In order to prove that a person has committed the offense of driving while intoxicated (DWI), the state must prove impairment by alcohol or another intoxicating substance. Prosecutors can do this in several ways, including blood alcohol content (BAC) based on a blood or breath test. A BAC of 0.08 percent or higher is presumed to be evidence of impairment. It is possible for a court to convict a person of DWI in the absence of BAC evidence, or even with a BAC that is below 0.08 percent, based on other evidence of impairment. Could a person with a BAC above 0.08 percent, on the other hand, overcome the presumption of impairment? A recent case out of New York shows how a rare medical condition led to an unusually high BAC result, although this is not likely to be a common defense.
New Jersey’s DWI statute specifically mentions a BAC of 0.08 percent or above in its definition of the offense, but it also states that a person commits DWI if they drive “while under the influence of intoxicating liquor” or a similar substance. Drivers in New Jersey are subject to the implied consent law regarding breath testing, meaning that they can be penalized for refusing to submit a breath sample. Even without BAC evidence, prosecutors may prove impairment through other means, such as field sobriety tests performed during a traffic stop. An officer can testify about observations like slurred speech or an alcohol odor. If the state has BAC test results above the legal limit, however, prosecutors may not bother with an officer’s testimony as much, which appears to have been a factor in the recent New York case.
According to local news coverage, police in the Buffalo, New York area stopped a 35-year-old schoolteacher one evening in October 2014, based on a 911 caller’s report of a vehicle driving erratically. The officer claimed to have smelled alcohol and stated that the defendant’s speech was slurred, and her eyes appeared “bloodshot” and “glassy.” The defendant reportedly admitted to having three cocktails several hours earlier. Her BAC test results, however, showed 0.33 percent, which is over four times the legal limit and close to the point of medical emergency. Despite this result, her condition did not match that of someone about to go into a coma.
The defendant established that she has an extremely rare condition in which her body converts carbohydrates into alcohol, resulting in a high BAC even when she has not been drinking. Very few people have been officially diagnosed with this condition, known colloquially as auto-brewery syndrome (ABS), or more formally as gut fermentation syndrome. Some medical research has pointed to the presence of a species of yeast, Saccharomyces cerevisiae, also known as brewer’s yeast, in the digestive system as the possible culprit.
An Erie County, New York judge dismissed the charges against the defendant in December 2015. ABS is unlikely to be a factor in many DWI cases. A paper published in Medicine, Science and the Law in July 2000 expressed skepticism about its viability as a defense to DWI. Aside from an unpublished 2009 decision by a Kentucky federal district court, which had nothing to do with DWI, few if any courts have dealt directly with ABS.
New Jersey DWI attorney Evan M. Levow fights for the rights of people facing charges of alleged DWI. We have dedicated our entire practice at Levow DWI Law to DWI defense, and we are available to help you 24/7. Contact us online or at (877) 975-3399 today to schedule a free and confidential consultation with an experienced and skilled advocate.
More Blog Posts:
New Jersey Township Offers Free Rides in Effort to Reduce DWI, New Jersey DWI Attorney Blog, November 24, 2015
New Jersey Court Finds that “Marijuana Smell” Can Still Provide Probable Cause, Despite State’s Medical Marijuana Law, New Jersey DWI Attorney Blog, October 27, 2015
City Faces Massive Backlog of Untested Blood Samples, Potentially Delaying DWI Prosecutions, New Jersey DWI Attorney Blog, October 26, 2015