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High-Protein Diet Proves Key to Defense Win in Drunk Driving Case November 27, 2000 Edition After failing an alcohol breath test, a Georgia man beat charges of drunk driving when his attorney argued that his .10 alcohol level was caused by a high-protein diet rather than by excessive drinking. The novel argument was made by defense attorney William C. Head, an Atlanta attorney who specializes in drunk driving defenses. Head says this is the first time he has used the defense at trial, so he's batting 1,000 so far. He says scientific evidence and expert testimony -- as well as the arresting police officer's honest testimony -- convinced the jury that Mark Redstrom's diet made the breath test unreliable. The high-protein defense is based on the theory that a human body produces its own alcohol if carbohydrates are suddenly consumed after being eliminated from the diet for a prolonged time. Experts do not yet know how much body-generated isopropyl alcohol it would take to intoxicate a person, Head says. But Georgia drunk driving law specifies that a person's level of intoxication is "from alcohol consumed." Some other states, including Wisconsin and New Jersey, have laws that do not distinguish between alcohol consumed and alcohol generated by the body, Head says. So the defense Head used might not be as effective in those states. The 'Designated Driver' Redstrom, whose friends called him "Buddha," started a high-protein diet after seeing photographs of himself from Christmas 1997. In five months, he lost more than 50 pounds, slimming down to 165 pounds, Head says. The roommate's testimony and "before" pictures of Redstrom compared to his slim appearance in court established the defendant's strict compliance with the diet. On the night Redstrom was arrested, he volunteered to be the designated driver for his friend's bachelor's party. Head says his client drank about four beers in the course of five hours at the party, held at a notorious strip club in Atlanta. For the last two and a half hours of the party, he didn't drink at all, his attorney says. He was angry with the strip club management for not getting the groom-to-be onto the stage and just trying to sell drinks and make money. After taking his friends home that night, Redstrom was on his way home when the police stopped him for speeding. It was 3:23 a.m. and the police officer clocked Redstrom at 58 mph in a 45-mph zone, Head says. The officer conducted field sobriety tests. He testified that Redstrom showed almost no signs of intoxication, including no slurred speech, a normal face and a polite and cooperative manner. Redstrom told the officer he had been at a strip club with friends and had not consumed any alcohol in more than two and a half hours. "That was a real key to this case, having a real honest officer who didn't embellish or exaggerate," Head says. Redstrom agreed to take breath tests. The tests, with the Intoxilyzer 5000 device, registered his blood alcohol level at 0.107. Head credited his client questionnaire with picking up the possibility that Redstrom's diet skewed the breath tests. Keeping apace with alcohol testing trends, Head knew that a Swedish doctor had found certain diets interfere with the breath tests, so the attorney included the question "Have you been on a high-protein diet?" on his questionnaire. The Swedish doctor, A.W. Jones, reported in a forensic science journal that in hypoglycemia, a condition involving low blood sugar levels, the body creates isopropyl alcohol, which would register on a breath test, Head says. The defense attorney called an expert who supported Dr. Jones' findings. David Menaldino, a professor of organic chemistry from Emory University, testified that a person's body produces ketones after a long period of fasting or carbohydrate deprivation. Ketone buildup in the body can be toxic. If the person consumes carbohydrates, Dr. Menaldino testified, the body creates amino acids to break down the carbohydrates and make the ketones less toxic. One of the byproducts of this process is isopropyl alcohol, which the body eliminates through the kidneys and lungs, according to the experts. Although most people do not drink isopropyl alcohol, which is rubbing alcohol, the Intoxilyzer 5000 does not distinguish between isopropyl and other types of alcohol in the body, according to testimony from Mary McMurray, a defense expert on the Intoxilyzer. Ethanol is the alcohol people most commonly consume. McMurray supported the Swedish doctor's finding that isopropyl alcohol generated by the body would affect a breath test. The prosecutor called rebuttal witness Jim Panter from the Georgia Crime Lab. Panter refuted the contention that a high-protein diet would skew a breath test. On cross-examination, however, Head says he asked Panter whether he kept up with the scientific literature in the field. Panter said he did. Head asked Panter to name the foremost expert in the world on breath testing, and Panter named Dr. Jones. Then, Head says, he handed Panter the article Dr. Jones wrote about hypoglycemia and the breath test. Panter had not read the article, and he took 12 minutes on the witness stand to read the article, Head says. Panter testified that Dr. Jones' report was just one case and was only anecdotal evidence, but Head says Panter already had lost credibility with the jury. Prosecutor Stephen A. Fern, of the Gwinnett County Solicitor's Office, could not be reached for comment. Prosecuting attorney: Stephen A. Fern of Gwinnett County Solicitor's Office in Lawrenceville, Ga. Defendant's attorney: William C. Head of Head Thomas Webb & Willis in Atlanta, Ga. The case: Gwinnett County State Court, Georgia, State of Georgia v. Redstrom; Case no. 98D-4228-4; Judge Timothy Hamil. |
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