- July 12, 2016 |
- Category: DUI and Courtroom Process
Gastroesophageal reflux disease (GERD) is a chronic digestive condition in which contents from a person’s stomach leaks up from the stomach into the esophagus, frequently causing heartburn. The condition occurs when an individual’s lower esophageal sphincter has either deteriorated or is weakened. Severe symptoms include regurgitation of food or sour liquid, also known as acid reflux, into the upper portion of the esophagus. GERD is a digestive condition in which lifestyle changes and over-the-counter medications do little more than offer temporary relief
The United States Health Care Cost and Utilization Project reports that up to sixty percent of the country’s population experience the most common symptoms of GERD, such as heartburn and acid regurgitation. In 2004, approximately twenty percent of the United States population reported reflux symptoms that occurred at least weekly. Heartburn and acid reflux are common digestive conditions that many people experience from time to time. Experts generally do not consider such a condition to rise to the level of GERD unless these signs and symptoms occur two or more times each week.
So how does acid reflux or GERD impact Ohio DUI defendants? While reflux generally affects the esophagus, it can sometimes carry the contents of the person’s stomach all the way into their mouth. When this happens after you drink alcohol, regurgitated alcohol from the stomach mixes with alcohol from the lungs, which will usually lead to a falsely high reading of blood alcohol content (BAC) in a DUI suspect’s breath sample. It is important to note that reflux only has the potential to impact a breath test when the Ohio DUI suspect still has unabsorbed alcohol in his stomach at the time he provides a breath sample.
Ohio DUI laws seem to recognize that mouth alcohol, caused by acid reflux, can cause an inaccurate or false high breath test. In an effort to address this issue, the Ohio DUI regulations require the police officer conducting the breath test to observe a DUI suspect for twenty consecutive minutes before administering the test. In theory, a twenty minute observation period sounds easy enough, but in reality, this type of observation is a bit unrealistic and probably rarely occurs.
Why does it rarely occur? Because Ohio police officers generally have a overwhelming number of administrative duties to perform on a given night. In addition to their regular routine, when an police officer makes a drinking and driving arrest in Ohio, additional responsibilities would include drafting the following documents: (a) a Ohio Uniform Traffic Citation that charges the suspect with a DUI offense; (b) a basic police report, or incident narrative, that documents the events preceding the arrest; (c) a more detailed Ohio DUI arrest report that includes the suspect’s specific performance on the standard field sobriety tests; (d) a lengthy Ohio BMV form 2255 that documents information from the DUI arrest and the procedures followed in administering any chemical test, including a breathalyzer; (e) an Ohio DUI administrative license suspension or a commercial driver’s license suspension if applicable; (f) notification of a suspect’s motor vehicle or license plate seizure; (g) in cases where the vehicle is owned, leased or rented by a third party, notification to the appropriate party of the seizure; (h) the suspect’s Ohio driving records, to include prior DUI, OVI and drinking and driving charges; and (i) a summons or order to appear at court on a given date/time.
So the question becomes: (1) Is it more likely that Ohio officers would sit and closely monitor a DUI suspect for twenty consecutive minutes before administering the breath test without conducting any other business; or (2) is the officer more likely sitting somewhere nearby and working on the paperwork while loosely monitoring an Ohio DUI suspect for the twenty minute period? Most reasonable people would say the latter is more likely. Remember all it takes is a few seconds for a suspect with reflux or GERD to have an episode and quickly recover. In such a situation, unless the drinking and driving suspect is being closely monitored, the officer would never know about it.
If you have acid reflux and are a charged with a DUI, OVI or drinking and driving offense in Ohio, you should provide your DUI defense lawyer with the following information: (a) the date of your original reflux/GERD diagnosis; (b) the name of the physician who diagnosed your condition; (c) the name of your treating physician; (d) how often you experience symptoms from acid reflux/GERD ; (e) what type of symptoms you generally experience; (f) what specific symptoms you experienced on the night of the DUI incident; (g) what medications you take for acid reflux/GERD; (h) the amount of alcohol you consumed on the night of the Ohio DUI incident; and (i) the time you consumed the alcohol. This information should help your DUI defense lawyer in negotiating with the prosecuting attorney and may lead to a dismissal of your DUI case.
No Ohio DUI arrest is perfect. Most DUI investigations include a number of witnesses, including police officers and the personnel who collect, store and test chemical samples. An experienced Ohio DUI lawyer will recognize that these witnesses are human and they make mistakes. The best Ohio DUI lawyers also recognize how acid reflux or GERD can falsely impact a breath test. If you have acid reflux and recently received a DUI/OVI charge, consider contacting a top Ohio DUI defense lawyer who has experience with these cases.
