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Obesity as a defense for a DUI charge?

Wednesday, August 12, 2009 Posted by Peter Janiszewski, PhD

Back in April of this year, Jaimil Choudhry of New Hampshire was arrested for driving while intoxicated as assessed using roadside sobriety tests. For whatever reason, he refused to take the breathalyzer test.

Now, his defense lawyer is claiming that the tests used to assess Choudhry’s sobriety were inappropriate given that Choudhry is obese (BMI = 33.0 kg/m2) and thus the charge should be dropped. According to the lawyer, the test which has the alleged drunk driver walk toe-to-heel and then turn should not to be used by police officials on people who appear to be overweight or obese.

The police prosecutor, on the other hand, suggests that basing a drunk driving defense on BMI is a “stretch”.

While the case goes to trial this September, there may already be some precedent for such a case, as a man in Illinois has previously walked away from a similar charge using excess weight as a defense.


I am torn as to where I personally stand on this issue - while excess weight may appear to be a 'cop-out' for this alleged drunk driver, by the very nature of their excess weight, obese individuals are likely to be at a disadvantage in performing standardized tests - sober or drunk.

What are your thoughts?

Peter

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8 Response to "Obesity as a defense for a DUI charge?"

  1. Jenny Said,

    This guy is clearly using his weight as a cop-out and I am absolutely disgusted by it!

    I'm overweight myself and just tried the heel-to-toe walking test (in the middle of my office, no less) and while I didn't have that much trouble with it, I can easily understand why someone bigger than me would. If your thighs and belly are big, it's hard to put one foot infront of the other; it's not like you can just push the fat out of the way.

    If he took the breathalyzer and didn't blow anything significant, then of course he could blame the walking test on his extra weight. But the fact that he refused a breathalyzer kind've makes me think something was up.

    While I agree that having extra weight can cause trouble on standardized tests like this, I really don't think this guy should be allowed to protest his charges. It seems like he was in the wrong and is just trying to snake his way out of it.

    Kind've reminds me of the whole "I'm going to sue McDonald's because I'm fat" thing...

    Posted on August 12, 2009 at 2:05 PM

     
  2. Lauri Said,

    I agree with Jenny. Using one's weight as an excuse is wrong. What's next..."sorry officer, I'm too fat to see a red light" ?

    Police have many tests to use to prove intoxication. Walking heel-to-toe is just one. Touching one's nose, reciting the alphabet, reading a preprinted card, a breath test, a blood test -- all can be used during a single stop and if the suspect knows s/he is incapable of passing one for a medical reason, the officer can give another. But the breath and blood tests are the most accurate and if one refuses those, the officer will have to assume the worst.

    I hope the judge imposes a court ordered weight loss at the defendant's expense.

    Posted on August 12, 2009 at 2:39 PM

     
  3. Todd I. Stark Said,

    Obesity isn't a defense for DUI it is a mitigating circumstance for using the coordination test as evidence. The test is imperfect as it is (which is why the defense sometimes seems plausible), obesity is just one of many things that can mitigate it.

    Maybe one solution to this problem is that the courts could treat refusal to give evidence when requested as an admission of guilt, unless there is a compelling reason for the refusal. Evidence of flight is considered admissable evidence in court, why not evidence of refusal to be tested?

    Posted on August 12, 2009 at 2:41 PM

     
  4. Peter Janiszewski, PhD (Cand.), MSc Said,

    Great comments from all.

    @ Jenny: You are absolutely right regarding the breathalyser not being taken - I have no idea how the law works in this regard, but it seems odd to me that someone could 'choose' not to be subjected. Right off the bat, that appears self-incriminating. Can you also protest other tests?

    @Lauri: Yes, many alternative tests can be used to assess intoxication which are not confounded by weight. I get the impression from the news brief that these other tests were not done, despite the officers being apparently instructed to use other tests if the alleged driver is carrying excess weight. So the accused may have some wiggle room there.

    @ Todd: I completely agree, as I mentioned above the test for drunk driving should be this:
    1. Would you take the breathalyzer: Yes/No. If no, then automatically you sleep it off at the drunk tank. If choose 'Yes' option and have a level above the limit, same as above.

    I am fairly ignorant regarding drunken driving laws in the US, so I have no idea why a driver can bypass the more accurate measure for one that is fraught with problems (e.g. alphabet backwards - could be tough if not native English speaker, etc.)

    Peter

    Posted on August 12, 2009 at 4:04 PM

     
  5. Lauri Said,

    The US laws vary from state to state, county to county. Here in Austin TX, a breath test is the default. Refusal is an automatic arrest for DWI. Weekends, they set up stations in places where there are many previous DWI arrests and a blood test is automatically administered. Again, refusal leads to arrest. There's a reason our slogan is Don't Mess With Texas :).

    I just read the news article about Mr. Choudhry. He appears not to be contesting the charge; he was intoxicated, just that the officer shouldn't have offered him that test.

    Ok, I am appalled on several levels: where is the outrage that he was driving drunk? Regardless of his weight, he shouldn't have been behind the wheel. And now the police have to tiptoe around that issue and address how offended he was that he felt too fat to walk heel-to-toe. They offered a breath test, they asked him to tilt his head back and count, they offered a 3rd unnamed test and they asked him to walk a line. He refused all and was arrested. They no doubt administered a blood test at the jail to justify their charge. If he wants to use his weight as an excuse for any reason then perhaps the judge should consider that Mr. Choudhry is too obese to drive.

    Where do excuses stop? He's obese and gets offended if he's called fat, feels it's insensitive if he's asked to perform certain tasks...why doesn't he take personal responsibility and change his weight?

    My patients (animals) can't talk back or get offended. Their owners do though. Especially the overweight ones. And while no one has ever thanked me for saving their pet from diabetes, premature arthritis or even helped their pet to lose weight, they do get offended and leave.

    (stepping down from soapbox)

    Posted on August 12, 2009 at 8:47 PM

     
  6. darya Said,

    I think they shoulda forced that dude to take a breathalizer test!

    That being said, the rest of it reminds me of the Simpson's episode when Homer purposely gained 61 lbs to get on disability.

    Needless to say, I'm not impressed with the defense.

    Posted on August 13, 2009 at 12:01 AM

     
  7. Anonymous Said,

    A refused breatalyser in IL is subject to a DWI charge as well.

    My question is this, if the driver is too heavy to perform this simple physical test, what right does that person have to drive a vehicle that is close to one ton? He's setting up a very slippery slope for himself...

    Posted on August 13, 2009 at 4:32 PM

     
  8. uncdiss Said,

    Just a correction to Jenny's comment. If you refuse any type of physiological test in Texas you arrested for obstructing, not DWI. Your lisence is automatically suspended for one year and a fine is imposed. Many times this is a better option for those drunk drivers as by the time a court order is approved they may test under the limit. This is a much better option than receiving a DWI and a loophole that is exploited a lot. In fact, most DUI/DWI/PI lawyers will tell you to refuse any sort of tests they offer and just go to jail as they can beat the charges without immediate testing no matter the later result of the test.

    Posted on August 14, 2009 at 2:32 PM

     

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