By Joseph J. Marusak
Much attention surrounds Hamburg Town Justice Walter L. Rooth’s decision to dismiss aggravated DWI charges in the furtherance of justice as regards a motorist (my client) who has been diagnosed with Auto Brewery Syndrome (ABS). Given the diagnosis’s rarity (experts estimate that fewer than 100 people in the United States are currently being treated for the syndrome), skepticism is understandable.
Unfortunately, since the court record is sealed by operation of law, the public lacks firsthand access to the facts presented to Rooth, and to a transcript of his reasoning. As a result the public discourse regarding this case has been compromised.
Yet in the near future such information will likely be disclosed during the course of appellate arguments. Until then, caution is warranted before one rejects the validity of an ABS diagnosis or criticizes the rationale of Rooth’s decision. In the interim the following is noted:
1.) Peer-reviewed scientific journals have documented ABS as a condition wherein excessive amounts of yeast in one’s intestines involuntarily ferment the sugars from ingested food and non-alcoholic beverages into alcohol. Those studies date back to the 1970s and include publications from journals not known for disseminating junk science: The International Journal of Internal Medicine and the Journal of the Royal Society of Medicine.
2.) Because one’s body can adapt to ABS, patients may go years before their condition is properly diagnosed. Since the symptoms are not preceded by the consumption of alcohol, they are often initially misinterpreted as resulting from fatigue or low blood sugar.
3.) In New York (as in all other states) a criminal conviction almost always requires proof beyond a reasonable doubt of at least two elements: mens rea (a guilty mind) and prohibitive conduct. The mens rea for DWI pertains to one’s decision to operate a motor vehicle after voluntarily consuming too many alcoholic beverages. In this case the defense submitted unrefuted forensic evidence proving that the defendant’s elevated blood alcohol content was attributable to her involuntary medical condition, of which she was unaware. The District Attorney’s Office presented no evidence of erratic driving.
Finally, one should keep in mind that the Department of Motor Vehicles has jurisdiction to conduct a hearing to determine if the defendant’s medical condition requires that restrictions be placed upon her driver’s license. What the defense vigorously contested was the state’s power to brand someone a criminal and subject her to possible incarceration as a result of a medical condition.
Joseph J. Marusak, Esq., is of counsel at Kloss, Stenger & LoTempio. Barbara Cordell, Ph.D., R.N. (Texas) and Anup Kanodia, M.D., M.P.H. (Ohio) contributed to this article.