How Diabetes & Ketoacidosis Affect DUI Breathalyzers

If you have diabetes, you may find yourself unfairly charged with DUI as a result of either hypoglycemia or ketosis–or both.

Diabetics often experience hypoglycemia–the condition in which one’s blood sugar is too low.¹ The symptoms of hypoglycemia can look a lot like those of intoxication–and can lead an officer to suspect you of VC 23152(a) driving under the influence.

People with diabetes are also prone to “ketosis,” which involves the production of ketones. Ketones are waste substances produced by the liver when the body burns fat stores for energy.² Some of these ketones are excreted in the breath and can “fool” a DUI breath test.

This, in turn, can lead to charges of VC 23152(b) driving with a BAC of 0.08 or above.

So diabetes can be a defense to DUI charges.

Below, our California DUI defense attorneys answer the following frequently asked questions about diabetes and DUI:

Can diabetic hypoglycemia lead to unfair DUI charges?

Unfortunately, diabetes and DUI charges are closely connected. One basis for this connection is the phenomenon of “hypoglycemia.”

People with diabetes–either Type 1 diabetes or Type 2 diabetes–experience hypoglycemia when their blood sugar gets too low. This can happen if you:

• Take too much insulin;
• Skip a meal; or
• Exercise too much.³

What does hypoglycemia/diabetes have to do with DUI? The answer lies in the list of common symptoms of hypoglycemia, which include:

• Shakiness;
• Sweating;
• Anxiety or nervousness;
• Clumsiness or jerky movements;
• Slurred speech;
• Drowsiness; and
• Confusion.⁴

You may notice that these symptoms of diabetic hypoglycemia are a lot like the symptoms of having had too much to drink or taken drugs. Thus, it is not uncommon for people with diabetes suffering from hypoglycemia to get pulled over while driving–and for officers to then suspect them of DUI or DUI of drugs based on these symptoms.

Example: Marcy has Type 1 (insulin-dependent) diabetes. She and her doctor are experimenting with different insulin dosages. One evening she is walking in a park and starts to feel woozy and disoriented–symptoms of diabetic hypoglycemia.

She realizes she forgot to bring a snack with her and rushes back to her car to get home. A police officer nearby notices her staggering a bit as she gets into her car; he follows her and soon pulls her over.

By this point Marcy is sweating and slurring her speech. She tries to explain to the officer about her diabetes, but he ignores her and arrests her for driving under the influence (DUI).

Marcy will want to speak to a DUI defense attorney about whether and how she can use her diabetes as a defense to her DUI charges.

Can someone who doesn’t have diabetes get charged with DUI because of hypoglycemia?

Hypoglycemia is most common in people with diabetes, but it does also occur in people who have not been diagnosed with diabetes.⁵

The symptoms of hypoglycemia will be the same in people with and without diabetes–and can lead to unfair DUI charges in either case!

How can diabetic ketosis lead to DUI charges?

Ketosis and ketones are a very common source of connection between diabetes and California DUI charges. Ketosis can lead to a person with diabetes being arrested for DUI because it can fool either or both of:

• A law enforcement officer; or
• A DUI breath test.

How diabetic ketosis can lead an officer to arrest you for DUI

The bodies of people with diabetes either do not produce insulin, do not produce enough insulin or do not use insulin properly.⁶ Without insulin, the body can’t make use of glucose for fuel. Instead it burns fat, which is broken down by the liver.⁷

During the process of breaking down fat, the liver produces toxic byproducts. These waste acids are known as “ketones.”⁸

Ketones are excreted in both the urine and the breath.⁹ But in many diabetics, the liver produces too many ketones for the body to fully eliminate. The resulting buildup of ketones can lead to diabetic ketoacidosis (“DKA”), a potentially life-threatening condition.¹⁰

Unfortunately, the symptoms of DKA often resemble those of alcohol impairment. A law enforcement officer who is not a diabetes expert could easily arrest a person suffering from DKA for DUI. The DKA symptoms that can lead to DUI charges can include:

• excessive thirst or dry mouth,
• frequent urination,
• sluggishness,
• a flushed face,
• nausea and/or vomiting,
• confusion,
• decreased coordination, and
• “fruity” smelling breath that can be mistaken for alcohol.¹¹

How diabetic ketosis can “fool” a DUI breath test

In addition to fooling an officer, ketosis in people with diabetes can fool a DUI breath test into reporting a falsely high blood alcohol concentration (BAC).

Ketones are similar in composition to isopropyl alcohol.¹² This is different from ethyl alcohol, the type of alcohol found in alcoholic drinks.¹³

But despite their manufacturers’ claims, many California DUI breath testing devices do not reliably distinguish ketones from ethyl alcohol.¹⁴

So when a diabetic’s body is producing excess ketones, they may test positive on a California DUI breath test. This can happen both when they aren’t actually drunk, and when they have not been drinking at all.

Example: Eric has just been diagnosed with Type 2 diabetes. While he and his doctor are working to figure out the best treatment program for him, he suffers from ketosis.

On one day when his body is producing large numbers of ketones, Eric has a beer and some appetizers with coworkers after work and then drives home. An officer pulls Eric over for a broken taillight. The officer confuses Eric’s bad breath and flushed face–the result of DKA–for signs that he has been drinking and arrests him for DUI.

At the police station, Eric takes a DUI breath test and gets a result of 0.09–over the legal limit–despite the fact that he has had only one beer. His diabetes, and the ketones it created, are likely to blame for this.

Can ketones fool a DUI breath test even if I don’t have diabetes?

Diabetes is not the only cause of ketosis. High-protein/low-carb diets (such as the “Atkins” or “Paleo” diet) can also cause the body to produce ketones.

So ketones can be a viable DUI defense even if you have not been diagnosed with diabetes.

What should I do if I have diabetes and am charged with DUI?

An experienced California DUI defense attorney should understand the impact of diabetes on a DUI case. In the right circumstances, diabetes can be a powerful legal defense for fighting DUI charges.

Your attorney, possibly with the help of a DUI expert witness, can explain to the prosecutor – and, if necessary, the jury – how hypoglycemia and/or ketones could have affected your DUI arrest or your DUI breath test results. And when he or she does, the prosecutor may well reduce the charges — or even drop them altogether.

Call us for help…

For more information about the relationship between diabetes and California DUI, or to find out whether diabetes might be a defense in your DUI case, please don’t hesitate to contact us at Shouse Law Group.

Our California DUI law offices are located in and around Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

For more information about diabetes as a DUI defense in Nevada, read our article on diabetes as a DUI defense in Nevada.

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