A PHENOMENAL (REAL) DEFENSE TO DUI

THE HYPOTHETICAL

You’re driving home from a lovely night out on the town when you see those dreaded police lights behind you. You hope the officer is just trying to around you, however, you quickly realize that he wants you to pull over. As you think of all the reasons why the cop may have interest in you, you remain calm knowing that you weren’t speeding and that you’ve only had a couple of drinks over the course of a several hour dinner. The officer approaches and immediately smells the odor of an alcoholic beverage protruding from your breath. He asks, “Have you been drinking?” After you admit to the couple of drinks you consumed over dinner, he asks you to perform roadside “tests.” (We call em’ “exercises”) In spite of feeling fine and thinking you performed well, you are told that you are being placed under arrest for DUI (also known in other states as DWI and more commonly referred to as “Drunk driving”) You’re eager to take a breath test to prove the officer wrong. Unfortunately, after you blow twice into the machine (they call it an “instrument”), the officer’s eyes light up. In amazement, the officer announces that your breath reading is .40, which is approximately 5 times the legal limit. Regardless of your passionate pleas of innocence, you’re booked into the county jail. After you post bond and are released after approximately 18 hours of custody, you contact me, an attorney with expertise in DUI defense. You feel comforted knowing that I believe you, that there must be another explanation of the high reading other than extreme alcohol consumption.

ANALYSIS

The facts in the above hypothetical are very similar to what recently occurred to one woman in upstate New York. Just before Christmas, in Hamburg, New York, a woman was stripped of her liberty after she was accused of DUI. She blew a .40 after consuming only several drinks over a many hour period. She knew there was something wrong with the machine. Based upon what she actually consumed over the period of time that she was drinking, her reading should have been no higher than .05. Her attorney did some research and found something that may offer an explanation. Based on what he found, the attorney hired two physician assistants and a trained breath machine operator to observe her and obtain blood alcohol readings from her over a 12-hour period. The experiment was done at the same laboratory used by prosecutors. Without consuming any alcoholic beverages, her blood alcohol level was double the legal limit on the first breath sample at 9:15 am. Then, at 6 p.m., she was triple the legal limit and then at 8:30 p.m., she was four times the legal limit. What was even more bizarre was that the woman showed no signs of impairment until her levels were between .30 and .40. At that point, she started to appear unsteady on her feet.

The condition that she suffers from is known as “Auto-Brewery Syndrome.” This extremely rare condition, also known as Gut-Fermentation Syndrome, can occur when abnormal amounts of gastrointestinal yeast convert common food carbohydrates into ethanol. It occurs in the small bowel and is apparently very different than the normal gut fermentation that takes place in the large bowel that provides our bodies energy. It was studied in the 1930’s and 1940’s as a contributing factor to irritable bowel syndrome and vitamin deficiencies. Several cases of people with this condition involving unexplained drunkenness for years have been documented. Folks with this condition can be functioning with alcoholic levels of .30 and .40, yet the average person would be in a coma or dead with the same levels. It’s truly amazing that people with this syndrome can have such high levels and still be walking and talking normally.

OUTCOME/CONCLUSION

Fortunately, the defense’s motion to dismiss the case was granted. Unfortunately, the prosecutors plan to appeal.
This case highlights a number of points. First, not everyone is guilty, even when the case looks open and shut. Additionally, this case appears to stand for the proposition that the system works. (At least so far) Finally, this case emphasizes the importance of the role us criminal defense attorneys play. While many of our clients are guilty, many are not. It often rests on our shoulders to assist clients find their path to freedom, in the face of seemingly overwhelming evidence and zealous prosecutors.