From The Guardian Newspaper today
A woman from New York state suffers from ‘auto-brewery syndrome’ but blew four times over the limit despite claiming that she ‘never felt tipsy’
Drunken-driving charges against a woman in upstate New York have been dismissed based on an unusual defence: her body is a brewery.
The woman was arrested while driving with a blood-alcohol level more than four times the legal limit. She then discovered she has a rare condition called “auto-brewery syndrome”, in which her digestive system converts ordinary food into alcohol, her lawyer Joseph Marusak said.
The rare condition, also known as gut fermentation syndrome, was first documented in the 1970s in Japan, and both medical and legal experts in the US say it is being raised more frequently in drunken-driving cases as it is becomes more known.
“At first glance, it seems like a get-out-of-jail-free card,” said Jonathan Turley, a law professor at George Washington University. “But it’s not that easy. Courts tend to be sceptical of such claims. You have to be able to document the syndrome through recognised testing.”
Our own experience with similar claims in Scotland has been that Sheriffs are highly sceptical and the defence needs a raft of supporting expert evidence to establish such a defence. In theory the defence should require to establish this defence on the “balance of probability” however our experience is that Sheriffs will be inclined to dismiss it unless you can prove beyond a reasonable doubt that the client suffers from this condition and did not know this prior to driving.
One has to also consider that the court may establish that indeed you do have such a condition and that therefore you will not be found guilty of the offence of drink driving however DVLA shall be informed of the condition and they may decide that your medical condition is such that they require to revoke your licence for life as it will never be clear when you would be in a safe condition to drive.
The condition was first documented in the US by Barbara Cordell of Panola College in Texas, who published a case study in 2013 of a 61-year-old man who had been experiencing episodes of debilitating drunkenness without drinking liquor.
Cordell referred Marusak to Dr Anup Kanodia of Columbus, Ohio, who eventually diagnosed the woman with auto-brewery syndrome and prescribed a low-carbohydrate diet that brought the situation under control. Her case was dismissed on 9 December, leaving her free to drive without restrictions.
During the long wait for an appointment, Marusak arranged to have two nurses and a physician’s assistant monitor his client for a day to document she drank no alcohol, and to take several blood samples for testing.
“At the end of the day, she had a blood-alcohol content of 0.36% without drinking any alcoholic beverages,” Marusak said. He said the woman, who cannot be named for reasons of medical confidentiality, also bought a breath test kit and blew into it every night for 18 days, registering around 0.20% every time.
The legal threshold for drunkenness in New York is 0.08%.
While people in cases described by Cordell sought help because they felt drunk and did not know why, Marusak said that was not true of his client. “She had no idea she had this condition. Never felt tipsy. Nothing,” he said.
I recently represented a young snooker player at Perth Sheriff court regarding a drink drive case. He was unaware that a pint of strong lager had put him over the drink drive limit. It caused me to wonder just how many of us are actually aware of how little alcohol, can put you over the new drink drive limit in Scotland.
That is why I have decided to copy and paste a large part of an article recently published in an English newspaper as I feel that there is a genuine misconception about levels of alcohol consumption that the new drink drive limit should have cleared up. The answer is : Do not drink and drive and be very careful about driving the day following consumption of alcohol.
The newspaper looked at various devices. We have done this ourselves in the past and for what it is worth I use an Alcosense device and have recommended them and provided them to many friends in the past. with NO alcohol in their system before they drive”.
There are many different devices on the market, with prices ranging from £2.99 for the single use breathalysers (French NF approved for use in France, where it is a legal requirement to carry a breathalyser in your car) to £350 ones comparable with those used by police.
And it seems you get what you pay for. The three we tried were:
AL2500 – £39.95 – with an accuracy as a new unit of ±25%.
AL7000 – £89.95 – with a replaceable sensor and a quoted accuracy for a new unit of ±10%.
Platinum Lite – £129.95 – twice as accurate as the AL7000 (±5% accuracy) run on fuel cell technology – the same technology used for police breathalysers.
Even on the most accurate police units there is still an expected margin of error of ±2% in readings.
Basically, the more you pay, the better the sensor – the more accurate the device.
Which emphasises that they should be used to test when alcohol has left your system, NOT whether you are near to the drink-drive limit or safe to drive.
Half a bottle of red wine each, drunk alongside a meal of pizza and sides.
Platinum Lite test 30 minutes after finishing. My reading was 0.2% (English driving limit is 0.8%, Ireland, Scotland and France 0.5%). My friend’s was 0.5%.
Result: Suggesting we were both under the English limit but neither of us would have dreamed of or felt capable of driving.
Morning-after result: Zero
Half a bottle of red wine each, drunk on an empty stomach before eating nibbles. Tested 30 minutes later.
Platinum Lite: 0.31% and 0.47%
AL2500: 0.4% and 0.6%
AL7000: 0.19mg/l and 0.3mg/l (English limit is 0.35mg/l, Scotland etc 0.22mg/l)
Result: Illustrates how the results can vary per unit.
Morning-after result: Zero.
One large glass of wine each (250ml) on an empty stomach, no food. Tested at least an hour after finishing.
Platinum Lite: 0.44% and 0.53%
AL2500: 0.5% and 0.5%
Result: Illustrates how food can affect alcohol absorption and how large wine glasses in pubs are!
Morning-after result: Zero.
Half a bottle of wine each, plus nibbles
Platinum Lite: 0.46% and 0.66%
AL7000: 0.27mg/l and 0.41mg/l
Result: Compared to test two, with almost identical consumption and delay before testing, results can vary so much. Plus results between machines vary, with my friend “under” the limit on the Lite, but over on the AL7000.
Morning-after result: Zero.
Six single gin and tonics, plus one glass of white wine (just me – Christmas party!) and tested the morning-after…
Platinum Lite: 0.26%
Result: Still quite a bit of alcohol in my system and it surprised me how much seven hours after stopping drinking – more than test one and almost as much as test two, which were tested 30 minutes after stopping drinking.
In all the tests except for the last one, morning-after readings were down to zero, but after at least eight hours of not drinking.
However, morning-after tests can be carried out just a few hours after some people stop drinking, if they continue into the early hours, so I did tests four hours later and found alcohol was still in our system on all tests except the first.
The single-use breathalyser – blowing into a bag with somewhat odd-looking cartoon drawings on it – was, I have to say, not easy to determine. Perhaps a higher alcohol reading would be made it clearer – but that’s not really the point!
The results were quite scary, particularly when they suggested we were below the limit but neither of us would have dreamed of or felt capable of driving.
And that begs the question as to whether the drink-drive limit is too high in England as no matter what people say, alcohol does impair driving.
And it seems I am not alone.
Almost 70 per cent of people would like to see the legal drink-drive limit reduced across England, Wales and Northern Ireland, to the same level of that implemented in Scotland, according to a survey by the Institute of Advanced Motorists.
Within a year of Scotland reducing their limit, Police Scotland confirmed they saw a 19 per cent reduction in drivers prosecuted for being under the influence of alcohol over the festive period.
The Department for Transport’s latest THINK! Drink Drive campaign, launched this month, states that “A second drink could double your chance of being in a fatal collision”, leading to calls for drivers to be aware of their alcohol levels the morning after drinking and not just immediately after.
Suzannah Robin, alcohol safety expert and Sales & Training Manager at AlcoDigital, said: “We fully support the latest THINK! Drink Drive campaign and it is absolutely right people should be thinking about the consequences of drinking and driving and the significant difference on safety that two drinks can have versus one.
“However, they also need to consider that even if they don’t drink and drive immediately after consuming alcohol, they may still be affected the following morning.
“In the same way that everyone loses weight at different rates, we all process alcohol differently, so if you have been drinking say four or five pints of beer or consumed a bottle of wine during the evening you may not be safe to drive the following morning, even if you think you feel OK.”
For me, even if a breathalyser reading tells you that you are apparently safe to drive as you are under the drink-drive limit, my conclusion is you’re not until it’s on zero!
Products available from www.alcodigital.co.uk
An article in the Guardian today called for the UK Government to adopt the policy implemented by the Scottish Government when it reduced the drink drive limit to 50mg (In line with many other EU countries)making the drink drive limit in Scotland lower than the rest of the UK.
We are all aware that any amount of alcohol increases dangers, but there seems to be evidence that drivers who are just under the current limit are twice as likely to die in a crash compared with those just under the proposed limit of 50mg.
In Scotland, it has been reported that there has been a 5% reduction in reported drink driving offences. It should also be noted that there has been a high degree of concentrated police enforcement in the area of road traffic offences in Scotland, therefore any reduction in those numbers must be a good thing. Publicans, restaurants and clubs such as Golf clubs are anecdotally providing information to the media that their sales figures are down as people change their behaviour therefore the “Zero limit” message seems to have made progress in Scotland.
Where the legal limit has been reduced, there have been significant drops in alcohol-related crashes. Reviews have shown that the move to reduce the limit could save up to 170 lives a year. The adoption of a 50mg limit across Europe has reduced alcohol-related driving death rates by 11.5% among young people aged 18–25.
New research by the Royal Society for Public Health suggests that a further reduction would encourage many motorists not to take the risk of drink-driving at all. Two-thirds of motorists who admit to drink-driving revealed that if the legal limit was lowered any further, they wouldn’t bother drinking as they would be unsure of the correct amount to drink, or the amount they could legally consume would become so low it wouldn’t be worthwhile.
The Guardian have requested comments on their article:-
In light of evidence from across Europe and emerging evidence from Scotland, it is high time that the government took decisive action to protect the safety of drivers across the UK.
Here is a video showing what happens if you are arrested for drink driving in Scotland.
I must be losing the plot! When I read in the papers that the Lord Advocate had something to say about the Bin Lorry case I really expected a detailed synopsis of evidence and what he thought had led to any misunderstanding by the Scottish media and the public in relation to the decision not to prosecute bin lorry driver Harry Clark for Causing Death by Dangerous Driving.
But no, it was simply Frank Mulholland QC leaping to the defence of one of his staff who had been accused by family members of using unprofessional language when describing Harry Clark as “A fat uneducated man from the west of Scotland” Personally I might have been a lot less flattering when talking about the gentleman.
It was reported that the Lord Advocate has attacked the BBC over a “sensationalist documentary” on the Glasgow bin lorry crash whose claims he said were “simply not true”.
I watched the documentary and it seemed pretty tame to me. Just Jackie Bird asking family members and Brian McConnachie QC about how the investigation had been conducted and their thoughts and feelings about it. But the Lord Advocate has blasted the BBC in Scotland claiming that claims in the program were “Simply not true”
Well, if the Lord Advocate considers that a national broadcasting service is issueing information that is “simply not true” surely we can expect to see some legal action such as a civil action against those perpetrators of lies and defamation!
I suspect we would have to wait a long time for that too, because like any case against Harry Clark it is unlikely that the Lord Advocate will take action against the BBC either. I am pretty sure the Lord Advocate and his staff would just like the world to forget about this Fatal Accident Inquiry and any TV programmes
The Lord Advocate has claimed the Crown were fully aware of Mr Clarke’s driving record when they made the decision not to prosecute him. The trouble with a statement like that is that it just says “Trust me, I am the Lord Advocate.” but is it enough to make such a statement when we are aware of several days of evidence and lots of issues being raised regarding the driver’s health and whether or not it should have been reported to DVLA and whether or not he should have been driving.
Personally I think Frank Mulholland QC and Catherine Dyer missed an important opportunity to set the record straight with a detailed statement to the press explaining the logic and reasoning behind the Crown decision not to prosecute.
It seemed to me from recent statements that they were more upset about what claims had been made about one of their staff possibly saying, in a private interview situation, that Harry Clarke was a “Fat uneducated man from the West of Scotland”
We do understand that EVEN Procurator Fiscal’s are human and from time to time they get angry and even a little frustrated. We even understand that they can express themselves in an entirely human and understandable manner. Let it go Frank! We don’t expect Fiscal’s to be robots, some of them are dealing on a day to day basis with the bereaved families of victims of violent and often mindless crime. Those staff members are under incredible pressure to conclude post mortems and allow funerals to proceed whilst also having to ensure that no stone is left unturned in a criminal investigation of the utmost importance.
Who cares if a Procurator Fiscal said Harry Clark was fat and uneducated?Who cares if Harry Clark might have felt insulted? What the grieving families will care about is whether they have received justice and whether drivers with a known, notifiable medical condition should be allowed on our roads threatening the safety of ourselves and our families.
The real question that should have been raised in the documentary and by the Crown is :- Should Doctors be instructed that they must breach patient confidentiality and report any suspected patient driver to DVLA where they consider that person has a medical condition that is a threat to road users?
Can we really expect “Fat, uneducated men from the West of Scotland” or anyone else for that matter to report a medical condition to DVLA when their livelihood depends upon their entitlement to drive?
Following the tragic M9 crash that caused the deaths of Lamara Bell and her boyfriend John Yuill , the Scottish Government ordered Her Majesty’s Inspectorate of Constabulary in Scotland (HMICS) to undertake an urgent review of all police call handling. We can expect a report soon.
Questions were asked in the Scottish Parliament about the level of funding and cost-cutting that had occurred in the Scottish police and is that played a part in these tragic events
Sir Stephen House has come in for varying degrees of criticism during his controversial time in office, however you have to look at the causes rather than effects and the fact that Sir Stephen House implemented millions of pounds worth of cuts was not a fault on his part. It was an essential part of his role. The responsibility for cutting budgets lies fairly and squarely at the door of the Scottish Government.
There was obviously a very serious issue about how calls were handled by the police and we should hear what changes will be made to make sure that those communication issues have been resolved and no family will ever have the nightmarish scenario of a member of their family fighting for their life for days while the police remain oblivious to their plight
The local man said he called the non-emergency 101 number at 11:30 on Sunday 5 July.
Sir Stephen has admitted that the initial information received about the crash was not entered into police systems.
However, he insisted he would not be resigning, and said the “massive changes” brought by the creation of the single Police Scotland force were not to blame for the “horrible tragedy”.
(Lamara Bell, 25, was found next to her dead boyfriend John Yuill in the vehicle last Wednesday – despite the accident off the M9 being reported to police on the previous Sunday. It was reported that she had been conscious when found and clearly struggling for life over the days trapped in the vehicle)
The couple were only discovered down an embankment near a slip road at Bannockburn when police received a second phone call on Wednesday morning.
Ms Bell was taken to Glasgow’s Queen Elizabeth University Hospital and put on life support, but her family confirmed on Sunday that she had died.
An initial call to police on 5 July was not acted upon, and Ms Bell and Mr Yuill, 28, were not discovered until another member of the public contacted police on 8 July after spotting the vehicle.
Scottish Justice Secretary Michael Matheson has ordered a review of all police call handling. at the time. I wonder how much will be included in the report about the general effect of police budget cuts that amounted to several millions of pounds.
Niven Rennie, president of the Association of Scottish Police Superintendents (ASPS) told the fringe event: “It remains extremely difficult to keep police services at their current level while the budget is being slashed. I don’t know how many officers we need for policing… What I am arguing is that it is worthless to have 17,234 officers if we remove all the other facilities that are required by modern police services, and utilise these officers to do civilian duties.”
The case is being independently investigated by the Police Investigations and Review Commissioner
Police Scotland has been tasked with making £1.1 billion of savings by 2026.