Carbohydration

By Lance Hester; Dec 2000

      Dieting can be controversial, and the following diet books are no exception:  The Atkins Diet, Protein Power, Carbohydrate Addicts Diet.  People are fascinated with the idea of eating lots of protein, cutting out carbs, and actually losing weight.  Some, however, have blamed death and other medical difficulties on these methods of weight reduction.  But regardless of the issues, the fact remains that people who stick to the rules of these diets are losing weight.

     A Georgia jury recently returned a not guilty verdict in a case where the defense argued a high protein diet caused a .10 breath test, and not excessive drinking.

     The jist of the case was as follows:  an honest officer testified that the defendant showed no signs of intoxication when performing field sobriety tests, the defendant blex a .107 on the Intoxilyzer 5000 device, a well-crafted jury questionnaire included questions about high-protein diets, an organic chemistry defense expert testified about the isopropyl alcohol produced in the body after a long period of carbohydrate depravation, an Intoxilyzer expert testified that the machine can’t distinguish isopropyl alcohol from consumed alcohol and that it would affect a breath reading.

     This case could serve as a catalyst to a new movement of defending those accused of DUI who follow the rigors of the low carb diets.  However, a number of issues are noteworthy as they relate to Washington State and whether such a defense will work here. 

     The Georgia statute specifies that a person’s level of intoxication is “from alcohol consumed.”  In our own state, the statute says one commits the crime of DUI when he operates a vehicle and “having sufficient alcohol in (his) system …” RCW 46.61.502.    Georgia uses the Intoxilyzer 5000, Washington uses The BAC Verifyer DataMaster.  While they are different machines, they are known to have similar capabilities.  Other than alcohol, The DataMaster only tests to see if acetone is present as an interferent.  In their book, Defending DUIs in Washington, Attorneys Cowan, Hayne, and Fox mention “that studies have found breath alcohol readings of up to .06 in fasting dieters and diabetics.”  Since the Intoxilyzer is an inferior machine to the DataMaster.  The Intoxilyzer can’t distinguish between isopropyl and other types of alcohol in the body.  There is no reason to believe the Datamaster can determine