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Fact #9:
If you are ill or have been in an accident in your DUI or DWI investigation and are taken to the hospital for treatment, you are required to give blood. But there must be a reason to take you to the hospital, not just because the Officer wants you to take a blood test. In California you have the right to choose between a breath or blood test. Always choose breath at the police station; not the hand held breath test in the street unless the Officer tells you that it is the chemical test and not a preliminary test. Now if the Officer suspects that you are under the influence of drugs, the Officer may also require you to take a urine or blood test in addition to the breath test, but the Officer must tell you so, and if that is the case, take it, but never request another test after you have taken the breath test at the police station even if one is offered.

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Gastroesophageal Reflux Disease (GERD) can be a medical defense to breath testing in DUI cases. Every year, many people who suffer with this disease, are wrongfully convicted of driving under the influence of alcohol. Here are some facts about GERD.

Most people are a product of the television age. On television there are countless ads for gas and heartburn relief. You see the ads for Tums, Rolaids, Tagament, Over the Counter Prilosec, Maalox, Pepto Bismo, and these are just the non-prescription products available. Then there are the ads for prescription medications, such as the purple pill, Nexium. The problem is that most of these products work too well. So, a person who has been experiencing heartburn and indigestion is relieved by the product that they have purchased and never thinks of anything else being wrong. I just ate too much or drank too much, or I ate the wrong food.

Here is the problem. Many of these people who are taking these over the counter medicines, never realize that they may have a more serious problem; GERD. If you have GERD, your test results from a breath testing machine will not be correct. In fact, you can be as low a 0.03% alcohol level, and read on the breath testing machines in the ranges of 0.13/0.15% alcohol. The higher your actual alcohol level, the higher the miscalculation can be.

Breath testing machines are designed to measure the alveolar air from your lungs. This is referred to as deep lung air. When you blow into the machine, it assumes that you air is coming directly from your lungs, and it measures the alcohol that you blow into the machine that it believes came from your lungs. Many of these machines are designed with slope detectors. They measure the breaths alcohol with a steady rate, and if that alcohol level suddenly increases, then the machine knows, that there is alcohol coming from another source beside that of the lungs; that other area would be from the stomach in the form of a belch. Some machines do not have this safe guard device, and even those that do, can error.

The problem with a person who has the disease of GERD is not that the machine is not working, but that the machine was never been designed to detect this disease. A person with GERD has a constant flow of alcohol gas coming from the stomach into the mouth, and so when he or she blows into the machine, that person combines the alcohol gas from the stomach with that of the lungs which gives a much higher reading. Because the gas from the stomach starts from the beginning of the blow and is constant to the end of the blow, unlike a belch which is intermittent, even machines with slope detectors do not detect that two areas of alcohol source are being put into the breath testing machine for evaluation. Thus, many people who are truly innocent of DUI breath test results, show guilty results. And how would you know? You are not a doctor. You are just an average person suffering with a disease that you may not even know you have because you have taken over the counter medications for your indigestion or heartburn.

If this is something that you experience, you need an attorney with special training in this area. He or she will go over your medical history, and send you for tests, if you do not already have notice of this indigestion in your doctors records, called a 24 pH test. This information will be the evidence in your DUI trial.

The office of Donald Gray Drewry has developed a special video that helps that jury understand what is happening to you and why the machine did not properly evaluate your breath test; in fact, why the machine could not properly evaluate your breath test in your DUI. The video was produced using the outline of Grays Medical dictionary, a Toxicologist trained and qualified as an expert in the California Superior Courts in the areas of the effects of alcohol in the human body and GERD, software engineers, and reviewed by medical doctors as accurate. This video was produced at the direction of the Law Office of Donald Gray Drewry, who practices in Northern California, in the cities of San Francisco, Oakland, Hayward, Fremont, Pleasanton, Martinez, Walnut Creek, San Jose, and others, and who lectures in this area of DUI or DWI defense. A portion of the video is shown on this page.

To see a patient test for GERD click Here