A London man is arguing his acid reflux skewed the results of a breathalyzer test he took following an accident in 2013.
Vance Brown, 44, of London, was charged with aggravated vehicular assault following a Dec. 15 crash at the intersection of U.S. Route 40 and state Route 38.
He blew a .159 percent blood alcohol content on the breathalyzer at the scene. The legal limit is .08.
At the formal pretrial hearing on Thursday, the defense also argued that the reporting officer lacked probable cause to administer the test, the breathalyzer was not calibrated correctly and the device was mishandled by the reporting officer.
A hearing was scheduled for Aug. 26, when Madison County Common Pleas Judge Eamon Costello will decide whether or not to throw out the evidence.
Brown’s defense attorney Timothy Huey, a specialist in DUI defense, said Brown’s disease can cause liquid or gas in the stomach to be kicked up to the esophagus, where it can alter the results of alcohol in a breath test.
“People with GERD (gastroesophageal reflux disease) aren’t really good subjects for breath tests to begin with,” Huey said.
Brown’s 2003 GMC Envoy was northbound on Route 38 about 6:20 p.m. when it struck a 2009 Ford Escape that was westbound on U.S. 40, according to an Ohio State Highway Patrol report.
The sole occupant of the Escape received minor injuries.
The report said Brown was placed in the back of the patrol car after the accident, and the responding trooper smelled alcohol on Brown.
The officer then ordered Brown to take a field sobriety test and assessed five out of eight clues pointing to intoxication, the report said.
Huey said the BAC Data Master that was used as the breathalyzer was not calibrated correctly, as those models can be programmed to a two-way system that checks itself for errors. He said troopers did not follow that procedure.
Assistant county prosecutor Nick Adkins said the defense of GERD’s effect on the breathalyzer was unusual.
“It’s not very common,” Adkins added.
The jury trial for Brown is scheduled to take place Nov. 18.
Brandon Semler can be reached at (740) 852-1616, ext. 1615 or via Twitter @BrandonSemler.