Suspended driver tells B.C. court keto diet caused false breathalyzer reading

An officer holds a breathalyzer device in this file photo. (The Canadian Press/Darryl Dyck)

A B.C. driver who claimed his ketogenic diet caused a false breathalyzer reading has been refused a second chance to challenge the three-day driving prohibition he received after taking the test.

Kenneth Robert Chemko was handed the roadside suspension after being pulled over on the afternoon of Dec. 23, 2019, but fought the penalty through the province's Superintendent of Motor Vehicles.

When that effort failed, Chemko asked the B.C. Supreme Court to order him a new hearing, arguing the adjudicator who considered his challenge the first time had wrongfully dismissed his contention that being in a state of ketosis had caused him to register a "warn" on the breathalyzer.

Justice Amy Francis refused, finding it was "reasonable" for the adjudicator to determine the results were more likely the result of Chemko drinking alcohol into the early morning hours that day, as the driver openly acknowledged having done.

"Considering the large amount of alcohol consumed by Mr. Chemko up to just 9.5 hours before the breath sample was taken, it was reasonable for the adjudicator to conclude that there was no persuasive evidence that the 'warn' reading was caused by anything other than alcohol in Mr. Chemko’s body," Francis wrote in an Oct. 4 decision.

The court heard that prior to being pulled over, Chemko consumed 13 drinks – mostly vodka sodas with three glasses of white wine – during a period of several hours that began the previous afternoon and continued until approximately 5 a.m.

Chemko then slept until 10 a.m., woke up and went about his day, until a police officer stopped him at around 2:20 p.m. and asked him to provide a breath sample.

The driver registered a "warn," suggesting his blood alcohol content was above 0.05 but below 0.08, the court heard.

While pleading his initial case to the adjudicator, Chemko stressed that he is on the Atkins diet, which involves eating large amounts of protein while avoiding carbohydrates to induce a ketogenic state, when the body is said to burn fat for energy instead of glucose.

Chemko provided an expert report in the form of a letter from forensic criminologist Jan Semenoff, who opined that a low-carbohydrate diet can sometimes have an impact on the results of blood alcohol tests.

But the adjudicator from the Superintendent of Motor Vehicles noted that Semenoff's report spoke in generalities, and did not address Chemko's specific circumstances.

"Mr. Semenoff did not opine that Mr. Chemko's 'warn' reading was likely the result of ketosis, rather than the alcohol in his body," Francis wrote. "For example, Mr. Semenoff makes no mention in his letter of the 23 oz of alcohol Mr. Chemko says he consumed in the 24-hour period leading up to the breath sample."

Notably, the justice did not outright reject the notion that a ketogenic diet could impact the results of a breathalyzer test – a claim that has been the subject of a number of articles and law blogs – only finding that Chemko had failed to demonstrate that was the case in this instance.

Francis accepted the adjudicator had made some errors – including when she wrongly asserted it's "common knowledge" that drinking white wine is incompatible with a low-carb diet – but said Chemko also failed to provide any evidence he was even in a ketogenic state when he received his driving prohibition.

The driver referenced having taken a "ketostix" test that morning to measure the level of ketones in his body, but did not "provide evidence as to what a ketostix is, how it measures the level of ketones in the body, when he took the test, or even what the specific outcome of the test was," the justice noted.

"I am satisfied that the adjudicator appropriately weighed the evidence on the question of whether the reliability of the (breathalyzer results) was impacted by Mr. Chemko being in a state of ketosis," Francis wrote. "Mr. Chemko's petition is dismissed."