Autumn is in the air, which means the Law Court’s fancy turns to riding the circuit, visiting high schools in its annual October Tour O’Maine to hear argument. This year’s crop of appeals appears fairly pedestrian, except for one scheduled to be heard on October 25, at the Wells High School: State of Maine v. Burbank. The briefs are posted here:

http://www.courts.maine.gov/maine_courts/supreme/oral_arguments_schedule.shtml

A suspiciously high number of OUI appeals have always appeared on the October high school argument list, presumably and admirably to bring home to impressionable teenagers the dangers of drinking and driving. This OUI appeal revolves around a defense I’ve never heard of before: “Auto-immune brewery” or “Gut fermentation” syndrome.

According to the briefing, the defendant blew a whopping .31 on the Intoxilyzer. The defense wanted to submit expert testimony that it was possible that, unbeknownst to the defendant, his own gut was spontaneously producing alcohol.

According to one of the proffered experts, Dr. Samson, studies have theorized that ethyl alcohol can be produced “endogenously” – internally, within our bodies – when certain conditions are present, which include taking an antibiotic, which lets gobs of icky organisms bloom in your gut. The situation is exacerbated when there’s lots of blood glucose swimming around that the body can’t process, as in diabetics, or “those who have consumed a large amount of carbohydrates.”

This particular defendant, the expert said, was a prime candidate for this syndrome. He was on Cefadroxil, pre-diabetic, and on the day of the arrest munching high-carb foods. Dr. Samson also looked at the video and said that the defendant didn’t look like someone with a .31 blood-alcohol concentration (BAC), supporting the conclusion that something else must have been going on. The defense also took their tests on the defendant during a period when the defendant said he wasn’t consuming alcohol, and he still scored .174 and .106 BACs.

The trial court ruled that the hypothesis offered that the body can create alcohol on its own is probably insufficient under Daubert, but sufficient under Maine’s less strict Williams test (388 A.2d 500 (Me. 1978)). But, it concluded, there was an insufficient basis to show that the hypothesis was tied to the facts of this case. The court also faulted Dr. Samson for having no direct experience in “the emerging area of science” regarding gut-fermentation syndrome. The tests the defense took were deemed no good because the administrator had no training and didn’t recalibrate.

The second expert was Dr. Cordell, a dean of nursing, who wrote two recent articles about gut-fermentation. When the trial court nixed Dr. Samson, the defense offered her testimony. The trial court said no, too late, only one bite at the apple. A conditional plea followed.

We shall see what happens in the appeal, but for now, maybe add that giant bag of potato chips to things not to consume before hitting the road.