DUI case dismissed for medical condition causing woman to be four times the legal limit


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Tag Archives: dui dismissal

DUI case dismissed for medical condition causing woman to be four times the legal limit

DUI case dismissed for medical condition causing woman to be four times the legal limit

A woman in New York was arrested for driving under the influence (DUI) and weaving when she was pulled over and tested and found to have a 0.33% alcohol level.  (The legal limit is at or above 0.08% in all 50 states). She had her DUI case dismissed for medical condition.

auto brewery syndrome

Our Orange County DUI Lawyers have learned that her DUI case was dismissed, however.  Her DUI lawyer, Joseph Marusak, who practices law in Buffalo, New York, did the research work and found that the blood alcohol level did not match the drinking in the case.

As reported in The ABA Journal, the client, a 35-year-old school teacher from Hamburg, was pulled over by police in October 2014 after another driver called the police to report her car was weaving.

As the Buffalo News reported, Marusak discovered a rare intestinal disorder called Auto-Brewery Syndrome in which ordinary food is converted into alcohol because of yeast in the digestive system. Marusak sent his client to Dr. Anup Kanodia, who has treated people for the disorder. The client was observed by medical personnel for a 12-hour period when she wasn’t drinking, and her blood alcohol levels ranged from .279 to .40.

Auto-brewery syndrome, also known as gut fermentation syndrome, is a rare medical condition in which intoxicating quantities of ethanol are produced through endogenous fermentation within the digestive system. One gastrointestinal organism, Saccharomyces cerevisiae, a type of yeast, has been identified as a pathogen for this condition.

yeast can cause dui

The Buffalo News spoke with Kanodia, who said some people with Auto-Brewery Syndrome can tolerate high alcohol levels because their bodies are used to them. He acknowledged, however, that it would not be safe to drive during a flare-up.

In support of their motion, the defense submitted an affidavit from Anup K. Kanodia, M.D., from Columbus, Ohio, wherein, based upon specialized medical testing, he diagnosed the defendant with having ABS.

Kanodia said he is working with five other lawyers in the United States and Canada who are citing the syndrome as a defense in DUI cases.

The defense also submitted an affidavit from a WNY Pharmacologist which forensically established that the defendant’s BAC would only have registered between .01 and .05% from the four alcoholic beverages she had consumed earlier in the day.  Under New York State Vehicle and Traffic Law, an individual whose BAC is between .01 and .05% is presumed to be sober.

The defense further provided the Court with an analysis from the Erie County Medical Center’s Forensic Toxicology Lab regarding three blood samples taken from the defendant in a twelve hour period during which two Registered Nurses and a Physician’s Assistant continuously monitored the defendant to ensure she did not consume any alcoholic beverages.  The three blood samples yielded BAC results which were double, triple and quadruple the legal limit (.08%).

DUI Defense lawyer Marusak presented the medical findings and sought a dismissal of the case. Town of Hamburg Justice Walter L. Rooth, II dismissed the charges of Driving While Intoxicated (New York State Vehicle and Traffic Law § 1192-3) and Aggravated Driving While Intoxicated (New York State Vehicle and Traffic Law § 1192-2-a).

Because this was an involuntary medical condition, as opposed to being caused by the voluntary excessive consumption of alcoholic beverages, it could not be said that she voluntarily consumed alcohol.  Auto Brewery Syndrome (ABS) is a medical condition wherein an excessive amount of yeast in an individual’s intestines ferments sugars from ingested foods and nonalcoholic beverages into alcohol.

Marusak’s client changed her diet after her diagnosis and hasn’t had another episode, it was reported by her DUI Defense Lawyer, Joseph J. Marusak, who was working Of Counsel to the law firm of Kloss, Stenger & LoTempio.

In its decision DUI case dismissed for medical condition, the Court identified the reasons for the dismissal by specifically referencing the contents of the defendant’s Motion to Dismiss papers, as well the mild symptoms of impairment allegedly observed by the arresting officer, as noted from the officer’s paperwork.

The dismissal led to stories in Vice News, and on the website Jezebel, and in People Magazine, CNN, and on NPR.

It is believed that the court’s ordering her DUI case dismissed for medical condition, based on the defendant’s medical evidence and testing, plus the evidence from the scientific community, is the first of its kind. It also underscores the importance of the gut biome and gut bacteria in affecting the entire body.

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Contact us for questions regarding your DUI case. If you have a complex DUI case in Orange County, call our office.  We know the right forensic alcohol DUI experts and have the science and legal background, to handle specialized cases such as this one.


DUI dismissal is the result of being too drunk in Georgia case

DUI Dismissal can result when a driver is too drunk to understand what he is being informed of.

A Georgia Supreme Court ruling earlier this year has created a legal trick by which drunk drivers are getting key evidence against them thrown out, by arguing they were too drunk.

“It certainly is a ruling that’s going to impact every DUI case,” said DUI defense attorney Mike Hawkins.  And our Orange County DUI Lawyers agree – it’s a valid defense under solid legal principles that could result in the dismissal of DUI charges.

“Think about consent in any context, it has to be knowing and intelligently given,” said Hawkins, which he argues a driver cannot do when they’re intoxicated.

National College of DUI Defense Attorney Lance Tyler first won this argument for his client John Williams, who was pulled over for a alleged DUI in 2012. The case went all the way to Georgia’s Supreme Court, which ruled this year that Williams may not have “actually” consented to giving his blood, and that Gwinnett State Court Judge Joseph Iannazzone should reconsider his earlier decision not to suppress the results of his blood test.

“The defendant wasn’t actually capable of an informed waiver of his constitutional rights,” Tyler had argued to Judge Iannazzone.  A week later, Iannazzone kicked out Williams’ blood test, along with the blood alcohol concentration results (BAC) for five other drivers whose cases he’d heard.

More shockingly, Hawkins has said, “If a DUI defense lawyer is not raising the ‘Williams issue’ I frankly think it’s malpractice”.

This case put the prosecutor in the strange position to argue that the defendant was not in fact, too drunk to know what was going on.  Normally prosecutors would argue that the defendant was intoxicated to the maximum amount possible.

Successful “Wiliams” arguments have been filed elsewhere in Georgia — in Cherokee, Fulton, and DeKalb counties also.

Just like in California, officers and prosecutors in GA have traditionally relied on what’s called impliedconsent, an express condition given when you get your driver’s license.

But this current case calls into question that consent, and the language officers are required to read to drivers in that state.

The driver’s blood alcohol concentration registered .225, but Judge Iannazzone threw out the evidence, noting that the driver also had “a pretty good accident” which could have ”rattled” him.

The judge’s order says, “This court finds that the State was only able to show that Defendant’s responses indicated acquiescence to the officer’s request… but was unable to show actual consent.”

DUI Dismissal to be contested.

The DUI Prosecutors in several cases in Georgia plan to appeal individual cases in that state.  Stay tuned.