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Will my charge possibly get dropped?

Findlay, OH |

last saturday i got a dui. however when i left my friends house i thought i was perfectly fine to drive because an hour passed and i only had a few drinks. however when i blew i got a 0.022 ( im underage. so .02 is the limit for underage). i am on a low carb diet since the beginning of december. and i read that being on a low carb diet can cause false breathalyzer results(A low carbohydrate, high-protein diet puts the body into a state of ketosis which burns body fat. If the subject ingests carbohydrates including starches, sugars and alcoholic drinks during ketosis, the body produces isopropyl alcohol. Most breathalyzer machines will falsely detect the isopropyl alcohol as ethanol alcohol, reporting a false, high blood alcohol concentration ). will this be enough to drop my dui charge if i were to take it to court?

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Attorney answers 5


It's unlikely that the prosecutor would just "drop" the case, but your lawyer might be able to use these facts to defend you at trial, or wrangle a plea bargain out of the prosecutor.


Probably not. The roadside PBT is far more susceptible to registering a false BAC than a breathalyzer at the station. This is because of the fuel cell used in the PBT. What is being picked up is the ketones exhaled during ketosis. Since you cannot be convicted based on a BAC sample taken by a PBT I am assuming that your .022 sample was given on either a BAC Datamaster or an Intoxilyzer 8000. You need to hire an Ohio DUI/OVI attorney who can challenge many things including the concerns that you raised regarding the veracity of the breath test.


Is there a court matter set, a DMV matter, or both? There are several ways to attack the reliability of breath test results, but just because those exist does not mean that a prosecutor or the DMV will just drop charges without a fight. I recommend that you speak to a DUI attorney in your area about your case in more detail and steps they can take to attack the case.

Legal disclaimer: This message does not constitute legal advice and is for informational purposes only. This message does not establish an attorney-client relationship, which can only be established once a retainer agreement has been fully executed between you and this firm.

Andrew Richard Bucher

Andrew Richard Bucher


State of Ohio vs. Pete A. Vega (1984), 12 Ohio St.3d 185, 465 N.E.2d 1303. Be happy you do not practice here in Ohio.


Please ignore the answer from the California lawyer as the law and procedures are much different out there. Regarding your arguments about the number produced by the machine, you can go that route but only if you can shell out the money for an expert, otherwise it will be deemed a "general attack" and prohibited by the court.

Your case is on a Datamaster, not an I-8000 (they don't use the 8000 anywhere in Hancock County) so there are a number of unique approaches that you can take. Also, because you case is in the 3rd district Court of appeals we have a particular appellate decision that is quite useful in what appears to be just your exact situation.

I live in Findlay and have offices in Toledo and Lima. I regularly meet with hancock county clients informally in town so they do not have to drive to one of my offices.

Have a peek at my profile and contact me if you have any questions.


I agree with Attorney Bucher. A defense will need to be tailored to your case in the local territory of your case. Getting a court to drop the charges based on your low carb diet will be very difficult. A judge will know that if he/she allowed that defense, suddenly everyone will be on a low carb diet every night they are out drinking. Such an excuse for errant BAC readings should be just one offered by your attorney. Cities like OVIs because they are good money for the city. You'll have to do better than a low carb diet defense.

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