Steven Epstein – the GERD Defense in a DWI Case (Getting Enough Reasonable Doubt)

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Steven EpsteinOriginally published on

Gastroesophageal reflux disease, commonly referred to as GERD, is a digestive disorder that affects an estimated 30 million Americans annually. Attorneys who handle DWI cases should screen clients for GERD, since GERD can compromise a person’s ability to give a forensically reliable breath sample.

Most individuals charged with DWI offenses in New York will be asked to submit to a breath test to measure their blood alcohol concentration (BAC). Breath testing requires the collection and testing of a sample of deep lung or alveolar air. Simply stated, a person who has GERD is unable to provide an uncontaminated sample of alveolar air. That contamination causes falsely high BAC measurements.

GERD can affect the lower esophageal sphincter (LES), the ring of muscle between the esophagus and stomach. In normal digestion, the lower esophageal sphincter opens to allow food to pass into the stomach and closes to prevent solids, liquids, or gases from flowing back into the esophagus. Gastroesophageal reflux occurs when the LES is weak or relaxes inappropriately, allowing the stomach’s contents to flow up into the esophagus. This is often associated with heartburn or acid indigestion, a symptom of the disease. The passage of gases, liquids, or solids from the stomach into the oral cavity occurs continuously, regardless of the presence of symptoms such as heartburn.

GERD is relevant in evaluating the reliability of a breath sample because the alveolar air sample collected from a person with GERD will necessarily be contaminated with gas from the stomach, and may be contaminated with liquid or, even worse, solids that have a vastly higher concentration of alcohol than the alveolar air. The result is an artificially inflated BAC.

The importance of obtaining a sample of uncontaminated air has been long recognized by the New York State Department of Health, which promulgates rules and regulations concerning breath analysis techniques and methods. Section 59.5 of the New York State Codes, Rules and Regulations requires that a breath sample of alveolar air must be collected free of contamination from any other source. This is the reason for the requirement that prior to the collection of the breath sample, the subject must be observed for a minimum period of fifteen minutes (the “Deprivation Period”) to be certain he has not ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten, smoked, or been allowed to place anything in his or her mouth. GERD makes it impossible for a Deprivation Period to be effective due to the subject’s inability to completely close the esophageal or laryngeal sphincter muscle, subjecting the person to continuous regurgitation of stomach gases.

As a result, it is essential that any attorney representing a client on a DWI case where a breath test was administered inquire about whether the client has ever been diagnosed with GERD and if so, obtain the client’s complete medical records. In doing so, be sure to determine whether an endoscopy was ever performed, as this will conclusively establish the medical diagnosis of GERD. Moreover, since GERD is a chronic condition, an endoscopy is relevant regardless of whether it was done contemporaneously with the client’s arrest, so long as it pre-dates the breath test. In the absence of endoscopy, a physician may have examined your client and prescribed a course of medications based on a diagnosis of GERD, but endoscopy is preferred since it would show the amount of any deterioration of the lower or upper esophageal sphincters.

From an evidentiary perspective, be prepared to meet the challenges of a prosecutor for failure to comply with discovery obligations. Any medical records you intend to introduce may be discoverable pursuant to Criminal Procedure Law §240.30(a).

Also be prepared to address any challenges by the prosecutor seeking to preclude testimony related to GERD on the basis that the evidence, although technically relevant, will be excluded if it is too “slight, remote, or conjectural to have a legitimate influence in determining the fact at issue.”

Complications of GERD can include difficulty swallowing, regurgitation, discomfort, and an increased risk of cancer. These symptoms typically result in seeing a doctor for care. A doctor can treat this disease once it is diagnosed; but a lawyer representing a client who has GERD can do nothing about it unless he is aware of the diagnosis, knows its impact on the reliability of the breath sample, and can utilize that knowledge to Get Enough Reasonable Doubt!

Steven B. Epstein is a founding partner in New York-based criminal defense law firm of Barket, Epstein Kearon Aldea & LoTurco, LLP. Mr. Epstein defends people accused of all crimes throughout the New York metropolitan area and has extensive experience in DWI and vehicular assault/homicide defense.