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Yes, residual mouth alcohol is a defense to Nevada DUI charges. Mouth alcohol can cause breathalyzers to return inaccurately high blood alcohol content (BAC) readings even if the defendant’s actual BAC is legal (below the 0.08% threshold). If the DUI attorney can show that the defendant had mouth alcohol, the drunk driving charges may be dismissed.
What is mouth alcohol?
Like it sounds, mouth alcohol is traces of alcohol in a person’s mouth. Specifically, in the person’s mucosal linings. People get mouth alcohol from various sources, such as:
- Drinking alcoholic beverages, such as wine, spirits, liquor, or beer
- Medicines such as certain cough syrups – such as Nyquil
- Mouthwashes or breath sprays like Listerine
- Chewing tobacco
- Dentures, retainers, or other dental work that may cause alcohol to get trapped and pool
- Such medical conditions as GERD (gastroesophageal reflux disease), acid reflux, and heartburn
Why does mouth alcohol cause inaccurately elevated BAC results?
Breathalyzers test a person’s breath sample, not blood sample. So if a person has residual mouth alcohol from any of the above-mentioned sources, it may cause the breath test to return results that are not reflective of the person’s blood alcohol content. And Nevada DUI laws only prohibit driving with a high BAC level – it does not matter what the person’s mouth alcohol content is.
Example: Emily takes one sip of wine at a dinner party and drives home. A policeman pulls her over because of a broken tail light. The officer smells the wine on Emily’s breath and performs a breathalyzer test. If traces of the wine are still in Emily’s mouth, it could cause a high breath test result even though her actual BAC is surely legal since she drank such a small amount of alcohol. Emily’s defense attorney could raise the mouth alcohol defense in her case.
In short, it is possible that a person’s mouth alcohol may cause a high BAC reading on a breath testing machine when in fact that person has a perfectly legal blood alcohol content. Breathalyzers do not always distinguish between deep lung air (alveolar air) and mouth air, which contains mouth alcohol.
How do police try to avoid inaccurate breathalyzer tests?
Following a Nevada drunk driving arrest, police officers must observe the defendant for 15 minutes before administering the evidentiary breathalyzer test (unless the driver elects to take a blood test instead). The purpose of this observation period is to give any mouth alcohol the chance to dissipate. The officer also makes sure the defendant is not burping, vomiting, or putting anything in his/her mouth.
In practice though, law enforcement officers may miss it when a defendant burps (causing some alcohol to reflux). Any regurgitation could cause a falsely high blood alcohol concentration reading on the breathalyzer chemical test.
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About the Author
Neil Shouse
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.