COURT DISMISSES DWI CHARGES IN THE FURTHERANCE OF JUSTICE BASED UPON DRIVER’S AUTO BREWERY SYNDROME DIAGNOSIS
On December 22, 2015 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) filed against a Town of Hamburg resident. The Court dismissed said charges in the furtherance of justice pursuant to a motion brought by Joseph J. Marusak, Of Counsel to Kloss, Stenger & LoTempio.
At the time of her arrest the defendant registered .33 % blood alcohol reading as a result of the police administered breathalyser test.
The defendant’s successful motion established to the Court’s satisfaction that the defendant’s elevated blood alcohol content (BAC) was directly attributed to a medical condition known as “Auto Brewery Syndrome”, as opposed to being caused by the voluntary excessive consumption of alcoholic beverages. 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 non-alcoholic beverages into alcohol.
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.
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%).
In its decision 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.
It is believed that the court’s dismissal, based upon the defendant’s ABS evidence, is the first of its kind in New York State.