GERD, Acid Reflux, Heartburn or Hiatal Hernia as a Nevada DUI Defense

queasy women covering stomach and mouth with hands
Regurgitation can cause false DUI breath test results in people with GERD

How GERD, Acid Reflux, Heartburn and Hiatal Hernia Can "Trick" a Nevada DUI Breath Test

Many medical conditions can lead to falsely high results on a Nevada DUI breath test. These include digestive conditions which can cause stomach contents to flow back into the esophagus -- the “food pipe” that connects the stomach with the throat.

Common conditions in which this occurs include:

  • Gastroesophageal reflux disease (GERD),
  • Acid reflux,
  • Heartburn, and
  • Hiatal hernia.

The role of "mouth alcohol" in DUI breath tests

When we consume anything containing alcohol, some of the alcohol remains for a short time in the mucosal linings of the mouth -- a phenomenon known as “mouth alcohol.”

Nevada DUI breath tests are set up to measure the concentration of alcohol contained in a sample of “deep lung” air. When deep lung air mixes with mouth alcohol, however, the result is an artificially inflated reading of blood alcohol concentration ("BAC").

Under normal conditions, mouth alcohol dissipates fairly quickly. This is why Nevada law requires that a law enforcement technician observe you for a continuous 15-minute period before beginning your evidentiary breath test. It is to make sure that mouth alcohol has a chance to dissipate and that you don't introduce a new source of alcohol into your mouth.

In most people, a properly conducted test on correctly calibrated equipment is reliable. However, this is not always the case in people with medical conditions that allow stomach contents to flow back into their mouths. By creating a source of potential mouth alcohol that cannot be easily observed, medical conditions such as GERD can lead to falsely high DUI breath test results in Nevada.

An experienced Nevada DUI attorney who understands the science, however, can often show the prosecutor – and, if necessary, the jury – that it was your medical condition and not too much to drink that was to blame for your high DUI breath test results.

To help you better understand how your GERD or heartburn can trick a Nevada DUI breath test, our Reno and Las Vegas, Nevada DUI defense lawyers address the following, below:

Img gerd

1. How can GERD, acid reflux or heartburn cause an incorrect BAC reading?

In normal digestion, the lower esophageal sphincter (LES) opens to allow food to pass into the stomach. After you have swallowed, the LES closes to prevent stomach contents from flowing back up.

In people who suffer from medical conditions such as gastroesophageal reflux disease (GERD), however, the lower esophageal sphincter is weak. It can allow stomach acid and contents to flow back into the esophagus, especially after a heavy meal. In some cases, these stomach contents even be regurgitated all the way up and into the mouth.1

If there is alcohol in your stomach when this occurs, this will result in mouth alcohol. Unless this alcohol is given time to dissipate, it will mix with deep lung air when you blow into an Intoxilzyer 8000, the evidentiary DUI breath testing device currently used by Nevada law enforcement.

The officer or technician performing your Nevada DUI breath test is supposed to watch you for a 15- minute period before starting the test to ensure that this does not happen. Even the most observant technician, however, can't easily tell when you vomit or otherwise regurgitate into your mouth. As a result, people with digestive disorders such as GERD are at especially high risk of falsely elected BAC readings.

2. What is “hiatal hernia” and how can it affect my DUI test?

The esophagus runs through a hole in the diaphragm (the organ in the abdominal cavity that expands and contracts to help you breathe) and connects to the stomach.

In people with a hiatal hernia (also known as a "hiatus hernia"), however, a small part of the stomach protrudes above the diaphragm. As a result, people with hiatal hernia often suffer from reflux and other symptoms similar to GERD. These symptoms can include the backflow of undigested food and other stomach contents into the mouth.2

diagram of normal diaphragm and hiatal hernia

3. How mouth alcohol "counterfeits" DUI breath tests

Unlike a Nevada DUI blood test, a DUI breath test does not directly measure the amount of alcohol in your blood. Rather, a DUI breath testing device measures the amount of alcohol contained in a sample of “deep lung” air and mathematically converts it to a roughly equivalent blood alcohol concentration (BAC).

Prosecutors claim that modern DUI breath testing equipment is sensitive enough to distinguish mouth alcohol from deep lung air.3 However, tests have shown that this isn't always the case, especially in people with digestive orders, who may be regurgitating stomach contents within the 15-minute observation period.

4. How can I tell if reflux or hiatal hernia affected my breathalyzer test?

Your Nevada DUI defense attorney will conduct a thorough interview to see if a medical condition could have caused a false “positive” on your DUI breath test.

You can help by telling your attorney if you suffer from any medical conditions (whether or not they seem relevant) or if you were experiencing any stomach upset when you were arrested for DUI.

With the help of your doctor or a DUI expert witness, your lawyer will explain the science of DUI testing to the prosecutor and, if necessary, the jury. He or she will show the trier of fact how your medical condition could have caused the high reading on your DUI breath test.

As Las Vegas DUI defense lawyer Michael Becker explains:

"Police officers are only human. Sometimes they get bored or distracted and don't recognize the symptoms of GERD. And when they get distracted, innocent people go to jail. But even under the best of circumstances, it can be hard to tell when someone is burping or regurgitating. That's why it is critical to retain a drunk driving lawyer who understands the science of Nevada DUI breath testing."

Arrested for DUI in Las Vegas or Reno? Call us for help…

If you were charged with DUI in Nevada and think a medical condition may be to blame, we invite you to contact us for a free consultation.

Our compassionate Reno and Las Vegas DUI lawyers know that a Nevada DUI breath test tells only part of the story. We'll figure out the rest of it and present your side to the prosecutor. If GERD, reflux or hiatal hernia caused your high BAC reading, we may be able to get your charges dismissed or reduced.

To schedule your free consultation, fill out the form on this page or call us at 702-DEFENSE (702-333-3673). An experienced DUI lawyer will get to you promptly to start helping you plan the best defense to your Nevada DUI charges.

Legal references:

  1. WebMD, What is Acid Reflux Disease?
  2. Cedars-Sinai medical center, Hiatal Hernia.
  3. See, e.g., Jeanne Swartz, Breath Testing for Prosecutors: Targeting Hardcore Impaired Drivers, American Prosecutors Research Institute.

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