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GERD Defense

northcarolinagerddefenseThere are defenses available to DWI—just ask experienced defense attorney Bill Powers of the Law Offices of Powers McCartan. One of the defenses to your DWI case may be a medical condition known as GERD or Gastroesphageal Reflux Disease. With certain breath testing machines it is possible to obtain a “false high” reading from stomach contents or residual esophageal alcohol.  Rather than obtain a true blood alcohol content (BAC), it is possible for testing machines to incorrectly interpret a Breath Alcohol Content BrAC reading as blood alcohol content. It is also possible to obtain results with a cumulative or additive value, where the testing machinery associated with breath testing captures a sample that contains both lung air (known as an alveolar sample) and esophageal alcohol. This is a serious disease that can cause innocent people to be charged with DWI.  Given the level of complexity, both from a scientific and medical perspective, it is important to seek legal counsel with appropriate training and experience with DWI-related forensic toxicology.

What is GERD?

This is a disease that causes alcoholic gas to constantly flow from your stomach up into your mouth. When a person is given a breath test, this device attempts to measure the amount of alcohol found on your breath, and by extrapolation the breath reading is converted to BAC. If you have GERD, it can appear as though you have been drinking alcohol in excessive amounts, or above the limit allowed under the law.

Breath testing is complicated and, unfortunately, not entirely accurate.  It is difficult to detect GERD disease, as people with chronic esophageal discharge may have false high readings to such a consistent, repeatable level that “slope detectors” in the breath testing machinery cannot delineate the specific sources of the alcohol. The Electrochemical Fuel Cell, which is used for breath testing in North Carolina, is generally good at detecting the existence of alcohol. One area of difficulty associated with the EC electrochemical fuel cell is based upon the simple nature of its technology. For that reason, North Carolina utilizes a substantially more complicated methodology to detect “residual mouth alcohol.”  That technology is called the Infra Red or IR slope detector, sometimes also called the mouth alcohol detector.  With each testing device, the goal is to obtain a reading of alcohol from your lungs. In certain circumstances, when you have GERD for example, and you blow into the breathalyzer, the alcoholic gas may combine with any alcohol found in your lungs, making it appear that you have an elevated BAC. The machine makes the assumption that the alcohol is coming directly from your lungs but with GERD this may not the case.

No machine is perfect in measuring alcohol.  At best there are certain general aspects of the technologies used in North Carolina that rely heavily on certain assumptions across age, race, physical condition and the like.  Obviously no two people are exactly the same.  Similarly, each individual may have variances month to month, day to day and hour to hour that can substantially affect blood breath testing machines. Sometimes the results associated with such machinery are assumed correct, even though entirely wrong. When it comes to the level of science and technology, careful review of the preventative maintenance, operation and reporting from each such device is extremely important. Put simply, do NOT blindly trust test results. As is the case with any scientific experiment, results must be proven. In a court of law, the State of North Carolina has the burden of proof.  Unfortunately, the State often relies too much on machinery that is less than perfect. Without an independent evaluation by your attorney, you may never know whether the tests results in your cases are correct… or incorrect.

For example, let’s say your BAC was actually .02% (well below the state’s legal limit of .08%). If you have GERD, the breath test may show you to have an alcoholic level of .12% to as high as .14% — much higher than the state’s limit! And the higher your actual alcohol level is, the higher the miscalculation may read.  Small variances, due to the extrapolated values and mathematical algorithms uses, can amount to substantial end numerical values. An incorrect numerical value, subjected to certain assumed mathematical values, can have shockingly incorrect end results.

Do you have GERD?

Many people have not been properly diagnosed with this disease. Instead they take over-the-counter medications because they believe they suffer from heartburn or indigestion based on certain foods that they eat.

If you are diagnosed with GERD, your breath test results should certainly be scrutinized. In some instances, GERD-related test results should be attacked in court.  Bill Powers may think it appropriate and legally relevant to argue to the judge or jury how GERD can cause an inaccurate breath test reading. Obviously, there may be a need to bring in an additional expert for medical testimony in regards to your individual medical condition.  This is why it’s important to speak with an attorney before you think about just pleading guilty.

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