When Hamburg Town Police arrested a motorist last year, they measured her blood alcohol content at .33 percent, more than four times higher than the state’s legal limit.

But a town judge recently dismissed the aggravated driving while intoxicated charge, after hearing medical evidence that the woman suffers from a rare intestinal disorder called “Auto-Brewery Syndrome” that sometimes turns ordinary food and beverages into alcohol in a person’s body.

The Erie County District Attorney’s office says it will appeal the judge’s ruling and seek to have the charges against the driver reinstated.

The case involving a 35-year-old school teacher is believed to be among the first of its kind in Western New York, if not the entire state.

Essentially, her digestive system has so much yeast that it functions like a “brewery,” defense attorney Joseph J. Marusak said.

“It’s also known as gut fermentation syndrome,” Marusak said.

“She can register a blood alcohol content that would have you or I falling down drunk, but she can function,” Marusak said.

He described the case as “bizarre and unusual – one of the strangest cases I’ve ever been involved with in more than 30 years as a lawyer.”

In one of his final actions in 35 years as a Hamburg town justice, Judge Walter L. Rooth dismissed misdemeanor charges of DWI and aggravated DWI that town police filed against the woman Oct. 11, 2014.

The woman did admit she had three alcoholic beverages earlier in the day, according to a police report, but not nearly enough booze to produce such a high BAC reading.

The News is not identifying the driver because the charges were dismissed and also because her attorney maintains that publicizing her medical condition will cause her embarrassment at her workplace.

Hamburg Police Chief Gregory G. Wickett said he is confident his officers made the right move in charging the woman with DWI.

“She was highly intoxicated, as shown by the Breathalyzer. Our officers did the right thing in getting her off the road,” Wickett said. “Whether she has a medical issue that caused it is not for me to decide.”

While the DA’s office declined to comment, court officials said prosecutors have stated they intend to appeal and have the case reinstated.

Stopped on Route 5

The woman, a Hamburg resident, was stopped at around 7:15 p.m. on Route 5, near the Ford plant. Hamburg Officer Daniel Gallardo reported that he pulled the woman over after another driver called 911 to report that the driver’s 2010 Toyota Corolla was “weaving all over” the road.

Gallardo reported that he noticed the Corolla’s right front passenger tire was flat and the vehicle was producing “a large amount of smoke and a noticeable smell of burning rubber.”

The driver had alcohol on her breath and “exhibited glassy-bloodshot eyes and slurred speech,” Gallardo reported. The officer said the driver told him she had about three cocktails earlier in the day while visiting her parents in Buffalo.

Although the driver was able to recite the alphabet at the officer’s request, she had trouble with several other sobriety tests, including standing on one foot and talking and turning heel-to-toe, Gallardo reported.

The driver’s BAC was measured at .33 percent by the Breathalyzer and .30 percent in a later blood test administered in the Erie County Medical Center, according to Marusak.

His client felt “a little woozy” that night, but did not feel that she was too unsteady to drive, Marusak said.

“Her tire was flat, and she felt she was close enough to home that she could drive the rest of the way,” Marusak said.

Defense investigation

Marusak said he began his own investigation after the woman and her husband insisted that she had only consumed a few alcoholic beverages between noon and 5:45 p.m. that day.

“The amount they told me she drank would account for nowhere near a .33 percent BAC,” Marusak said.

He said he searched the Internet to see if he could find a medical explanation for what happened to his client. He found a researcher, Dr. Barbara Cordell, in Texas who published medical studies on “Auto-Brewery Syndrome.” Cordell advised him to contact Dr. Anup Kanodia, a physician near Columbus, Ohio, who has treated people for the syndrome.

Marusak sent his client to Columbus to be examined by Kanodia and also arranged to conduct tests in Buffalo.

In January of this year, Marusak said, his client used a Breathalyzer device to check her own BAC on 18 separate occasions, when she was not drinking. Almost every time, her BAC was measured at a level above the state’s legal limit of .08 percent, usually at .20 percent or above.

Then, on May 3, two nurses and a physician’s assistant conducted more tests. They observed Marusak’s client over a 12-hour period when she was not drinking alcohol and used a Breathalyzer to measure her BAC.

“Her blood alcohol level was repeatedly measured at very high levels – .279, then .379 and then .40 – extremely high levels,” Marusak said. “We then took blood samples and refrigerated them, and took them to the Erie County Medical Center lab to be examined. Again, those levels came out extremely high.” Some individuals who suffer from the syndrome can tolerate extremely high BAC levels because their bodies become used to them, Kanodia said.

“They are legally drunk, but they are walking around. They are functioning,” Kanodia said in a phone interview. “There are people who get drunk without drinking any alcohol at all.”

Asked if he thinks a person suffering from auto brewery syndrome could safely drive a car with a .33 percent BAC, Kanodia said: “I would say it is not safe to drive a car if you are in an auto brewery syndrome flare … But it’s a brand new disease and we’re still trying to understand it. Kanodia said he is working with five other attorneys in the United States and Canada whose clients are using auto-brewery syndrome as a defense against DWI charges.

The doctor said he believes no more than 50 to 100 people have been officially diagnosed with the illness.

“I would say that at least 95 percent of those people who have it have been undiagnosed,” Kanodia said.

In March of this year, the British Broadcasting Company reported that an Englishman named Nick Hess, 35, has been diagnosed with the ailment. Hess told reporters he gets drunk from eating french fries.

Case dismissed

Marusak compiled the medical evidence about his client into a thick report that he filed with Rooth, asking the judge to dismiss the case “in the interest of justice.” The DA’s office opposed the motion.

Rooth dismissed the charges Dec. 9, according to court documents.

Michael Taheri, Peter J. Todoro Jr. and Thomas D. Trbovich, three of the region’s busiest DWI attorneys, said they have never heard of Auto-Brewery Syndrome being used as a defense in any other local DWI case.

“I have heard of Auto-Brewery Syndrome. It is not made up,” Trbovich said. “I could imagine a lot more attorneys attempting to use this as a defense if this Hamburg case is successful for the defense.”

“I’ve never encountered it, never had a client claim that they suffer from Auto-Brewery Syndrome,” said Taheri, who has written three books on DWI defense. He said he will be interested to see how the case plays out on appeal.

“Regardless of the woman’s medical condition,” Taheri added, “it does not change what the Hamburg officers observed when they charged her. It does not change results of the Breathalyzer or blood tests.”

What condition would most people be in with a blood alcohol content of .33 percent?

“The average person would be falling-down drunk, or falling asleep at the wheel at a stop light,” Taheri said. “At a level of .30 or higher, you would be in danger of alcohol poisoning, and most cops will take you to the hospital because of concerns about your safety and health.”

The News asked Marusak how often his client suffers from Auto-Brewery Syndrome. Does she often get drunk at work, at home, or while she is out driving, without drinking any alcohol?

Her body has apparently become attuned to functioning with a high blood alcohol content, and she rarely feels drunk or wobbly, the attorney said.

Kanodia advised the woman to change her diet several months ago, and since doing so, “she hasn’t had an episode,” Marusak said.

Regardless of the outcome of this case on appeal, Marusak said he does not expect many local defense attorneys to use the syndrome as a defense against DWI charges.

He said proving that a client suffers from the rare syndrome is difficult and expensive to achieve. He said he has spent about 40 hours on the case and about $7,000 on medical evidence – far more than most DWI defendants can afford.

“This case is a novelty,” Taheri said. “I do not foresee a stampede of people claiming that they have this illness.”

email: dherbeck@buffnews.com

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