Grove, PA for synthetic cannabinoid testing, which revealed a qualitatively positive test only for the presence of XLR-11 with no concentration reported.

XLR-11 is a synthetic chemical, (1-(5-fluoropentyl)-1H indole-3-yl) 2,2,3,3 tetramethylcyclopropyl methanone, that is believed to act at the CB1 and CB2 receptors in the brain.  It has been marketed on the internet as a legal alternative to marijuana.

The exact physiological role of the CB1 and CB2 receptors in humans remains poorly and incompletely understood.  XLR-11 has never been systematically studied in humans, so there is no reliable information that relates the use of XLR-11 or a specific blood concentration of XLR-11 to specific physical effects that may impair driving.

Self-reports by users posting their experiences on the internet have suggested the following possible effects:

“Positive Effects: You may feel happy and relaxed. You may get the giggles. You can feel hunger pangs and become very talkative. Some other people get more drowsy. State of mind and recognition can change. Concentration and co-ordination may become heavy.

Negative Effects: Paranoia, panic attacks, forgetfulness, spew up, rapid heartbeat, disorientation, lack of physical coordination, depression, sleepiness.”

The observations reported by Trooper Harms in the AIR and in his accompanying narrative do not clearly illustrate any of these effects which might be attributable recent use of XLR-11. Neither the subjective “field sobriety test” performed by the arresting officer at night under adverse weather conditions nor the subsequent testing of Defendant’s blood and property demonstrate intoxication or impairment by XLR-11. The evidence only conclusively demonstrates the possession of XLR-11 and recent exposure to XLR-11 at the time of the arrest.

Detection of XLR-11 in samples submitted to NMS began to appear in late 2012 and increased in early 2013 (coinciding with the date of Defendant’s arrest on 9 February 2013.  At the time of the arrest, the possession or use of XLR-11 was not prohibited by Missouri or Federal laws. On 12 April 2013, over two months after Defendant’s arrest, the DEA issued a notice of intent to include XLR-11 among the list of prohibited substances named in the Federal Register, and this became effective on 16 May 2013 (over three months after Defendant’s arrest).

X-Rave Capsules:

The arrest report includes the seizure of 1 “package of X-Rave capsules” (property number 009). There is no further documentation about the number of capsules or the integrity of the package. The contents of the X-Rave capsules were not tested.

“X-Rave” is the name of an “herbal supplement” which, according to the label) contains a blend of caffeine, theobromine (a compound closely related to caffeine and found in tea and chocolate), amino acids, certain plant extracts, and two vitamins. Under the Dietary Supplements and Health Education Act of 1994 (DSHEA), “dietary supplements” such as X-Rave are legal and free of regulation by the Food and Drug Administration, unless a “supplement” is later proven to harm humans. None of the identified ingredients for X-Rave are illegal, intoxicating, or associated with impairments in driving.


  • At the time the single observed lane drift and his immediately ensuing arrest, Defendant had an estimated blood alcohol concentration of 0.061% (well below the statutory limit).
  • The presence of XLR-11 among Defendant’s personal property and the qualitative detection of some XLR-11 in Defendant’s blood only confirm possession (before the substance was banned) and recent exposure with no evidence of intoxication or impairment attributable to XLR-11.
  • Defendant possessed a legal “dietary supplement” with no evidence of recent use and no evidence of impairment attributable to it.