What is the GERD, heartburn, and acid reflux defense for charges of driving under the influence (DUI)? Lawyers use this defense if a medical condition causes a false positive on a breath test used by police officers at a DUI traffic stop.
This defense can help you avoid a DUI conviction, fines, jail time, and a license suspension. A Los Angeles DUI lawyer can provide you with more detailed information. You can discuss this defense when you call or complete our online contact form.
What Is the GERD, Heartburn, and Acid Reflux Defense?
The GERD defense involves a lawyer arguing that you failed a blood alcohol content (BAC) test during a DUI stop because of your gastroesophageal reflux disease (GERD). More commonly known as acid reflux, gastroesophageal reflux disease affects the stomach and esophagus.
If you have GERD, your stomach contents may sometimes be thrown up into the esophagus, known as “reflux.” Reflux may happen frequently, infrequently, or only after certain events, like eating a large meal. The most common symptom of GERD is heartburn or acid indigestion.
The condition can cause small amounts of alcohol from your stomach to be sent back up into the mouth along with stomach acid, potentially throwing off a breath test for DUI. If you suffer from GERD or a related condition, it can cause your BAC test to return inaccurate results.
How Does GERD Affect BAC Tests?
Your GERD can cause you to fail a BAC test even if you are not legally drunk. Failures 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 an incorrect reading of your BAC. 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.
How Do You Know if GERD Affected Your 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
Make sure you inform your criminal defense lawyer about any of these situations. An attorney can collect information from your medical records and doctor to establish your condition and the effects of stomach acid to build your defense.
Can You Use the GERD Defense After Drinking?
You can use the GERD, heartburn, and acid reflux defense even if you drank some alcohol. GERD will only throw off breath test results if there is already alcohol in your stomach. You can use this defense if you drank but not enough to become impaired.
What’s an Example of the GERD Defense?
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 over 0.08% for DUI charges.
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 stop at a DUI roadblock, and he’s asked to give a breath test, which he fails.
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 breaking the law.
What Are Other DUI Defenses?
After an arrest, your criminal defense lawyer may explore several other DUI defenses. For example, a law firm may build a:
- Diabetes, low carb diet, or “ketosis” California DUI defense
- Miranda Rights defense California DUI defense
- Rising BAC Defense
An attorney can review your situation and determine the most appropriate defense to get your charges reduced or dismissed.
Do the Police Check for Signs of GERD?
The police are supposed to assess you for signs of GERD. In theory, police in California are supposed to do a 15-minute “observation period” before 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 the police observed you.
Can You Use the GERD Defense Without a Diagnosis?
Many people suffer from GERD even though they have never received an official diagnosis. 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 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 You Use for the GERD Defense?
Having as much supporting documentation as possible is essential, 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. Loved ones may testify that you regularly suffer heartburn or chronic acid reflux. Anyone who was with you and saw that you had a reflux episode before your arrest can provide 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.
What Can Cause a GERD Episode?
There are different triggers for every individual who has GERD. For some, it seems to come on randomly, and they cannot predict what will cause it. For others, specific things commonly cause acid indigestion and reflux:
- Smoking
- Eating a large meal
- Drinking alcohol
- Eating spicy foods or acidic 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.
You May Use the GERD, Heartburn, and Acid Reflux Defense
Have you been charged with DUI? In this situation, a criminal defense attorney may take on your claim and present the GERD, heartburn, and acid reflux defense. You can learn more about this option if you get severe heartburn.
Call or complete our online contact form to discuss your circumstances.
