It is well known within the criminal defense sphere that Florida’s Intoxilyzer 8000, the approved breath test throughout the entire state for evidentiary use, often produces faulty results. Readings that are inaccurate and place a suspect’s BAC level much higher than reality can have devastating effects on the outcome of a case. The most common reason for inaccurate readings: residual mouth alcohol.
One of the most prevalent defenses against a DUI in Palm Beach County is the mouth alcohol defense. Residual mouth alcohol is any alcohol present in the mouth or airways that has the ability to contaminate a breath sample. It is the most common reason for a false high read. Also known as simply “mouth alcohol,” it can come from a variety of sources.
Some of the most common causes of mouth alcohol include mouthwash, cough medicine, chewing gum, breath mints and even dental work and health conditions such as acid reflux. Any mouth alcohol that is present in your throat or mouth can taint the sample coming up from your deep lung air, which is what the Intoxilyzer 8000 is supposed to measure. The deep lung air that comes from the alveoli is thought to most closely correlate with your blood alcohol content.
The Florida Department of Law Enforcement understands the fallibility of breathalyzer tests, which is why specific measures must be taken to guard against contamination. There are three protections designed to block mouth alcohol from inflating breath test results.
Under normal circumstances, mouth alcohol is supposed to subside after fifteen minutes. This is why every state has a required observation period between fifteen and twenty minutes long. In Florida, a law enforcement officer who is properly trained to conduct a breath test must watch a DUI suspect for 20 minutes before administering the test. The DUI suspect may not have anything to eat or drink, and his mouth must be cleared of all foreign objects or substances prior to submitting a sample. In that time the suspect must not regurgitate, belch, vomit, or even hiccup.
Another operational technique that must be followed by the officer administering the test is to consecutively analyze two samples. The technician must ensure that the results between the first and second breath sample do not vary by more than 0.02 grams. If the results vary by more than that, it is indicative of a problem with the test.
Finally, the machine’s slope detector must be functioning properly. In Intoxilyzer models such as the 5000 and 8000, a slope detector is used to ensure that it is the air from the lungs that composes the breath sample. “Slope” refers to the rise and fall in a DUI suspect’s breath alcohol concentration (BrAC). The slope detector is supposed to detect the rate at which the BrAC changes inside the machine. If it changes too fast, the machine should produce an “invalid sample” warning which notifies the officer of the presence of residual mouth alcohol.
If your criminal defense attorney finds that any of these were not performed properly, there may be a chance that the charges against you could be dropped.
Many DUI suspects are wrongly charged as a result of faulty test results. There are so many possibilities for errors surrounding the breath test that the mouth alcohol defense is the #1 defense against a DUI after the state has proved that the stop was valid, implied consent was read and understood, and that the suspect voluntarily consented to the test.
The best chance you can give yourself if you have been arrested for DUI is to speak with a successful DUI defense attorney. Your criminal defense attorney will likely question the validity of your breath test and investigate every aspect of that test to check for operational and technical errors. Brian Gabriel of The Law Office of Gabriel & Gabriel leads DUI defense in Palm Beach with over 30 years of experience. Call 561-622-5575 for a free consultation.