GERD Lawsuit Highlights Medical Issues and Refusal Defense in DWI cases

A lawsuit filed in Western Virginia highlights two of the recurring problems that we see in using breath testing for DWI/DUI cases.  Please click here to read the article about the lawsuit.  

First, there are medical issues, such as the issue of GERD, which can lead to repeated burping, or even to falsely elevated blood alcohol levels on a breath test.    GERD (GastroEsophageal Reflux Disease)  is a common medical ailment which, in simple terms, results in the return of stomach contents, possibly including consumed alcohol, and possibly combining with exhaled breath to be counted along with the lung air that they are trying to measure.

In fact, this is the exact reason that the officers require our clients to wait 20 minutes without belching before they can give a breath test.

The second issue, which arises when law enforcement don't know how to handle the situation, is that the client may be charged with refusal to cooperate with the breath test, even if it is something that is beyond the control of the client, such as involuntary belching.

In either of these often related situations, the Defense may feel that they have the difficult burden of proving the existence of a medical condition that is not always present, and that they have to disprove the allegation that they have refused to cooperate with the administration of the breath test.