Claiborne Ferguson is THE Memphis DUI lawyer, with his practice, the Claiborne Ferguson Law Firm in Memphis, Tennessee, devoted to DUI defense and capital murder cases. Both require a vast knowledge of science and law, which is why he has extensive training in both areas. Here, he talks about how using a Breathalyzer is often considered by many to be the best way to test an individual’s blood alcohol level. But it is often subject to error.
Many times people wonder why a DUI case is going to trial, when the Breathalyzer test has already shown that an individual’s blood alcohol content, or BAC, is over the limit. The fact is that these tests are not always correct. One problem is what we call the ‘mouth alcohol,’ which refers to any presence of alcohol in the mouth or airways during testing.
Raw alcohol can exist in the mouth, which can give a false reading on a Breathalyzer test. The device or apparatus will falsely assume that the alcohol it is reading comes from the deepest part of the lungs, and the amount is multiplied greatly to give a false reading – up to 2,100 times higher than it actually is.
Blame it on Digestive Activity
Mouth alcohol is often caused by certain digestive activity that happens in the 20 minutes leading up the a Breathalyzer test. This can include vomiting, burping, hiccuping, etc – any related activity that can bring alcohol up from the stomach, where it perhaps has lain for hours, into the mouth.
In some cases, certain breath fresheners, cough syrups and even acid reflux also cause mouth alcohol problems, and producing a false reading on a Breathalyzer test. Interestingly, some dental work, such as dentures and caps, can also trap alcohol and give a false reading.
Refuse the Breathalyzer
I always tell people to refuse a Breathalyzer test, for a variety of reasons. The testing is not accurate enough to trust, and to put it bluntly, why are you going to help them convict you? If you fail, they will take away your license for a year, at least here in Tennessee. If you refuse, they will take away your license for a year but you will not get convicted, so why go with the conviction?
If you do decide to blow and then believe the result was contaminated due to the mouth alcohol problem, a good DUI attorney should be able to argue your case for you. Remember also that police officers are supposed to observe you for a specific period of time before giving you a Breathalyzer, often up to 20 minutes in most states, to make sure that your actions are compatible with someone who is driving under the influence. That alone should be effective in fighting the mouth alcohol problem in most cases.
