If you have received a DUI charge based on a BAC (Blood Alcohol Concentration) breathalyzer test that was inaccurate, there may be one of three defenses that can help you to be acquitted at trial. The following are details about the three defenses along with the legal standards that make them possible.
Residual Mouth Alcohol and False Results
The breathalyzer test is supposed to measure your "deep lung air," but it can pick up alcohol residue in your mouth and belching, burping, or regurgitating can bring up alcohol from your stomach and cause a falsely high result.
A health condition such as GERD (gastro-esophageal reflux disease) could cause you to burp a lot, especially if you had a rich meal along with a moderate dose of alcohol. The use of breath sprays, breath mints, and alcohol based mouth washes can cause a false reading and so can your dental work if it has caused food or liquid to remain trapped in your mouth.
Rising BAC Level
State statutes about DUI focus on the impairment during the time you were actually driving and not on what you were doing before getting in the car to drive. If your blood alcohol level was under the legal limit then you would not be breaking DUI laws.
After you drink, your blood alcohol level may rise for an hour or more and could be rising during your detainment while the police officer is investigating you. If the test is delayed and it isn't much over the legal limit, it could be argued that your BAC was not over the limit at the time you were stopped while driving. If your intended destination was not far from where you started driving, this could also bolster your case.
Health Conditions, Dieting, and BAC
One flaw of breathalyzers is that they don't always distinguish isopropyl alcohol from ethyl (grain) alcohol which is the type of alcohol people drink. Isopropyl alcohol is not safe to drink but it can be oxidized to become acetone, which is a ketone.
Your liver produces ketones as a byproduct when it burns stored fat which can happen if you are fasting, on a high protein, low carbohydrate diet, or when you have diabetes. This condition is called ketosis and the ketones produced are similar to acetone in their chemical composition. So a breathalyzer can give a false reading for a DUI breath test.
Not only that but if you are in ketosis, you may also be experiencing coordination problems, confusion, and have fruity smelling breath that could be mistaken for alcohol. If you have imbibed a small amount alcohol while in this condition, this will result in an inflated reading as well.
Reminders and Legal Consultation
To recap, false BAC readings can be the result of:
- residual mouth alcohol from belching, regurgitating or using a mouth spray,
- rising blood alcohol level after you were stopped, and/or
- ketosis caused by diabetes, a low carb diet, or fasting.
To protect your reputation, employment and job prospects, ability to travel, drivers license, and possibly your freedom, you should consult an attorney promptly following a stop for DUI. They can advise you on your wisest course of action and also on state statutes. To learn more, contact a DUI lawyer like Elgart Ronald H.