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GERD Defense to DWI Charges

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Typically, the most critical piece of evidence in a DWI is the breath test result taken at the station. This test shows whether the driver was above the 0.08 legal limit. But, this test result can be inaccurate if the driver suffers from certain medical conditions, such as gastroesophageal reflux disease (GERD), acid reflux, and heartburn. Successfully raising a GERD defense can lead to the suppression of the breath test result due to its inaccuracy and unreliability.

Essentially, the GERD defense is arguing that the driver was experiencing symptoms relating to this medical condition at the time of the test and, therefore, the breath test result is artificially higher due to these symptoms.

If a person begins experiencing symptoms of GERD, such as acid reflux and regurgitation, after consuming alcohol, these symptoms lead to the stomach acid, alcohol, or alcohol vapors from the stomach going into the mouth – a phenomenon often referred to as ‘mouth alcohol’. This, of course, leads to a much higher reading than the true alcohol concentration in the person’s system at that point. And, in some circumstances, it could lead to a reading that is above the legal limit when the true reading should be below the legal limit.

The State attorneys are aware of the GERD defense, but few have actually prosecuted a case in which this defense was raised. And few state attorneys worry about this defense when initially raised. That is because statistics show that approximately 7% of individuals that suffer from GERD actually experience it on a daily basis. Further, State attorneys believe proper procedural safeguards are in place at the time of testing to correctly counter this defense.

Still, this is a viable and can be a successful defense that must be considered by those that suffer from GERD. But, this also means that it is critical to hire a DWI defense attorney that understands the GERD defense, knows the proper expert to retain to assist the defense, and knows the key facts to stress during arguments and cross examination. All of this can lead to a successful GERD defense that may result in the defendant being afforded an opportunity to plea to a non-DWI or even win at trial.

If you are charged with a DWI and believe that you were experiencing GERD symptoms during your arrest, you need to contact us immediately to start building your GERD defense.

 



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