Mouth Alcohol Defense Explained by San Diego DUI Lawyer
Breath Alcohol testing devices are designed to take the concentration of alcohol in the alveolar air in a subject's lungs, and use a standard ratio to determine blood alcohol concentration. This process is flawed in MANY ways, including in its fundamental assumption that a standard ratio between breath and blood even exists. Further diluting the credibility of breath test devices is the interference of alcohol in the mouth when a breath sample is provided. Alcohol in the mouth can cause a falsely high BAC reading with preliminary alcohol screening devices, as well as the breathalyzers used at police stations to procure an evidential sample. Certain conditions may affect testing even more.
DENTAL WORK Bridges, crowns, caps, braces, implants, dentures and other dental work can trap alcohol in the mouth, leading to falsely high BAC readings when testing breath alcohol. While a single filling may not help you explain away a .20 BAC, it is important that you discuss any major dental work, periodontal disease (gingivitis) or other dental and medical conditions with your DUI Lawyer. Paired with other defenses regarding the accuracy of breath test devices, the impact of medical conditions and more, it may be possible to cast doubt in cases where the driver's BAC did test above the legal limit. In addition to dental work, lip, cheek and tongue piercings may trap alcohol and affect breath test accuracy. REGURGITATION Vomiting, burping and even coughing can cause alcohol from the stomach, not yet absorbed into the blood stream, to enter the esophagus and mouth. While the unabsorbed alcohol in a driver's stomach has not yet begun to affect the driver's impairment, actual blood alcohol concentration or ability to drive, it can affect a breath test for alcohol. California law requires police officers to continuously monitor a driver for 15 minutes prior to a breath test in order to ensure that the driver does not, among other things, burp or vomit. The law recognizes the potential for inaccuracy caused my these acts. What is important to note is that the arresting officer will have a lot to do while also "continuously monitoring" a subject. It is vital to have an experienced DUI attorney on your side who can point out all of the things that an officer did that makes it impossible that they could have monitored a suspect closely enough to determine whether they belched or vomited. The arresting officer will frequently look down to take notes, write in their report, demonstrate field sobriety tests, prepare the preliminary alcohol screening device, and much more. This failure of attention by the officers shows that the officers did not follow proper procedure, but also raise the possibility that mouth alcohol, through regurgitation of unabsorbed alcohol in the stomach, G.E.R.D. AND OTHER MEDICAL CONDITIONS AFFECTING MOUTH ALCOHOL Burping, vomiting, gum disease, cavities and more can increase the effect that mouth alcohol can have on a breath alcohol test. A hiatal hernia can also cause falsely high BAC readings due to mouth alcohol. As with your dental work, you will want to carefully discuss your medical history and any diagnoses with your attorney to evaluate your defenses. more on medical condition DUI defenses NON-DRINKING FALSE POSITIVES Mouthwash, medicines containing alcohol, mouth sprays, etc. can leave alcohol in the mouth even when no alcohol is actually ingested. Two minutes after using Listerine, a person's BAC would read as high as .20, or two and a half times the legal limit. Of course, since the Listerine is not swallowed, the actual BAC would really be .00, and a driver would not be impaired by having rinsed or gargled a mouthwash containing alcohol. Nonetheless, this alcohol can show up on a breath test and skew results. There are many other substances that can read falsely as alcohol in breath tests, including soy sauce. OTHER DUI DEFENSES: RISING BAC, MEDICAL CONDITIONS, FIELD SOBRIETY TESTS, INACCURACY OF TESTING DEVICES, FOLLOWING PROPER PROCEDURE, UNLAWFUL STOP (NO PROBABLE CAUSE) and more. TYPES OF DUI CASES WE HANDLE: FIRST DUI | DUI WITH A PRIOR | DRUG DUI | DMV HEARING | DUI W/ INJURY | FELONY DUI | If you or a loved one has been arrested and charged with DUI, contact us now for a Free Consultation with a San Diego DUI Lawyer. We can discuss your case in detail and evaluate the strengths of your various defenses. In DUI cases involving breath tests (either at the scene and at the station), your San Diego DUI Lawyer may be able to raise some doubt about the results by asserting the "mouth alcohol" defense on your behalf. During a consultation, you should discuss any dental work, oral piercings, medical conditions or any burping or vomiting. 619-550-4422
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