Ketosis Defense

Embracing a low-carb diet might result in weight loss and feeling healthier, but it could also get you arrested.

It might sound crazy but it’s true. A low-carb diet can trick a breathalyzer test into producing false results.

Breath tests or breathalyzer tests are administered at the scene of a traffic stop when law enforcement suspects someone of driving under the influence of alcohol. The test measures (often inaccurately) your blood alcohol concentration (BAC). It’s no secret that these tests have a lot of problems, which include producing false results based on various factors. One of the most common problems in recent years especially has been elevated results based on someone’s diet.

DUI Test Results and Ketosis

How can what you eat affect your breathalyzer test results?

To understand how your breathalyzer test results can be falsely elevated based on what you eat, it’s important to understand ketosis.

Ketosis is the condition that occurs when your body turns to its storage of fat because you reduce the amount of carbohydrates you consume. When this occurs, your body produces ketones. Ketones are chemically similar to isopropyl alcohol – which is where the problem with the breathalyzer test comes in. The test checks for alcohol in the blood, but it can’t tell the difference between different alcohols. This means your BAC level could be higher than it is if the test picks up on the ketones in your system.

You could be completely sober and still register as intoxicated on a breathalyzer test.

Symptoms of Ketosis

Breathalyzer test results aren’t the only problem you face when eating a low-carb diet. People who are in ketosis experience many of the same symptoms as someone who has been drinking alcohol. This includes:

• Headache
• Brain fog
• Fatigue
• Nausea
• Bad breath
• Impaired physical ability

Essentially, someone in ketosis could be mistaken as drunk.

Who is affected by falsely elevated BAC results due to ketosis?

Anyone who has lightened their carb intake enough to trigger ketosis is at risk for a false positive on their breathalyzer test results. But most often, this problem for people with diabetes, both type 1 and type 2, and people adhering to a low-carb diet.

This includes Atkins, paleo, and more.

These things don’t guarantee ketosis, but they increase your likelihood. As a matter of fact, some dieters even make ketosis a goal because they know their bodies are burning stored fat, which helps them lose weight.

Unfortunately, without testing the ketones in your urine, you won’t know that you are in ketosis. But if you’re low on carb intake and your BAC test shows an elevated level of alcohol, despite not having any drinks, chances are you are.

Using Ketosis as a Defense

It might seem as if using ketosis as a defense against DUI charges would be an easy way out of your situation, but this isn’t the case. The court will require some proof to back up your defense. But what qualifies as proof of ketosis if you didn’t take a ketone urine test at the same time your breathalyzer test was administered?

Other evidence that can be used to support your claim of ketosis includes:

• An official medical diagnosis of diabetes
• Medical proof of your low-carbohydrate diet
• Receipts showing what you consumed at your last meal(s)
• Statements from people familiar with your dieting habits
• Personal food journal

The medically backed evidence is stronger than the other things on the list, but you could still make a decent argument using any of the above.

What If I Was Drinking?

Can you still use ketosis as a defense against DUI charges if you did have an alcoholic drink or two?

Maybe.

Even with a drink or two, your BAC could still be under the legal limit (usually .08% depending on where you live). But ketones could make it look like you’re over the legal limit. In this case, you’ll use the same defense as you would have had you consumed no alcoholic drinks. The only difference is there were some traces of liquor in your system.

Ketosis has been used more in recent years since low-carb diets have become a legitimate approach to weight loss. If you believe ketosis affected your breathalyzer test results or you want to speak to someone about a drunk driving arrest, David Lindsey can help. Contact him at 303.228.2270 to schedule a free consultation.

OWI Arrests

The court views punishment as a way to deter repeat offenders and protect the public from the harm caused by drunk drivers, so the penalties for those arrested on OWI charges tend to be severe.

If you are arrested for driving under the influence, you could be faced with steep monetary fines, suspension or revocation of your driving privileges, community service requirements, and jail time. What you do immediately following your drunk driving arrest can affect the outcome of your case and the long-term damage caused by your arrest.

It doesn’t matter whether you were wrongly accused or you made an honest mistake and your lapse in judgment led to an arrest. You need to take your situation seriously and act fast.

What are five of the most important things you need to know about managing an OWI arrest?

1. Work with an Experienced OWI Attorney

The absolute first thing you should do as soon as you are permitted to is to contact an experienced OWI attorney. The sooner you have the support and guidance of someone who understands the legal system the better.

A lawyer can explain your options and guide you through the best strategy for building a strong defense. He or she can also protect you against violations of your rights, including illegal searches or incriminating yourself when speaking to law enforcement.

2. Keep a Detailed Record of the Situation

Taking notes might not seem necessary following an OWI arrest, but it can help you build a stronger defense. The entire experience of being pulled over and accused of operating while under the influence is stressful, but if you can remain calm and make note of everything going on, it can help you in the long run.

As soon as you can, write down on paper or your phone everything that happened during your traffic stop, your arrest, and your time spent detained. Your attorney will review your notes and determine whether anything regarding the time you were arrested, the reason you were arrested, the type of BAC test administered, whether you were given options other than a breathalyzer, and anything else you can remember from the event could help your case.

3. Identify Witnesses

Was anyone around to see the traffic stop and arrest? These people might be able to testify on your behalf.

Witnesses can also share character testimonies or information about your condition when you were arrested. Was someone in the vehicle with you? Was a friend with you just before you got into your vehicle to drive? Had you spoken to someone recently who can attest to your condition?

Your attorney can help you identify witnesses who might be able to strengthen your case.

4. Set Your Social Media Accounts to Private

If there’s one thing you should know in the days, weeks, and months following a drunk driving arrest, it’s that you are being watched. Prosecutors are building a case against you and they can use your behavior after the event to damage your defense. This includes social media posts.

Anything you share on Facebook, Instagram, or any other social media account that might be seen as incriminating can be used in the case against you. Remove anything that might be untoward, even if you think it’s meaningless, and set your accounts to private so only those closest to you can see your posts.

Better yet, avoid posting until after your legal issues are resolved.

For more on how social media can be used against you, check out this article from Forbes.

5. Take a Deep Breath – Your Lawyer is on Your Side

One of the toughest things about being arrested on OWI charges is keeping your stress levels under control. The best thing you can do is to be patient and trust your lawyer. He or she is gathering evidence to support your defense and working with a network that can help you. It can take months for things to come to a culmination, but considering the work your attorney is doing can result in the charges being dropped or you having the opportunity to negotiate a plea deal, it’s worth the wait.

Have you been arrested on OWI charges? You need to contact a qualified defense attorney immediately. For more information or to schedule a consultation to discuss your case, contact Denver criminal defense attorney David Lindsey today.