Today was the first time I heard this one -- the defendant had gastric bypass surgery, so it took much longer for the alcohol to make it through the much smaller stomach, thus skewing the BT results. Now, I suppose you could argue that this defendant's absorption and elimination rates are much slower, but to me that would seem to work a lot more in our favor than the defendant's, as we could show she would be affected by even a small amount of alcohol for a lot longer time than usual. So the BT would still be an accurate reflection of her BAC, surgery or no surgery. However, I'm far from an expert on the Intoxilyzer and was wondering if anyone else had ever encountered a similar issue.

Please take pity on a first-time poster.


Andrea

I read in between the lines of your post a concern that you might be subjected to some sort of initiation by making your first post. Not at all. This is one big, happy family.

You do bring us the newest in excuses for failing a breath test. And for that, we thank you.

The intoxilyzer measures alcohol content in the breath as a part of your deep lung air. This has nothing to do with the stomach.

My understanding is that the deep lung air carries alcohol particulate because of the blood alcohol concentration. Meaning, the alcohol is absorbed in the stomach, flows through the veins, passing through the brain and affecting the normal use of your mental and physical faculties then passes through the lungs on the way back to or from the heart. The presence of alcohol on the breath in the deep lung air is a direct result of the presence of alcohol in the blood and has nothing at all to do with the volume of alcohol in the stomach. Unless you have an acid reflux type of circumstance, there is no stomach acid or digestion issue whereby the size or function of the rate of absorbtion in the stomach would affect the particulate in the deep lung.

Call the person who maintains your Intox 5k and would testify in trial. Run this itty bitty stomach theory by that person and be prepared to hear the echoing laughter.

Oh, and welcome to the community.

Your defendant's argument is only going to work in a refusal case; there he could say that the number of drinks he had were not in his system as quickly as we would otherwise assume, so perhaps he was not drunk on the road, even though he became intoxicated later from the alcohol he had consumed. But in a BT case, he is presumably arguing that your extrapolation back to the time of driving will be off (assuming his idea is correct, which I'm not sure it is, as any alcohol not absorbed through the stomach would quickly make its way into the intestines where it would be absorbed anyway, wouldn't it?) Depending on what evidence you have as to when he quit drinking, this may be more or less of a challenge for you if the jury buys his theory. Since his elimination rate would be unchanged, you'd only have to be concerned about his absorption rate. Assuming he quit drinking a decent time prior to the stop, he is in the same boat as anyone else. Where the jury might get confused by this (assuming they buy the defense theory) is if he quits drinking sometime prior to the stop within the time frame that he claims he would have absorbed most of the alcohol in between the stop and the breath test. But of course, that is the argument that every defendant makes when we can't pin down their drinking time.

I was watching a show on Discovery Health recently where someone was having gastric bypass and they showed a diagram demonstrating that in this kind of surgery, they shortcut the "tube" between the little tiny pouch they've made your stomach to the large intestines, thereby bypassing most of your small intestine. Since some (I don't know how much) absorption of alcohol takes place in the small intestines, I would think a gastric bypass would skew absorption rates and would skew your "normal" extrapolation numbers. We just need to get rid of the requirement for doing this stupid extrapolation nonsense anyway.

The big guy on the show that had a gastric bypass said that his doctors told him he should never drink alcohol because his body wouldn't process it. Then it showed him doing a tequila shot, which he admitted made him sick.

As a forensic scientist who has dosed a gastric bypass individual, I can tell you that the adsorption of ETOH is extremely fast in these people. In fact, even with food in the stomach, they will reach their "peak" alcohol concentration in around 10-20 minutes. Since they are absorbing ETOH so fast, the peak value is higher than would be expected as compared to normal individuals. However, post absorption, there is no difference between individuals having gastric bypass, and those with normal gatric systems. My personal experiences parrallel what is reflected in the literature on this sujbect.

For those interested in more details, I'd suggest:

British Journal of Clinical Pharmacology
54 (6), pp587-591
Faster absortpion of ethanol and higher peak concentration in women after gastric bypass surgery.

Thank you all so much. This will be a great help!