Many people have heard the term “mouth alcohol defense” in the context of DUI cases but do not know whether it is a valid defense. In reality, mouth alcohol is a valid defense that can result in inaccurate breath testing results. While police officers administering a breath test of blood alcohol concentration (BAC) are supposed to observe a waiting period of twenty minutes (referred to as a “deprivation period”) to ensure that no food or beverages are ingested immediately prior to the breathalyzer test, this does not eliminate the problem.
The purpose of this deprivation period is to compensate for a flaw in the Breathalyzer 8000, which is the breath testing device currently used in Kansas. This shortcoming of the device is that it cannot differentiate between alcohol in the mouth that has not been metabolized by the body and alcohol from the deep lungs (called “alveolar breath”) that has been metabolized. The breath test device uses a ratio to convert the alcohol in alveolar breath to that in the blood. However, alcohol in the mouth that has not yet been metabolized by the body will yield a much higher BAC result.
The waiting period only eliminates the mouth alcohol problem in the sense that the officer knows that a DUI suspect has not ingested food, beverages, mouthwash or other substances immediately prior to the breath test. However, there are many sources of mouth alcohol that the waiting period does not remedy, such as the following:
Alcohol belched into the mouth
Alcohol trapped in dentures or fillings in the mouth
Alcohol present because of GERD (acid reflux)
The mouth alcohol problem only represents one potential issue with the accuracy of the Breathalyzer 8000. The device also cannot distinguish ethyl alcohol, which it is supposed to detect, from some other types of chemical substances. A low carb diet or diabetes may result in a false positive result because the device cannot accurately distinguish acetone which is produced by diabetics and those on low carb diets from ethyl alcohol.
These are merely a few potential causes of inaccurate BAC results produced by the Breathalyzer 8000. At our Kansas DUI defense law firm, we recognize the harsh consequences of a criminal conviction and work diligently to protect our clients’ driver’s license, freedom and reputation. We invite you to contact our office and discuss your situation with Kansas DUI attorney Sarah G. Swain without fear of being judged. The initial consultation is free and confidential. Call us today at 785-842-2787 or toll free at 866-550-2787.