Texas v. L.J.

0.144 BREATH TEST! Client was asleep in the drive-thru of McDonalds at 2:15 am. The police officers called DWI Task Force out to the scene. They did the HGN, then my client looked great on the Walk and Turn and the One Leg Stand. The officer then did the HGN again. He said it was because he forgot the angle of onset, but through cross it was evident he did not know if client was intoxicated after such good performances. Client went to the station and submitted a breath test of 0.137 and 0.144. Problem was that client was on a high protein diet for 30 days before this. When you eat no carbohydrates you force your body into a state of ketosis where your body starts eating your fats for fuel. Then when in ketosis, you consume a carb like alcohol, it kicks the ketosis up a notch. Your body has to react by converting the extra ketones to isopropyl alcohol. And the Intoxilyzer 5000EN can’t differentiate between the alcohol (ethanol) you consumed and the isopropyl alcohol produced by your body. Therefore giving you a falsely high breath test score. I had no expert and walked through all of this science with the State’s own expert. I even had a brain surgeon on the jury panel. He understood what was going on. Jury did the right thing. The DA was very good, they are the best I’ve seen in Harris County, but ultimately could not explain away this reasonable doubt. With no loss of mental faculties, no loss of physical faculties, and the DA couldn’t get around the high protein defense, it was Not Guilty all around. The jury again made the right decision and followed the law on a very touch and scientific case.