Question:     I'm asking questions to lawyers because I got a DUI in Atlanta and I want to see if I can use a certain defense.  I'd like possibly use as a defense that my diet made me drink and drive.  This isn't my first DUI but I haven't had one in over 5 years.  I think my diet caused me to not use good judgment and to drive drunk.

I've been trying to lose weight so I've totally changed my diet.  I was reading that Jared Fogle, the SUBWAY sandwich spokesman, used his diet as an excuse for his criminal case.  I'd like to do the same thing for my case.

I don't think I would have gotten a DUI if I hadn't been on this diet.  I've been on the diet for about 2 months and I really do feel different.  And I usually don't too much.  I usually have a little bit of wine, maybe a few beers and rarely will I have a mixed-drink.  I just can't explain why I drank and drove my car, other than because of the diet, which I think changed my brain functioning.

I mean I don't eat carbs and I try to eat only raw foods.  I drink enormous amounts of water and I have pretty much given up alcohol; and I do a lot of enemas.

I got stopped because of speeding and I cooperated and did all of the tests.  I took the breath test and I blew a .24.  I want to know if I can use my diet as a defense. 

P.A. in Sandy Springs, GA

Answer:     Using your diet as a defense is unlikely to work.  You mention Jared Fogle, the former SUBWAY pitchman.  He didn't actually use his diet as a legal defense, because he pled guilty.  He tried to use it at sentencing to help get a reduced sentence.  But it didn't work and he was sentenced to a lengthy prison term.

However, in the context of a DUI charge, it is also unlikely to work.  It is not legally significant that your diet led to poor judgement and you wound up getting arrested.  Judges, prosecutors and others won't care about why you chose to drink and drive, that's irrelevant.  They will only care that you were drinking and driving.

A diet defense is similar to other defenses that involve motivations.  Sometimes people will try to explain their charges because of emotional tumult in their lives.  They might be going thru a divorce, having trouble at work or are angry about some aspect of their personal lives.

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