What Can Affect California DUI Blood Test Results?

The legal limit for DUI in California is a blood alcohol concentration (“BAC”) of .08% or higher. At this BAC level, you are automatically presumed to be impaired by the alcohol in your system. However, you do not have to have a BAC above the legal limit to be charged with driving under the influence.

DUI Blood Testing: How to Challenge the Results in Your DUI Case

California uses a variety of tests to determine the BAC in a driver’s system. Breath and blood tests are the most common chemical tests for DUI. However, numerous conditions and factors could affect California DUI blood test results. If the police charge you with driving under the influence, contact a Southern California DUI lawyer for a free consultation to discuss potential DUI defenses and ways that you can challenge the results of a chemical blood test for BAC levels.

How Does a DUI Blood Test Work?

A qualified technician must perform blood tests in a DUI case. After a DUI arrest, the officer informs you that you must take a chemical test as required by California’s implied consent law (California Vehicle Code §23612). The officer explains that you must provide either a breath sample or a blood sample for chemical testing. Urine tests are only used when breath and blood samples cannot be obtained.

A technician uses an alcohol swab to clean your arm before drawing the blood. Then, the blood is sent to a lab for testing. There are precise rules which must be followed in the DUI Blood Test process.

Are DUI Blood Tests Reliable?

When a blood sample is taken, preserved, and tested correctly, it can be one of the most reliable ways to determine the amount of alcohol in your blood. The test detects the actual chemical content of the blood. Breathalyzers use a formula to estimate the BAC level based on the amount of alcohol on a person’s breath.

What Can Affect a Blood Alcohol Test and Cause a False BAC (Blood Alcohol Concentration) Result?

Blood tests can result in inaccurate results. Many factors could impact the results of a blood alcohol test. Some factors that could result in an inaccurate BAC result from a blood test include:

• The blood sample fermented before performing the BAC test;
• The blood draw was performed too long after the DUI arrest resulting in rising alcohol levels;
• The use of alcohol swabs to clean the areas before drawing blood;
• Certain health conditions of the person being tested;
• Failure to use a vial with the correct amounts of anti-coagulant and preservative;
• Using expired preservatives and/or anti-coagulants; and
• The blood sample was improperly collected and/or stored.

Because factors can result in inaccurate DUI blood test results, it is always in your best interest to discuss your DUI case with a Los Angeles DUI attorney before pleading guilty or accepting a DUI plea bargain.

Frequently Asked Questions About DUI Blood Tests in California

Because law enforcement officers almost always ask the driver for a blood sample, drivers often have questions about a blood draw after a DUI arrest. Below are answers to some of the most common FAQs about California DUI blood tests.

Can I Have a Lawyer Challenge My DUI Blood Test?

Yes, a Southern California DUI attorney can challenge the results of chemical testing for BAC levels. Whether you have grounds to contest the results depends on the facts of your case. Contact an expert DUI lawyer for a free consultation. A judge may exclude test results that could be inaccurate. The state would then need to prove you were intoxicated while driving a motor vehicle.

Can I Have a Different Laboratory Test the Blood Sample?

Title 17 of the California Code of Regulations provides the procedures for drawing, testing, and storing blood samples for DUI cases to comply with California Vehicle Code §23158.

In 17 CCR §1219.1, the regulations require that technicians collect a sufficient blood sample to provide for multiple tests. Individuals have up to one year after collecting their blood to request a sample for independent testing.

If you hire a defense attorney, they should request a portion of your blood to have it retested at an independent laboratory. If the prosecution refuses the request, the attorney files a “blood split motion” with the court asking for an order compelling the prosecutor to provide a sample of the blood for independent testing.

What if the Technician Used an Alcohol Swab Before the Blood Test? Can Alcohol Swab Affect Blood Alcohol Test?

Using an alcohol swab to clean the areas before drawing blood can impact the results of the test. Technicians violate Title 17 regulations if they use alcohol or a similar product to clean the area before a blood draw. Instead, technicians must use a non-alcoholic disinfectant to prep the skin for drawing blood.

How Long Does Blood Work Take to Come Back for Alcohol?

Several factors impact the timeline for blood work to come back from a lab. The lab’s backlog of tests is often the deciding factor in how long it takes to get results. It typically takes four to eight weeks to receive the results of a BAC test. However, it could take much longer if there are problems with the sample or the lab has a backlog of samples to test. The same is true with private laboratories that a California DUI defense lawyer might use to perform independent testing of DUI blood samples.

The results of breath tests are instant. However, officers do not preserve a sample of your breath. Therefore, there is no way to perform an independent test on the breath sample you provided after your DUI arrest.

Is Refusing a Blood Test a Good Idea or a Bad Idea? What Happens if I Refuse Chemical Testing?

It depends on the situation. Most people do not refuse a chemical test because there are penalties for refusing testing after a lawful DUI arrest. However, many drivers choose a breath test because it is less invasive than a blood test. Unfortunately, a breath test has a higher chance of being inaccurate than blood testing.

Why Is Attacking the Blood Test Results Such a Big Deal?

California Vehicle Code §23152 makes it illegal to drive with a blood alcohol content above the legal limit of .08%. It also makes it unlawful to operate a motor vehicle under the influence of alcohol or drugs. It is much easier for the state to prove you are guilty of drunk driving when it has test results showing your BAC exceeded the limits set by law.

Without the results of a blood test, the prosecutor must prove that you were “impaired” by alcohol or drugs in your system. Being impaired means you cannot operate the vehicle with the same level of care as a reasonably cautious sober person. Because impairment is a subjective conclusion, obtaining a DUI conviction without proof that the person’s BAC was above the legal limit can be more challenging.

Can I Still Fight the Blood Test if I Was Drinking or Using Drugs?

It is common for California DUI lawyers to challenge blood tests even if their client was drinking or using drugs. Again, for DUI charges, the state must prove your guilt beyond a reasonable doubt. Officers must follow regulations and statutes for chemical testing after a DUI arrest. Any slight error or deviation could be grounds for calling into question the results of a BAC test. The case might come down to expert witnesses testifying during a trial with differing opinions about whether the test results were accurate or inaccurate. Jurors would have to decide what to accept as fact.

When Is a DUI Blood Test Required in California Law?

Drivers are required to provide samples for testing after they are lawfully arrested for driving under the influence or DUI per se. Generally, the driver must choose between providing a blood or breath sample. However, there are exceptions to the rule.

For example, an officer can require a blood test if there is reasonable suspicion that the driver is under the influence of drugs. Also, the officer may require a blood sample when the driver is unconscious or deceased. Drivers taken to medical facilities that do not have breath testing equipment might be required to provide a blood sample.

Is It Better to Take a DUI Blood Test or Breath Test?

Breath tests are less invasive and faster, so many drivers choose a breathalyzer test. They blow into the mouthpiece to provide the breath sample. However, not everyone can provide a deep lung air sample required for a breathalyzer test’s accuracy. They might be unconscious or have a health condition that prevents them from breathing deeply.

Other drivers prefer a DUI blood test because they know that it measures the alcohol in their system instead of estimating BAC levels. Partition ratios are crucial components of the breathalyzer test, and the ratios are set by law. However, a driver may have a different partition ratio, which could impact the test results. Furthermore, breath samples cannot be preserved for retesting like blood samples.

What are the Title 17 Regulations?

Title 17 regulations refer to Title 17 of the California Code of Regulations. It provides detailed rules and procedures for collecting, testing, and storing chemical test samples. Violations of any of the provisions by officers, technicians, or labs could result in inaccurate test results. It could also give the court grounds to make the DUI test results inadmissible in court.

Are Blood Test Results Presumed to Be Valid?

There is a presumption that the results of a blood-alcohol test are accurate. In other words, the defendant has the burden of proving that the results are inaccurate. Title 17 procedures are often used to challenge the results of a test. However, a judge could find that the defendant’s constitutional rights were not violated. If so, the judge may allow the test results to be used as evidence during the trial even though there were violations of Title 17 regulations.

Forced Blood Draws – Can the Police Force a Person to Take a Blood Test?

There are very few cases where a person’s blood can be taken without a warrant. In the case of Birchfield v. North Dakota, the United States Supreme Court ruled that a warrantless breath test did not violate a person’s Fourth Amendment rights. However, warrantless blood tests do.

The case only applies when a state makes it a crime to refuse a blood test after a DUI arrest. California does not criminalize refusing a chemical test. Instead, the California Department of Motor Vehicles (“DMV”) administratively suspends a person’s driver’s license. The person only faces an enhanced penalty for test refusal if convicted of drunk driving.

A judge may issue a warrant for a blood sample resulting in a forced blood draw. A person can be physically forced to provide a blood sample if the police have a warrant.

Should I Hire a Lawyer to Dispute My Blood Test Results? 

If the police arrest you for driving under the influence, it is always in your best interest to call a Southern California DUI attorney for a free consultation. There could be one or more valid grounds for challenging the blood test results that could result in a dismissal or acquittal. You won’t know until you talk with an experienced defense lawyer.

Talk To A DUI Defense Attorney

You may have defenses to felony charges or may be able to get them reduced to a misdemeanor or “wet reckless” charges. An experienced attorney can evaluate your case and discuss your options with you. A lawyer serving DUI clients will often offer a free no obligation consultation and everything discussed is protected by the attorney client relationship.

Schedule a free consultation with one of our expert California DUI attorneys here.

Sources:

https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=VEH&sectionNum=23612

https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=VEH&sectionNum=23158.

https://govt.westlaw.com/calregs/Document/I9F4B2C835A2011EC8227000D3A7C4BC3?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default)

https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=23152.&lawCode=VEH

https://www.oyez.org/cases/2015/14-1468

The Only 3 Effective DUI Field Tests

Police officers use field sobriety tests (“FSTs”) when they stop a driver suspected of being under the influence of drugs and/or alcohol. The three standardized field sobriety tests (“SFSTs”) are considered the most reliable FSTs and the tests recommended by the National Highway Traffic Safety Administration for use by law enforcement agencies. However, police officers also use non-standardized field sobriety tests. Unfortunately, all tests have potential issues that can make the results unreliable.

The Purpose and Types of DUI Field Sobriety Tests

How do police officers use field sobriety tests during DUI investigations in California?

California uses the three standardized field sobriety tests to conduct DUI investigations during traffic stops. The purpose of conducting the tests is to determine whether a driver is impaired. The tests also serve to provide probable cause for a DUI arrest. A police officer must have probable cause to believe the person is intoxicated before making a lawful DUI arrest.

Three tests were chosen as standardized field sobriety tests. Each test has specific instructions and procedures for giving the test to a driver. Any deviation from the procedures could make the test results inaccurate and unreliable. Those three tests are: (1) Horizontal Gaze Nystagmus Test (“HGN”); (2) Walk and Turn Test (“WAT”); and (3) One-Leg Stand Test (“OLS”).

Horizontal Gaze Nystagmus Test (“HGN”)

The Horizontal Gaze Nystagmus Test checks for involuntary “eye jerking” or nystagmus, which occurs when a person looks to the side without turning their head. The severity of the “jerking” increases when a person is intoxicated. An HGN test can also detect when a person has consumed certain prescription medications and illegal drugs.

The police officer performs the test by instructing the person to focus on a stimulus, which is usually a small object, finger, or pen. The officer moves the stimulus horizontally across the person’s line of sight about a foot to 15 inches away. As the driver’s eye follows the object, the police officer watches for signs of increased nystagmus including:

• Inability to follow the object smoothly;
• Distinct jerking at maximum deviation; and
• Substantial eye jerking within a minimum of 45 degrees from the center.

The officer looks for the signs in each eye, checking for six total signs of increased nystagmus.

Walk and Turn Test (“WAT”)

The Walk and Turn Test is the test most people are familiar with due to its depiction in movies and television. During the WAT, a police officer instructs the driver to take nine steps along a straight line, turn around, and then take nine steps back to the starting point. The steps must be heel-to-toe steps.  The officer instructs the driver to count the steps out loud as they take each step. The officer watches for eight indications that the person might be impaired:

• Inability to balance while listening to instructions;
• Making an improper turn;
• Beginning to walk before the officer instructs the person to begin the test;
• Taking the wrong number of steps;
• Stopping to regain balance while walking;
• Stepping out of line;
• Failing to touch the heels to the toes; and
• Using the arms for balancing.

The standardized instructions state that if the person displays at least two of the eight indicators, they fail the walk-and-turn test.

One-Leg Stand Test (“OLS”)

The police officer instructs the person to stand still and lift one foot off the ground about six inches. The officer instructs the person to count by one until the officer tells them to stop while holding their foot off the ground. The standardized instructions state the officer should time the suspect and stop them in 30 seconds. The officer looks for four indicators of impairment:

• Hopping during the test;
• Repeatedly swaying during the test;
• Putting their foot down one or more times; and
• Using the arms to maintain balance.

The standardized instructions state that committing two or more of the four indicators means the person failed the one-leg stand test.

Field Sobriety Tests: Potential Problems and Challenges

Even though the above tests are widely considered reliable indicators of driving under the influence, there are many problems with the tests. Critics cite issues with the accuracy and reliability of test results. They also question environmental factors and the actions of police officers that could result in flawed test results.

What Do the Tests Mean if You Fail?

The police officer should refer to their FSTs training to determine if the person “failed” a field sobriety test. As indicated above, specific instructions in the training materials indicate when a person has “failed” the test.

If the officer decides that you failed one or more of the FSTs, the officer will likely state they have probable cause for a DUI arrest. The officer may then ask the driver to take a preliminary alcohol screening (“PAS”) test, which is generally a field breathalyzer machine. A BAC (“blood alcohol content”) level on the breathalyzer gives the officer additional probable cause to make an arrest for DUI.

After a lawful DUI arrest, California’s implied consent laws require individuals to take a chemical test. The police officer should ask the person whether they want to provide a sample for a breath test or a blood test for chemical testing. Urine tests are only used when blood and breath tests are unavailable.

Field Sobriety Tests: Accuracy, Limitations, and Criticism

There are limits to using field sobriety tests during a DUI stop. There are also questions regarding the accuracy of field sobriety tests. Some of the issues that DUI defense attorneys raise regarding the use of FSTs in DUI cases include:

• The accuracy of field sobriety tests;
• Failing to provide clear and correct instructions;
• Environmental factors;
• Medical conditions;
• Being nervous &/or scared; and
• The subjectivity of SFSTs.

The Accuracy of Field Sobriety Tests

Several studies have been conducted on the accuracy of FSTs in determining whether a driver is impaired by alcohol and/or drugs. The NHTSA Instructor Guide for the tests explains that three studies were conducted between 1995 and 1998. The studies were conducted in San Diego, Florida, and Colorado. Each study resulted in different conclusions regarding the accuracy of FSTs.

The Instructor Manual states that officers should use the San Diego Field Validation Study when testifying in court. That study indicated the following accuracy rates:

• HGN tests were 88% accurate;
• OLS tests were 83% accurate; and
• WAT tests were 79% accurate.

Even though the NHTSA claims that the study results provide clear evidence of the validity of standardized field sobriety tests, California DUI defense lawyers disagree. First, these tests are not 100% accurate. Moreover, other scientific tests have shown that the accuracy of these tests is questionable.

One study used sober individuals to perform standardized FSTs. After watching videos of people taking the tests, police officers believed that a significantly larger number of the people were impaired. Another study concluded that the HGN test has a high baseline error and varied greatly depending on whether the person’s BAC level was rising or falling. In 52 videos of DUI arrests, the study authors concluded the HGN test was incorrectly administered 51 times.

Additionally, other factors make the accuracy and validity of the tests questionable.

Failing to Provide Clear and Correct Instructions

The police officer administering the SFSTs must follow the exact procedures for giving the test to a driver. Deviation from the procedures could result in inaccurate results. However, suppose there is no body camera footage, other video footage, or audio evidence that the officer gave the person clear and correct instructions. In that case, there is no way to know if the officer purposefully or unintentionally caused the person to “fail” the field sobriety test.

Environmental Factors

Numerous environmental factors could invalidate the results of standardized field sobriety tests. For example, the officer should conduct the tests on a level, paved surface. Otherwise, the person may stumble or lose their balance because of the ground, but not because they are impaired by alcohol. Another example is conducting the HGN test with bright lights shining in the person’s eyes from the sun or oncoming traffic. The lights could cause unreliable results.

Medical Conditions

Another problem to consider is the person’s health condition. A person may have a medical condition that prevents them from passing the test even though they are sober. In addition, a person’s age could cause them to perform poorly on a test even though they are perfectly capable of operating the motor vehicle safely. Physical limitations may prevent someone from “passing” the one-leg stand test or the walk-and-turn test.

Some medications could cause a person to exhibit signs of intoxication even though they are sober and not impaired. For example, some medications for seizures can cause increased nystagmus even though the person is sober. In addition, there are dozens of other possible causes of nystagmus, including hypertension, eye strain, glaucoma, and consuming excessive amounts of caffeine.

Being Nervous and Scared

Merely being nervous about being pulled over and scared of being arrested could cause someone to perform poorly on SFSTs.

SFSTs are Subjective

Whether you fail or pass a sobriety test depends upon the officer’s interpretation of your performance during the tests. In other words, one officer might conclude you were intoxicated and arrest you for drunk driving. Another police officer might conclude that you are not impaired and release you without an arrest. A study conducted using police officers, bartenders, and university community members found that the group had less than a 25% accuracy rate when correctly determining how drunk a person was after observing the targets for several minutes. Furthermore, the accuracy of the ratings worsened as the targets’ level of intoxication increased.

If a police officer has some bias against the person, the officer might unethically or unconsciously interpret the results in favor of probable cause and an arrest. For example, a driver was rude and obnoxious when the officer made the initial traffic stop. The person was critical and uncooperative. In that case, the officer might decide that the person is drunk and make the arrest, even though the results of the SFSTs were borderline.

Non-Standard Field Sobriety Tests

Some jurisdictions also use non-standardized field sobriety tests to determine impairment to support probable cause for a DUI arrest. Police officers claim the non-standard FSTs are reliable because they require the person to utilize split focus and dexterity, which is difficult to do if the person is drunk or drugged. However, these non-standardized tests are unreliable and highly subjective. Some non-standard field sobriety tests used by police officers include:

• Romberg Balance Test – Closing the eyes and tipping the head backward while standing with the feet together, estimating when 30 seconds have passed, and then saying “stop” to the officer.
• Finger-to-Nose Test – Closing the eyes and touching a finger to the tip of the nose.
• ABC Test – Reciting the alphabet forwards or backward.
• Finger-Tap Test – Tap a finger to your thumb as fast as possible with an opening between taps as wide as possible.
• Numbers Backward Test – Counting backward.
• Stand and Gaze Test – Standing and leaning so that the person gazes at the sky while holding their arms to their sides.
• Hand Pat Test – Extend an arm out with the palm facing up and out. Place the other hand on top of the raised palm facing down. Rotate the hands 180 degrees to pat the bottom hand with the back of the other hand before rotating and doing it again while counting “one” and “two” each time.

The NHTSA does not recognize these tests as reliable indicators of whether a person is impaired by alcohol and/or drugs. A skilled California DUI defense attorney will challenge these test results in court. Challenging non-standard field sobriety tests is easier because they are not widely accepted as accurate indicators of intoxication or impairment.

Field Sobriety Test Refusals – Drivers Aren’t Required to Participate in Field Sobriety Tests

No California law punishes a person for refusing to take a field sobriety test. However, a police officer will not tell you this detail. Instead, the officer will only ask you to perform the tests without indicating that you may refuse the test without punishment. Understanding your right to refuse to take a field sobriety test is essential because sober people can fail the tests.

However, there is a difference between field sobriety tests and chemical tests for BAC levels. California’s implied consent laws require drivers to submit to a chemical test of their blood or breath after a lawful DUI arrest. Refusing a chemical test after a DUI arrest results in an administrative driver’s license suspension by the California Department of Motor Vehicles (“DMV”). Your driving privileges are suspended for one year for a first-time refusal of a chemical test. A second refusal within ten years results in a two-year revocation of your driver’s license.

However, if you are under 21 years old or on probation, refusing a chemical test after a DUI arrest of a preliminary alcohol screening (“PAS”) test after being detained results in a one-year driver’s license suspension for the first refusal and two-year revocation for a second refusal within ten years.

California Vehicle Code §23612 states that an officer must advise you that refusing the chemical test could result in a suspension of your driving privileges. Your California DUI attorney might be able to successfully argue against the DMV administrative license suspension if the officer failed to provide the required advisements.

How Field Sobriety Test Results Are Used in Court & Challenging FSTs Results in California

The prosecution uses the results from field sobriety tests in court in several ways. First, the prosecutor may use the FSTs to support the finding that the police officer had probable cause to arrest you for driving under the influence.

If you are charged with driving under the influence, the prosecutor uses field sobriety tests to support the allegation that you were too impaired to drive. This situation often occurs when the driver refuses to take a chemical test. The state does not have evidence of the BAC level at the time of the arrest. Therefore, it must prove that your ability to operate the vehicle was impaired.

When you are charged with DUI per se, the state has BAC test results showing that you were driving with a BAC over the legal limit. Generally, the BAC test results are sufficient to prove the state’s case if there is no valid DUI defense to convince the jury you were not drunk or under the influence of drugs. However, a prosecutor might use the FSTs results as additional evidence you were drinking and driving.

A skilled California DUI lawyer challenges the results of standardized FSTs in court. The attorney might challenge the results in one of several ways including:

• Challenging the reliability of the tests based on data showing a considerable margin for error. The attorney might hire an expert witness to provide testimony regarding the accuracy of the test.
• Providing evidence that the law enforcement officer failed to administer the standard FSTs according to the procedures in the NHTSA manual.
• Offering evidence proving that the test results were negatively impacted by a medical condition, legal prescription medications, or environmental factors.
• Your clothing, lack of sleep, muscle fatigue, advanced age, injuries, weight, or other extraneous conditions caused poor performance on the FSTs.
• The officer administered non-standardized field sobriety tests.

There could be other challenges and DUI defenses in your case. Schedule a free consultation to talk with a DUI lawyer about potential defenses to drunk driving charges.

Talk to a California DUI Defense Attorney

Fighting DUI charges begins with hiring an experienced DUI defense attorney. Contact a criminal defense lawyer for a free consultation to discuss your case. Most attorneys offer a free consultation so that you can get answers to your questions about DUI defense and your legal rights to make an informed decision about how you want to proceed with your DUI case.

Schedule a free consultation with one of our expert California DUI attorneys here.

Interested in this topic or want to learn more about DUIs in California? Check out our blog, which is updated regularly!

Sources:

https://www.ojp.gov/ncjrs/virtual-library/abstracts/standardized-field-sobriety-testing

https://www.nhtsa.gov/sites/nhtsa.gov/files/documents/sfst_ig_refresher_manual.pdf

https://pubmed.ncbi.nlm.nih.gov/7991338/

https://pubmed.ncbi.nlm.nih.gov/11393940/

https://psycnet.apa.org/record/1984-12497-001

https://www.dmv.ca.gov/portal/driver-education-and-safety/dmv-safety-guidelines-actions/driving-under-the-influence/

https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=VEH&sectionNum=23612

You might not realize it, but if you drive after using mouthwash or a breath freshening spray, you could actually face DUI charges in California. Some of these substances contain alcohol, which will trigger a false positive result on a breath test device, also called a breathalyzer.

Raising the defense of mouthwash or breath spray in a DUI case is a daunting matter, best attempted by an experienced California DUI attorney. This defense, also called mouth alcohol defense, can be successful in the right circumstances.

Can You Get a DUI From Mouthwash or Breath Spray?

Sometimes, people can cause higher results of a breathalyzer blood alcohol concentration (“BAC”) reading through their use of a breath spray or mouthwash immediately before taking the breathalyzer test. This situation could arise in the following hypothetical situation: Let’s say a person was pulled over by the police, but they had had a drink at dinner and worried their breath may have smelled like alcohol. In their preoccupation of this thought, the person then used a breath spray or mouthwash to try to mask the smell of alcohol on their breath.

However, it’s important to note that the police are aware that people may try to cover up the scent of alcoholic beverages by using mouthwash or breath fresheners, so the person’s actions in our above hypothetical may have only increased their suspicion of the presence of alcohol.

When alcohol is swished around in the mouth, a breathalyzer will detect the presence of alcohol. However, it will not be able to distinguish whether that alcohol is scotch or Listerine. In fact, people who struggle with alcohol addiction often refrain from using breath freshening sprays or mouthwash because the amount of alcohol in these products could cause a recovering alcoholic to “fall off the wagon.”

In addition to mouthwash and breath sprays, over the counter remedies such as cough syrups, NyQuil, or other cold medications also contain enough alcohol to generate a false positive reading by a breathalyzer. Some naturopathic or homeopathic compounds have an alcohol base that can trip up a chemical breath test device. Even cooking extracts like vanilla or almond extract have an alcohol base.

How a Breath Test Works

Duke University describes how a DUI breath test device like a breathalyzer works. There are many different types of breath analyzers on the market today, which all function in generally the same way as the original breathalyzer.

The chemical testing device is about the size and shape of a cell phone, with two chambers inside the testing device. These chambers contain a reddish-orange liquid, called potassium dichromate. The person suspected of being intoxicated exhales into one of the test chambers through a mouthpiece. Any alcohol in the breath sample will react to the potassium dichromate solution and turn green. The level of alcohol in the breath sample will directly affect the degree of color change. The more ethanol vapor present in the breath sample from the suspect, the more that green color will appear on the photocell. 

The second chamber in the device contains the potassium dichromate solution separated from the breath sample. The chemical solution in the second chamber should not react. The difference in the degree of colors in the two chambers creates an electrical current that the device then converts into a quantitative value that represents the blood alcohol concentration of the breath sample.

Can Mouthwash Cause Breathalyzer Test Failure?

Yes; mouthwash can cause a breathalyzer test failure. As mentioned above, you can actually blow a higher BAC number if you recently used mouthwash than if you had not swished this product around in your mouth. Whether you were stone cold sober and simply used mouthwash as part of your oral hygiene routine or you tried to cover up the smell of alcohol on your breath when you saw the flashing police car lights behind you after you had a few drinks, you could fail a breathalyzer test because of mouthwash. 

Many types of mouthwash contain alcohol, which can leave a highly concentrated alcohol vapor in your mouth. This “mouth alcohol” will get detected by a chemical breath test device, meaning you could appear to have been drinking even when you were not. Also, a BAC that is below the legal limit could get boosted to a high enough number to get you arrested and charged with a DUI because of the additional alcohol present in your mouth from mouthwash.

How Does Mouthwash Affect Breathalyzer Results?

Breath test chemical analyzers do not know the difference between alcohol from mouthwash and alcohol from beer, wine, or spirits. Even though your breath sample is supposed to be “deep lung air,” the sample has to pass through your mouth to get into the chemical analysis device. Some of this specimen will be alcohol vapor from inside your mouth, rather than deep in your lungs, which can impact the results of the test.

What Is Mouth Alcohol and How Does It Affect My DUI Case?

Mouth alcohol is the presence of alcohol vapor created by swishing alcohol containing substances around in your mouth. Although this article focuses largely on breath fresheners such as mouthwash, mouthwash is not the only product that can cause mouth alcohol. Swallowing liquid cold or flu medicines that contain alcohol can also create mouth alcohol.

Alcolock, a manufacturer of ignition interlocking devices (“IIDs”) says that the alcohol content of some mouthwashes is surprisingly high. For example:

• The original formula Listerine has an alcohol content of 26.9%;
• The mint flavors of Listerine have nearly 22% alcohol;
• The alcohol content of Scope is 18.9%; and
• Cepacol contains 14% alcohol.

In comparison, wine contains 12% alcohol and beer contains 3 to 7% alcohol. According to Alcolock, mouthwash can cause a person to fail an interlock test.

They warn that, in addition to mouthwash, breath sprays, cold and allergy medications, and cough syrup, your breath could contain mouth alcohol from vinegar, some energy drinks, and “non-alcoholic” beer. Please note that non-alcoholic beers are not necessarily alcohol-free. Rather, their alcohol content is below the level to qualify as an alcoholic beverage. 

How Long Does Mouth Alcohol Last?

Because the body can usually metabolize the equivalent of one alcoholic beverage an hour as a general rule, people often think that alcohol is not detectable after that time. On the contrary, alcohol detection testing devices can discover the presence of alcohol in your system for 6 to 72 hours, depending on the type of testing performed. 

For example, according to American Addiction Centers, alcohol can remain in a person’s system:

• Up to six hours in the blood;
• For 12 to 24 hours in the breath or saliva;
• For 12 to 24 hours in the urine when older detection methods get used and 72 hours or longer with the most current testing methodology; and
• As long as 90 days in the hair.

Some sources suggest that mouth alcohol dissipates quickly and that you can swish water around in your mouth and ask the officer to wait for 15 or 20 minutes and then perform a retest. However, the likelihood of receiving a significantly different result on the second test will depend on many factors, like the quality of chemical breath testing device and whether you have had any alcohol to drink in the past 24 hours. 

How Does Individual Health History Affect Mouth Alcohol?

A person with certain gastrointestinal diseases like acid reflux disease, a hiatal hernia, or GERD might fail a breathalyzer test because of mouth alcohol. These medical conditions can cause alcohol vapors to travel back up the esophagus and into the mouth, where they can get detected by a breathalyzer.

Additionally, a person who wears dentures or an orthodontic retainer could have residual mouth alcohol which was trapped by their dental appliance. When they blow hard into the chemical breath testing device, the trapped mouth alcohol could get released into their breath sample and cause a false positive.

What Happens if I Fail a Police Breathalyzer Because of Mouthwash?

If you failed a police breathalyzer and you think it was because of mouthwash, you should seek the help of an experienced drunk driving attorney immediately. Your defense attorney can offer guidance on how to prove that the mouthwash caused the false positive result.

Can Mouth Alcohol Be Used as a DUI Defense?

Yes, the presence of mouth alcohol can be used as a DUI defense if it caused you to have an inaccurate or misleading BAC reading on a breathalyzer.

Frequently Asked Questions About Mouth Alcohol and Mouthwash

People who have been charged with a DUI based on a breathalyzer test which they believe produced inaccurate results due to mouth alcohol from liquids such as mouthwash have many questions. Some of the more common things they want to know are: 

Can Mouthwash Get You a DUI?

Yes, mouthwash can get you convicted of the offense of driving while under the influence of alcohol. If you do not successfully challenge the breathalyzer results, you can face a conviction for a crime you did not commit.

Can Mouthwash Cause You to Fail a Breathalyzer?

Yes, mouthwash that contains alcohol can make you fail a breathalyzer test. Breath testing devices do not distinguish between the alcohol in mouthwash and “drinking” alcohol.

Can Mouthwash Make You Test Positive for Alcohol?

Yes, mouthwash can make you test positive for alcohol on a breathalyzer test if the type of mouthwash you used contains alcohol.

How Much Do Mouthwashes Affect Breathalyzers?

Mouthwashes can greatly affect breathalyzers. If you recently used a mouthwash with alcohol as one of its ingredients, a breathalyzer could have a false positive rating.

Does Mouthwash Affect Ignition Interlock Devices (“IIDs”)?

Absolutely. Mouthwash can cause you to accidentally fail an ignition interlock device test if the mouthwash contains alcohol. Makers of IIDs urge people who use interlock devices to refrain from using mouthwash or other everyday products that contain alcohol for as long as they have their ignition interlock device installed. There are alcohol-free brands of mouthwash that can provide the sensation of fresh breath without causing a false positive on an IID. 

Responding the Right Way to an Unfair Breathalyzer Result

Your defense attorney can handle the response to an unfair breathalyzer result in your DUI case. The precise steps they will take to fight the criminal charges will depend on the particular facts of your situation.

We offer a free consultation to talk to you about whether false readings on a breath machine from mouthwash, cough drops, dental work, or some other cause could be used as a mouth alcohol defense. If you’d like to learn more about applying this defense to your case, you can speak a DUI Defense attorney today by reaching out to us here.

Sources:

https://sites.duke.edu/apep/module-4-alcohol-and-the-breathalyzer-test/content-how-does-the-breathalyzer-work/

https://alcolockusa.com/faq/can-mouthwash-cause-a-failed-interlock/

https://americanaddictioncenters.org/alcoholism-treatment/how-long-in-system

Driving under the influence in California has immediate and long-term consequences. After a DUI arrest, the police officer seizes your driver’s license. In addition, depending on the circumstances of your arrest, the police officer may impound your vehicle after a DUI arrest. 

After your car is impounded, understanding your legal rights can help you get your car back quickly. However, be prepared to pay an impound fee and possibly install an ignition interlock device (IID) if you want to continue driving on a restricted driver’s license.

When Do Police Officers Impound Vehicles After a DUI Arrest?

If a police officer arrests you for drunk driving, the question arises of what to do with your vehicle. Leaving a vehicle on the side of the road is rarely an option. California Vehicle Code §22651 gives police officers authority to remove vehicles if they take you into custody. 

Generally, police officers are required to have vehicles towed to the police impound lot when:

• Your vehicle is evidence or part of a crime scene (i.e., a DUI accident involving injuries or fatalities)
• The vehicle’s condition does not permit someone to drive it safely 
• There are no nearby locations to park and leave your car legally and safely
• You have prior DUI convictions on your driving record during the past ten years

However, a police officer may not automatically impound your car if you have a prior DUI. The officer might not take the time to review your driving history during a DUI traffic stop. Instead, the officer might focus solely on the current drunk driving offense. 

If the law does not require a police officer to impound your vehicle, your attitude during the DUI stop can significantly impact the officer’s decisions regarding vehicle impoundment. 

The police officer may allow a sober passenger to drive the vehicle. Officers might pull your vehicle to a safe location at a DUI checkpoint. However, someone must pick up your vehicle before the end of the DUI checkpoint. Generally, only the registered owner can pick up a car at a DUI checkpoint. However, the officer might allow you to designate someone to pick up your vehicle if you are the registered owner.

An officer could offer to drive your vehicle a short distance to a parking lot or other safe location. However, if you are belligerent, disrespectful, and uncooperative, the officer is unlikely to “see” a safe parking location nearby the traffic stop.

Can the Court Impound My Car After a DUI Arrest in California?

Yes, the court may impound your vehicle as part of the DUI penalties. For a first-time DUI conviction, the judge may order your car to remain in the impound lot for up to 30 days or not at all. A second DUI results in impoundment for up to 30 days. After three or more DUIs, the court can impound your vehicle for 90 days.

Having your vehicle impounded after a DUI in California is expensive. Whenever possible, try to avoid impoundment by politely asking the police officer if there is a way to have your vehicle parked or someone pick it up to avoid the impound lot. 

Another way to avoid a long impound period is to agree to install an ignition interlock device (IID). It may be expensive, but you might be able to continue driving if you qualify for a restricted driver’s license with IID installation. 

While asset forfeiture is not common, it can happen as part of a DUI case. When your vehicle is used to commit a crime, the law states that you can lose ownership of your car (asset forfeiture). In a DUI case, forfeiting your car generally only occurs if:

• The court declares your vehicle a nuisance because you have numerous DUI convictions within seven years
• You were involved in a DUI accident that resulted in a traffic fatality
• Your drunk driving arrest involved illegal drugs, especially if the police officer seizure illegal drugs from your car when they searched it

Seeking legal advice from an experienced California DUI defense lawyer as soon as possible after an arrest is in your best interest. A DUI attorney reviews your case and advises you of your legal options for fighting DUI charges and vehicle impoundments or forfeitures. 

What Should I Do if My Car is Impounded After a DUI in California?

Acting fast can save you money after the police impound your car. You pay a fee for each day your car remains in the impound lot. The longer you wait to reclaim your vehicle from an impound lot, the higher the fees are to reclaim your vehicle.

To get your car back after a DUI impoundment, you need:

• Proof of vehicle registration showing you are the registered owner
• Proof of required liability insurance 
• Your temporary driver’s license or Notice of Suspension
• Payment for all fees and costs charged for the impound, including fees for towing, daily storage, indoor storage, lien, and after-hours charges

You cannot retrieve your car until the police or the court release the vehicle from impound. The state only releases impounded vehicles to their registered owner. Therefore, if someone else was driving your vehicle, you do not need to wait to retrieve your car. However, you are responsible for paying the impound fees.

Some drivers may not be able to pay the fees to get their vehicles out of impound. Long impound periods could result in fees totaling more than a vehicle is worth. If you do not pick up your car from impound, your car may be sold at auction to pay the impound fees. Check with a California DUI attorney to determine the deadline for picking up your vehicle from impound after a DUI arrest.

What Happens to You After a DUI Arrest in California?

The police officers transport you to jail after a DUI arrest. California Vehicle Code §23152 makes it unlawful to:

• Drive a passenger vehicle with a BAC level of .08% or higher
• Operate a commercial motor vehicle or a vehicle with a passenger for hire in the car with a BAC of .04% or higher
• Operate a motor vehicle while under the influence of alcohol
• Drive a motor vehicle under the influence of any drug
• Operate a motor vehicle under the influence of a combination of any drug and alcohol 

A police officer initiates a traffic stop if the officer has probable cause to believe a crime is being or has been committed. For example, the officer may pull you over if he witnesses driving behavior that indicates you might be impaired by alcohol and/or drugs. However, the officer may also pull you over for a traffic infraction.

If the police officer suspects you are impaired during the traffic stop, he may request that you take a pre-assessment screen test, such as a roadside breathalyzer or cheek swab. You can refuse field sobriety tests and roadside preliminary alcohol screening (PAS) tests without penalty. 

However, California’s implied consent law requires you to take a chemical test to determine your blood alcohol content (BAC) level after an arrest for drunk driving. Refusal to submit to chemical testing after a DUI arrest can result in additional jail time and a longer duration for DUI school. 

Refusing a chemical BAC test after a DUI arrest results in an automatic license suspension. You cannot receive a restricted driver’s license at any time during the license suspension period for refusing a chemical test.

What Are the Penalties for a Drunk Driving Conviction in California?

The sentence for a DUI conviction depends on your prior DUI history and whether there are aggravating factors involved in your drunk driving case. 

DUIs are priorable criminal offenses in California. Therefore, the severity of the penalties for each subsequent DUI conviction within ten years increases. A felony DUI conviction can be counted against you regardless of when you were convicted. 

Aggravating factors can also increase the severity of DUI punishments. Aggravating factors that enhance a DUI sentence include, but might not be limited to:

• Having a high BAC level (generally .15% or higher) at the time of your arrest
• Being under 21 years old at the time of a DUI arrest
• Having a minor under 14 years of age in the car while driving under the influence
• Excessive speed (i.e., driving 20 miles per hour or more over the posted speed limit)
• Causing injuries or death while driving under the influence 
• Refusal to submit to a chemical test
• Driving under the influence while on DUI probation

Assuming that this is your first DUI conviction and there were no aggravating factors to enhance the DUI sentence, the judge could punish you with:

• Six-month loss of driving privileges
• Fines and assessments of up to $2,000
• Up to six months in county jail
• Attending DUI school for three to nine months
• Summary (informal) probation for three to five years

The court may also require you to install an ignition interlock device (IID) for up to six months. 

You can fight DUI charges with the help of a California DUI lawyer. Violations of your civil rights, lack of probable cause, challenges to BAC tests, and violations of Title 17 are just a few DUI defenses that could beat DUI charges.

The first step is to seek legal advice from a trusted, experienced DUI defense attorney in California. 

California has some of the strictest DUI laws in the country. The penalties for DUI convictions increase with each subsequent drunk driving conviction within ten years. A felony DUI conviction remains a priorable criminal offense, regardless of when the conviction occurred. Unfortunately, you could face additional penalties for driving under the influence in some cases. 

California DUI laws include provisions for sentencing enhancements. You could face enhanced penalties if you are convicted of driving under the influence with aggravating circumstances. An experienced California DUI attorney can review your drunk driving charges to determine what DUI defenses could result in a dismissal or reduction in charges and penalties.

What Are Sentence Enhancements for a California DUI Conviction?

A sentence enhancement is an additional penalty imposed by statute for DUI offenses involving aggravating factors. The specific enhancements that could be added to your DUI sentence depend on the aggravating factor involved in your DUI case. Potential sentence enhancements for DUI cases include, but might not be limited to:

• Longer periods of driver’s license suspension or revocation 
• Extended jail time or prison sentences
• Longer periods of summary probation (informal DUI probation)
• Increases assessments, fines, and fees
• Mandatory installation of ignition interlock devices (IIDs)
• Additional community service
• Longer terms for DUI school and/or alcohol and drug treatment programs
• Additional terms added for probation 
• Mandatory restitution payments to DUI accident victims
• Vehicle impoundment for longer periods

Many factors could trigger enhanced sentencing for DUI charges. The factors generally increase the risk of injury to others or the threat to the general public. Therefore, in addition to being charged with DUI, you could be charged with additional crimes and traffic offenses that result in separate penalties for a conviction. 

California DUI laws include several factors that can enhance DUI punishments. Examples of aggravating factors that can lead to harsher DUI sentences include:

• Prior DUI convictions on your criminal record
• DUI cases involving excessive speeds
• Driving recklessly while under the influence of alcohol and/or drugs
• Causing injury or death to individuals while driving under the influence of drugs and/or alcohol
• Refusal to submit to chemical tests or breath tests after a DUI arrest
• Having a high blood alcohol content (BAC) level 
• Underage drinking and driving
• DUI with a minor in the vehicle under 14 years of age

This article specifically deals with the California code section that enhances DUI penalties for excessive speed and reckless driving. More than one aggravating factor can be present in a DUI case. Therefore, the defendant could face multiple enhancements for different aggravating factors. 

California Sentencing Enhancement Code for DUI With Excessive Speeds and Reckless Driving

California Vehicle Code §23582 adds enhanced penalties for speeding and reckless driving while under the influence of alcohol and/or drugs. According to the code section, an enhancement of at least 60 days in jail is added to the sentence for a DUI conviction when:

• A driver is convicted of drunk driving under California Vehicle Code §23152 or §23153; AND,
• While driving at a speed exceeding the maximum, prima facie, or posted speed limit by 30 miles per hour on a freeway or 20 miles per hour on any other street; AND,
• The driver was driving in a reckless manner.

If the driver is convicted under Vehicle Code §23582, the driver must also attend an alcohol and/or drug education program (DUI school) as part of the enhanced sentencing requirements. 

It is essential to understand that the 60 days in jail is in addition to any other sentence imposed by the court for a DUI conviction. So, for example, if the judge suspends the execution of the sentence or grants DUI probation, you must still serve the 60 days in jail according to the enhanced sentence.

The enhanced penalties are mandatory. Judges may only waive these penalties when justice would be served by waiving the enhanced penalties for aggravating factors.

Fighting Speed Enhanced Penalties for a DUI in California 

The state must prove each of the three legal elements for enhanced penalties to apply. Therefore, if the state proves you were driving under the influence, but fails to prove you were speeding by more than 20 to 30 miles per hour (depending on the location), enhanced penalties will not apply. Likewise, if the prosecutor proves drunk driving and speeding, but fails to prove reckless driving, the court does not impose enhanced penalties.

The burden of proving each legal requirement rests with the state. The prosecutor must prove that you are guilty of each legal element required to justify speed enhanced penalties beyond a reasonable doubt. A skilled California DUI defense lawyer understands how to raise reasonable doubt by challenging the statements by police officers and the results of BAC tests.

Furthermore, speeding does not automatically qualify as reckless driving. Therefore, the attorney may argue there is a lack of evidence proving the person was driving recklessly. Without specific and strong evidence of recklessness, the state’s argument for enhanced penalties might fail.

Negotiating a DUI Charge Down to Reckless Driving or Exhibition of Speed

Determining whether to accept a DUI plea deal depends on the facts of the case. In challenging cases, a California DUI attorney may negotiate for reduced charges. Reduced charges may avoid the enhanced penalties required under California Vehicle Code §23582. Other potential benefits of a plea deal for reduced charges include:

• The reduced charge may not be a priorable offense on your criminal record
• Reduced or no jail time
• Decrease in fines and assessments
• Less of an impact on professional licenses, student loans, scholarships, job applications, etc.
• Elimination of mandatory ignition interlock devices (IIDs)
• Reduced or no DUI school or DUI probation 
• No mandatory driver’s license suspension

The reduction in fines and penalties depends on what charge the prosecutor agrees to allow you to plead guilty to instead of drunk driving charges. Reduced charges that might be available for a DUI plea agreement include:

Wet Reckless (Vehicle Code §23103.5)

Wet reckless is a common reduced sentence used for DUI plea agreements. The “wet” reference in the charge refers to a reckless driving charge involving alcohol. The law requires the court record to reflect that alcohol was involved. Therefore, wet reckless might avoid high fines, mandatory jail time, and other penalties for a DUI conviction, but it counts as a priorable offense for future DUI cases.

Dry Reckless (Vehicle Code §23103)

As a defendant, dry reckless is a better charge for a DUI plea deal because it does not count as a priorable offense for future DUI convictions. A dry reckless may not be viewed as harsh by insurance providers and other parties reviewing your criminal record. 

Exhibition of Speed (Vehicle Code §23109c)

This traffic offense is used when drivers engage in a speed contest. Unfortunately, prosecutors seldom agree to reduce DUI charges to exhibition of speed charges. It is a misdemeanor offense with no note regarding alcohol. The penalties for this offense are much less harsh than the penalties for reckless driving charges.

Non-Criminal Traffic Offenses

There would need to be several potential DUI defenses and serious problems with the state’s case for a prosecutor to plead a DUI down to a traffic offense. However, an experienced California DUI defense attorney considers all possibilities. For example, if there are issues regarding probable cause, lack of evidence, or police misconduct, your DUI lawyer may propose a pleading down to a traffic offense.

Your attorney might propose pleading down to a charge of consuming alcohol in a motor vehicle or another traffic offense. Because the charges are non-criminal, you only face fines, points against your driver’s license, and traffic school for a guilty plea.

Should I Accept a DUI Plea Agreement or Proceed to Trial?

The decision to plead guilty or take your chances in court depends on many factors. The prosecutor and police officers do not give you honest, reliable advice about your legal options. Instead, you should review your options for fighting DUI charges with an experienced California drunk driving defense lawyer.

Several factors that your lawyer considers when advising you about a DUI plea agreement include, but are not limited to:

• The strength of the evidence proving your BAC level was over the legal limit of .08% (.04% for commercial drivers and for-hire drivers and .01% for underage drivers)
• Your criminal history and prior DUI convictions
• The evidence the prosecution has to prove each of the required legal elements beyond a reasonable doubt
• Whether there are aggravating factors that could lead to a much harsher sentence if you take the case to trial and lose
• The potential DUI defenses for your case and the strength of those arguments
• Evidence indicating you were impaired while operating a motor vehicle

Only you can decide whether you are comfortable fighting DUI charges in court or accepting a plea agreement. However, remember that prosecutors are experienced, trained trial lawyers. They will take advantage of your lack of knowledge regarding the law. 

Before accepting a DUI plea agreement, talk to a California DUI lawyer. Verify that the plea agreement terms are in your best interest before pleading guilty to DUI charges.