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

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Tag Archives: dui dismissed

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.

 

How to Beat a Breathalyzer Test

How to Beat a Breathalyzer Test

Laguna Beach Breath Testing in Bars

Of course, the best way to beat a breathalyzer is not to have alcohol in your system.  As a DUI defense lawyer in Orange County, that focuses on drunk driving cases only, I get asked by clients, friends, and acquaintances all the time whether I recommend that persons suspected of a DUI take a breath or a blood test.

Do you have to take a breathalyzer test?

No.  You have the right to refuse.  You have the right to refuse a field breathalyzer (also known as a PAS device, or a PBT), as they are part of the Field Sobriety Tests, which are completely voluntary.

However, you should know that not consenting to take an evidentiary test is considered a refusal.  A refusal is an automatic, in most cases irreversible, suspension of your driver’s license for one year in California.

Should I take a blood, or a breath test?

While there is a split of opinion among my colleagues that are DUI defense lawyers in the community on which is best, I generally recommend that a person take a breath test.

One of my favorite YouTube channels, ASAP Science, did a live test to see what effects various substances that are rumored to affect breath tests had on actually drunk substances.  You can see the video here:

(Other favorite YouTube channels focusing on science that I recommend are VSauce, Veritasium, CPG Grey, and Minute Physics, and our law firm also has an Miller and Associates Youtube Channel).

Note that they used what appears to be an uncalibrated instrument and tested peanut butter, honey, and a penny.  Mythbusters also did tests with other substances, with similar results.  And the news in the past few years have had stories of people trying to swallow their underwear, eating feces, and swallowing mouthwash to try to avoid being arrested for DUI. (That last substance could actually substantially increase your alcohol level).

On the DUI defense side, DUI Lawyers are always looking for substances that might create a false positive, or, compounded with actual alcohol (ethanol) create a higher blood alcohol content (BAC) result than a true reading.

Alcohol’s effect on the body is a highly tested subject, with tests comparing breath and blood levels going back decades.  It is well known that acetones, like the kind used in most paints or in industry, are a false positive for alcohol.  So, those that work around paints, solvents, or similar chemicals, can have those molecules in their skin, lungs, and show higher test values when testing is done for alcohol only.

It is interesting that the last substance they used is peanut butter.  Theoretically, if you could wash your lungs with it, the high levels of sodium, which can be found in peanut butter, could be used to neutralize ethanol by creating two byproducts – sodium ethoxide (also known as alkoxide) and hydrogen gas. But, again, the problem is that eating peanut butter involves your mouth and your your stomach, not your lungs — where the alveolar air, which is full of alcohol, is about to come from and be tested by the machine. How you would suddenly produce a jar of peanut butter inside a police station is probably the most difficult part of any attempt to “beat the breathalyzer” using this method.

One of the substances that is common in cases where an accident is involved, and is high in acetone, is the dust used on airbags.  If that is inhaled, the driver will have a higher reading for alcohol than the amount consumed.

California’s testing law, Title 17, also requires that breath testing be done in accordance with the “2/2/2” rule – that is, two tests, spaced two minutes or more apart, that must agree with a .02 of each other.  That .02% sets the breath machine’s maximum margin of error.  So, a test, can be taken at 2:00 a.m. at a .07%, and at 2:02 a.m., at a .09%, and still be considered accurate, even with different readings.

One way to keep a breath reading low is proper preparation ahead of time.  Because the alcohol molecule is hydrophilic (that is, it bonds to the water molecule evenly), being hydrated before drinking will minimize the alcohol level as a percent of body volume.  Eating before drinking also closes the pylorus, which causes absorption of alcohol to be much slower than drinking without food in the stomach.

Some factors in the mouth, like the use of listerine strips or breath sprays (or similar, all of which have alcohol), or dental work, can trap alcohol, or add alcohol, and artificially increase a breath machine result.

I have seen in DUI defense seminars, presenters blow a 0.0% on a breath measuring device, and then eat something with simple carbs, like white bread, wait, and then blow at a level with alcohol in their system.  Mouth bacteria ferments food between the teeth, and creates alcohol, that can be measured on a breathalyzer.  Some foods that are already fermented, like soy sauce, to use one common example, can register positive for alcohol on a breath testing machine immediately.

Title 17, the testing law in California, requires that the officer observe the testing subject for 15 minutes or more, to make sure that the subject does not “belch, vomit, or burp”, all of which can contaminate a test.  Often, this is not done, or the officer will record 15 minutes passing while they are out of the room, doing paperwork, or not observing the subject.

The one thing that does work (other than time, eating and being hydrated, as mentioned above, and having a properly maintained and calibrated breath device, is having a lower temperature of the air being tested.  For that reason, the air temperature within the device during testing is always recorded during a breath test.

One “trick” that law enforcement commonly uses is having testing subjects breath deeply, and hold breath, which warms up the breath.  That can artificially increase the reading, which can make a big difference in borderline cases.

The solution that works, then, is to do the opposite – hyperventilating cools down the throat, and the passage of air, and results in a slightly lower result.  That can result in a test below the legal limit, and thus would beat a DUI charge in the field.

Is there a foolproof method of going from a result above 0.08 to one below it? Nope. The best way to avoid a DUI is to not drink and drive.

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If you are charged with a DUI, you need experienced and knowledgeable counsel to help you. Please, contact us or call our firm at (877) 942-3090. 

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.