If you've received a positive breathalyzer test and gotten a DWI, but you are sure that you were sober at the time, you may find yourself perplexed and confused. Many people are surprised to learn that positive breathalyzer results aren't all that uncommon. In fact, this article states that at least 23 percent of individuals tested are likely to "fail" in the sense that they will test higher than their blood alcohol content actually is. But what causes this phenomena? Read on to learn why you may have failed the test, even with your best efforts to drive safely.
You're Diabetic
This is an extremely common reason to fail the breathalyzer. It's so common that it's now standard practice for most jurisdictions to ask if you are diabetic prior to testing.
Of course, that doesn't mean you should lie--it's fairly easy to prove whether you are or aren't later on with a blood test.
In diabetics with high blood sugar, the body can enter a state called ketoacidosis. When this happens, the person may, for all intents and purposes, appear to be mildly drunk. The body also produces a chemical called acetone when this happens, and breathalyzers regularly mistake acetone for alcohol.
If you're diabetic and you have received a DWI charge, think back to the night you were driving:
- Is it possible you forgot your insulin?
- Did you later end up in the hospital?
- Were your meds being changed or adjusted?
All of these can result in higher-than-optimal blood sugar levels.
If you suspect this may be the case, you'll need to plead not guilty and fight the charge in court. Having the right documents from your medical care team and a good lawyer on your side can help to prove yourself innocent.
You Used Mouthwash
You got pulled over on the way to work in the morning--and now you've landed yourself a positive breathalyzer result. You know you don't drink before work, so what's going on here?
The culprit may be in your morning mouthwash. If you brush and then use an alcohol-based mouthwash, your results will be higher for 20 to 30 minutes afterward. A breathalyzer is designed to pick up on alcohol from the lungs and the breath; unfortunately, using mouthwash can create over-saturation on the breath even though you spit it out.
This can be difficult to prove, but is often worth fighting, especially if a later blood test conflicted with the original results and proved you negative.
The Device Was Defective or Poorly Calibrated
In order for a breathalyzer to work correctly, it has to be calibrated. When it isn't calibrated correctly before use, or when it is defective, it can register false positives even in individuals who have no trace of alcohol in their blood.
Inherent calibration issues have led the San Jose Police Force to suspend the use of breathalyzers almost entirely. According to Public Defender Adachi, much of the issue was caused by failure to test the devices regularly--this is something that the manufacturer recommends for accuracy.
If you can't pinpoint any other reason for your failure to pass the breathalyzer, you may ask to have it tested for accuracy. If you also have a subsequent blood test that showed you as negative for blood alcohol content, you have an excellent case that may stand up in court. If your subsequent blood test also proved you positive for alcohol, it's not as likely that your device was defective.
You Took Cough Syrup or Cold Medicine
This point can be a bit contentious, because being under the influence of cough syrup can still land you a DUI charge in some cases. That being said, a positive breathalyzer after taking certain medications isn't unheard of.
Cough syrups that contain alcohol can temporarily raise your blood alcohol content in the same way that mouthwash can, throwing a falsely high reading for up to 30 minutes after you take it. Albuterol-containing inhalers are also a common cause for false positives, as are certain cough drops.
Anything that contains a methylated chemical or alcohol itself has the ability to cause you to fail the test.
If you think this may be your problem, you can contest the case in court. Bring evidence of any prescribed or non-prescribed medication with you and seek the advice of a defense lawyer to ensure that your rights are represented.
Having the right support through a DWI charge is important. While it can be difficult and stressful, you have the right to a fair and just trial under U.S. law. If you have questions about your charge, contact a lawyer for legal advice today.
