Kenneth Vercammen is past president of the Middlesex County NJ Municipal Court Prosecutor's Association. He served as the Cranbury Township Prosecutor. Ken is a NJ trial attorney who has published 130 articles in national and New Jersey publications on Criminal Law and litigation topics. He was awarded the NJ State State Bar Municipal Court Practitioner of the Year. He lectures to police departments as a volunteer on criminal cases, Municipal Court, DWI, traffic and other litigation matters. He is co- Chair of the ABA Criminal Law Committee,GP and was a speaker at the 2012 ABA Annual Meeting attended by 10,000 attorneys and professionals. To schedule a confidential consultation, email us at VercammenAppointments@NJlaws.com, call or

visit Website www.njlaws.com

Kenneth Vercammen & Associates, P.C.

2053 Woodbridge Avenue - Edison, NJ 08817

(732) 572-0500

March 3, 2015

DWI Detection and Standardized Field Sobriety Testing

DWI Detection and Standardized Field Sobriety Testing  
At the conclusion of this session, participants will be familiar with:
0.                 Elements of DWI offenses
1.                 Provisions of the implied consent law
2.                 The relevance of chemical test evidence
3.                 Precedents established through case law

In this session these four types of impaired driving laws are discussed in detail. The illustrations provided are drawn from the Uniform Vehicle Code. You are responsible for learning whether and how each law applies in your jurisdiction.
CONTENT SEGMENTS        LEARNING ACTIVITIES
A. Basic DWI Statute: Driving While   Instructor Led Presentations Under the Influence
B. Illegal Per Se Statute: Driving With a Prohibited Blood Alcohol Concentration
C. Implied Consent Law and Presumptions Reading Assignments
D. Preliminary Breath Testing
E. Case Law Review
Session 3 The Legal Environment
Notes:_______________________________________________
Basic DWI Statute It is unlawful for any person to operate or be in actual physical control of any vehicle within this state while under the influence of alcohol and/or any drug.

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A. Basic DWI Statute:  Driving While Under the Influence
A state's basic DWI statute may be subtitled Driving While Under the Influence, or something similar. Typically the statute describes the who, what, where and how of the offense in language.
For example:
It is unlawful for any person to operate or be in actual physical control of any vehicle within this state while under the influence of alcohol and/or any drug.
Session 3 The Legal Environment
Notes:_______________________________________________
DWI Violation Arrest
Probable Cause Person in question operating or in actual physical control of vehicle while under the influence:
0.                 Alcohol
1.                 Another drug
2.                 Both


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Arrest
In order to arrest someone for a basic DWI violation, a law enforcement officer must have probable cause to believe that all elements of the offense are present. That is, the officer must believe that:
The person in question was operating or in actual physical control of a vehicle (truck, van, automobile, motorcycle, even bicycle, according to specific provisions in various states) while under the influence of alcohol, another drug, or both.
Session 3 The Legal Environment
Notes:_______________________________________________
Conviction
0.                 Establish all four elements were present
1.                 Operation
2.                 Control
3.                 Vehicle
4.                 Impairment
5.                 Criminal offense – establish facts                              “beyond a reasonable doubt”
6.                 Infraction – standard of proof may be less
7.                 Collect and document all evidence


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Conviction
In order to convict a person of DWI, it is necessary to establish that all four elements were present.
0.                 Operation
1.                 Control
2.                 Vehicle
3.                 Impairment

With regard to under the influence, courts have usually held that phrase to mean that the ability to operate a vehicle has been affected or impaired. To convict a person of a basic DWI violation, it is usually necessary to show that the person's capability of safely operating the vehicle has been impaired.  If DWI is a criminal offense, the facts must be established "beyond a reasonable doubt."  If DWI is an infraction, the standard of proof may be less.  In either case, it is the officer's responsibility to collect and thoroughly document all evidence.
Session 3 The Legal Environment
Notes:_______________________________________________
Illegal Per Se Statute It is unlawful for any person to:
0.                 Operate or be in actual physical control
1.                 Of any vehicle
2.                 Within this state
3.                 While having a BAC at or above the state’s level


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B. Illegal Per Se Statute:  Driving with a Prohibited Blood Alcohol Concentration
Description
Most states include in their DWI law or implied consent law a provision making it illegal to drive with a prescribed blood alcohol concentration (BAC). This provision, often called an illegal per se law, creates another alcohol-related driving offense, which is related to, but different from the basic DWI offense.  Following is a typical illegal per se provision:
It is unlawful for any person to:
0.                 Operate or be in actual physical control
1.                 Of any vehicle
2.                 Within this state
3.                 While having a blood alcohol concentration at or above state’s level.

Session 3 The Legal Environment
Notes:_______________________________________________
To Convict Illegal Per Se
0.                 Establish BAC was at or above state level while operating vehicle in state
1.                 Not necessary to establish impairment


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The illegal per se law makes it an offense in and of itself to drive while having a BAC at or above state’s level. To convict a driver of an illegal per se violation, it is sufficient to establish that their BAC was at or above state’s level while operating a vehicle in the state. It is not necessary to establish impairment.
Session 3 The Legal Environment
Illegal Per Se and DWI Each defines a separate offense:
0.                 DWI – driving while under influence
1.                 Chemical test is presumptive evidence
2.                 Illegal Per Se – operate while having more than legal % of alcohol in blood or breath
3.                 Chemical test is conclusive evidence


Notes:_______________________________________________
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The illegal per se law does not replace the basic DWI law.  Rather, the two work together.  Each defines a separate offense:
0.                 The basic DWI law makes it an offense to drive while under the influence of alcohol and/or any drug.
1.                 The illegal per se law makes it an offense to drive while having more than a certain percentage of alcohol in the blood or breath.

For the basic DWI offense, the chemical test result is presumptive evidence. For the illegal per se offense, the chemical test result is conclusive evidence.
Session 3 The Legal Environment
Notes:_______________________________________________
Illegal Per Se Purpose
0.                 Aid in prosecution of DWI offenders
1.                 Show the driver’s BAC was at or above state level
2.                 Often required to secure conviction

How Much Alcohol to Reach a BAC of 0.08 DWI Detection and Standardized Field Sobriety Testing

How Much Alcohol to Reach a BAC of 0.08   DWI Detection and Standardized Field Sobriety Testing
Notes:_______________________________________________ 
How Much Alcohol to Reach a BAC of 0.08 
  • 175 lbs. Male 
  • Drinking on an Empty Stomach 
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How much alcohol does someone have to drink to reach these kinds of BACs? 
Obviously, as we've already seen, it depends on how much time the person spends drinking, on whether the person is a man or a woman, on how large the person is, on whether the drinking takes place on an empty stomach, and on certain other factors. But let's take as an example a 175 pound man.  If he drinks two beers, or two shots of whiskey, in quick succession on an empty stomach, his BAC will climb to slightly above 
0.04. Two more beers will boost him above 0.08. One more will push him over 0.10. In one respect, then, it doesn't take very much alcohol to impair someone: "a couple of beers" can do it. 
Session 2 – Detection and General Deterrence 
Notes:_______________________________________________ 
Blood Alcohol Concentration 
What does it mean? 
  • BAC is the number of grams of alcohol found in 100 milliliters of the person’s blood 
  • Example – If a person has a BAC of .08, then there is eight one-hundredths of a gram of alcohol in every 100 milliliters of the person’s blood 


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But in another respect, when we contrast alcohol with virtually any other drug, we find that impairment by alcohol requires a vastly larger dose than does impairment by the others. Consider exactly what a BAC of 0.08 means. Blood alcohol concentration is expressed in terms of the "number of grams of ethanol in every 100 milliliters of blood." Therefore, 0.08 means that there is 0.08 grams (g) of ethanol in every 100 milliliters (mL) of blood. You will find that BAC results are reported in a variety of units. Two common variations are milligrams/milliliters and  percent. There are 1,000 milligrams (mg) in one gram; therefore, 0.08 grams equals 80 milligrams (mg) and a BAC of 0.08 would be reported as 80 mg of ethanol/100 mL of blood.  Percent means parts per one hundred. In this example 0.08 grams/100 milliliters of blood is equivalent to 0.08 percent BAC. 
Note: The term BAC is used in the manual. However, it should be understood to refer to either Blood Alcohol Concentration (BAC) or Breath Alcohol Concentration (BrAC) depending on the legal requirements of the jurisdiction. 
Session 2 – Detection and General Deterrence 
Notes:_______________________________________________ 
Blood Alcohol Concentration 
(Cont.) 
What does it mean? 
  • BAC is the number of grams of alcohol found in 100 milliliters of the person’s blood 
  • Example – If a person has a BAC of .08, then there is eight one-hundredths of a gram of alcohol in every 100 milliliters of the person’s blood 
Standardized Field Sobriety Test Course 
Test Your Knowledge 

1. The average DWI violator commits that violation ____ times a year.

2. In typical enforcement jurisdictions one DWI violation in ____ results in arrest.

3. In the Fort Lauderdale study, police officers arrested ____ % of the drivers they contacted whose BACs were .10 to .20.

4. Name three different chemicals that are alcohols.

5. Which of these is beverage alcohol, intended for human consumption?

6. What is the chemical symbol for beverage alcohol?

7. What is the name of the chemical process by which beverage alcohol is produced naturally?

8. What is the name of the process used to produce high concentration beverage alcohol?

9. Multiple choice:   Blood alcohol concentration is the number of of alcohol in every 100 milliliters of blood.
  1. Grams 
  2. Milligrams 
  3. Nanograms 

10.True or false: Pound for pound, the average woman contains more water than does the average man. 
11.What do we mean by the "proof" of an alcoholic beverage? 
12.Every chemical that is an "alcohol" contains what three elements? 
13.True or false: Alcohol can pass directly through the stomach walls and enter the bloodstream. 
14.What is the name of the muscle that controls the passage from the stomach to the lower gastrointestinal tract? 
15.True or false:  Most of the alcohol that a person drinks is absorbed into the blood via the small intestine. 
Test Your Knowledge (Cont’d) 
16.Multiple choice:  Suppose a man and a woman who both weigh 160 pounds arrived at a party and started to drink at the same time.  And suppose that, two hours later, they both have a BAC of 0.10.  Chances are ....
  1. He had more to drink than she did. 
  2. They drank just about the same amount of alcohol. 
  3. He had less to drink than she did. 


17. In which organ of the body does most of the metabolism of the alcohol take place?

18. What is the name of the enzyme that aids the metabolism of alcohol?

19. Multiple choice:  Once a person reaches their peak BAC, it will drop at a rate of about per hour.
  1. 0.025 
  2. 0015 
  3. 0.010 
20. True or False: It takes about thirty minutes for the average 175 pound man to "burn off" the alcohol in one 12 ounce can of beer.

Participant Manual SFST – Session 3 – The Legal Environment 

Notes:_______________________________________________ 
An understanding of impaired driving laws that apply in your jurisdiction is critical to successful DWI enforcement.
All states (and many local jurisdictions) have their own impaired driving laws. While the specific language of these laws may vary significantly, most include the following provisions:
    1. Basic DWI Law 
    2. Implied Consent Law 
    3. Illegal Per Se Law 
    4. Preliminary Breath Testing Law 

Session 3 The Lega Env ronment
Notes:_______________________________________________
Learning Objectives
Become familiar with:
    1. Elements of DWI offenses 
    2. Provisions of the implied consent law 
    3. The relevance of chemical test evidence 
    4. Precedents established through case law 


Standardized Field Sobriety Test Course Metabolism in the Liver

Standardized Field Sobriety Test Course   Metabolism in the Liver 
As soon as the alcohol enters the blood stream, the body starts trying to get rid of it. Some of the alcohol will be directly expelled from the body chemically unchanged.  For example, some alcohol will leave the body in the breath, in the urine, in sweat, in tears, etc. However, only a small portion (about 2-10 %) of the ingested alcohol will be directly eliminated. 
Most of the alcohol a person drinks is eliminated by metabolism. Metabolism is a process of chemical change. In this case, alcohol reacts with oxygen in the body and changes, through a series of intermediate steps, into carbon dioxide and water, both of which are directly expelled from the body. 
Session 2 – Detection and General Deterrence 
Metabolism in the Liver 
  • The liver burns the ethanol (i.e., causes a chemical reaction of ethanol with oxygen) 
  • The process is aided by an enzyme called alcohol dehydrogenase 
  • The ultimate products of the chemical reaction are carbon dioxide and water 
  • Due to metabolism, the average person’s BAC drops by about 0.015/hr 


Notes:_______________________________________________ 
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Most of the metabolism of alcohol in the body takes place in the liver. An enzyme known as alcohol dehydrogenase acts to speed up the reaction of alcohol with oxygen. The speed of the reaction varies somewhat from person to person, and even from time to time for any given person. On the average, however, a person's blood alcohol concentration --after reaching peak value --will drop by about 0.015 per hour.  For example, if the person reaches a maximum BAC of 0.15, it will take about ten hours for the person to eliminate all of the alcohol. 
For the average sized male, a BAC of 0.015 is equivalent to about two thirds of the alcohol content of a standard drink (i.e., about two thirds of a can of beer, or glass of wine or shot of whiskey).  For the average sized female, that same BAC would be reached on just one half of a standard drink. So the typical male will eliminate about two thirds of a drink per hour, while the typical female will burn up about one half of a drink in that hour. 
Session 2 – Detection and General Deterrence 
Notes:_______________________________________________ 
Metabolism 
How can we speed up the metabolism of alcohol? 
  • We can't speed it up 
  • Drinking coffee won’t help 
  • A cold shower won’t help 
  • Exercise won’t help 

The liver takes its time burning up the alcohol 

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We can control the rate at which alcohol enters our bloodstream.  For example, we can gulp down our drinks, or slowly sip them. We can drink on an empty stomach, or we can take the precaution of eating before drinking. We can choose to drink a lot, or a little.  But once the alcohol gets into the blood, there is nothing we can do to affect how quickly it leaves.  Coffee won't accelerate the rate at which our livers burn alcohol. Neither will exercise, or deep breathing, or a cold shower. We simply have to wait for the process of metabolism to move along at its own speed. 
Session 2 – Detection and General Deterrence 
Notes:_______________________________________________ 
Dose Response Relationships 
How much can a person drink before becoming impaired? Depends… 
  • Time? 
  • Sex? 
  • Size? 
  • Drinking on empty stomach? …A couple of beers can do it! 
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Standardized Field Sobriety Test Course 
Dose Response Relationships 
People sometimes ask, "how 'high' is 'drunk'?" What is the "legal limit" for "drunk driving"? How much can a person drink before becoming "impaired"? 

There is no simple answer to these or similar questions, except to say that any amount of alcohol will affect a person's ability to drive to some degree.  It is true that the laws of nearly all States establish a BAC limit at which it is explicitly unlawful to operate a vehicle.  In those cases, that "limit" is 0.08 BAC.  But every State also makes it unlawful to drive when "under the influence" of alcohol, and the law admits the possibility that a particular person may be under the influence at much lower BACs. 

Detection and General Deterrence DWI Detection and Standardized Field Sobriety Testing

Detection and General Deterrence  DWI Detection and Standardized Field Sobriety Testing
Common Drink Sizes 
  • Can of beer – 12 ounces of fluid @ 4 percent alcohol equals 0.48 ounces of pure ethanol 
  • Glass of wine – 4 ounces of fluid @ 12 percent alcohol equals 0.48 ounces of pure ethanol 
  • Shot of whiskey (80 proof) – 1 and • ounces @ 40 percent alcohol equals 0.50 ounces of pure ethanol 



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  • Over the millennia during which people have used and abused ethanol, some common sized servings of the different beverages have evolved.  Beer, for example, is normally dispensed in 12 ounce servings.  Since beer has an ethanol concentration of about four percent, the typical bottle or can of beer contains a little less than one half ounce of pure ethanol. 
  • A standard glass of wine has about four ounces of liquid. Wine is about 12 % alcohol, so the glass of wine also has a bit less than one half ounce of ethanol in it. 
  • Whiskey and other distilled spirits are dispensed by the "shot glass", usually containing about one and one quarter ounce of fluid. At a typical concentration of 40 % ethanol (80 proof), the standard shot of whiskey has approximately one half ounce of ethanol. 

Therefore, as far as their alcoholic contents are concerned, a can of beer, a glass of wine and a shot of whiskey are all the same. 
(National Institute on Alcohol Abuse and Alcoholism of the National Institute of Health.) 
Session 2 – Detection and General Deterrence 
Notes:_______________________________________________ 
Alcohol is a CNS Depressant 

Alcohol is the most abused drug in the United States 

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Ethanol is a Central Nervous System Depressant. It doesn't affect a person until it gets into their central nervous system, i.e., the brain, brain stem and spinal cord. Ethanol gets to the brain by getting into the blood.  In order to get into the blood, it has to get into the body. 
There are actually a number of different ways in which ethanol can get into the body.  It can be inhaled.  Ethanol fumes, when taken into the lungs, will pass into the bloodstream and a positive blood alcohol concentration (BAC) will develop. 
However, prolonged breathing of fairly concentrated fumes would be required to produce a significantly high BAC.  Ethanol could also be injected, directly into a vein; it would then flow with the blood back to the heart, where it would be pumped first to the lungs and then to the brain. And, it could be inserted, as an enema, and pass quickly from the large intestine into the blood. But none of these methods are of any practical significance, because alcohol is almost always introduced into the body orally, i.e., by drinking. 
Session 2 – Detection and General Deterrence 
Notes:_______________________________________________ 
Absorption of Al 

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Once the ethanol gets into the stomach, it has to move into the blood. The process by which this happens is known as absorption. One very important fact that pertains to alcohol absorption is that it doesn't have to be digested in order to move from the stomach to the blood. 
Another very important fact is that alcohol can pass directly through the walls of the stomach. These two facts, taken together, mean that, under the right circumstances, absorption of alcohol can be accomplished fairly quickly. The ideal circumstance for rapid absorption is to drink on an empty stomach. 
When the alcohol enters the empty stomach, about 20 % of it will make its way directly through the stomach walls. The remaining 80 % will pass through the stomach and enter the small intestine, from which it is readily absorbed into the blood.  Because the body doesn't need to digest the alcohol before admitting it into the bloodstream, the small intestine will be open to the alcohol as soon as it hits the stomach. 
But what if there is food in the stomach?  Suppose the person has had something to eat shortly before drinking, or eats food while drinking; will that affect the absorption of alcohol? 
Yes it will.  Food has to be at least partially digested in the stomach before it can pass to the small intestine. When the brain senses that food is in the stomach, it commands a muscle at the base of the stomach to constrict, and cut off the passage to the small intestine. The muscle is called the pylorus, or pyloric valve. As long as it remains constricted, little or nothing will move out of the stomach and into the small intestine.  If alcohol is in the stomach along with the food, the alcohol will also remain trapped behind the pylorus. Some of the alcohol trapped in the stomach will begin to break down chemically before it ever gets into the blood. In time, as the digestive process continues, the pylorus will begin to relax, and some of the alcohol and food will pass through. But the overall effect will be to slow the absorption significantly.  Because the alcohol only slowly gets into the blood, and because the body will continue to process and eliminate the alcohol that does manage to get in there, the drinker's BAC will not climb as high as it would have if he or she had drunk on an empty stomach. 
Session 2 – Detection and General Deterrence 
Distribution of Alcohol 
Getting the ethanol into the body’s tissues and organs 
BASIC PRINCIPLE 
Ethanol goes wherever it finds water 

Notes:_______________________________________________ 
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Once the alcohol moves from the stomach into the blood, it will be distributed throughout the body by the blood. Alcohol has an affinity for water. The blood will carry the alcohol to the various tissues and organs of the body, and will deposit the alcohol in them in proportion to their water contents. 
Brain tissue has a fairly high water content, so the brain receives a substantial share of the distributed alcohol.  Muscle tissue also has a reasonably high water content, but fat tissue contains very little water. Thus, very little alcohol will be deposited in the drinker's body fat. This is one factor that differentiates alcohol from certain other drugs, notably PCP and THC, which are very soluble in fat. 
Session 2 – Detection and General Deterrence 
Notes:_______________________________________________ 
Distribution of Alcohol (Cont.) 
Which parts of the body have lots of water? 
The brain, the liver, muscle tissue 
Which parts of the body do not have lots of water? 
Bones, fatty tissue 
  • The average male is 68 percent water 
  • The average female is 55 percent water. 


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The affinity of alcohol for water, and its lack of affinity for fat, helps explain an important difference in the way alcohol affects women and men.  Pound for pound, the typical female's body contains a good deal less water than does the typical man's. 
This is because women have additional adipose (fatty) tissue, designed in part to protect a child in the womb. A Swedish pioneer in alcohol research, E.M.P. Widmark, determined that the typical male body is about 68 % water, the typical female only about 55 %. Thus, when a woman drinks, she has less fluid --pound for pound --in which to distribute the alcohol. 
If a woman and a man who weighed exactly the same drank exactly the same amount of alcohol under the same circumstances, her BAC would climb higher than his. When we couple this to the fact that the average woman is smaller than the average man, it becomes apparent that a given amount of alcohol will cause a higher BAC in a woman than it usually will in a man. 
Session 2 – Detection and General Deterrence 
Elimination of Alcohol 
Getting the ethanol out of the body: 
• Direct excretion 
  • Breath 
  • Sweat 
  • Tears 
  • Urine 

• Metabolism 
• Primarily in the liver 


Physiology of Alcohol Standardized Field Sobriety Test Course

Physiology of Alcohol  Standardized Field Sobriety Test Course 
E.  Physiology of Alcohol 
A brief overview of alcohol: 
Alcohol is the most abused drug in the United States. 
"Alcohol" is the name given to a family of closely related and naturally occurring chemicals. Each of the chemicals that is called an "alcohol" contains a molecule chemists refer to as a "hydroxy radical." This radical contains one oxygen atom and one hydrogen atom bonded together. The simplest alcohol has only one carbon atom, three hydrogen atoms, and one hydroxy radical. The next alcohol has two carbon atoms, five hydrogen atoms and one hydroxy radical. The third alcohol has three carbon atoms, seven hydrogen atoms and one hydroxy radical. That is how the alcohols differ from one another. 
Alcohols are molecularly very similar and produce similar effects. They produce intoxicating effects when ingested into the human body.  Only one of them is meant for human consumption. However, when ingested in substantial quantities it can cause death. 
Session 2 – Detection and General Deterrence 
Notes:_______________________________________________ 
Some Types of Alcohol 
  • Methyl Alcohol (Methanol) 
  • Ethyl Alcohol (Ethanol) 
  • Isopropyl Alcohol (Isopropanol) 


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Three of the more commonly known alcohols are Methyl, Ethyl, and Isopropyl. 

• Methyl alcohol also known as Methanol or wood alcohol. 
• Ethyl alcohol also known as Ethanol or beverage alcohol. 
• Isopropyl Alcohol ( sopropanol) also known as rubbing alcohol. 
Session 2 – Detection and General Deterrence 
Notes:_______________________________________________ 
Ethanol 
Ethyl Alcohol (Intended for human consumption) 
Chemical Symbols 
HH 
ETOH 


   OH 
C2H5OH 
HH 

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The ingestible alcohol is known as ethyl alcohol, or ethanol. Its chemical abbreviation is ETOH. The "ET" stands for "ethyl" and the "OH" represents the single oxygen atom bonded to one of the hydrogen atoms, ("hydroxy radical").  Ethanol is the variety of alcohol that has two carbon atoms. Two of ethanol's best known analogs are methyl alcohol (or methanol), commonly called "wood alcohol", and isopropyl alcohol (or isopropanol), also known as "rubbing alcohol". 
Session 2 – Detection and General Deterrence 
Notes:_______________________________________________ 
Ethanol Production -Fermentation 
Yeast combines with sugars from fruit or grains in a chemical reaction that results in ETOH 

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Ethanol is what interests us because it is the kind of alcohol that features prominently in impaired driving.  Ethanol is beverage alcohol, the active ingredient in beer, wine, whiskey, liquors, etc. Ethanol production starts with fermentation. That is a kind of decomposition in which the sugars in fruit, grains and other organic materials combine with yeast to product the chemical we call ethanol. This can occur naturally, as yeast spores in the air come into contact with decomposing fruit and grains.  However, most of the ethanol in the world didn't ferment naturally, but was produced under human supervision. 
When an alcoholic beverage is produced by fermentation, the maximum ethanol content that can be reached is about 14 %. At that concentration, the yeast dies, so the fermentation stops.  Obtaining a higher ethanol content requires a process called distillation. This involves heating the beverage until the ethanol "boils off", then 
HS 178 R5/13 
collecting the ethanol vapor.  It is possible to do this because ethanol boils at a lower temperature than does water. 

Notes:_______________________________________________ 
Distilled spirits is the name we give to high ethanol concentration beverages produced by distillation. These include rum, whiskey, gin, vodka, etc. The ethanol concentration of distilled spirits usually is expressed in terms of proof, which is a number corresponding to twice the ethanol percentage. 

For example, an 80 proof beverage has an ethanol concentration of 40 %.