What is the GERD Defense?

June 30, 2021 Don Pumphrey, Jr. Criminal Defense Social Share

What is GERD?

Gastroesophageal reflux disease (GERD) is a digestive disorder that affects the ring of muscle between your esophagus and stomach.[1] It occurs when stomach acid frequently flows back into your esophagus.[2] This backwash, or acid reflux, irritates the lining of the esophagus and causes gas and vapor from the stomach to travel through the esophagus and expel through the mouth.[3] The gas and vapor may be from food, liquid, or from the breakdown of molecules that the body ingests.[4]

How GERD is Used as a DUI Defense

When someone suffering from GERD consumes alcohol, raw alcohol may be expelled through the mouth, and the concentrated odors of alcohol may result in the blood alcohol content (BAC) level rising up to and above the legal limit of .08 percent when a breathalyzer test is administered.[5] However, this does not indicate that the person is legally drunk, as the condition “raises the numbers due to the concentrated vapors which the machine reads as an active and present concentration of alcohol in a person’s system.”[6] As a result, the Intoxilyzer 8000, a “mystical machine” that commonly results in “privileges and freedom [being] jeopardized” will not provide an accurate representation of their BAC.[7] For these reasons, those experiencing GERD who had a BAC over the legal limit and were charged with a DUI when they did not believe they were legally drunk often turn to the GERD defense.

Florida’s Administrative Guidelines

Florida has issued administrative guidelines that set parameters for the administration of breath tests.[8] These guidelines “set up all of the requirements concerning breath testing, from which machines may be used and when they must be inspected to licensing requirements for those administering the tests and the duration of the pre-test observation period of the defendant.”[9] Although these guidelines do not specifically address GERD or acid reflux, the code requires “the technician to reasonably ensure that the subject not take anything by mouth or regurgitate for at least 20 minutes prior to testing.[10] Regurgitation is a common symptom of acid reflux and GERD.[11] In addition, regurgitation poses the same possible problem as GERD, as it can cause a breathalyzer test to read alcohol levels from the stomach, producing a heightened BAC level, rendering the test inaccurate.

What you Need to Form a GERD Defense

 In the DUI context, there are several main factors to consider in a GERD defense case, including:[12]

• The GERD needs to be diagnosed by a medical professional.
• It is better that there is a confirmatory test, including an endoscopic examination, a biopsy, an x-ray, a 24-hour esophageal acid test, a 48-hour Bravo test, esophageal motility testing (manometry), emptying studies of the stomach, or esophageal acid perfusion (the Bernstein test).
• On the day of the breath test, there need to be triggers present, such as alcohol, spicy food, smoking, caffeine, carbonated drinks, etc.
• On the day and time of the breath test, there needs to be alcohol available in the subject’s stomach to reflux, so the last drink needs to have been consumed close in time (within 6 hours or less).
• Whether or not there are safeguards or countermeasures embedded in the breath-testing protocol of your state to help rule out a GERD defense.

Symptoms You Should Know

Many individuals are unaware they have GERD, so recognizing the symptoms that could lead to your possible defense is imperative. GERD may be present if someone experiences any of the following: they are over 40 years old, they suffer from obesity, sleep problems, asthma, heart problems, angina, irritable bowel syndrome (IBS), diarrhea, depression, anxiety, hiatal hernia, diabetes, peptic ulcer, heartburn, vomiting, hoarseness, chronic coughing, high blood pressure, connective tissue disease, Zollinger Ellison syndrome, dental erosion, or are pregnant.[13] Certain medications can also cause or trigger GERD, including sedatives, tranquilizers, or calcium channel blockers for high blood pressure.[14] If someone experiences any of these symptoms or is on any of these medications, the facts of the case, specifically if there was still alcohol in the stomach to reflux at the time of the breathalyzer test, must be examined to determine if conducting a medical exam for GERD would be useful. Absorption rate of alcohol is key in a GERD defense, as the “longer the period from the last drink, the more supportive evidence you need to make GERD a viable defense.”[15] In addition, it’s important to note that a prior diagnosis of GERD may not be strong enough to be proof of a current problem. Obtaining a current diagnosis that is supported by continual and severe current activity is the best option to prove that this “spectrum disease” was really the cause of an inaccurate BAC result.[16]

How Can We Help?

A DUI charge can carry serious legal repercussions and impact your personal and professional life for years to come. If you believe GERD led to your unlawful DUI charge, it’s crucial you contact an experienced and passionate attorney well versed in DUI defense. Contact a Tallahassee criminal defense lawyer as soon as possible to explore your options and ensure you are provided a strong defense strategy that protects your legal rights. Don Pumphrey and the members of the legal team at Pumphrey Law Firm have years of experience defending clients facing drunk driving charges and will be adamant in pursuing justice on your behalf. Call a defense attorney today at (850) 681-7777 or send an online message to discuss your options during an open and free consultation with an attorney in our legal team.

This article was written by Sarah Kamide

[1] Hansa D. Bhargava, MD, GERD, WebMD, https://www.webmd.com/heartburn-gerd/guide/reflux-disease-gerd-1 (Sept. 11, 2020)

[2] https://www.mayoclinic.org/diseases-conditions/gerd/symptoms-causes/syc-20361940

[3] https://www.hg.org/legal-articles/acid-reflux-disease-gerd-and-its-effect-on-dui-39551

[4] Id.

[5] Id.

[6] Id.

[7] State v. Muldowny, 871 So. 2d 911 (Fla. 5th Dist. App. 2004)

[8] Fla. Admin Code. Ann R. 11D-8

[9] Fla. Admin Code Ann R. 11D-8.003; Fla. Admin. Code Ann. R. 11D-8.004, 5, 6, Fla. Admin Code Ann. R. 11D-8.008; Fla. Admin Code Ann. R. 11D-8007(2)

[10] Fla. Admin Code. Ann. R. 11D-8007(3)

[11] 2010 WL 1976224

[12] 2010 WL 1976224

[13] Id.

[14] Id.

[15] Id.

[16] Id.

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