GERD is a medical condition that can cause small amounts of alcohol from your stomach to be sent back up into the mouth, potentially throwing off a breath test for DUI. If you suffer from GERD or a related condition and you tested over the legal limit of .08% blood alcohol concentration (BAC), your test may have been wrong and you might not be guilty of DUI.
What is GERD and how does it affect a DUI breath test?
GERD is short for Gastroesophageal Reflux Disease. More commonly known as acid reflux, it’s a condition that affects the stomach and esophagus, the tube from the throat to the stomach. If you have GERD, the contents of your stomach may sometimes be thrown back up into the esophagus, known as “reflux.” This may happen frequently or infrequently, or only after certain events, like eating a large meal. The most common symptom of GERD is heartburn or acid indigestion on a regular basis.
But GERD is more than just uncomfortable. If you are pulled over on suspicion of DUI and then given a breath test, your GERD can cause you to fail the test even if you are not legally drunk. This can happen if there is a small amount of alcohol in your stomach, because reflux can eject vapors from that alcohol back up the throat to the mouth. This extra alcohol vapor throws off a breath test, causing your BAC to look much higher than it really us.
If you can prove that you have GERD and that it may have affected your breath test, it is possible to beat your DUI charge.
Can I use the GERD defense even if I was drinking?
Yes. In fact, GERD will only throw off breath test results if there is already alcohol in your stomach. But, it may be an amount of alcohol so small that it was not illegal for you to drive.
For example, let’s say an adult man with GERD drinks two small glasses of wine with a large dinner. As a rough estimate, his BAC may be about .04%. Under California Vehicle Code 23152(b), it is not illegal for him to drive—the law says your BAC must be at least .08% to be convicted of DUI.
However, after eating the man begins to suffer a GERD episode including heartburn. He feels sober and drives his wife home from the restaurant. On the way, they are stopped at a DUI roadblock and he’s asked to give a breath test, which he fails. The breath test says his BAC is .09%—far more than it really is.
This man is a victim of GERD throwing off his test results. A DUI lawyer would probably recommend that he admit to having the two glasses of wine, and use the GERD defense to argue that he was not actually breaking the law.
What factors typically bring on a GERD episode?
There are different triggers for every individual who has GERD. For some, it seems to come on at random, and they cannot predict what will cause it. For others, specific things commonly cause acid indigestion and reflux:
- Eating a large meal
- Drinking alcohol
- Eating spicy foods
- Eating after being very hungry
As you can see, since both eating and drinking can trigger GERD, it is not hard for this condition to cause a false positive on a breath test.
How do I know if my GERD affected my DUI breath test results?
If you have GERD, it almost certainly affected your results if:
- You vomited not long before the breath test
- You felt heartburn in the period leading up to the test
- You were burping before or during the test
Is it true that police are supposed to observe DUI suspects for signs of GERD before giving a breath test?
Yes, but this procedure is not always well enforced. In theory, police in California are supposed to do a 15 minute “observation period” prior to the breath test. They’re supposed to watch you for signs of burping or vomiting, as these can throw off the test. In practice, however, police are often busy with paperwork and may not pay close attention. Many officers also do not understand GERD or how seriously it can affect the test. You can use the GERD defense regardless of whether police observed you or not.
What if I have never been diagnosed with GERD?
Many people suffer from GERD even though they have never officially been diagnosed. If you have regular bouts of heartburn, or if you ever find yourself regurgitating after a meal or feeling like you will, you could have GERD and not know it. If this is a possibility, you should tell your DUI lawyer.
Getting a GERD diagnosis is absolutely critical to your GERD DUI defense, but that doesn’t mean it’s too late. You can see a doctor and discuss your concern about GERD even after your DUI arrest. If the doctor diagnoses you with GERD, it is valid—especially if you report symptoms going back much longer.
What evidence do I need to use the GERD defense?
It is important to have as much supporting documentation as possible, especially documentation from medical professionals. Generally, this means:
- Documentation of your GERD diagnosis from a medical doctor
- Documentation of any medication you use, such as prescriptions for heartburn medication or receipts for over-the-counter antacids
- An opinion from a doctor supporting the GERD diagnosis
- Documentation (if possible) of what you ate or drank before driving, such as restaurant receipts
Additionally, eyewitness accounts will help your case. This can be as simple as loved ones testifying that you regularly suffer heartburn. Anyone who was with you and saw that you had a reflux episode before your arrest can also be asked for testimony.
This evidence does not have to be hard to gather. We can help you see a doctor who understands GERD and can provide an opinion on your case.
Have you been charged with DUI? We can connect you with an experienced Los Angeles DUI lawyer and get you a FREE consultation. Fill out the form to the right or call (310) 896-2724 and get your free consultation today.