DWI Case | Diabetes Defense

State v. CW, (Rockingham County-December 2009):

A 60-year-old diabetic charged with DWI 2nd (outside 2-year look back, but within 10 years) (with a 3rd conviction outside the 10-year look back). The Defendant allegedly refused breath testing. So, in addition to the mandatory 2-year Administrative Loss of License (LOL), CW faced a mandatory 3-year court-imposed LOL (5-year LOL total), a 3-day jail sentence, and an unknown amount of residential treatment (CW having already completed the 7-day multiple offender program (MOP). In addition, a conviction would have resulted in CW being certified as a Habitual Offender, resulting in an additional 1-4 year LOL. The State offered to recommend the mandatory minimums if CW pled guilty as charged. On advice of counsel, CW rejected the State’s offer. A trial ensued. Our aggressive preparation included, but was not limited to, visiting the scene of the alleged crime and retracing CW’s steps/driving the night of the arrest. We engaged in extensive research on diabetes, including the possible presence the night of the arrest of ketones/ketoacides (waste product diabetic body produces when fats are broken down for energy due to low levels of insulin) which if present can cause a peculiar odor easily confused with an odor of alcohol, as well as dizziness and confusion. Because we had visited the scene of the alleged crime, we were able to cross-examine the arresting officer extensively and effectively in order to demonstrate that CW may not have been operating erratically as the arresting officer had alleged. In addition, we subpoenaed CW’s primary care physician who was permitted to testify about CW’s diabetes and the aforementioned issues related to the case. 

Result: Not Guilty