A fairly rare, but highly effective defense to a charge of driving under the influence (DUI) when the BAC is based only upon a breath test is the “Mouth Alcohol” defense.
The basis for this defense is, in a nutshell, “garbage in, garbage out.” In other words, if the breath test assumption that deep lung (alveolar) air only is being tested is wrong, the BAC measured is not an accurate measurement of blood alcohol levels. This can happen when a driver has alcohol in his mouth that is measured in the breath.
The “Mouth Alcohol” defense arises most commonly when:
1. One has vomit particles, soaked in alcohol, still in one’s mouth;
2. Gaseous alcohol-saturated air is in one’s mouth, for example, from burping, heartburn, or GERD (gastroesophageal reflux disease) that causes one to continuously, often unknowingly, expel alcohol saturated air;
3. Food particles soaked in alcohol that are stuck in one’s teeth;
4. Dental work such as dentures that traps food or even alcohol;
5. Medicines containing alcohol such as Nyquil; and/or
6. Mouthwashes such as Listerine or breath sprays.
Remember, the difference between 0.08 and 0.07, between illegal and legal is only one-one ten thousandth of a percent. To put this in perspective, consider that studies have measured the effects of bad heartburn, finding it can add up to 0.05 to one’s BAC. In other words, one with a 0.05 BAC can double one’s apparent BAC when suffering from heartburn and emitting alcohol saturated air.
The likely response of prosecutors to such arguments is skepticism and denial. However, most prosecutors appreciate a medical diagnosis of GERD. Most prosecutors also understand that PAS (Preliminary Alcohol Screen) devices lack slope detectors. This means that PAS devices only detect alcohol, not accounting for how the first air in a breath sample may contain more alcohol than the last air expelled. The first air out of one’s mouth, with mouth alcohol effects, can be very high in alcohol, whereas the last breaths of air, from one’s lungs, can be lower in alcohol content (and more accurate of one’s BAC). The PAS reading, however, will only show the highest reading.
With more sophisticated breath test machines such as those at a police station, there are slope detectors. Such enhancements to a roadside PAS test allow the police station breath machine to detect mouth alcohol and disregard it. Instead, the machines are supposed to only measure deep lung air content for alcohol, ruling out the initial air alcohol content as it slopes downward in concentration until leveling out as deep lung air only is measured.
A good attorney will be able to argue, however, if there are other issues that merit the prosecution’s distrust of the police station breath machine BAC. This may be the machine’s poor or even non-existent calibration records, the officer’s breach of machine operating protocol or other reasons that cast doubt upon the reliability of the second BAC reading.
This article was written by Greg Hill, who has defended hundreds of misdemeanor and felony DUI’s throughout Los Angeles, Orange, Riverside, San Bernardino and Ventura County. Greg is an attorney in Torrance, California. He is a U.S. Naval Academy graduate (B.S., 1987), Boston University graduate (M.B.A., 1994) and Loyola Law School graduate (J.D., 1998). Greg Hill & Associates represents clients in Torrance, Long Beach and the surrounding areas in DUI, as well as domestic violence, juvenile offenses, drug offenses and restraining orders, among other crimes. Visit the firm’s website at http://www.greghillassociates.com or the firm’s Facebook page at http://www.facebook.com/pages/greg-hill-associates/198954460153651.