DUI Arrests: Inappropriate Subject for Breath Testing

Although breath testing is widely used to measure blood alcohol content (BAC), it is not appropriate for all people. Breath testing measures the amount of alcohol evaporated from the lungs. Breath is expelled from the deepest portion of the lungs, passes through the throat and then exits from the mouth. However, where residual alcohol is retained in the mouth, the resulting BAC reading will reflect mouth alcohol and not deep lung air.

Scientifically, it has been shown that mouth alcohol dissipates in 15 minutes. For this reason, police officers must observe the test subject for 15 minutes prior to initiating a breath test. This 15-minute observation period is necessary in order to discount contaminants from skewing the result. Even when a person does not ingest anything 15 minutes before a test, there are other problems which affect mouth alcohol, namely dental work or suffering from Gastroesophageal Reflux Disease (GERD).

GERD causes a backflow of acid from the stomach into the swallowing tube or esophagus. Almost everyone experiences gastroesophageal reflux at some time. The usual symptom is heartburn.

People who have GERD will show disproportionately high readings on breath machines because of the resulting mouth alcohol. This is because the alcohol from the stomach rises into and permeates the mouth and throat, mixing with the breath passing from the lungs, through the throat and mouth, and into the machine. Any BAC result is going to reflect absorbed alcohol from the stomach, and not the distributed and eliminated alcohol that should be reflected in breath tests.

Anyone who has had dental work such as dentures, bridges or braces may retain mouth alcohol. Alcohol becomes trapped with food particles and is retained in the crevices of dental work. Additionally, people who have had teeth removed or where wisdom teeth have grown in may have "pockets" where food gets trapped. Thus, mouth alcohol remains in the mouth. The resulting BAC levels will reflect a disproportionately high alcohol reading.

To lay a good defense, science and the law must come together in order to prove that the breath tests were inaccurate. An experienced DUI defense attorney will have the knowledge and the experts to prove your case, and prove your innocence. No one should be convicted because of bad science.

If you or a loved one was arrested for DUI, please contact a skilled defense attorney immediately.