Carolina Law Blog
Beer Batter Defense Fishy
A 75-year-old Wisconsin man has come up with a whopper of a DWI defense. It was the fried fish.
Yah, not so much. In the South, we’d say, “That dog won’t hunt.” If you’re a cheesehead from Wisconsin, that means the same thing as “Malarkey.”
There are novel, sometimes surprising yet scientifically accurate defenses to impaired driving or “drunken driving” charges. The Beer Batter Defense is not one of them. It both offends common sense and lacks scientific validity.
The Science of BAC Blood Alcohol Concentration
The amount of alcohol (EtOH – Ethyl Alcohol) associated with one batch of fried fish is negligible. A small amount of ethanol in one beer would never survive the temperatures associated with a fryolator, let alone show up in a breath test following consumption.
The beer batter defense is flat out silly at best. At worst it discredits legitimate defenses to DWI charges – Bill Powers, Charlotte DWI Lawyer
Alton Brown, Host of Good Eats and food science guru, lists the following ingredients in a pretty standard beer-batter recipe:
Flour
Baking Powder
Salt
1 Beer
Fish
One would be remiss in failing to note the ingredient list makes enough for four servings. As such, even an Andre-the-Giant sized appetite of multiple servings of fried fish, a blood alcohol concentration or BAC reading of .06 just is not scientifically possible.
In the era of micro-breweries and high specific gravity brews, there are some variances in the amount of alcohol in a bottle of beer. Generally speaking, a 1.5 oz “shot” and 8 oz glass of wine and 12 oz beer each contain approximately 15cc’s of Ethyl Alcohol.
DWI in NC – North Carolina DUI Laws
Assuming for the purposes of argument Guinness Beer was the “brown bottle beer” of choice, the ABV Alcohol by Volume in the United States for Guinness is 5%, which is slightly higher than Miller High Life (had to stick with the Wisconsin References) ABV of 4.6%. As such, each serving of fish might be at most “coated” with 3 liquid ounces of beer. . .or approximately 1/4th of a beer.
The reported Blood Alcohol Concentration (BAC), which does not generally rely upon an algorithm or widely ranging “partition ratios,” in the Beer Batter Defense was 0.06. While less than what is generally deemed to be the “appreciable impairment” amount of 0.08 in many states, one beer, irrespective of being a 12 oz bottle, a pint, a Guinness or a Miller High Life, is NOT going to result in a 0.06 reading.
Intoximeters, Inc., the manufacturer of the Intoximeter EC/IR II and AlcoSensor FST, Drink Wheel projects the ethanol reading to be somewhere in the range of 0.002 g/210 Liters of breath.
The legal limit in North Carolina is 0.079 g/210 Liters of breath. A reading of .08 therefore technically is “above” the legal limit. Again, the projected reading would be 0.002, not 0.02.
There are variables such as age, weight, sex and liver health that can affect the absorption and metabolism of ethanol from the body. Even if one was given to quaff copious portions of glutenous beer batter prior to cooking, it would take 12 or more orders of fish to start making a difference.
That puts the Beer Batter Defense on a precarious perch.
DWI Defenses to Avoid
Volatile Organic Compounds (VOC) are in part defined by having a low boiling point. Ethyl Alcohol or Ethanol is a VOC with a boiling temperature of 173.1 Degrees Fahrenheit.
Alton Brown cooks his fish at 375 Degrees, meaning any alcohol in the fish batter would have long since burned off at the point of eating battered, fried fish. As an interesting side note, alcohol can be used as a substitute for water in baking/frying, as it does not result in the same level of gluten production.
Indeed, pie crusts do better with at least some amount of vodka, which makes it easier to handle without ruining a flakey crust. It works because of the low boiling point of alcohol. It “burns off” without making the crust soggy.
Criminal Defense Attorney – Bill Powers
Bill Powers is a DWI attorney in Charlotte NC. He regularly lectures on the law, science, and technologies associated with DUI charges. He is the author of the NC DWI Quick Reference Guide.
Bill is also a former member of Governor’s Statewide Impaired Driving Task Force in North Carolina and a past president of the North Carolina Advocates for Justice.
We travel throughout NC, helping people with complicated DWI charges. There are defenses to allegations of driving under the influence of alcohol. The key is to know the difference from legit science and popycock – Bill Powers, Charlotte DUI Attorney
If you have legal questions about “drunk driving” charges in North Carolina, give us a ring, we’re here to help. We’ll also point you in the right direction and away from nonsense DWI defenses like the Beer Batter Defense.
Call to schedule a free legal consultation with Bill Powers now: 704-342-4357