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East Grand Forks man sues lab over accuracy of alcohol test

When convicted drunken driver John Gerard Miller flunked a court-ordered test that showed he'd been drinking while on probation, he swore he hadn't touched a drop.

Given a record littered with arrests and convictions for driving while impaired, there was little reason to believe him. Probation officers tossed him in jail to wait for a probation revocation hearing.

But when that hearing came, an attorney for Miller showed that June's positive test results probably resulted from Miller's use of alcohol-based hand sanitizer - and the company marketing the tests to law enforcement knew such products could skew the outcome but did nothing about it. In November, a judge in Minnesota's Polk County ruled there was no convincing evidence Miller had violated his probation and ordered him released.

Miller, 46, of East Grand Forks, Minn., is now suing the company that makes the test, Redwood Toxicology Laboratory. He claims the exams, referred to as EtG/EtS, often are skewed by outside substances but that the company never says that when it markets the tests to probation departments and law enforcement.

"What we're hoping to show is that the EtG/EtS testing methodology is inherently faulty and not an accurate gauge of determining whether anyone knowingly and/or intentionally consumed alcohol," said Joshua Williams, the Minneapolis attorney who filed the suit.

The complaint says Redwood's alleged misrepresentations "were calculated to maintain profitability

and a captive market, despite devastating consequences to the multitude of people who did not drink alcohol and who strenuously denied the same."

A spokeswoman for Redwood Toxicology did not return a call for comment. The company, based in Santa Rosa, Calif., produces and markets a variety of tests for substances such as alcohol, drugs and even fake marijuana.

A physician who helped develop the EtG/EtS test for use in this country - but who testified on Miller's behalf at the probation revocation hearing - said that while the exams generally are accurate, they shouldn't be the only thing officials rely on when determining whether someone has consumed alcohol.

The doctor, Gregory Skipper, said studies have shown a person's exposure to a variety of everyday items, including hand sanitizers, mouthwash, sauerkraut and even bananas, can produce the same test results as drinking booze.

"There's so many people getting tested for these tests, EtG/EtS, some small percent may be positive because of extraneous alcohol.

"If 100,000 people are getting tested and only 0.1 percent are being falsely accused, that's still 100 people," said Skipper, who heads the Alabama Physician Health Program, part of that state's Board of Medical Examiners. "It's not perfect. It's pretty good, but if you want to not punish innocent people, what's our tolerance for that? If it's zero, then we've got a problem with that because these tests aren't perfect."

Redwood's marketing comes despite a 2006 advisory issued by the federal Substance Abuse and Mental Health Service Administration that said using the tests of the so-called biomarkers as the sole basis for legal action was "inappropriate and scientifically unsupportable at this time."

"What toxicology labs will probably tell you is they hold the tests out as showing evidence of intentional alcohol consumption up to five days after a person has consumed alcohol," said Williams, the attorney. "What my client would say is the risks of false-positive test results - and the consequences that come from that - definitely trump their purported ability to detect consumption days after it occurred."

Miller's current legal saga began in 2006, when on the afternoon of Dec. 26, he showed up at his ex-wife's home and said he wanted to take the couple's daughter to a water park in Thief River Falls. His son answered the door, smelled alcohol on Miller's breath and called his mother, who called police.

At the time, Miller was facing two counts of DWI, and one of the conditions of his pretrial release was that he not drink. When East Grand Forks police officer Seth Merkens arrived and asked Miller if he'd been drinking, Miller denied he had.

Merkens later wrote that Miller reeked of alcohol, swayed back and forth, slurred and had bloodshot eyes. A preliminary breath test showed a blood-alcohol content of 0.275, more than three times the level Minnesota law considers the limit for impaired driving.

Miller was arrested, and when he got to the police station, he refused a more exact breath test.

In a September 2007 plea bargain, Miller pleaded guilty to driving with a suspended license and refusing to submit to a chemical test. He was sentenced to 36 months in prison, but a judge stayed the imposition, placed him on probation for seven years and ordered him to serve 12 months on work release and sentence-to-serve.

One condition of his probation was that he couldn't drink alcohol. He also agreed to random testing.

He was ordered to give a urine sample last June 15. For more than 10 years, the Polk County Probation & Parole Department has contracted with Redwood Toxicology to do its testing.

EtG and EtS are short for ethylglucuronide and ethylsulfate. When a person drinks alcohol, the body processes it through metabolism, turning it into other substances called metabolites. Alcohol contains ethanol, and EtG and EtS are two metabolites of ethanol.

In its marketing, Redwood said its tests could detect EtG/EtS levels in a urine sample up to five days after a person drank alcohol. When Redwood reported that Miller tested positive for EtG and EtS, Polk County officials claimed he had violated his probation and took him into custody.

Miller maintained he hadn't had anything to drink. His defense attorney, public defender Eric Gudmundson, had had his doubts about the biomarker tests in the past and asked Miller about his activities in the days before his urinalysis.

Miller said he had helped his mother clear out her gift shop and had used a lacquer thinner to clean metal shelving in an unventilated back room. And two days before the test, his father wound up in the hospital with a broken hip; while staying with his father, Miller used hand sanitizers several times.

The paint thinner and sanitizer both contain ethanol, and Gudmundson believed the biomarkers detected by the test had come not from alcohol but from Miller's exposure to those substances.

On Sept. 29, Polk County District Judge Tamara Yon held a probation violation hearing. Such hearings rarely see testimony from expert witnesses, but this one had two: Skipper, called by the defense, and John Martin, a toxicologist for Redwood called by Polk County Attorney Greg Widseth.

As Yon later noted, Martin acknowledged that peer-reviewed studies had shown that the tests can detect "incidental exposure" to ethanol and that he could not definitely say that Miller's test results showed he had consumed alcohol.

In her Nov. 3 ruling, the judge said Miller "presented credible evidence about his significant incidental exposure to alcohol in the days and hours leading up to his June 15, 2010, urine test."

She ruled the state had not met its burden of proof and ordered Miller released. He got out the next day, his 135th day behind bars.