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    GERD

    GERD, or as it is scientifically known, Gastroesophageal Reflux Disease, is basically a fancy way of saying that you suffer from acid reflux or indigestion.  Although most of us, me included, never see a doctor regarding this, the fact is that if you have acid reflux or indigestion while taking the Datamaster or other types of breath tests, the alcohol coming from the stomach can materially alter the test.

    THE GERD DEFENSE

    I always ask in my free initial drunk driving consultation, whether the client suffers from any type of medical problems.  I always specifically want to know about indigestion because so many people have it, and guess what, drinking a couple of beers can certainly cause indigestion to happen.  And as we know, drinking a couple of beers and driving your car in Oakland County, whether it is South Lyon, Milford, or White Lake, it is not illegal.  So when you’ve been watching another tragic Lions defeat and had a few too many chicken wings with hot sauce on them and washed down the heat with a couple of cold beers, two hours later when the indigestion is really hitting your stomach and you get pulled over, you could have a false positive test. 

    HOW DO YOU PULL OFF THE GERD DEFENSE

    First, you need to make the jury understand that just because somebody drank a few beers doesn’t mean that they are drunk.  This is easily accomplished during voir dire, when you are picking the jury.  Simply ask the potential jurors whether they’ve ever had a couple of beers at a buddy’s house or if they have ever driven home after having a glass of wine with dinner.  They almost always say yes. 

    Second, you must bring in an expert who can testify about how GERD works and the process where alcohol can be regurgitated from the stomach, through the throat, back to the mouth. 

    IS GERD JUST SCIENTIFIC MUMBO JUMBO?

    No.  I am of the opinion that a good portion of our population suffers from heartburn.  Why else would rollaids and tums be multi-billion dollar products?  I myself take Protonix in order to stop my frequent heartburn, and I know that when I do something like drink a beer and eat a piece of pizza, I will likely have indigestion.  The science clearly shows that GERD happens all of the time and that its occurrence will grossly inflate the results of the breath testing machine.  Thus, if you are charged with a DUI and you have indigestion, you need to look at this defense as very probable.