By Attorney Steven B. EpsteinSpecial to THELAW.TV
Gastro esophageal reflux disease, commonly referred to as GERD, is a digestive disorder that affects an estimated 30 million Americans annually. Attorneys who handle DWI cases should screen clients for GERD, since GERD can compromise a person’s ability to give a forensically reliable breath sample.
Most individuals charged with DWI offenses in New York will be asked to submit to a breath test to measure their blood alcohol concentration (BAC). Breath testing requires the collection and testing of a sample of deep lung or alveolar air. Simply stated, a person who has GERD is unable to provide an uncontaminated sample of alveolar air. That contamination causes falsely high BAC measurements.
GERD can affect the lower esophageal sphincter (LES), the ring of muscle between the esophagus and stomach. In normal digestion, the lower esophageal sphincter opens to allow food to pass into the stomach and closes to prevent solids, liquids, or gases from flowing back into the esophagus. Gastro esophageal reflux occurs when the LES is weak or relaxes inappropriately, allowing the stomach’s contents to flow up into the esophagus. This is often associated with heartburn or acid indigestion, a symptom of the disease. The passage of gases, liquids, or solids from the stomach into the oral cavity occurs continuously, regardless of the presence of symptoms such as heartburn.
GERD is relevant in evaluating the reliability of a breath sample because the alveolar air sample collected from a person with GERD will necessarily be contaminated with gas from the stomach, and may be contaminated with liquid or, even worse, solids that have a vastly higher concentration of alcohol than the alveolar air. The result is an artificially inflated BAC.
The importance of obtaining a sample of uncontaminated air has been long recognized by the New York State Department of Health, which promulgates rules and regulations concerning breath analysis techniques and methods. Section 59.5 of the New York State Codes, Rules and Regulations requires that a breath sample of alveolar air must be collected free of contamination from any other source. This is the reason for the requirement that prior to the collection of the breath sample, the subject must be observed for a minimum period of fifteen minutes (the “Deprivation Period”) to be certain he has not ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten, smoked, or been allowed to place anything in his or her mouth. GERD makes it impossible for a Deprivation Period to be effective due to the subject’s inability to completely close the esophageal or laryngeal sphincter muscle, subjecting the person to continuous regurgitation of stomach gases.
As a result, it is essential that any attorney representing a client on a DWI case where a breath test was administered inquire about whether the client has ever been diagnosed with GERD and, if so, obtain the client’s complete medical records. In doing so, be sure to determine whether an endoscopy was ever performed, as this will conclusively establish the medical diagnosis of GERD. Moreover, since GERD is a chronic condition, an endoscopy is relevant regardless of whether it was done contemporaneously with the client’s arrest, so long as it pre-dates the breath test. In the absence of an endoscopy, a physician may have examined your client and prescribed a course of medications based on a diagnosis of GERD, but an endoscopy is preferred since it would show the amount of any deterioration of the lower or upper esophageal sphincters.
From an evidentiary perspective, be prepared to meet the challenges of a prosecutor for failure to comply with discovery obligations. Any medical records you intend to introduce may be discoverable pursuant to Criminal Procedure Law §240.30(a).
Also be prepared to address any challenges by the prosecutor seeking to preclude testimony related to GERD on the basis that the evidence, although technically relevant, will be excluded if it is too “slight, remote, or conjectural to have a legitimate influence in determining the fact at issue.”
Complications of GERD can include difficulty swallowing, regurgitation, discomfort, and an increased risk of cancer. These symptoms typically result in seeing a doctor for care. A doctor can treat this disease once it is diagnosed; but a lawyer representing a client who has GERD can do nothing about it unless he is aware of the diagnosis, knows its impact on the reliability of the breath sample, and can utilize that knowledge to Get Enough Reasonable Doubt!
Steven B. Epstein is a founding partner in New York-based criminal defense law firm of Barket Marion Epstein & Kearon LLP. Mr. Epstein defends people accused of all crimes throughout the New York metropolitan area and has extensive experience in DWI and vehicular assault/homicide defense.
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Monday, May 19, 2014
By Attorney Steven B. EpsteinSpecial to THELAW.TV
Sunday, May 18, 2014
Discover Some Foods That Cause Acid Reflux, Heartburn, Indigestion, Gas And â¦ â PR Web (press release)
Foods That Cause Acid Reflux, Heartburn, Indigestion, Gas And Bloating In Adults, a new report on the website Vkool.com uncovers some kinds of foods that can cause digestive problems.
Seattle, Wa (PRWEB) May 13, 2014
Foods That Cause Acid Reflux, Heartburn, Indigestion, Gas And Bloating In Adults, a new report created by Van Tran on the site Vkool.com shows some kinds of foods that can cause digestive problems, and detailed instructions on how to improve the digestive system. At the beginning of this report, people will discover some foods that can cause acid reflux and heartburn in adults such as:
Tomatoes and Citrus Fruit including orange juice, lemonade, lemon, cranberry juice, grapefruit juice, tomato, and mashed potatoes
Chocolate: chocolate contains caffeine and other stimulants like theobromine that cause reflux.
Beverages such as liquor, wine, coffee, and tea
Dairy such as sour cream, ice cream, milk shake, and regular cottage cheese
Grains involving spaghetti with marinara sauce, and macaroni and cheese
Meats including marbled sirloin, ground beef, chicken nugget-style, and chicken wings
Garlic and onions
Pepper and salt
Caffeine and soda
Nuts, cheese, and avocados
High-fat protein foods including fried eggs, fatty cuts of red meat, and lunch meats
Next, Van Tran reveals to readers some natural and safe remedies for reducing acid reflux, heartburn, indigestion, bloating and gas including:
Limit the consumption of nuts like walnuts and almonds.
Avoid lying down immediately after meals.
Avoid drinking carbonated beverages during meals.
Do not eat fatty foods and high-fat meals.
Chew gum after meals.
Relax and eat slowly.
Check out trigger foods.
Wear looser clothing.
Eat Yogurt and Probiotics: eating probiotic yogurt or other foods, which contain good bacterias may help relieve digestive disorders such as acid reflux, heartburn, bloating and gas.
Eat Peanut Butter: peanut butter is a lower-fat protein food.
Eat foods that are high in Fiber: fiber may help reduce symptoms of Gastroesophageal reflux disease.
Huy Pham from the site Vkool.com says, “Foods That Cause Acid Reflux, Heartburn, Indigestion, Gas And Bloating In Adults is a good report that helps readers understand more about positive and side effects of foods on human health. In this report, the author uncovers to readers some simple and easy tips to prevent or treat digestive problems quickly.”
If people want to get more detailed information from the Foods That Cause Acid Reflux, Heartburn, Indigestion, Gas And Bloating In Adults article, they should visit the website: http://vkool.com/foods-that-cause-heartburn/.____________
About Van Tran: Van Tran is an editor of the website Vkool.com. In this website, Van Tran provides people with a collection of articles on positive and side effects of foods on human health.
Did you find this useful? More Info: JustNoAcidReflux.com