Evidence

"Your Honor, My Stomach Just Naturally Produced Alcohol"

"Auto-brewery syndrome" (or "gut fermentation syndrome") is apparently a thing -- but, the Maine high court says, the judge permissibly excluded a particular expert who wanted to testify this thing might have happened in this case.

|The Volokh Conspiracy |

From State v. Burbank, decided a week ago:

John M. Burbank appeals from a judgment convicting him of operating under the influence [with a blood alcohol level of 0.31] …. Burbank contends that the trial court erred by excluding testimony of [a witness] Burbank had designated … as [an expert] to testify that at the time of his arrest he had a condition known as "auto-brewery syndrome" [also called "gut-fermentation syndrome"] a phenomenon associated with the production of alcohol within the body itself under certain circumstances. …

The court first concluded that, although auto-brewery syndrome may well exist as a physiological phenomenon, Burbank's witness was not qualified to testify about it because she had no training or work experience relating to the condition and instead relied only on a limited number of case studies in this area of science, which is still emerging and is not the subject of much literature. The court also concluded that, because significant differences existed between Burbank's purported condition and that of patients with auto-brewery syndrome as revealed in the case studies, the witness's testimony did not sufficiently relate the syndrome to Burbank and to matters pertinent to this case….

Maine Rule of Evidence 702 provides: "A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if such testimony will help the trier of fact to understand the evidence or to determine a fact in issue." We review the court's ruling on the admissibility of expert testimony for an abuse of discretion.

For expert testimony to be admissible under Rule 702, "the trial court must determine that the testimony (1) is relevant in accordance with M.R. Evid. 401, and (2) will assist the trier of fact in understanding the evidence or determining a fact at issue." Expert testimony can be relevant only if it is reliable, and so, for the evidence to be admissible, the court must make a preliminary determination that the proponent has presented a sufficient demonstration of reliability. Indicia of reliability include "whether any studies tendered in support of the testimony are based on facts similar to those at issue; … whether an expert's conclusion has been tailored to the facts of the case; … [and] the nature of the expert's qualifications." [Footnote moved: Burbank asserts on appeal that "Like 'credibility,' the 'reliability' of evidence is a factual finding" reserved only for the fact-finder. To the contrary, Maine Rule of Evidence 104(a) requires the court to "decide any preliminary question about whether a witness is qualified … or evidence is admissible"—precisely the issue here.] …

First, the court did not err by finding that the proffered expert lacked the qualifications necessary to offer an opinion as to whether Burbank was suffering from auto-brewery syndrome. The expert testified that, although she has a Ph.D. in toxicology and physiology, she had not taken any classes on auto-brewery syndrome and had neither performed any studies nor worked directly on matters relating to the syndrome. Instead, her knowledge regarding the syndrome appears to have stemmed entirely from her review of four articles and four abstracts of different articles she cited during her testimony—sources that predominantly consist of individual case studies.

As the court properly observed while addressing the framework set out in Rule 702, because the witness had no hands-on, experience-based understanding of auto-brewery syndrome, in order for her to qualify as an expert witness any expertise needed to be derived from some other informational source, which here were the articles and abstracts in the professional literature. But as the court found with support in the record, the amount of available research material on auto-brewery syndrome is "thin." The court was entitled to determine, as it did, that the witness's review of only a small number of case studies—even when combined with her general qualifications as a toxicologist and physiologist—did not qualify her to provide expert testimony about auto-brewery syndrome.

Second, the court did not err by concluding in the alternative that the evidence was insufficient to demonstrate that auto-brewery syndrome, as it is understood through the literature, has any bearing on this case. In an attempt to make that connection, Burbank presented the court with an offer of proof describing his anticipated trial testimony: he had not consumed alcohol since the beginning of 2016; he has a family history of diabetes and had been found to be pre-diabetic; and at the time of his arrest he was eating a high-sugar diet and had been taking a prescribed antibiotic for two days.

During her testimony, the witness acknowledged that she had not independently examined Burbank, nor had she ordered any lab work or other testing to determine the levels of yeasts or fungi in Burbank's system that would have been necessary for ethyl alcohol to be produced endogenously. Instead, she pointed to blood tests conducted during routine medical exams in April 2016 and January 2017 showing that Burbank then had levels of blood glucose that were slightly above the normal range. She also noted that the antibiotic he had taken prior to his arrest might have killed his normal bacterial gut flora, which could have resulted in elevated levels of fungal yeasts, which could have then combined with excess glucose to produce ethyl alcohol—but only if there was a contemporaneous "slowing of the gut or stasis in the areas of the gut."

The resulting alcohol, she stated, would work its way into the bloodstream and then into the lungs so that it can be detected in the person's breath, although a breath test instrument cannot reveal whether the alcohol was introduced to the person's system endogenously or exogenously. The witness expressed the opinion that, given Burbank's claim that he had not consumed alcohol at any time relevant to this case, the alcohol in his breath must have been caused by this sequence of events.

Notwithstanding her opinion, the witness admitted that the available information regarding Burbank's condition and symptomatology did not closely match any of the limited number of case studies referenced in the articles and abstracts. She also acknowledged that none of the medical records she had reviewed showed what bacteria or yeast were present in Burbank's system, nor did they indicate the conditions within his system that, in her opinion, would have likely affected the production of alcohol at the time of his arrest.

At the conclusion of the hearing, the court excluded the expert's testimony stating that there was "not enough evidence to show that the hypothesis is tied to the facts of this case and [there are] actually significant differences between most of the case studies and the evidence that we have here about Mr. Burbank."

A trial court is entitled to exclude expert testimony that is supported only by evidence that is so general as to lack reliability and therefore is not relevant. Here, the trial court acted within its discretion by excluding the witness's ostensibly expert testimony. The court was entitled to determine that, as a matter of admissibility, the evidence proffered by Burbank could not reasonably allow a jury to draw a connection between Burbank's elevated glucose levels in April of 2016 and January of 2017 and his ingestion of an antibiotic in the days before his arrest, and the hypothesis that Burbank endogenously produced the alcohol detected in the blood alcohol test administered after Burbank was arrested.

Finally, Burbank argues that by excluding both expert witnesses' testimony, the court violated his constitutional right to be able to present a defense.

The constitutional guarantee of a meaningful opportunity to present a complete defense, though rooted in the Due Process Clause of the Fourteenth Amendment, is nevertheless subject to "reasonable restrictions." "[S]tate … rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials … so long as [those rules] are not 'arbitrary' or 'disproportionate to the purposes they are designed to serve."

Contrary to Burbank's assertion, the court's considered and reasonable application of established principles of evidence and case management did not result in a constitutional deprivation to Burbank….

Because of the specific grounds that lead us to [our] outcome, however, our opinion should not be construed as implicitly accepting the notion that the crime of OUI [operating under the influence] does not encompass a situation where the alcohol in the accused's system is generated through some endogenous process. The parties have not developed meaningful presentations on that broader question, and the court based its ruling entirely on narrower evidentiary principles. Absent a fully developed record and sufficient advocacy that would allow a proper analysis of that categorical question, we leave its resolution to another day.

Justice Alexander's concurrence argues that even if Burbank had been right on the facts, he would still not have had a defense on the law:

[W]e explicitly rejected the "involuntary intoxication" defense to an OUI charge nearly forty years ago in State v. West (Me. 1980). "Since the only elements of the offense charged are operating a motor vehicle and being under the influence of intoxicating liquor while doing so, it follows that intoxication— whether self-induced or not self-induced—cannot establish a reasonable doubt as to the existence of any element of the particular offense here in question." …

If [the involuntary intoxication] defense is left unaddressed, it may invite many "I didn't know there was vodka in my orange juice" or similar defenses to OUI … charges.

The statute prohibiting operating under the influence, prohibits operating a motor vehicle "(1) While under the influence of intoxicants; or (2) While having an alcohol level of 0.08 grams or more of alcohol per 100 milliliters of blood or 210 liters of breath." Thus, OUI is defined to include only two elements: (1) the forbidden conduct of operating a motor vehicle, and (2) the attendant circumstances of being under the influence of intoxicants or having a blood alcohol content of .08 or greater….

Two years ago, in another OUI appeal, we held that involuntariness is a defense to a crime, but will only "negate the actus reus of a crime when the forbidden conduct was an involuntary act, that is, the conduct was caused by a reflex, seizure, or some other act over which the defendant had no conscious control." "Voluntary conduct is the result of an exercise of [a] defendant's conscious choice to perform [it]," whatever the source of the motivation to do so, "whereas involuntary conduct includes reflex [es], convulsion[s], or other act[s] over which a person has no control." "Conscious choice is best understood by what it is not: a reflexive or convulsive action." … Burbank does not argue that the alcohol allegedly produced in his gut made his operation of his vehicle physically involuntary or the result of a reflex or convulsion over which he had no conscious control.

I think the concurrence is mistaken (and indeed overreads State v. West, which dealt with a person who "intentionally or knowingly introduce[d] into [her] body substances which [she knew or ought to have known] tend to cause intoxication"); if someone does have auto-brewery syndrome, yet neither knows nor has reason to know this (and neither knows nor has reason to know that he is alcohol-impaired as a result), that should indeed be a defense to a charge of drunk driving. But, though I'm not an evidence law expert, it does sound like the proposed expert evidence here was too tenuous to be admitted under the Rules.

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  1. It certainly seems like involuntary intoxication out to be a defense. Is the court suggesting that you can be convicted if you purchase mis-labeled medication at the drug store, or if the grocery store is unknowingly selling THC-laced brownies?

    1. Or even if someone spikes your drink!

      Yeah, the DUI laws will survive a tiny number of defendants winning acquittals.

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    3. Would a person under the influence not know it? Perhaps. Perhaps. Would a person with a BAL of .31, which is basically heavily slurred speech, falling down drunk, likely puking, and likely passing out, not know it? Not after the passing out part, I guess.

      1. .31 is nearing death for even a seasoned drinker.

      2. Since the first thing to go is judgement – specifically including the judgement necessary to recognize yourself as drunk – yes, a person could be under the influence and not know it.

        Consider – if you had heavily slurred speech, difficulty walking, perhaps puking and maybe passing out but had not been intentionally drinking, what would you assume from those symptoms? I might guess at food poisoning, a stroke or any number of more common problems before I’d jump to “I must be drunk”.

    4. Is the court suggesting that you can be convicted if you purchase mis-labeled medication at the drug store

      Last I checked, there was a fairly well-established divide between different jurists on this question and closely-related questions. Compare People v. Mathson, 210 Cal. App. 4th 1297, 1326-27 (2012); Solomon v. State, 227 P.3d 461, 468 (Alaska App. 2010); Colon v. State, 568 S.E.2d 811, 815 (Ga. App. 2002); Com. v. Darch, 767 N.E.2d 1096, 1099 (Mass. App. 2002); Carter v. State, 710 So. 2d 110, 113 (Fla. App. 1998); People v. Scott, 194 Cal. Rptr. 633, 640 (Cal. App. 1983), with State v. Gurule, 252 P.3d 823, 829 (N.M. 2011); State v. Kain, 24 S.W.3d 816, 819 (Tenn. Crim. App. 2000); State v. Hammond, 571 A.2d 942 (N.J. 1990); State v. West, 416 A.2d 5, 8 (Me. 1980); People v. Teschner, 394 N.E.2d 893, 895 (Ill. App. 1979); see also City of Missoula v. Paffhausen, 289 P.3d 141, 148 (Mont. 2012); State v. Borrelli, 895 A.2d 257, 264 (Conn. App. 2006).

  2. So how would Eugene distinguish the present case from Alexander’s concurrence noting that if all it took was to not know, we would start to see a whole lot of ignorance?

    1. I think it’s reasonable to have a negligence standard (under which a jury would decide whether a reasonable person would have realized that he was drunk?), not a knowledge standard. And I expect that a jury would usually be very skeptical of a “someone spiked my drink” defense. But, yes, if someone actually was slipped some alcohol or drugs without his knowledge (and with no reason for him to know that), and then drove without any reason to think that this had happened, he shouldn’t be found guilty of a crime.

      1. This case is not analogous to the “someone spiked my drink” case.
        Defendant is asserting he suffers from a condition: is it congenital?; if so, he is familiar with what intoxication feels like?; has he sought treatment for it?; if not, why not?
        Someone who can stand upright (forget about operating a car) at 0.31 has an alcohol tolerance in the upper 0.5%, or thereabouts–thats ridiculously high.
        Even if he has this condition–which I doubt–he was on plenty of notice prior to starting the car.

        1. No, it is not congenital. On the contrary, based on the limited case studies so far it is a condition which arises only in specific circumstances later in life and is generally (we think) temporary. So, no he might not have sought treatment for it because he might not know that he had it.

          Re: is he familiar with what intoxication feels like. Irrelevant because intoxication can be easily mistaken for the symptoms of a dozen other medical condition and being intoxicated when you haven’t actually been drinking would be the zebra hypothesis.

          1. “intoxication can be easily mistaken for the symptoms of a dozen other medical condition(s)” which should also rule out driving. We don’t prohibit driving while drunk because of the alcohol, we prohibit it because of the impairment. Too much cold meds, dangerously low blood sugar, you name it: If it impairs you, you shouldn’t be driving.

            1. re: “If it impairs you, you shouldn’t be driving.”

              True, but we don’t automatically lock you up for driving while on cold meds or with low blood sugar.

              1. Only because it’s not common and obviously tested for. If large numbers of people were driving on cold medicines and we had a breathalyzer for that, we would.

              2. What do you mean “automatically “?
                Driving while impaired is the crime, not driving after consuming alcohol.
                The overarching policy confusion arises from the fact the the big bad machine at the jail only measures alcohol consumption.
                You need to take the perp to the hospital for a blood test (more time and $$) to test for anything else.

      2. That fits. Thank you.

  3. I tried this once but hops are harder than you think to keep down.

    1. And the hour-long boil hurts like hell.

  4. Even if someone was tricked into drinking booze, he would presumably know soon enough whether he’s in a condition to drive.

    So the mens rea, I suppose, is deciding to drive whenever, for whatever reason, you’re impaired.

    1. I think that would often be true, but not always. For instance, if someone has his drink spiked with a drug that has effects that are unfamiliar to him, he might reasonably not recognize the resulting sensation as intoxication. Likewise, someone who does have auto-brewery syndrome but has never been diagnosed with it, and who knows that he hasn’t consumed any alcohol, may reasonably not realize that he’s intoxicated.

      1. Interesting conundrum…

      2. I’m not really up to date on the various things one can spike Coke with, but you hypothesized a “sensation” of not being sober – which at the very least should lead one to question if something funny is going on.

        If the person is a victim of someone giving him a drug against his will, I’d understand in principle how that could be a defense – and hopefully they’d find the person doing the drugging and hold them accountable.

    2. Eddy has a sound point that if someone finds himself unable to stay in his lane he should notice that and take responsible action.

      Ethanol is notoriously good at preventing people from noticing they are impaired and taking responsible action. Putting that “should” into practice would be a challenge.

      Oh, and Eddy, you did a public service with your “for whatever reason”. There’s an apparent lack of awareness that several other impairments can leave someone just as dangerous behind the wheel as a drunk is.

  5. Note the reported blood alcohol level of 0.31. That’s just under four times the legal limit in Maine of 0.08 and is on the doorstep of the range of potentially fatal alcohol poisoning that begins at 0.35. The court’s skepticism of the admissibility under Maine’s version of rule 702 seems understated.

  6. A good advocates knows the need for a coherent theory of his or her clients’ cases. But a good advocate also must be aware of every advocate’s tendency to become over-fond of a creative or novel theory, something one talks oneself into, often for want of anything better, to the point that the advocate loses objectivity. I have heard this referred to in trial lawyer shorthand as “getting drunk on your own fumes.” Perhaps that happened here.

  7. Wasn’t there dash cam video of the defendant’s field sobriety tests? Witnesses to his actions? At .31 it would not be a subtle point that he was intoxicated. It would surprise me if he could even stand. If the arresting officers, booking officers, etc. didn’t observe such behavior then you would think one is getting close to a shadow of a doubt. And I don’t buy the due process analysis here either. Even if the academic record is “thin” the defendant still has a right to present even off the wall theories to the jury. The jury is the trier of fact here.

    1. I think the idea is that certifying someone as an expert gives them privileges no other witnesses has – testifying to hearsay and opinions. When should a witness get those special privileges? I can’t say as we’ve yet found a definitive answer.

      I understand that courts are in theory empowered to appoint their own experts, but as to how often they actually do this, I’m not sure.

      1. Yep, the only crackpot experts allowed are the ones the prosecutor wants to use. There are a LONG list of these that the courts have welcomed, and sent people to prison with, a notable one I remember was ‘bite analysis”.

        Want to use a novel or new theory and expert? Only if you are a Prosecutor, otherwise you are SOL.

    2. I doubt there was any issue that he was intoxicated, which is why the defense was trying to bring in a novel theory to explain that he wasn’t intoxicated by drinking alcohol.

  8. Intoxication can impair judgment. A lot of people who drive drunk don’t think they are “too drunk to drive,” so they go ahead and drive, not intending to drive drunk, but still making the intentional choice to get in a car and drive it at a time when they shouldn’t (and, like others here, I don’t quite buy someone with a .31 BAC not knowing ? when I was on painkillers after surgery, I knew I shouldn’t even be cooking let alone driving). Part of me understands the discomfort with charging someone with a crime when they weren’t really able to form the intent to drive drunk…but another part of me is concerned that anyone could make this argument even if they intentionally and voluntarily drank and then exercised bad judgment and drove, because they never “intended” to drive drunk.

    That said, I would probably be inclined to see charges dropped if the person gave up their license ? which is the bigger issue I think ? do we allow people with a known condition that impairs their ability to drive to continue driving?

  9. Whether or not he successfully mounts this defense, he is never able to use it again, as he is now ‘on notice’ that he has or might have this condition.
    Further, if a treating physician were to agree with his self diagnosis, then reporting him to the state as a disqualified driver, in the same manner that uncontrolled epilepsy, or like rapid and severe impairing conditionns, require suspension of license. This is a situation where a prosecutor could continue to hound him using these paths.

    1. As described, it was a temporary condition resulting from high sugar consumption and use of antibiotics. 0.31 blood alcohol would kill you pretty quickly if it was a chronic condition.

  10. 80 kg man(average weight), has a volume of distribution of 50 liters, which at .0031 concentration requires 163 ml ethanol. Plus the ethanol that has been metabolized by the liver in an ongoing manner while the reported gut creates ethanol.
    But just the 163 ml is 135 grams, which must come from a minimum of270 grams of sugar (basic stoichiometry), and in the process liberating 2.8 moles, or about 60 liters of CO2. Before telling him the inescapable chemistry of fermentation, does he remember having a lot of eructation or flatulence?

    1. If he’s willing to lie about this ludicrous theory, of course he’d lie about that

  11. Lawyers really hate speaking succinctly. In this case the court could have said, “Nice try. No cigar.”

    1. I would prefer “no soup for you!”

  12. Any condition that could cause a .31 BAC would cause a number of fatalities from alcohol poisoning in people who hadn’t consumed any alcohol

    Does not happen.

    1. Depends on your tolerance; which points up the fact that he knew he was smashed, having experienced the sensation many times before.

    2. Doesn’t happen very often, anyway, and .31 BAC is awfully high for this condition, I understand.

      Most likely it was a bogus excuse and he got intoxicated in the normal way.

    3. A Texas man got up to .37 BAC from his Brewer’s Gut.

      Course, that man went to an emergency room because he knew something was going wrong with his body. So it can happen, but it’s rare enough that we only have case studies. So it’s fair to be skeptical, but that doesn’t mean it’s impossible.

      1. Well, yes. If you end up drunk without drinking, and you’re not headed straight to the emergency room, you’re an idiot.

  13. .31? Pretty sure he wound up in the drunk tank of something comparable then. Any testimony on his BAC when they let him out? If he actually had Brewer’s Gut, it should have been way higher then you’d normally expect after someone has had eight hours to sleep it off.

    That said, this sounds about right. Even if he had Brewer’s Gut, that’d be a reason for unusual leniency on the sentence side of things, not the conviction. Is Maine’s OUI laws so strict that getting a single conviction is a life/career-ender? Here in California the first time isn’t that big a deal. I had a friend that got tagged driving home from a bar and ended up with a few weekends of cleaning the jail.

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