The Maine Supreme Judicial Court on Thursday denied the appeal of a Maine man who argued he shouldn’t have been convicted of drunk driving, because the lower court didn’t allow him to bring witnesses supporting his argument that his gut brews its own alcohol.

But instead of providing a clear precedent, one of the court’s justices raised concerns the wording of the court’s decision could inadvertently create a loophole allowing for an ignorance defense in future drunk driving cases.





Defendants may try to avoid drunk driving charges by saying they didn’t know there was alcohol in their drinks, Justice Donald Alexander wrote in a concurrent brief.

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John Burbank was arrested and charged with operating under the influence and operating beyond license restrictions in August 2016 after police found him with a blood alcohol level nearly four times the legal limit.

Burbank’s attorneys argued in Lincoln County court that he suffers from a rare condition known as auto-brewery syndrome, in which the body involuntarily ferments alcohol in its digestive system and intoxicates the person.

But the lower court did not accept testimony from Burbank’s two witnesses supporting the claim, determining one was unqualified and the other was submitted too late.

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Without the witnesses, Burbank pleaded no contest to the charges and pursued an appeal.

On Thursday, Maine’s top court issued its ruling that the lower court was acting within its constitutional right to block the two witnesses, acknowledging the first, a toxicologist, had “no training or work experience relating to the condition,” and the second was brought forward more than a year after an early 2017 dispositional conference.

However, the state supreme court made it a point to say it was not ruling the defense itself was inadmissible, just that the lower court was fine to reject those two particular witnesses.

“[O]ur opinion should not be construed as implicitly accepting the notion that the crime of OUI does not encompass a situation where the alcohol in the accused’s system is generated through some endogenous process,” the ruling, written by Justice Jeffrey Hjelm, read, in part.

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That aspect of the ruling could be problematic, Alexander wrote in his concurrent brief, as it bucks decades of precedent saying that it’s illegal to drive while intoxicated, whether the person was responsible for their own intoxication or not.

State statute, which was reinforced by a 1980 court ruling in another case, says that in order to be guilty of operating under the influence, a person must be simply operating a motor vehicle and under the influence of intoxicants, Alexander wrote.

The justice continued that he worries the court’s decision “perhaps [suggests] that involuntariness might be a defense to an excessive blood alcohol charge.”

“If the court’s approach prevails, and the ‘uncommon’ defense is left unaddressed, it may invite many ‘I didn’t know there was vodka in my orange juice’ or similar defenses” to drunk driving charges, Alexander wrote.

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The justice wrote that the courts should have rejected the witnesses in question not because of their qualifications or timeliness, but because it shouldn’t have mattered whether Burbank suffered from auto-brewery syndrome under state law.

“This court should decide the issue of involuntary intoxication defense directly rather than to appear to acknowledge it by reaching the expert qualifications issue while deferring the issue we decided 40 years ago ‘to another day,’” Alexander wrote.