Low carbohydrate/high protein diets have been popular for decades as a way to lose weight quickly. Whether it is the keto diet, Atkins, Paleo, or some other name for a ketogenic diet, you might be surprised to learn that one side effect is a false positive on a breathalyzer at a DUI stop. 

How Keto Diets Work – in a Nutshell

These diets allegedly burn off fat by converting fat into ketone bodies and fatty acids. If you are not on a ketogenic regimen, your body typically uses glucose for energy. Keto diets are very low in carbs, including those that contain glucose. With the keto diet, your body can’t burn glucose, so it burns ketones for energy.

You might wonder how you could end up in jail for following one of these trendy diets. A low-carb diet itself is not against the law, but your body’s chemistry could register a false positive on a DUI breath test. A prosecutor could use the false positive result as evidence against you to get a conviction for driving while under the influence of alcohol. Also, a keto diet could cause symptoms that make you appear intoxicated to the officer.

How You Could Fail a Field Sobriety Test Because of a Keto Diet

You might not have even had a sip of alcohol before getting behind the wheel, yet a police officer might suspect that you are impaired by alcohol. When you severely limit your intake of carbs and increase your protein consumption, your body eventually goes into what is called a state of ketosis. Your body will have a very high level of ketones.

A person in a state of ketosis can develop the side effects:

• Your breath could smell very sweet or like alcohol.
• Your face could become flushed.
• You might become sluggish.
• Your movements could become uncoordinated.
• Your face could become red and flushed. 
• Due to the diuretic response to ketosis, you could become dehydrated and very thirsty. 

Let’s see that you got pulled over for speeding. The officer walked over to your car and talked to you. When you responded, the officer smelled what he thought was alcohol on your breath. Your face was red and flushed. Your speech was sluggish, and you were a little clumsy when reaching for your driver’s license and registration. All of these factors were caused by being in a state of ketosis.

Based on your conduct, the officer felt justified in making you take a breathalyzer test. This is where things go from strange to downright bizarre. Without drinking a drop of alcohol, you might fail a breathalyzer test and get arrested for a DUI.

Why Keto Diets Can Register a False Positive on a DUI Breathalyzer Test

DUI breathalyzer testing equipment can only perform within the limits of its design. Some DUI breath testing machines incorrectly read ketones as alcohol on the breath. The chemical composition of ketones is similar to isopropyl alcohol, also called rubbing alcohol. It can be lethal to drink isopropyl alcohol, but a breathalyzer might not be able to distinguish between isopropyl alcohol and ethyl alcohol, which is the kind of alcohol that people drink.

If the machine mistakes ketosis breath for alcohol, the test result can be a false level of blood alcohol concentration (BAC) that exceeds the legal limit. In other words, the prosecutor would have strong evidence to support a conviction of driving while under the influence.

Other Medical Conditions Can Cause Ketosis that Masquerades as Intoxication

There are multiple medical conditions and behaviors besides a high-protein/low-carb diet that could lead to the body producing an excessive amount of ketones. In these situations, a person could mistakenly get arrested for a DUI because of the appearance of intoxication from being in a state of ketosis and from registering a false positive for a high BAC level on a breathalyzer test.

• A person with diabetes cannot produce enough insulin or does not respond well enough to the body’s insulin for the body to use glucose for energy. The individual can build up dangerously high levels of blood sugar and make too many ketones for the body to flush out. The person could develop diabetic ketoacidosis, which can be fatal. The symptoms of diabetic ketoacidosis are the same as being in a state of ketosis from a ketogenic diet.
• An individual with an eating disorder, like anorexia or bulimia, can go into a state of ketosis. When the body does not get enough carbohydrates due to an eating disorder, diarrhea, fasting, or starvation, the body burns off its fat stores for energy. Using fat instead of carbohydrates for energy can cause the liver to produce a high level of ketones, resulting in ketosis.
• Hypoglycemia, also called low blood sugar, can cause many of the same physical symptoms as ketosis, leading a police officer to think that the person is intoxicated. A person with diabetes could become hypoglycemic if their insulin dose is too high. Some medications can cause hypoglycemia, as can endocrine disorders or diseases of the liver or kidneys. 

If you have any of these medical situations or were on a high protein, low carbohydrate diet that caused a state of ketosis, you will want to speak with a DUI defense lawyer about using the keto defense in your case. It is a significant challenge to persuade a jury that a diet or medical condition could cause a false positive breathalyzer result and make a person appear intoxicated. You want to work with a criminal defense lawyer to fight this battle. 

Strategies for Fighting a Ketosis-Caused DUI Charge

The way to go about challenging a DUI charge for a field sobriety test or false positive breathalyzer analysis will depend on the specific facts of your case. As we learn more about conditions that can cause ketosis and how ketosis affects the body, it is likely that we will develop even more techniques for defending people from unfair arrests and criminal charges.

Countering the Physical Appearance of Intoxication from Ketosis

If the police report describes physical symptoms, like the smell of alcohol, a red or flushed face, and a lack of coordination that the officer observed in your appearance at the traffic stop, the keto defense could explain that part of the police report. Your DUI attorney could present evidence that the diet you were on or a medical condition from which you suffer causes the same symptoms noted in the police report.

A letter from your treating physician could be extremely valuable. The letter should identify the medical condition or diet and explain briefly how your situation can cause a false positive breathalyzer test result and the specific symptoms the police officer noted in the traffic stop and arrest report. 

It would be quite expensive to pay your doctor by the hour to come to court to testify, but a letter might get the ball rolling. The prosecutor might want to take your doctor’s deposition or hire an expert for the prosecution. As a practical matter, however, the prosecutor might decide to drop the charges.

Attacking A False Positive Breathalyzer Result

You might decide to try to prove that you had isopropanol from ketosis in your bloodstream or on your breath at the time of the breathalyzer test instead of ethanol from alcoholic beverages. It is possible to distinguish isopropanol and ethanol by using gas chromatography of the defendant’s blood sample. You will need to obtain and preserve a blood sample right away for this differential analysis because alcohol dissipates in the breath and bloodstream in a matter of hours.

Another possible option is to attack the breathalyzer machine itself. Research studies reveal that some breathalyzer devices are substantially unreliable even when measuring ethanol. The same sample BAC result could range from 0.09 to 0.17, for example, depending on which breathalyzer the officer used. In other words, if you can show that the particular breathalyzer unit the officer used is not reliable, you could discredit the validity of the breathalyzer test results.

Even identical models of the same brand of breathalyzer could achieve inaccurate results because of instrumental or procedural problems. In other words, the breathalyzer could be flawed, there could be maintenance issues with the device, or the officer might have used the machine incorrectly. It is usually best to have an expert evaluate the actual unit the officer used at the time of the DUI arrest.

How to Fight False and Unfair DUI Arrests and Charges

Getting charged with and convicted of a DUI can have far-reaching consequences that damage your career, your finances, and your reputation for many years. Challenging DUI charges based on ketosis causing physical symptoms that look like intoxication or a false positive breathalyzer test is sophisticated work, not for amateurs.

If you find yourself charged with a DUI wrongfully because you were in a state of ketosis from a ketogenic diet or a medical condition, you will want to have a DUI attorney at your side from the very beginning.

Chelsea Annmarie Stiles, 27, was convicted of vehicular manslaughter in a DUI crash that left an elderly man dead in 2019 in San Luis Obispo, California. This week, District Attorney Dan Dow announced that Stiles has been sentenced to  serve 15 years and eight months in state prison.

In December 2020, the San Louis Obispo County jury convicted Stiles of numerous offenses. However, after several days of deliberation, the jury was initially unable to reach an unanimous verdict on the most serious charge—murder. Stiles was convicted of  the following felonies: gross vehicular manslaughter while intoxicated, driving under the influence of a drug causing death, four counts of assault with a deadly weapon using an automobile, fleeing the scene of a vehicle collision causing injury, child abuse, and a misdemeanor possession of cocaine.

The deadly crash sequence occurred on December 1, 2019 at approximately 6:00 p.m. on Highway 227. According to investigative reports, Stiles, while under the influence of cocaine, seemingly lost control of her vehicle and rear-ended an automobile carrying a family of four at over 70 miles per hour, disabling the vehicle as a result. Moments later, Stiles inexplicably drove into the opposite lane and struck a 77-year-old San Luis Obispo man identified as Terry Tilton head on at 68 miles per hour. Unfortunately, the impact of collision was severe and killed Tilton instantly. Stiles’s 18-month old daughter and her two dogs were also in her vehicle at the time of both collisions.

Stiles suffered from moderate injuries and was taken to a nearby hospital for medical treatment along with her young daughter who thankfully only sustained minor injuries.

During trial, court testimonies suggested that prior to the deadly crash, Stiles cut her daughter’s scheduled visitation with the father short. The father told investigators that Stiles’ strangely aggressive behavior lead him to believe that she was under the influence of drugs.

A CHP officer Trevor Ashton testified that Stiles was generally incoherent as she was being transported into the ambulance. At the hospital, Stiles admitted to intentionally crashing her vehicle into the two cars she hit but gave no explanation as to why.

In 2016, an upstate New York woman she blew a blood alcohol level more than four times the legal limit and was charged with a DUI. However, the a judge dismissed the charges after being presented with evidence the woman suffers from “auto-brewery syndrome.”

“I had never heard of auto-brewery syndrome before this case,” her attorney told CNN. “But I knew something was amiss when the hospital police wanted to release her immediately because she wasn’t exhibiting any symptoms.”

“That prompts me to get on the Internet and see if there is any sort of explanation for a weird reading,” adds her her attorney. “Up pops auto-brewery syndrome and away we go.”

“I’m in touch with about 30 people who believe they have this same syndrome, about 10 of them are diagnosed with it,” said Panola College Dean of Nursing Barbara Cordell, who has studied the syndrome for years. “They can function at alcohol levels such as 0.30 and 0.40 when the average person would be comatose or dying. Part of the mystery of this syndrome is how they can have these extremely high levels and still be walking around and talking.”

Auto-brewery syndrome is a very rare condition.  People who have auto-brewery syndrome register abnormally high blood alcohol levels, even if they consume no alcohol. Crohn’s disease, liver problems, poor nutrition, antibiotics, inflammatory bowel disease,  low immune system, diabetes are all believed to cause auto brewery syndrome. Symptoms can sometimes include moodiness, confusion, difficulty focusing, lack of physical coordination, and memory problems.

When people suffer from this disorder, their bodies makes alcohol out of carbs they eat. This happens insides the gut or intestines. It may be caused by too much yeast in the gut. Yeast is a fungus. Some kinds of yeast that might cause this disorder are

• Candida albicans
• Candida glabrata
• Torulopsis glabrata
• Candida krusei
• Candida kefyr
• Saccharomyces cerevisiae 

The syndrome was first discovered in 1912. It was then called “germ carbohydrate fermentation.” It was studied in the 1930s and ‘40s as a contributing factor to vitamin deficiencies and irritable bowel syndrome. Right now, there’s no criteria to diagnose or even treat auto-brewery syndrome making it even harder to tell when patients have the disorder. 

The auto-brewery syndrome might lead to a DUI arrest since it causes patients to have a breath or blood alcohol concentration over the legal limit even though no alcoholic beverage was consumed. However, it can be used as a defense to a DUI charge.

California Vehicle Code 23152 (a) states: It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle. Someone with auto brewery system cannot be convicted of violating this statute because they have not consumed any alcoholic beverage.

California Vehicle Code 23152(b) states: It is unlawful for a person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle. It doesn’t mention the defendant’s BAC needs to be due to actually having consumed an alcoholic beverage. However, involuntary intoxication can be used as a defense to this crime. If someone has not consumed any alcoholic beverages, the defendant’s intoxication was involuntary just as if they were drugged.

Defense would have to use expert testimony to prove to the court that the disorder is valid, the defendant’s medical records that the defendant has the disorder and present evidence that it contributed to the DUI offense.

If you have been arrested for a DUI offense, immediately hire an attorney. If you believe you might suffer from auto brewery syndrome, it is crucial that you discuss with your attorney.

Since government stay-at-home orders and business shutdowns, there has been a significant drop in the number of cars on the road. If you think this has led to a significant decline in the number of DUIs, you’re right. Data from local and state agencies show showed DUI arrests have decreased significantly since the pandemic arrived. There has been a 42% decrease in DUI rates in California post-pandemic. However, while DUIs have decreased, substance abuse has increased.

The pandemic has caused many Americans to:

-Be isolated from their friends and family

-Fear and worry about their health and the health of their loved ones

-Lose their job or fear losing their job

-Lose the support services they rely on

This has lead to changes in sleep and/or eating patterns, difficulty concentrating and functioning, and worsening of chronic health problems which leads to depression and anxiety and increased substance abuse. Those who already struggle with alcoholism and addiction are at even higher risks of substance abuse during these difficult times.

“I would definitely say the depression, the anxiety, the uncertainty, the loneliness, the isolation, all of those factors aren’t good for mental health,” Sheila Vakharia, deputy director of research and academic engagement at Drug Policy Alliance, told Yahoo Finance. “What we do when we’re feeling that way is that sometimes we shut down, but sometimes we reach out in different ways to cope. Reaching out to your drug of choice, whatever that might be, is one strategy.”

“A lot of this depression and anxiety is also related to the fact that people have lost their jobs,” Vakharia said. “We’ve got unprecedented rates of unemployment, employment instability, the loss of benefits, or other things that your business might do to employees to stay open. I think people do things to cope with the circumstances that they’re in. People are struggling with all these other forms of instability and confusion and lack of information from the top down about what’s going on, when we’re going to get out of this, what they can expect, and how to stay safe.”

In April of this year, one-third of Americans couldn’t make their rent payments. While there’s no comprehensive date, many states report sharp upticks in homeschooling. The unemployment rate stood at 6.7 percent in December, well above pre-pandemic levels of 3.5 percent.

“Are you supposed to be happy when you lose your job?” Ms. Vakharia goes on to say. “Or when your kids are at home and you can’t make ends meet?”

According to the CDC, there were over 81,000 deaths from substance abuse in America in the 12 months ending in May 2020. That the highest number of deaths from substance abuse ever recorded in a 12-month period. According to the market research by Nielsen, online sales of alcohol rose to 234 percent in March of this year compared to March of last year. In-store purchases of tequila, gin, and pre-mixed cocktails increased to 75 percent. Wine sales soared to 66 percent. Beer sales rose to 42 percent.

If you are struggling with a mental health condition such as depression and anxiety, please do not resort drugs or alcohol as a coping mechanism. This will only create more problems for yourself and your loved ones. Instead, please consider these healthy tips on how to cope:

-Take breaks from watching, reading, or listening to news stories, including those on social media. Constantly hearing about the pandemic can be stressful.

-Go for a run or a hike.

-Take deep breaths, stretch, or do yoga.

-Try to eat healthy, well-balanced meals.

-Exercise regularly.

-Get plenty of sleep.

-Avoid alcohol and drug use.

-Make time to unwind. Try to do activities you enjoy.

-Take time to journal.

-Make a list of things that you are grateful for.

-Make a list of songs that put you in a positive mood and listen to them when you are down.

-Connect with others. Talk with people you trust about your concerns and how you are feeling.

-Do something kind for someone, such as posting a kind comment on someone’s social media page.

-Connect with your community or faith-based organizations via online, through social media, or by phone or mail.

-Another way to cope with depression is to focus on the 5 P’s: 1) People- connect with the right people whom you trust, who make you happy, and who can provide support; 2) Physical Needs- be sure to get enough sleep, eat right and exercise; often we neglect our physical needs when we are depressed and this only increases the depression; 3) Purpose- recognize that we are all put on this planet for a purpose. Find an activity that makes you connect with your life purpose and gives your life an sense of meaning such as joining a community service organization; 4) Positive outlook- recognize that pain is gain and any challenge is just an opportunity for personal growth; and 5) Power- recognize that you have the power to overcome any challenge that comes your way.

-Lastly, know you are not alone and there is help if you need it. Here are a few resources if you are considering harming yourself:

– National Suicide Prevention Lifeline: 1-800-273-8255 (TALK)

– Crisis Text Line: Text NAMI to 741-741 to connect with a trained crisis counselor to receive free, 24/7 crisis support via text message

– NAMI HelpLine: 1-800-950-NAMI (6264), Monday through Friday, 10 am to 6 pm, ET

This Coronavirus pandemic shall pass and you have the power to overcome anything that comes your way. Stay strong.

If you end up abusing alcohol or drugs and are caught committing a DUI, please contact an attorney as soon as possible.

Low-carb diets -such as the Atkins diet or the Ketogenic diet- have been around for decades. Nonetheless, this type of diet can cause problems for California drivers. It may cause a breath test provided by a California driver who was pulled over or arrested on suspicion of a DUI to falsely show the presence of alcohol – even if the driver had not consumed any alcohol that day.

Here’s how: A low-carb diet deprives the body of glucose, an important source of fuel for the body. In the absence of this source of fuel, the body turns to its fat for fuel. The process of turning fat into fuel produces ketones. When the body produces ketones and uses them for fuel, the body is in a state of ketosis. When the body is in a state of ketosis, ketones can be detected in that person’s breath. (This explains the bad breath that some report while on a low-carb diet). These ketones have a chemical composition similar to isopropyl alcohol. Many breathalyzer testing devices cannot distinguish between isopropyl alcohol molecules and ethyl alcohol molecules.  As such, a breath testing machine used in a DUI investigation may falsely detect the presence of alcohol simply because the suspect is on a low-carb diet.

It is doubtful that the amount of ketones in anyone’s breath could be sufficient to result in a breath test result showing a blood alcohol concentration at or greater than the .08% legal limit without the person having had consumed some alcohol. However, a person who would have otherwise been below the .08% legal limit may end up with a breath test result at or greater than the legal limit if that person is in ketosis. For example, someone who is in ketosis and has a true blood alcohol concentration of .06% could potentially register at 0.08% or more.

California Vehicle Code 23612(a)(2)(A) allows drivers arrested for suspicion of a DUI to choose between submitting to a breath test or a blood test. Unless the chosen test is not available, the officer must perform the test selected by the driver. Drivers on a low-carb diet may want to avoid submitting to the breath test to avoid being stuck with a false positive result.

Any driver arrested for a DUI should immediately hire an attorney. If you are on a low-carb diet, it is crucial that you tell your attorney.