I was looking for ways to handle the issue of diabetes in dwi refusal cases. For example, we have one where the defendant tells the officer on the tape that he is diabetic, but does not make any other comments about it or whether he thinks he is suffering any ill effects of the diabetes at the moment. No experts were identified, no medical records submitted. We tried to limine out the mention of diabetes on the ground that without expert medical testimony that links diabetes with any of the symptoms shown by defendant, the statement is irrelevant. Judge said not so much and denied the motion. So we argued in close about the lack of evidence showing it mattered and the fact the defendant never indicated he thought he was having any problems with his diabetes at the time. Jury is still out, but i was hoping for some alternative suggestions on how to handle it.

Of course, you will have to emphasize the "State's burden" to prove that intox was due to alcohol, etc., but you look like a fair person for doing so, and it seems there is almost always someone on the jury panel who raises the issue of someone having some disability or diabetes anyway. If someone on the panel knows someone (or is a person) with diabetes, you can ask about what symptoms they have, and when those symptoms mimicking intoxication begin to present themselves (usually when the diabetic is REALLY bad off and needs medical attention). You can also ask that person on the panel about whether they should be consuming ANY alcohol if they're diabetic (there is a division of thought on that topic though - some say no, some say not to excess).

You also have to talk to your agencies about asking the follow up questions about whether they've eaten, taken their insulin, etc. and/or getting someone who claims to have diabetes medical attention either immediately or at the jail, to to make sure you rule that out (I even like using bookin forms where they ask whether the person needs medical attention and they say no - showing that it's probably NOT the diabetes). We've had a couple of DWI guru officers who happened to also be paramedics who were able to rule out the effect of diabetes in their stops, but we're just lucky that way.

Good luck in your trial! Let us know what the jury thought!

For this answer, I am just assuming that he testified that his lack of consent was due to keytones.

How about, if an issue, ON REBUTTAL have the technical supervisor testify about the effects that keytones would have on the breathalyzer, and just what keytones are.

Before doing so, relentlessly question the defendant about his issue with keytones, that day, week, etc...

Diabetics are encouraged to regularly check for such with a urine strip, then drink a lot of WATER to flush their systems that have become somewhat toxic. I cannot think of any doctor who would competently prescribe Scotch with that water, or beer as the equivalent of water, etc...

Make sure the defendant knows what a keytone is, that a keytone problem is a serious problem for a diabetics health, how it affects him, why he thinks this will impact on the breath machine, what measures he has been told by 'qualified medical professionals' (ie: his ongoing treating physician) to flush his body of keytones, and make him admit to no actual doctor prescribed alcohol to treat keytones.

If the overall performance of FSTs are being blamed on diabetes, have him state, inparticular, why. If it is low blood sugar, have him admit that a low does not go up unless treated, it keeps going down. Treated means food or glucose. Then subpoena the jail records to show he never requested anything, signed a bond to get out the next day, the bondsman may even be able to testify to the defendant's coherence while signing the contract, and it could not have been that low if he didn't seek help for hours.

For the sake of Googlers and other researchers, it's spelled "ketone", not "keytone." But good advice, anyway, Rebecca.

I have been seeing alot of total refusal cases lately, It is normally blamed on diabetes or a hed injury. We tried 3 and won 3. Some things that help.

1. Train officers to have parmedics check D out if he complains about one of these. They can make some great additional witnesses, and rule out these defenses.

2. Go back to the statements Def made that night, on your vid, point out he either did not mention this that night, or minimized it, often they make other statement that indicate intoxication due to alchol.

3. Spend alot of the time with jury on what reasonable counclusion they can draw of refusing the tests

4. Let the jury know he did not seek treatment at the jail, or after he got out, I usually see the question about health issues 3X once at the scene, during DWI questions at the jail, and booking.

5. Comment to jury on why the defense did not bring med recs/ what conculsion can they draw from that?

quote:

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Originally posted by jane starnes:
For the sake of Googlers and other researchers, it's spelled "ketone", not "keytone." But good advice, anyway, Rebecca.

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West of the Colorado and East of the Trinity it's Keytones. I swear, A.P. said it was true.

Seconding LB, look at the jail booking sheets to see if defendant claimed any medical problem upon being booked. Obtaining the jail medical booking and the booking written records by subpoena are my standard practice in a case where defendant is claiming injury or illness. In many places the defendant either writes them himself or signs them. In some jurisdictions the officer fills out a computer form and the defendant signs it.

Of course, if relied on as a defense in the case but no doctor or other medical professional is called by the defendant, you can always argue about his failure to produce a relevant witness OTHER THAN THE DEFENDANT available by subpoena, being extra extra careful not to comment on the defendant's right to remain silent if he does not testify. And of course the reason he didn't call a doc is very obvious...

Good luck!

[This message was edited by Greg Gilleland on 06-21-06 at .]

[This message was edited by Greg Gilleland on 06-21-06 at .]

This may be a bit redundant but I recommend, depending on your jurisdiction, getting not just the medical intake form but the jail medical records.

If they didn't require immediate medical attention chances are the person was not in Ketosis, suffering from dangerously low or high blood sugar, or in related shock.

Also occassionally you'll find out that the person claiming to be diabetic receives no medication or insulin injections in jail and is either just lying or is hypoglycemic or hyperglycemic or something similar but not actually diabetic.

In some jurisdictions you won't get those jail med records with the jail booking records.

Adding to what LD said, as well as others, if you have this condition, then it takes alot less alcohol to lose the normal uses than not. Add to it no food, etc. During the voir dire, just about all will agree that drinking on an empty stomach will affect you alot sooner after alot less booze than if you've eaten. Add to it a medical condition, and I don't think a jury will feel very sympathetic for the def.

See Greg I never thought about looking for the Defendant's signiture on the jail paperwork. I like that and will do it in the future.