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False Positives And Other Outlandish DUI Arrests

by Michael Kraut on Aug. 22, 2017

Criminal DUI-DWI 

Summary: Have you heard the one about the driver who was arrested for DUI because he had a caffeine high? Or about the state legislator who successfully argued that cough syrup and a breath spray caused a false positive DUI breathalyzer reading?

Have you heard the one about the driver who was arrested for DUI because he had a caffeine high? Or about the state legislator who successfully argued that cough syrup and a breath spray caused a false positive DUI breathalyzer reading?auto-brewery-dui-300x169

While law enforcement officers and courts generally accept breathalyzer tests as proof that someone was driving under the influence, those tests can sometimes give false positive readings. As absurd as these stories sound, to the people wrongfully arrested for DUIs, these incidents are no laughing matter.

Betrayed by their bodies

A rare medical condition led a judge to dismiss a DUI charge against an upstate New York woman in 2015. Police pulled the woman over because she was driving on a flat tire and arrested her when a breathalyzer test revealed that she had almost four times the legal limit of 0.08 percent alcohol in her bloodstream. That’s considered life threatening, so police rushed her to the hospital.

What puzzled police, the hospital and her attorney, Joseph Marusak, was that the driver showed no symptoms of being under the influence. Plus, Marusak’s client claimed she had only four drinks over the course of six hours—not enough to leave her intoxicated.

Marusak ended up doing some investigating and eventually uncovered his client’s problem; she had auto-brewery syndrome, in which the body actually manufactures its own alcohol. Those with the disease have abnormal amounts of gastrointestinal yeast, which takes the common carbohydrates they eat and turns them into ethanol. The medical community has been aware of this condition since the early part of the 20th century.

The judge dismissed the charges against Marusak’s client, who is now on a yeast-free diet (no sugar, no alcohol and very few carbs, according to CNN).

Overzealous officers

Last December, ABC News 13 in Houston reported the story of a woman who was arrested for DUI and spent three days in jail. But Christie Lietzau claimed that the problem wasn’t that she was intoxicated, but that she was having an episode of multiple sclerosis (MS).

Christie Lietzau said she was driving her daughter to a fast food restaurant when she had an MS episode. The daughter, alarmed by her mom’s slurred speech and instability, called 911. When officers responded, they told the daughter her mother was impaired, not ill, and arrested her for DUI. Lietzau said the police didn’t give her a BAC field test, but a spokesperson for the Rosenberg Police Department said they followed all procedures.

The officers said that they drew blood and that the DUI charges stem from Lietzau being under the influence of prescription medicine. Lietzau admits to taking medication to control her MS, but says it doesn’t affect her driving ability. (There’s no word yet on how this case has been resolved.)

Prescription medicines can cause people to drive erratically, but one police officer in Statham, Georgia, has taken that a bit far, according to many locals. They allege that Officer Marc Lofton routinely arrests people who take prescription drugs—even those legally prescribed by physicians for diabetes, blood pressure and other medical conditions.

Stratham has a population of just over 2,500 people. Last fall, a group of 400 of those citizens—almost one-sixth of the town’s population—signed a petition calling for Lofton’s firing because of his allegedly overzealous actions. In November 2016, the Online Athens news site reported that a group of people “too large to fit inside the Statham City Hall without breaking fire code” attended a meeting of the City Council to demand that Officer Lofton be fired.

The angry citizens claim that Lofton is making these DUI arrests in order to boost the department’s (and the town’s) budget.

Statham Police Chief Allan Johnston has backed Lofton, although he admits that the officer needs more training in DUI. The Georgia Prosecuting Attorney’s Council, which investigated citizens’ complaints, said that the officer should take an Advanced Roadside Impaired Driving Enforcement Class (ARIDE). When questioned by reporters for CBS46, Johnston said that Lofton had taken the class when he worked for another agency but failed it. (The CBS46 reporters didn’t find a record of that training, but found that Lofton had taken—and failed—a Lidar (radar) speed measurement class.)

Officer Lofton’s accusers were further outraged by the fact that his wife was arrested for DUI in 2015 after blowing a .204 on a breathalyzer. But when her case came to court, the prosecutor dismissed the charges. He claimed that the Winder, Georgia officer who arrested her had credibility issues and that his office was dismissing many other of the officer’s DUI arrests.

Pot problem

One problem that DUI enforcement officers face is the lack of a credible test for marijuana intoxication. Many states, including Georgia, have reacted by training more officers to become Drug Recognition Experts, who learn how to detect possible drug intoxication by evaluating drivers’ behavior and reactions. The problem is some officers don’t get it right… and then they’re reluctant to admit that they may have been wrong in their assessments.

An investigative report by Atlanta 11 Alive news team found that one officer in Cobb County, T.T. Carroll, received a silver medal for making 90 DUI arrests in 2016, even though in at least three cases he apparently misread the signals.

Carroll charged Bartender Katelyn Ebner with DUI despite the fact that she passed a BAC field test and denied ever smoking marijuana. Carroll insisted that he could tell she was pot-impaired. Carroll spent the night in jail, lost her alcohol server’s permit and ended up spending thousands to clear her name. The drug tests, which police had said would prove her impairment, came back negative.

In a similar case, a college student named Princess Mbamara went to jail on Carroll’s accusation of marijuana intoxication. Her test results came back positive only for a local anesthetic that is found in anti-burn, anti-itch and similar over-the-counter medicines. Another unnamed Auburn University student had a similar experience; the prosecutor eventually dismissed the charges against the defendant, noting that the student had done fine on the field sobriety evaluation and that the blood and urine tests were negative.

Playing politics

Politics also sometimes plays a role when determining who gets charged and convicted of a DUI. In June 2016, a judge acquitted Florida Senator Terry Burton, the President Pro Tem of the Florida State Senate, of the charges of DUI against him. The Scott County judge decided that Senator Terry Burton’s BAC reading of 0.10 at the time of his arrest was a false positive. He accepted Burton’s explanation that the reading was the result of his taking cough syrup and using breath spray.

Burton had hit a traffic sign around 10 p.m. on the evening of May 14, 2016. He said that he had a coughing spell after the airbags deployed and drank some Nyquil because he had nothing else in the car. He then used the breath spray because his mouth was dry.

Burton admitted to drinking alcohol earlier in the day but insisted that he had stopped drinking in the afternoon and was not under the influence when arrested. The judge ruled that the BAC reading was a false positive and dismissed the charges against Burton.

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