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Prosecutors decide not to appeal bizarre ‘body as a brewery’ DWI case

A Hamburg woman who contested a DWI charge, saying her body became a brewery when she ate certain foods and liquids, has succeeded in getting the charge dropped.

Erie County’s district attorney will not appeal a town’s judge’s dismissal of the aggravated DWI charge against the 34-year-old teacher whose blood alcohol content measured .33 percent, more than four times higher than New York State’s legal limit, when Hamburg police arrested her in October 2014.

After reviewing medical research about “Auto Brewery Syndrome,” as well as medical tests conducted on the woman, Hamburg Town Justice Walter L. Rooth dismissed the charges in late December.

Prosecutors from the DA’s office initially said they would appeal the dismissal and seek to have the charge reinstated. But after researching the case, Acting District Attorney Michael J. Flaherty Jr. said he decided against an appeal.

“Upon reviewing the facts and the law, we have no legitimate grounds that we can raise in good faith that would compel the appellate court to reverse the trial judge’s decision,” Flaherty said. “Because the file is sealed, we are legally forbidden from discussing it further.”

Both Flaherty and the judge made the right decisions, the woman’s attorney said.

“My client does suffer from an extremely unusual condition, and we conducted very extensive medical research and presented our findings to the judge,” defense attorney Joseph A. Marusak said. “To my knowledge, this is the first time a DWI case has ever been dismissed on this basis in New York State, and as far as I can tell, it may be the first time in the country.”

The state executive director of Mothers Against Drunk Driving agreed that it appears to be the first DWI case ever dismissed in New York due to an “Auto Brewery Syndrome” defense.

“I’m checking with our national organization and, so far, they cannot find any other cases, either,” said Richard Mallow of MADD, an organization devoted to tough enforcement of DWI laws.

If not for the medical issues involved, MADD would find it “absurd” for a judge to dismiss a DWI case when the defendant’s blood alcohol content was measured at .33 percent, Mallow said.

But in this case, he said he does not know enough about the science involved to criticize the ruling.

In layman’s terms, the woman’s digestive system has so much yeast in it that her body sometimes acts “like a brewery” and turns non-alcoholic food and beverages into alcohol, Marusak said.

“When the judge issued his decision, he said he had read our medical evidence and believed it to be true,” Marusak said.

The News agreed not to publish the woman’s name, because the charges have been dismissed and because her attorney maintains that publicity about her condition would cause her embarrassment in the school where she works. The teacher is a Hamburg resident who was 34 at the time of arrest and now is 36.

Her condition has improved somewhat since the arrest, apparently because she changed to a low-sugar diet, Marusak said.

“It still happens to her occasionally, most often late at night,” Marusak said. “She’s very careful about it, and it has never affected her teaching.”

The incident in October 2014 was the only time the woman is aware of being affected by the condition while driving, the defense attorney said.

On the day of her arrest, the woman had consumed three alcoholic drinks over a period of six hours, Marusak said.

“Nowhere near enough alcohol to create a blood alcohol level of .33,” the attorney said.

Hamburg officers pulled over the woman’s car on Lake Shore Road because she was driving “erratically” on a flat tire, with smoke spewing from her vehicle, according to Hamburg Police Chief Gregory G. Wickett and Chief of Detectives Kevin Trask. Another driver had called 911 to report the erratic driving.

The arresting officer reported that the driver’s breath smelled like alcohol and she “exhibited glassy-bloodshot eyes and slurred speech.” 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, police reported.

His client’s blood alcohol content was measured at .33 percent by the Breathalyzer and .30 percent in a later blood test administered at Erie County Medical Center, according to Marusak. He said his client felt “a little woozy” that night, but did not feel that she was too impaired to drive.

Marusak said he began to investigate the woman’s medical condition because he believed her story.

“She and her husband asked the hospital to test her blood. The guilty DWI driver does not do that,” Marusak said.

The attorney said 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 be examined by Kanodia and also conducted tests on her in Buffalo.

Last January, according to evidence Marusak presented in court, 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.

Last May, two nurses and a physician’s assistant 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 when she was not consuming alcohol,” Marusak said.

Kanodia told The News last year that, in his opinion, a person suffering from Auto Brewery Syndrome and a .33 percent BAC should not be driving a car. But he added that he and other doctors are still studying the syndrome to examine its effects on different individuals.

Trask, from the Hamburg Police, said the dismissal of the case does not change his opinion that the woman – based on the incidents of that night – should have been arrested.

“However a person reaches a state of intoxication, if you are not able to safely operate a vehicle, we want you off the road,” Trask said.

email: dherbeck@buffnews.com