DUI LAW NEWSLETTER

The Problem of Mouth Alcohol and Breath Testing in DUI Cases

One of the big problems with breath testing in DUI cases is the issue of mouth alcohol contamination

of the sample. "Mouth alcohol" refers to the presence of any alcohol in the mouth or airway during

breath testing after having been arrested for DUI. If even small amounts of raw alcohol exist during

a breath test, then the results will be a false high reading. This is because the breath testing device

assumes that the alcohol is from the deep part of the lungs; the machine multiplies the amount of

alcohol 2100 times to extrapolate what a “normal” person’s blood alcohol would be. Therefore,

even a microscopic amount of alcohol breathed directly into the machine from the mouth or throat
instead of from the lungs can have a huge impact on the test result.

Mouth alcohol is often caused by belching, burping, hiccupping or vomiting within 20 minutes
before taking the test which can bring vapor from alcoholic beverages still in the stomach up into
the mouth and throat. Some breath freshener products such as Binaca and Listerine have alcohol
in them and their use can also cause similar problems; cough syrups and other cold products also
contain alcohol. Dental bridges and dental caps can trap alcohol as well. Blood in the mouth from
an injury is yet another source of inaccurate breath test results: breathed into the mouthpiece, any
alcohol in the blood will be multiplied 2100 times. Some people with health problems can also be
adversely affected. For example people with GERD or chronic “acid reflux" can create falsely
elevated blood alcohol reading due to their condition and not even know it.

This problem is one that has plagued the area of breath testing in drunk driving cases for many years.

Despite efforts by the breath test machine manufacturers to detect this problem, it continues to result

in many convictions for DUI even though the individual may in fact be innocent.

Due to the complexity of this defense it is advisable to be represented by an attorney who is
familiar with this area. When handled correctly, this defense can prevent an innocent person from
being convicted of a DUI or Drunk Driving. If you have questions regarding your particular case you

should speak to an experienced DUI Lawyer.

To combat mouth alcohol problems, police officers generally are required by regulations, specifically

Title 17 of the California Code of Regulation to monitor and observe the arrested suspect before the test.

. In addition, the manufacturer protocol and instruction mandate that the suspect be observed

continuously for 15 to 20 minutes prior to breath testing in a DUI arrest.

Generally the machine "checklist" will reflect this observation which must be recorded as a required step

in the pre-breath test procedures. The failure to keep the suspect under constant observation for the

required time period may be grounds for an experienced attorney to suppress the test results or in the

alternative may serve as fertile grounds for cross examination at trial.

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