Written by attorney Bill Powers

Bill Powers Comments on GERD DWI Defenses in North Carolina - Raleigh News & Observer

RALEIGH -- An Apex Town Council member convicted in January of driving while impaired is appealing the verdict with an unusual defense: An acid reflux problem, he claims, skewed the breath test he took when arrested. Scott Lassiter, a Johnston County school teacher who was sworn in as a new Town Council member in December, is scheduled to go to Wake County Superior Court in mid-March to fight the conviction. Lassiter and his attorney James Crouch have asked for a jury trial to argue that gastroesophageal reflux disease caused elevated blood-alcohol content readings on his breath test. The defense strategy, though rare, has been used successfully in DWI cases in this state and across the country. "They're monumentally difficult," said Bill Powers, a Charlotte lawyer who has employed the strategy but knew none of the details of Lassiter's case. The crux of the argument is this: GERD can cause the regurgitation of undigested or semi-digested acids containing alcohol from the stomach back into the mouth or throat. The right readings Breath-test instruments are designed to measure the amount of alcohol in deep lung tissue, or "alveolar air," which is thought to correlate to the amount of alcohol in the bloodstream. When stomach acid enters the mouth or throat - because of acid reflux disease, heartburn or belching after a greasy or spicy meal - the breath-testing instrument could measure mouth alcohol instead of the more reliable deep lung air. That can result in inaccurate and falsely high readings, lawyers and medical experts say. But basing a defense on test results alone can be difficult, particularly if field test results and video evidence show erratic or drunken behavior. In North Carolina, breath tests, while significant, are only one of many elements considered in DWI cases. Powers said he would not use the GERD defense if law enforcement officers had video from a DWI stop showing staggering or poor performance on field sobriety tests. "That's like trying to rearrange the deck furniture on the Titanic," Powell said. "Why bother? Your ship is going down anyway." Lassiter, 24, declined to discuss his appeal strategy this week. He said he pleaded not guilty to the allegations last month in Wake County District Court, but his attorney did not present any evidence. Wake County District Judge Keith Gregory rendered a guilty verdict. Lawyers who have used the GERD defense say it is not unusual to wait for the case to be on appeal in Superior Court before presenting evidence. It can be expensive to call experts to testify about the medical condition and the calibration and error margins of instruments used to measure blood-alcohol concentration. Efforts to reach Crouch, Lassiter's attorney, were unsuccessful. Steven Saad, the Wake County assistant district attorney who handled the Lassiter case in District Court, said in his three years of prosecuting hundreds of DWI cases, he had never heard anyone argue that an acid reflux problem had caused distorted breath-test results. Lassiter's case Lassiter was charged with DWI last Feb. 13. A state Highway Patrol trooper pulled him over about 12:15 a.m., according to court documents. The trooper's report says Lassiter lost control of his car on an exit ramp in Garner, ran into a ditch, then backed out, and continued onto U.S. 70. Lassiter was cited also for failure to maintain lane control. According to court documents, Lassiter had a blood-alcohol concentration of 0.11. In North Carolina, it is illegal to drive with a blood-alcohol concentration of 0.08 or higher. Lassiter was sentenced in Wake County District Court to 30 days in jail, but the judge suspended that for 12 months unsupervised probation, a $100 fine and 24 hours of community service. Because Lassiter has appealed the verdict, the sentence is stayed until the case is decided in Wake County Superior Court. Lassiter, a former student body treasurer at N.C. State University and an Apex High School student body president, was elected to the Town Council last fall, after his DWI arrest, with the political backing of key Republicans, including Apex Mayor Keith Weatherly and former state Sen. Richard Stevens, a management consultant in the state Senate. Lassiter, the youngest Apex council member in recent memory, was elected with about 27 percent of the vote, the highest percentage of any candidate. Though Lassiter did not mention his DWI charge on his campaign website or in mailers, he said he was open with voters who asked about it.

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