BAC

Is It Possible for Your Health Issues to Affect Breathalyzer Results?

February 6, 2022 by Gregg Wisotsky, Esq. Leave a Comment

These Medical Conditions Can Impact Your Breath Test

Did you know that only about 50% of DUI cases result in a guilty verdict? Breathalyzers aren’t always foolproof evidence, so it can be tricky for the prosecution to prove a person was under the influence. If you have one of these health conditions, it can result in an inaccurate breathalyzer reading.

Asthma

This breathing disorder affects breathalyzers in multiple ways. One of the most common issues is that it makes it hard to breathe fully into the breathalyzer, so law enforcement officers might struggle to take a reading. Furthermore, a person who is having an asthma attack can act a little confused, which might make cops suspect they are drunk.

If you have used an asthma inhaler in the time leading up to your breathalyzer, your BAC results are even less accurate. Asthma inhalers use alcohol to preserve and distribute the medication that helps with breathing. When you take a puff from your inhaler, roughly a third of the mist is actually alcohol.

This alcohol isn’t even absorbed into your bloodstream like alcohol you drink. Instead, it coats the lining of the lungs. When you breathe into a breathalyzer, this alcohol mist comes back out and results in a false reading. Even people who haven’t had a drop to drink can seem over the legal limit if they use their inhaler before a test.

Respiratory Illnesses

If you are sick with the common cold or another type of respiratory illness, there might be a reason to doubt your breathalyzer results. Many false readings are triggered by certain medications. This happens because some medicines contain alcohol, and when they stick to the lining of your mouth and throat, the concentrated fumes can impair a breathalyzer’s ability to function correctly.

For example, sucking on a cough drop right before a test can quickly cause a false reading. Other common medications that can impair a breathalyzer include some types of Nyquil and Vicks products. If you were using an oral gel to help with a cold sore during your illness, you can also get a false result because of the anesthetic used in the medication.

Diabetes

One of the most common conditions used in a medical DUI defense is diabetes. Whether a person has type 1 or type 2 diabetes, their body struggles to process sugar correctly. When sugar levels become too low, a person experiences many symptoms that can be confused with drunkenness. Diabetic hypoglycemia causes tremors, slurring, clumsiness, and mental confusion.

If you have too much glucose in your blood, you are even more likely to be hit with false DUI charges. When a person has severely high blood sugar, their body enters diabetic ketoacidosis. This is a serious health crisis, and one of the key symptoms is producing too much acetone. When this happens, your breath may smell fruity and alcoholic.

Excess acetone in the bloodstream causes all sorts of problems. Though it’s most common in patients with high blood sugar, some people with diabetes can have chronically high acetone levels even if they currently have low blood sugar. This is a problem because breathalyzers cannot tell the difference between acetone and ethyl alcohol. Therefore, they register high acetone levels as high BAC levels. In fact, this is so common that some doctors use a breathalyzer test as a way of diagnosing patients with diabetes in the first place.

GERD

Gastroesophageal reflux disease, or GERD, is essentially a chronic form of heartburn. People with GERD struggle to digest food regularly, and contents from the stomach quickly back up into the esophagus. Most people just associate GERD with unpleasant chest pain and foul-smelling breath, but it can also cause legal problems.

Alcohol is one of the most frequent triggers of a GERD episode. Even just a few sips of a beverage can cause severe acid reflux. This becomes a problem if someone is suspected of a DUI. When you take a breathalyzer test with a lot of alcohol backing up into your throat, the readings are drastically off. A person might have merely tried a cocktail with dinner, yet they can end up blowing a result well over the DUI limit.

GERD can also contribute to false DUI charges because it affects a person’s breath. People with GERD tend to have chronic foul breath, so they often rely on mouthwashes and breath sprays. These GERD treatments typically contain alcohol, so having even a small amount lingering in your mouth can throw off your breathalyzer tests.

Kidney and Liver Diseases

Both the kidneys and the livers are an essential part of filtering toxic materials out of the bloodstream. Unfortunately, it is possible for these essential organs to quit working. There are a variety of medical conditions that can cause liver or kidney disease to develop. Most people with kidney or liver disease will not be able to drink alcohol because it further damages their vulnerable organs.

However, even without consuming alcohol, you might find yourself accidentally failing a breathalyzer test. This happens as a result of ammonia buildup. When your kidneys or liver cannot metabolize properly, you end up with excess ammonia in your body. Since breathalyzers aren’t the most sophisticated equipment, the ammonia buildup can easily confuse the breathalyzer. This can make it difficult for law enforcement to get a proper reading.

What to Do If You Have One of These Conditions

Being diagnosed with one of these conditions isn’t an automatic “get out of jail free card.” It does give you a very valid defense in a DUI case, but your Morristown criminal defense lawyer will still need to do some work. First of all, they might need to get some testimony from a medical expert. Since a lot of judges and juries may not know much about health care matters, your lawyer could ask a medical professional to explain how your diagnosis affected the breathalyzer test.

Your DUI lawyer will also need to show that there isn’t a relevant case against you outside of the breathalyzer test. For example, if video evidence shows you taking ten shots of alcohol, hopping in your car, and immediately crashing it into a pole, a potentially faulty breathalyzer test might not be enough to get your case dismissed. You have a better chance of avoiding a guilty verdict if you were not impaired or there was no evidence of you consuming excessive amounts of alcohol. Your lawyer may be able to use your illness as a reason to throw out the breathalyzer results, and without this evidence, the case against you might collapse.

If you or a loved one have been charged with a DUI, the law office of Gregg Wisotsky is happy to help. As a Morristown criminal defense lawyer, Gregg Wisotsky can discuss your situation and help you see if there are any valid ways to defend against a DUI charge. Our team can also help out with a variety of other types of criminal cases in Morris County. To learn more about our services, give us a call at 973-898-0161, or fill out our contact form.

How Can I Avoid Jail Time if It’s My First DWI Offense?

April 23, 2014 by Greg Sutphin

Except for Justin Bieber, who was recently arrested on his first DWI offense in Florida, most first-time offenders can avoid jail time. Some people appear to delight in the misfortunes of pop stars, unfortunately. Fortunately for residents of New Jersey, you can avoid jail time if you have been convicted of a first-time DWI in most cases.

Most people will get probation. If your DWI blood alcohol content was extremely high, though, you might also be required to participant in a community service program and, at the court’s discretion, be required to install an ignition interlock device on your car. You blow into this device, and if there is alcohol on your breath, the device will prevent the car from starting.

Even if you have been given probation, there are some significant consequences to a drunk driving conviction. The conviction includes an automatic loss of your driver’s license for three months, a DMV surcharge of $1,000 a year for three years, and additional fines of hundreds of dollars more. And the fines and fees increase from there, depending on the amount of alcohol in your blood.

Contact Gregg A. Wisotsky, Esq., Partner, Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, PC, criminal defense attorney in New Jersey.

Facing a first-time DUI charge? The law offices of attorney Gregg A. Wisotsky, Esq., Partner, Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, PC, offer a free phone consultation to prospective clients. We can answer your questions, explain your rights and your options and begin to discuss strategies to defend you against a DUI charge. Contact our office online or call us at 973-898-0161. In addition to criminal defense, we also practice personal injury law. All major credit cards are accepted.

Police Officers Will Now Need a Warrant, or Meet an Exception to the Warrant Requirement, in Order to Blood Test DWI Suspects

July 8, 2013 by Greg Sutphin

The fact that the human body naturally metabolizes alcohol in the blood does not automatically constitute exigent circumstances for the Fourth Amendment search warrant exception.

In Missouri v. McNeely, 133 S. Ct. 1552 (2013), the U.S. Supreme Court held that whether an officer is permitted to require a blood test of a suspected drunk driver must be determined on a case by case basis. In the McNeely case, the defendant had refused to submit to a breathalyzer test after failing field-sobriety tests. The officer who pulled him over then took him to a hospital where a blood test was performed without McNeely’s consent or a search warrant.

McNeely filed a motion to suppress the results of the blood test, which had determined his BAC (blood alcohol concentration) was almost double the legal limit. The trial court granted his motion to suppress due to his lack of consent and a warrant, saying that the typical circumstances of the body processing alcohol did not qualify as exigent circumstances under the established Fourth Amendment exception. The trial court determined that there was no reason the officer could not obtain a warrant first. The Missouri Supreme Court affirmed the lower court’s decision.

The exigency exception “applies when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.” Kentucky v. King, 131 S. CT. 1849, 1856 (2011).

The U.S. Supreme Court discussed how the metabolization of alcohol is a predictable process, and further how taking suspected drunk drivers to a place where a blood test can be performed requires time. In fact, likely the same kind of delay that would be necessary in order to obtain a search warrant. All of this was considered in the context of how technology enables officers to obtain warrants quicker and easier than ever before. In situations where true exigent circumstances do exist, the Court found that no warrant will be required. Trial courts will now have to decide on a case by case basis whether exigent circumstances exist in order for law enforcement to circumvent the warrant requirement when taking the blood of suspected drunk drivers to determine their BAC levels.

Changes to New Jersey DWI Penalties Proposed

February 4, 2013 by Greg Sutphin

A new bill to change the penalties for DWI convictions passed in the New Jersey Senate Judiciary Committee. On January 28, the Committee approved the measure which would require the installation of ignition interlock devices on cars rather than the suspension of driver’s licenses.

If passed by the full NJ Senate and General Assembly, the new law would represent large-scale changes to the way DWI convictions are currently punished in New Jersey. As it stands now, everyone, even first-time offenders, has his or her license suspended for a certain amount of time.

The interlock devices basically act as an in-car breathalyzer, requiring the would-be driver to blow into them to check his or her blood-alcohol level (BAC). If the one installed in the dash on the offender’s car detects anything more than a BAC of .05%, the device will not allow the engine to start.

Under the new law, first offenders with convictions for BACs not more than .10% would have an interlock device required for three to six months, allowing them to retain their license, and therefore their ability to drive. First-time offenders with a BAC greater than .10% or those under the influence of drugs other than alcohol, would have the device for a span of seven months to a year.

Second-time offenders would be required to have the devices installed for a period of two to four years. Their license would also be downgraded to a restricted-use license, with terms like driving only for work-related trips set by the judge, for a minimum of the first year driving with an interlock device.

Offenders who repeat for a third timeor more will be subject to installations of ten to twenty years.

Those without cars owned or leased in their name or without one which they principally operate will face license suspensions similar to the rules imposed under the current system.

Unless the bill is passed by the full NJ Senate and General Assembly the laws requiring license suspension will remain in place.

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