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Acquitted with High Protein Diet Defense on 0.118 Test Case

Practice Area: DUI and DWI

Outcome: Jury returned a verdict of not guilty on the DUI, guilty to FTML and guilty to speeding.

Description: D was stopped and arrested for FTML, speeding, and DUI. D blew a .118 and .119 on the Intoxilyzer 5000. D's jury trial was in DeKalb State Court. D was on a high protein diet at the time of his arrest. At trial we called his coworker/driving partner that rode and drove in his 18 wheeler across the country. He explained the odd eating habits and that D had lost about 40 pounds leading up to his arrest. We called a medical doctor to explain that when someone adheres to a high protein diet, the body is in a state of ketosis. During this process, the body will produce ketones. An expert on the Intoxilyzer 5000 testified that the ketones had similarities to alcohol and would mistakenly be read as alcohol by Georgia's outdated breath test machine (Intoxilyzer 5000). The expert explained that this machine was developed and patented in the 1980's. The expert stated that the problem with the machine is a lack of specificity in what the machine was attempting to identify. Jury returned a verdict of not guilty on the DUI, guilty to FTML and guilty to speeding. D's job was saved as a result of this favorable verdict.

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