High Breathalyzer Readings from Acid Reflux

Posted by Lawrence Taylor on February 13th, 2006

Bryan is presently facing criminal charges for driving under the influence of alcohol. Except that he wasn’t under the influence of alcohol.

Bryan had one drink after work and was stopped at a DUI sobriety checkpoint on the way home. The officer smelled the alcohol on his breath and asked Bryan to step out of the car to take some field sobriety tests. He did fairly well on the tests but, just to be sure, the officer asked him to breathe into the breath machine that had been set up at the checkpoint. The results: .12%.

Bryan was arrested for DUI, handcuffed and taken to jail; his license was immediately confiscated and he was served with a notice of automatic suspension. When finally released six hours later, he was given a notice to appear in court for arraignment on drunk driving charges.

What happened? How could Bryan have only consumed one beer but registered .12% on the machine?

Well, to begin with, breath machines (commonly referred to as “Breathalyzers”, although there are many competing makes and models) are notoriously inaccurate and unreliable (see “How Breathalyzers Work — and Why They Don’t”). Calibration, maintenance, malfunctions and use by inexperienced or poorly trained officers are always problems. And there are inherent design defects, such as being non-specific for alcohol — that is, they don’t actually measure alcohol; due to the nature of infrared analysis, they will report thousands of other compounds as “alcohol” (see “Why Brethalyzers Don’t Measure Alcohol”.)

Yet another recurring problem is mouth alcohol. What is “mouth alcohol” — and how could this have caused Bryan’s false reading? The machine measures alcohol on the breath, and an internal computer then multiplies the reading 2100 times to get a reading of alcohol in the blood. This is because the amount of alcohol in the blood is greatly reduced as it crosses from the blood into the alveolar sacs of the lungs and into the breath; the average person has 2100 times more alcohol in his blood than in his breath (this varies widely among individuals, however, and is another inherent defect in the machines — see “Convicting the Average Person”).

But what if the alcohol in the breath sample did not come from the lungs? What if the alcohol came from Bryan’s mouth or throat? Then it will not have been processed through the body, into the blood and finally out through the lungs — and it will not have been reduced 2100 times. But the machine, being a machine, will always multiply it 2100 times. Result: false high reading and Bryan is facing DUI charges.

So what was alcohol doing in Bryan’s mouth or throat? Well, alcohol will usually stay in the tissue of the oral cavity or esophagus for about 15 minutes until it is finally diluted and flushed down into the stomach by saliva. So if Bryan had “one for the road” just before being tested, he could have a problem. Or the alcohol could have become trapped in dentures or gum cavities and lasted much longer. Bryan may have burped or belched within 15 minutes before taking the test, sending up alcohol from the beer in his stomach into his mouth and esophagus.

But what actually happened was that Bryan suffers from a very common condition: GERD, or gastroesophageal reflux disease. This causes acid reflux, often experienced as heartburn. Acid reflux is sometimes caused by a hiatal hernia – damage to the pyloric valve separating the stomach from the esophagus. When the valve cannot close completely, then liquids and gasses from the stomach can rise into the throat and oral cavity, to remain there until once again flushed back down. Since a bout of acid reflux can be caused by stress, it is not unusual to find that people stopped by police officers for suspicion of DUI and subjected to field sobriety tests experience the condition.

Bryan is now ordered to breathe into the machine’s mouthpiece. With alcohol from his stomach now rising into and permeating his mouth and throat, it is mixed with the breath passing from the lungs through the throat and mouth and into the machine. Since this alcohol is being multiplied by the machine 2100 times, it takes only a tiny — invisible — amount of absorbed alcohol to cause a disproportionately high reading. In Bryan’s case, an “innocent” reading of perhaps .02% became a “guilty” .12%.

Result: Bryan lost his driver’s license….and now has to try to prove his innocence in court. Prove his innocence? Aren’t we presumed innocent in America? Here we have the notorious “DUI exception to the Constitution” again. Strangely, Bryan is not presumed to be innocent as we all thought: almost all state laws legally presume a person is under the influence of alcohol if if the machine’s reading is .08% or higher.

Yes, we have a system where citizens are convicted by a machine….A very fallible machine.

  • aceinspace

    add this to the library. My son had gastric by-pass (lap-band) surgery a few months ago. This surgery creates a new small pre stomach using a band placed around a small upper portion of the stomach. Patients of this surgery are encourged by their doctors to avoid carbonated beverages because the size and nature of the pre stomach increases the incidence and volume of gases from carbonated drinks to flow back up the esophegus and ultimately causing belching.

    Beer is highly carbonated.

    My son had two beers (he weighs 260 pounds) and was not the slighest bit intoxicated when he was stopped at a check point. He was not asked to perform any of the field sobriety tests. When asked if he had been drinking he replied in the affirmative. He was asked to take a breath test, which he did, and the result was .08. He was neither arrested or taken to the County jail for booking. He was given a dui citation and his car keys and drivers license were taken. Then the police offer, apologizing for his actions, telephoned to have a cab pick up my son to take him home.

    The “pre stomachs” of lap-band surgery patients contain no stomach acids, which act to neutralize gases. The pre stomach capacity is 4 ounces, versus 32-38 ounces for the normal stomach.

    The gas from consumed carbonated beverages builds up in the pre stomach and is released by belching. The belched gas is then in the windpipe and mouth. And if the gas is from beer? Well, you know the rest.

    This all happened yesterday. We will appeal the DUI on the grounds cited above, and will post the results.

    Stay tuned.

  • Chad

    I have been charged with DUI , argument of mouth alcohol as I coughed multiple times befor each test road side and two in the cop station, I blew over in some amazement I did drink that day I had 6 beers at a legion from 1pm to 5pm and I was pulled over of at 9:30 later that same day I blew a fail in car and .10 at the station both blows were .10 with in the amount of a half hour befor test I had no idea about DUI as I have never had one befor the cop kept asking me to stop coughing but I didn’t know why I figured he was just anoyed with me, now I am finding out about this mouth alcohol matter, ? So do I have a case involving this mouth alcohol matter and where can I get information as a lawyer is out of my financial reach do to loss of job “truck driver” Thank you for any comments or direct help