Stomach acid as drink driving defence?
Discussion
Anyone come across this?
A friend has had a breath test of 96 at the station after the roadside test was "erratic". He said that there must be a mistake and asked for a blood test but was refused.
He had had 1 beer after work.
He has a stomach ulcer and is on medication for it. Has anyone seen this condition affect the intoximeter?
Thoughts?
A friend has had a breath test of 96 at the station after the roadside test was "erratic". He said that there must be a mistake and asked for a blood test but was refused.
He had had 1 beer after work.
He has a stomach ulcer and is on medication for it. Has anyone seen this condition affect the intoximeter?
Thoughts?
The offence is driving with the proportion of alcohol to blood over a prescribed limit. There is a direct relationship between the proportion of alcoholin the brath to alcohol in the blood.
Defences that have succeeded include spiked drink, the premise being that the driver had no way of knowing nor realising he had so much alcohol in his blood.
In this case though we have a problem. 96 is high. The defence of not realising is well out the window unless the breath test did not accurately reflect the blood level for some specific reason. To prove to the satisfaction of the court that stomach ulcers were the cause of such a high reading I would suggest some scientific proof would be required.
Defences that have succeeded include spiked drink, the premise being that the driver had no way of knowing nor realising he had so much alcohol in his blood.
In this case though we have a problem. 96 is high. The defence of not realising is well out the window unless the breath test did not accurately reflect the blood level for some specific reason. To prove to the satisfaction of the court that stomach ulcers were the cause of such a high reading I would suggest some scientific proof would be required.
IF, and I emphasise the if, someone had LPR the contents of the stomach are free to leak up into the oesophagus as the valve at the top of the stomach leaks.
Could this allow alcohol from the stomach to affect the reading as a person without LPR would have a sealed stomach?
It could be like blowing your breath over a pint of beer...
Could this allow alcohol from the stomach to affect the reading as a person without LPR would have a sealed stomach?
It could be like blowing your breath over a pint of beer...
JohnnyJones said:
Anyone come across this?
A friend has had a breath test of 96 at the station after the roadside test was "erratic". He said that there must be a mistake and asked for a blood test but was refused.
He had had 1 beer after work.
He has a stomach ulcer and is on medication for it. Has anyone seen this condition affect the intoximeter?
Thoughts?
I think he should start choosing a bicycle.A friend has had a breath test of 96 at the station after the roadside test was "erratic". He said that there must be a mistake and asked for a blood test but was refused.
He had had 1 beer after work.
He has a stomach ulcer and is on medication for it. Has anyone seen this condition affect the intoximeter?
Thoughts?
He is well over. Tough luck.
Soovy said:
JohnnyJones said:
Anyone come across this?
A friend has had a breath test of 96 at the station after the roadside test was "erratic". He said that there must be a mistake and asked for a blood test but was refused.
He had had 1 beer after work.
He has a stomach ulcer and is on medication for it. Has anyone seen this condition affect the intoximeter?
Thoughts?
I think he should start choosing a bicycle.A friend has had a breath test of 96 at the station after the roadside test was "erratic". He said that there must be a mistake and asked for a blood test but was refused.
He had had 1 beer after work.
He has a stomach ulcer and is on medication for it. Has anyone seen this condition affect the intoximeter?
Thoughts?
He is well over. Tough luck.
Gastroesophageal reflux disease (GERD) is a common disease that affects approximately 25 to 30 percent of the U.S. population. GERD is a chronic condition that results from esophagus deterioration from stomach acid eruptions over time. Mark Scott and Aimee R. Gelhot, Gastroesophageal Reflux Disease: Diagnosis and Management, 59 Am.Fam. Physician 1161 (1999) (available online at www.aafp.org/afp/990301ap/1161.html). The impact on breath testing is whether alcohol erupting from the stomach into the mouth from gastric reflux (generally a silent response) poses a problem with accurate breath testing during a 20-minute deprivation period. Research has been minimal to nonexistent on this issue. Research conducted to try to mimic gastric reflux is problematic because of a very small non-representative population (ten people or less) sample, and some researchers used a compression belt to invoke eruption, in contrast to spontaneous and natural eruption.
In People v. Bonutti, _ Ill.App.3d _, 788 N.E.2d 331, 273 Ill.Dec. 22 (5th Dist. 2003), expert testimony identified that the defendant had suffered from GERD since 1992 and was being treated for the condition. The expert testified that alcohol, coffee, and carbonated drinks dilate the stomach and the lower esophageal sphincter. The reflux is silent, and regurgitation and reflux are synonymous. In Bonutti, the trial court properly suppressed the breath test when the defendant testified that he refluxed during the 20-minute observation period. However, the trial court properly declined to rescind the statutory summary suspension where the State rebutted the defendant’s claim the breath test was invalid.
In the State of Washington, the Washington State Patrol examined the issue of GERD and concluded safeguards should be implemented for fair and accurate breath testing. Their conclusions for proper breath alcohol testing suggested a sound forensic practice should be followed to ensure the integrity of the breath test and GERD recognition. The safeguards should include the following: at least a 15-minute pre-sample observation period, duplicate testing, instrument detection of mouth alcohol, trained and alert operators that ask appropriate questions, and visual observations looking for symptoms of GERD. Rod G. Gullberg, Breath Alcohol Analysis in One Subject with Gastroesophageal Reflux Disease. 46 J. Forensic Sci. 1498 (2001).
The problem in most breath testing programs is lack of training on GERD, absence of duplicate testing, and that pre-evidentiary test questions do not include information about GERD. In one Midwest state police program, a breath testing instructor testified that he purposely avoids the GERD issue in his breath test training program. The use of a continuous 20-minute observation period is supported again. An officer should be prohibited from driving a car, reading paperwork, turning his or her back on the defendant, and leaving the room during the 20-minute deprivation period. Anything other than continuous 20-minute observation should be prohibited to help ensure the integrity of the breath test. General compliance for a person who suffers from GERD is not acceptable.
Dr. Ronald Henson, Ph.D., C.P.C.T
GERD and LPR are to all intents the same thing. A breath test could prove incorrect, does he have the results of a blood test, that would be safer in someone with an acid reflux condition.
HRG. said:
Soovy said:
JohnnyJones said:
Anyone come across this?
A friend has had a breath test of 96 at the station after the roadside test was "erratic". He said that there must be a mistake and asked for a blood test but was refused.
He had had 1 beer after work.
He has a stomach ulcer and is on medication for it. Has anyone seen this condition affect the intoximeter?
Thoughts?
I think he should start choosing a bicycle.A friend has had a breath test of 96 at the station after the roadside test was "erratic". He said that there must be a mistake and asked for a blood test but was refused.
He had had 1 beer after work.
He has a stomach ulcer and is on medication for it. Has anyone seen this condition affect the intoximeter?
Thoughts?
He is well over. Tough luck.
Gastroesophageal reflux disease (GERD) is a common disease that affects approximately 25 to 30 percent of the U.S. population. GERD is a chronic condition that results from esophagus deterioration from stomach acid eruptions over time. Mark Scott and Aimee R. Gelhot, Gastroesophageal Reflux Disease: Diagnosis and Management, 59 Am.Fam. Physician 1161 (1999) (available online at www.aafp.org/afp/990301ap/1161.html). The impact on breath testing is whether alcohol erupting from the stomach into the mouth from gastric reflux (generally a silent response) poses a problem with accurate breath testing during a 20-minute deprivation period. Research has been minimal to nonexistent on this issue. Research conducted to try to mimic gastric reflux is problematic because of a very small non-representative population (ten people or less) sample, and some researchers used a compression belt to invoke eruption, in contrast to spontaneous and natural eruption.
In People v. Bonutti, _ Ill.App.3d _, 788 N.E.2d 331, 273 Ill.Dec. 22 (5th Dist. 2003), expert testimony identified that the defendant had suffered from GERD since 1992 and was being treated for the condition. The expert testified that alcohol, coffee, and carbonated drinks dilate the stomach and the lower esophageal sphincter. The reflux is silent, and regurgitation and reflux are synonymous. In Bonutti, the trial court properly suppressed the breath test when the defendant testified that he refluxed during the 20-minute observation period. However, the trial court properly declined to rescind the statutory summary suspension where the State rebutted the defendant’s claim the breath test was invalid.
In the State of Washington, the Washington State Patrol examined the issue of GERD and concluded safeguards should be implemented for fair and accurate breath testing. Their conclusions for proper breath alcohol testing suggested a sound forensic practice should be followed to ensure the integrity of the breath test and GERD recognition. The safeguards should include the following: at least a 15-minute pre-sample observation period, duplicate testing, instrument detection of mouth alcohol, trained and alert operators that ask appropriate questions, and visual observations looking for symptoms of GERD. Rod G. Gullberg, Breath Alcohol Analysis in One Subject with Gastroesophageal Reflux Disease. 46 J. Forensic Sci. 1498 (2001).
The problem in most breath testing programs is lack of training on GERD, absence of duplicate testing, and that pre-evidentiary test questions do not include information about GERD. In one Midwest state police program, a breath testing instructor testified that he purposely avoids the GERD issue in his breath test training program. The use of a continuous 20-minute observation period is supported again. An officer should be prohibited from driving a car, reading paperwork, turning his or her back on the defendant, and leaving the room during the 20-minute deprivation period. Anything other than continuous 20-minute observation should be prohibited to help ensure the integrity of the breath test. General compliance for a person who suffers from GERD is not acceptable.
Dr. Ronald Henson, Ph.D., C.P.C.T
GERD and LPR are to all intents the same thing. A breath test could prove incorrect, does he have the results of a blood test, that would be safer in someone with an acid reflux condition.
Strangely Brown said:
That's all very well but it's only talking about breath testing. If he is over the limit then it would show up in the subsequent blood test, or not as the case may be.
Yup, I would say a breath test could well show up higher but a blood test should be accurate. It's not a loophole, it's just that with LPR it would be a bit like blowing over an open beer bottle 
HRG. said:
Soovy said:
JohnnyJones said:
Anyone come across this?
A friend has had a breath test of 96 at the station after the roadside test was "erratic". He said that there must be a mistake and asked for a blood test but was refused.
He had had 1 beer after work.
He has a stomach ulcer and is on medication for it. Has anyone seen this condition affect the intoximeter?
Thoughts?
I think he should start choosing a bicycle.A friend has had a breath test of 96 at the station after the roadside test was "erratic". He said that there must be a mistake and asked for a blood test but was refused.
He had had 1 beer after work.
He has a stomach ulcer and is on medication for it. Has anyone seen this condition affect the intoximeter?
Thoughts?
He is well over. Tough luck.
Gastroesophageal reflux disease (GERD) is a common disease that affects approximately 25 to 30 percent of the U.S. population. GERD is a chronic condition that results from esophagus deterioration from stomach acid eruptions over time. Mark Scott and Aimee R. Gelhot, Gastroesophageal Reflux Disease: Diagnosis and Management, 59 Am.Fam. Physician 1161 (1999) (available online at www.aafp.org/afp/990301ap/1161.html). The impact on breath testing is whether alcohol erupting from the stomach into the mouth from gastric reflux (generally a silent response) poses a problem with accurate breath testing during a 20-minute deprivation period. Research has been minimal to nonexistent on this issue. Research conducted to try to mimic gastric reflux is problematic because of a very small non-representative population (ten people or less) sample, and some researchers used a compression belt to invoke eruption, in contrast to spontaneous and natural eruption.
In People v. Bonutti, _ Ill.App.3d _, 788 N.E.2d 331, 273 Ill.Dec. 22 (5th Dist. 2003), expert testimony identified that the defendant had suffered from GERD since 1992 and was being treated for the condition. The expert testified that alcohol, coffee, and carbonated drinks dilate the stomach and the lower esophageal sphincter. The reflux is silent, and regurgitation and reflux are synonymous. In Bonutti, the trial court properly suppressed the breath test when the defendant testified that he refluxed during the 20-minute observation period. However, the trial court properly declined to rescind the statutory summary suspension where the State rebutted the defendant’s claim the breath test was invalid.
In the State of Washington, the Washington State Patrol examined the issue of GERD and concluded safeguards should be implemented for fair and accurate breath testing. Their conclusions for proper breath alcohol testing suggested a sound forensic practice should be followed to ensure the integrity of the breath test and GERD recognition. The safeguards should include the following: at least a 15-minute pre-sample observation period, duplicate testing, instrument detection of mouth alcohol, trained and alert operators that ask appropriate questions, and visual observations looking for symptoms of GERD. Rod G. Gullberg, Breath Alcohol Analysis in One Subject with Gastroesophageal Reflux Disease. 46 J. Forensic Sci. 1498 (2001).
The problem in most breath testing programs is lack of training on GERD, absence of duplicate testing, and that pre-evidentiary test questions do not include information about GERD. In one Midwest state police program, a breath testing instructor testified that he purposely avoids the GERD issue in his breath test training program. The use of a continuous 20-minute observation period is supported again. An officer should be prohibited from driving a car, reading paperwork, turning his or her back on the defendant, and leaving the room during the 20-minute deprivation period. Anything other than continuous 20-minute observation should be prohibited to help ensure the integrity of the breath test. General compliance for a person who suffers from GERD is not acceptable.
Dr. Ronald Henson, Ph.D., C.P.C.T
GERD and LPR are to all intents the same thing. A breath test could prove incorrect, does he have the results of a blood test, that would be safer in someone with an acid reflux condition.
Edited by Russian Rocket on Friday 6th November 14:58
Edited by Russian Rocket on Friday 6th November 14:58
teabagger said:
Under what circumstances is a blood test offered instead of a breath test back at the station?
When the evidential breath test machine is broken or not reading properly.ETA..
or
They have taken medical advice that your condition maybe as a result of drug-taking, or
The police are satisfied that there is a medical reason that you should not or cannot provide a breath sample.
Edited by oldsoak on Friday 6th November 15:17
EATA
If you are going to use the GERD defence, you'd better get on first name terms with your doctor...he'll be asked to supply proof of your condition.
Edited by oldsoak on Friday 6th November 15:20
oldsoak said:
teabagger said:
Under what circumstances is a blood test offered instead of a breath test back at the station?
When the evidential breath test machine is broken or not reading properly.It seems he was able to provide 2 specimins of breath and those 2 specimins were within a certain percentage of each other and as such are reliable. So no blood test would be offered.
I cant say i know alot about ulcers, but i would assume that should he have had a reflux then he would have known about it (maybe this is similar to burping)
However i would have thought that any stomach alcohol would dissapate quite quickly so you would get 1 high reading and one much lower reading to give a breath difference and as a result a blood test would be required (as the 2 readings would be outside of the percentage for a reliable reading).
I guess the question is, would 1 pint of beer have enough alcohol if swilled in the mouth to provide a reading of 94. ( i am again assuming that any reflux would be similar to swilling the alcohol)
Also he failed the roadside test, so if your friend really saying that the ulcer causes him to emit alcohol in his breath each time he breathes out at a level above the drink drive limit.
It may be possible, so i stand corrected if someone with more knowledge corrects me on this.
ETA after Oldsoaks edits:
If he failed or refused to provide a sample then the question of medical fitness to provide comes in "is there any medical reason why you can not provide a sample of breath" But hes provided the specimins so the medical question is bypassed.
Dont forget they are medical reasons why he CAN NOT provide the sample.
Edited by ^Slider^ on Friday 6th November 15:25
oldsoak said:
teabagger said:
Under what circumstances is a blood test offered instead of a breath test back at the station?
When the evidential breath test machine is broken or not reading properly.ETA..
or
They have taken medical advice that your condition maybe as a result of drug-taking, or
The police are satisfied that there is a medical reason that you should not or cannot provide a breath sample.
Edited by oldsoak on Friday 6th November 15:17
EATA
If you are going to use the GERD defence, you'd better get on first name terms with your doctor...he'll be asked to supply proof of your condition.
Edited by oldsoak on Friday 6th November 15:20
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