Blame indigestion. That's the defense of Apex Town Councilor Scott Lassiter, who is appealing his misdemeanor conviction of driving while impaired. Lassiter, 24, was convicted in January—a month after he took office—for driving with a blood alcohol content (BAC) of 0.11. The legal limit to drive is 0.08.
He'll now go to Wake County Superior Court, where he and his lawyer, James Crouch, will present an unusual defense before a jury. They'll contend that Gastroesophageal Reflux Disease (GERD)—the common cause of heartburn and indigestion—artificially increased his BAC.
Breathalyzers measure the presence of "breath alcohol." Some medical experts have argued that GERD inflates the reading because of the presence of regurgitated alcohol in the breathing passage.
"It's garbage," says Traffic Safety Resource Prosecutor Sarah Garner of the GERD defense. She argues that the North Carolina's Intoximeter, commonly referred to as the breathalyzer, has safeguards against false GERD readings.
But the GERD defense has been successfully argued, especially if the defendant can afford to hire a medical expert to testify, which is what Lassiter says he plans to do.
Attorney Bill Powers, who isn't involved in Lassiter's case, has successfully argued a GERD defense, although he says it's a rare and risky strategy. "I'm very selective about when to use it," says Powers, who specializes in DWI defense. "It's a crapshoot [to take it before a jury.] At best, it's an uphill battle."
That's because in North Carolina, having a BAC of 0.08 or higher is only one of several criteria for a DWI conviction. Appearing drunk at the time of arrest can be enough to convict someone; if a person is driving poorly or performs badly on a field sobriety test, it also can be harder to plead a GERD defense.
Lassiter faces such a battle. He was charged with DWI on Feb. 13, 2011, after a state trooper pulled Lassiter over as he drove home from a fundraiser. The trooper's report notes that Lassiter lost control of his car on an exit ramp in Garner and ran it into a ditch, then "backed out and proceeded onto U.S. 70."
"That's just erroneous. That's false," argues Lassiter, a social studies teacher in the Johnston County school system. "I don't believe the trooper saw what he's claiming to have seen."
As Lassiter was campaigning for office during last fall's elections, he was also facing the DWI charge, although he had not yet been convicted. Most Apex voters knew nothing of the charge, but Lassiter says he did not hide it. "I spoke openly and freely about it with anyone who asked. It's not my job to do the opposition research on myself," he says.
Apex Mayor Keith Weatherly knew about the DWI charge, but nonetheless endorsed Lassiter.
"I've known Scott Lassiter since he was in high school and he's a fine young man," Weatherly says.
Other endorsers included the Wake County GOP, Republican Sen. Richard Stevens and House Majority Leader Skip Stam. Neither Susan Bryant, Wake GOP president, nor Stam returned the Indy's repeated calls for comment. But Stevens, like Weatherly, acknowledges knowing about the DWI when he wrote an endorsement letter for Lassiter.
In his letter, Stevens writes, "Back when he [Lassiter] was an intern for the North Carolina General Assembly I saw first hand Scott's ability to work as a responsible and dedicated public servant."
The Lassiter family has connections at the General Assembly. Lassiter's mother, Ann, worked in the statehouse intermittently from 1967–2006. She left after a series of embarrassing incidents, including one in 2003 when she was House Page Coordinator.
As coordinator, she arranged for teenage pages to board at her son Stephen's home, The News & Observer reported. Stephen was a convicted felon with a history of drug and alcohol problems, according to N&O reports, and was paid $100 per week per page for the arrangement.
When House Speaker Jim Black, a Democrat, and close confidants learned of the matter, they allowed Ann Lassiter to retire as coordinator and choose her next job. She pitched the job of House historian and was paid $80,000 over the next 20 months, while collecting her full pension. Her final work was a 23-page history filled with grammatical and factual errors, the N&O report continues. She left the statehouse when her contract expired.
In 2005, she ran unsuccessfully for Apex Town Council; Scott Lassiter managed her campaign.
Scott Lassiter, too, has a political history. He was elected class president at Apex High School. He was elected student body treasurer at N.C. State University until he resigned over a disagreement about how student fees were spent, reported the Technician, the student newspaper. And he was appointed in 2006 to the Apex Parks, Recreation and Cultural Resources Advisory Commission.
However, he says, "I don't plan on making a career in politics." But he also doesn't plan to resign from Apex Town Council.
That does not set well with a rival, Bryan Gossage. A Republican, Gossage is a former long-time Apex Town Councilman and outspoken critic of Lassiter and Weatherly. (Weatherly beat Gossage in the 2011 mayoral election.) He says Apex should hold itself to a higher standard and anyone convicted of DWI should resign from elected office.
"My expectation now would be for his peers on the council to speak out," Gossage says, "particularly those members on the council who advocate a values-based politics, the ones who say that character counts for elected leaders. If they don't call for his resignation I think it will say a lot about them."
As for Lassiter's teaching job, DWI convictions are subject to disciplinary action on an individual basis. A school system representative said Lassiter has a clean record.
Lassiter says he doesn't understand why his case has attracted attention. "I'm interested in who's leading this witch hunt. It's another situation where I feel like the media has grabbed a hold of something."