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Atlanta is a city that constantly embraces the latest health and fitness trends. Whether it’s high-intensity fitness class seshes in Midtown or out-of-the-way boot camps in Piedmont Park, thousands of residents keep a close tally on their macronutrient consumption. In the past 10 years, the ketogenic diet and other very high-protein diets low in carbohydrates have grown into a popular approach to nutrition. People on a low-carb diet take the restriction of carbohydrates to a level that puts their bodies in a state of ketosis, a process in which they burn their fat reserves rather than glucose.
It is a very effective metabolism change for weight loss and energy control, but contains a hidden legal risk that is not considered by any dieter until it is too late. The metabolic products of the Keto Diet directly interfere with the forensic breath-testing machine which is used by Georgia law enforcement, leading to false blood alcohol concentration (BAC) readings. But when a completely sober driving motorist is handcuffed and arrested only because of his dietary routine, the initial course of action for a highly technical Atlanta DUI Lawyer is the only defense against an undeserved criminal record.
The science behind ketosis and keto breath is simple.The science of ketosis and keto breath is straightforward.
The biochemistry of ketosis must be understood to appreciate how a diet can result in a DUI arrest. Without carbs in the body, the liver starts releasing ketone bodies, which are also a source of energy for the human body. The ketone bodies are divided into three groups: beta-hydroxybutyrate, acetoacetate, and acetone.
The chemical causing the problem in this equation is acetone. It is a very volatile compound which is not used efficiently to produce energy, and must be excreted. Excess acetone is excreted mainly via urine and lungs. This means that people in ketosis will continually breathe out acetone, a process that is colloquially known as ‘keto breath’ and may be described as having a fruity or metallic smell in the fitness community.
If an Atlanta Police officer or Georgia State Patrol trooper pulls over a driver for an insignificant traffic violation, like a broken taillight or a vehicle failing to maintain a lane, the training he or she received requires him or her to immediately look for any indication of impairment. The smell of acetone on a driver’s breath is quite similar to the smell of rotting ethyl alcohol. Once an officer detects this smell, they will immediately escalate a traffic stop to a DUI investigation, requiring the driver to perform roadside field sobriety exercises, as well as a breathalyzer.
The Scientific and Technical Flaws in the Intoxilyzer 9000 includes the following:
The Intoxilyzer 9000 is the state approved instrument for evidential breath alcohol testing in the State of Georgia. This machine is based on a spectroscopic method that detects and measures the amount of alcohol in a person’s breath. It operates by passing an IR beam of light through a sample of breath that has been trapped. Different molecular compounds absorb infrared light at specific wavelengths, so the machine is able to determine the driver’s BAC by measuring the amount of infrared light absorbed in the particles in the breath chamber.
The key issue with this technology is the notion of molecular similarity. Beer, wine, liquor (ethyl alcohol) and acetone both contain the same methyl group structure. The Intoxilyzer is specifically configured with filter wheels that can tell the difference between ethyl alcohol and acetone; however, the computer software in the machine is not foolproof. With very high amounts of endogenous acetone, as in keto dieters or people with untreated diabetes, the amount of particles produced by the machine can overload the filtration algorithms.
If this happens, the machine will accept the acetone as ethyl alcohol and print out a receipt that would show that the driver’s blood alcohol level exceeds the legal limit of 0.08 grams. To a prosecutor, this number on a printout is tangible evidence of guilt. An aggressive Atlanta DUI Attorney with a thorough knowledge of toxicology, pharmacokinetics, and mechanical constraints of infrared spectroscopy will question the science behind a state calibrated machine.
Your gut makes alcohol, and that’s not a good thing.When your gut produces alcohol, that’s not a great thing.
Another, less common, but much more dangerous physiological state is Auto-Brewery Syndrome (gut fermentation syndrome). Certain strains of yeast or bacterial strains invade the gastrointestinal tract and overgrow in this rare medical condition.
At times, when someone with the syndrome eats food that is rich in carbohydrates, like a giant bowl of pasta, or sweet soda or bread, the carbohydrates get fermented directly into ethanol within the person’s gut by the yeast. The body produces alcohol itself and the alcohol enters the blood. True to its name, Auto-Brewery Syndrome is an actual production of ethyl alcohol, which is not the type of acetone that can be found on a keto diet. If a driver is experiencing an acute exacerbation of this illness, that person will be “high” on a breath test, and they may have physical signs of drunkenness even if they haven’t had a sip of alcohol.
In response to these highly complex biological defenses, no officer will accept the simple response that your body produced the alcohol naturally, and your license will not be suspended off if it is. Ethanol showing in the blood stream for any breathalyzer over the legal limit is considered a violation of the law by the state. To win the case against the state, there must be strong scientific proof.
Building a Forensic Defense
The defense of a DUI conviction based on metabolic anomalies must be very specialized. A typical defense of the law based on procedural police mistakes is simply not enough against numerical evidence from the breathalyzer machine that the State assumes is absolutely correct. The defense will now have to shift its focus to forensic science.
James Yeargan files complicated discovery requests to get the full maintenance and calibration documentation from the particular Intoxilyzer 9000 machine involved in the arrest. Georgia’s statutes mandate that these machines be maintained and operated in accordance with strict guidelines, and any deviations can make the results suspect. Moreover, if a false positive is committed by the diet or medical condition, expert toxicologists and endocrinologists have to be called in to testify about the defendant’s particular metabolism at the time of the arrest.
