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5 Rare, Long-Shot DUI Defenses, Including the 'Low Carb' Defense

By William Peacock, Esq. on October 23, 2014 | Last updated on March 21, 2019

Drunken driving suspects don't always argue "I wasn't drunk" or "I wasn't driving." Sometimes, they get a little more creative with their DUI defense theory.

Of course, the more creative the theory, the less likely it is to work. But hey, everybody needs a Hail Mary once in a while. And if a DUI is likely to impact your career (as it may for police officers and truck drivers, for example) one of these long-shot defenses might be worth trying.

Of course, defense strategy is something that you should discuss with your attorney, and if you're desperate enough to try one of these, you need an attorney, so consider this helpful information -- not legal advice. Here they are, from plausible to utterly nuts:

1. Breathalyzer Wasn't Calibrated.

This isn't a rare approach -- it just rarely works. Like all scientific measures, a blood-alcohol reading has a margin of error. And if the machines used to measure one's BAC aren't properly calibrated, it widens that margin of error.

Of course, cops know this. Lab technicians know this. As do lawyers. Think of this as something your lawyer might look into, just in case, but the odds are extremely slim that the local police department forgot to calibrate the machine. (However, it has been known to happen.)

2. Rising Blood Alcohol Content.

This defense, on the other hand, isn't as rare, though it only applies in a handful of cases.

Let's say you've been drinking -- say, you slammed five beers on a full stomach. The food, and the rapid pace of consumption, means that your body isn't going to immediately shoot all that alcohol into your blood stream. If you took a Breathalyzer test now, you might pass. If you wait 30 minutes or an hour, you might fail, thanks to the miracles of digestion.

That's the argument to the court: The defendant wasn't drunk when he was pulled over -- his BAC was rising at the time, which caused the failed test an hour later. Of course, most states charge DUIs under two theories: impairment or a BAC of 0.08 percent or above. Even if you beat the 0.08 percent charge, you may still be convicted if there were other signs of impairment.

3. Forced Blood Draw Was Illegal.

Last year, the U.S. Supreme Court issued a very important holding in a drunken-driving case out of Missouri: Forced blood draws generally require a warrant. While the Court stopped short of saying warrants were always required (extreme cases might justify a forced draw), the safe route for police officers should be to get a warrant before drawing blood against a driver's will.

If they didn't get a warrant, and there were no "extenuating" circumstances (like holy crap, someone is dying), your lawyer might be able to get the blood evidence tossed.

4. DUI Checkpoint Was Illegal.

This one is tough, because it varies so much by state, but we'll use California as an example. According to a landmark case from the mid-1980s, a court reviewing the legality of a checkpoint in California should look at a long list of factors, such as warning signs, the ability to turn away from a roadblock (so long as the driver doesn't violate traffic laws), advance notice to the public, and limits on the discretion of police officers (i.e., stop every third driver, just to be sure that there's no racial profiling).

It's a soft and fuzzy test -- not all factors need to be present in order for a checkpoint to be legal. In reality, the odds of a court finding a checkpoint to be illegal are slim, especially since police departments have had these guidelines to work with for the last few decades.

5. The Low Carb/Diabetic 'Ketone' Defense.

Last, and least likely to succeed, is the fascinating ketogenic diet defense. Certain low-carb or sub-1,000-calorie diets, at least while the body is still adjusting, can lead one's body to produce ketones. Type I diabetics, who have low blood sugar, may also have excess ketones (and fatigue, dizziness, and a lack of coordination, all which which may be mistaken for signs of intoxication).

Ketones, thanks to a long-winded scientific explanation, can turn into isopropanol alcohol, which increases one's Breathalyzer reading (but not blood test reading). In short: Type I diabetics and sub-1,000-calorie or low-carb dieters may -- may -- have a way to cast doubt on a borderline breath test.

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