Drink driving is a strict liability offence, just like most traffic offences. A strict liability offence is the kind which is considered an offence merely because of the act, the actus reus, itself. One’s intention/motive, what in law is called the mens rea, is not relevant.
High levels of concentration of ethanol in one’s blood, urine or breath constitute sufficient evidence to sustain a charge of drunk-driving. Offenders rarely have a defence to the charge so they end of pleading guilty of the offence of drink-driving, upon arraignment or simply commit a bigger offence – bribe a cop to let them go.
Science has however discovered a condition which is a defence against drink driving. In 2015, it was discovered that indeed, some people can get high on carbs. It is a rare medical condition which occurs when abnormal amounts of gastrointestinal yeast convert common food carbohydrates into ethanol. So, there is a chance that if you are in that category of people, you can as well get high on chapo, on ugali, on chips, and such other carbohydrates. The condition is called auto-brewery syndrome, and is ordinarily known as belly brewery.
Auto-brewery syndrome causes the body to produce alcohol naturally. It happens because of “endogenous fermentation” in the stomach. From the research which has been done on the condition, some people are affected to the extent that abnormal ethanol concentration levels (greater than 80mg/dl) have been reported. This happened after the test subjects had consumed food high in carbohydrates.
One of the tell-tale signs of the syndrome is that the ordinary signs of drunkenness do not show until the concentration levels reach two or three times the legal limit.
A woman who recently found out she had the syndrome was pulled over by police. According to the CNN, her blood alcohol concentration was at .40 in breath at the time of her arrest. She admitted to having had four portions of alcohol six hours earlier, which could not account for such a high level of alcohol in her breath. Over a period of 12 hours following her arrest, without her drinking any alcohol, her BAC continuously climbed. In light of her circumstances, the charge of driving under the influence, against her was dropped.
So, what is the chance that a motorist’s state of intoxication is due to this auto-brewery syndrome? That would be for a qualified medic to determine.
Despite the availability of the defence of “auto-brewery syndrome”, it can still be subjected to the test of the admissibility of the defence of intoxication.
Intoxication can be voluntary or involuntary. It may be induced by alcohol, drugs, or food, as we have seen above. It falls under the general defence of automatism.
In strict liability offences, as we have already discussed, the intention is irrelevant. The Act of driving yet intoxicated is enough to sustain the charge of drink-driving.
While many people may not even know that the suffer from the auto-brewery syndrome, it is important to look out for signs of being drunk or overly drunk yet you have not drunk at all, or even had that much to drink. It is also said that the syndrome may be treated through medication and adhering to a special diet, but there are victims who may not find relief.
If qualified medics confirm that you have the condition, avoid driving when you are high on those carbs. More so, take care because even though intoxication diminishes one’s liability in criminal offences (except in strict liability offences), voluntary intoxication does not afford an offender the defence of diminished liability. So, if you know chapatti makes you high, don’t eat lots of it, to make you get high so that you go and commit a crime.
Get checked to see if you have the syndrome. In case you are pulled over by law enforcement and found to have a high level of blood/breath alcohol concentration, please call your attorney. Meanwhile go slow on those carbs!
BY SAMALI BITALA
This article appears in our weekly digital law magazine, The Deuteronomy Vol 8, Issue 3 of November 18th, 2016
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