Is there a legal defense for failing a breathalyzer? Unlike what we see on daytime television talk shows when a person fails a polygraph while indicating that there was something wrong with the machine and/or the polygrapher; one can actually fail a breathalyzer due to a medical condition.
GERD or Gastroesophageal reflux disease, Acid Reflux, and Heartburn: this occurs when stomach acid frequently flows back into the tube connecting your mouth and stomach. This backwash can irritate the lining of your esophagus. GERD is often triggered by behaviors that cause acid reflux and heartburn such as, but not limited to: smoking, eating a large meal, drinking alcohol, eating spicy foods, eating a meal after going a long period of time without, or not eating for long periods of time.
Many people suffer from acid reflux, heartburn, etc., and have never been diagnosed. Based upon the size of the meal, the content, level of spice, etc., will often determine if a person will suffer from some form or another of heartburn. When vapors are expelled in concentrated amounts, most breathalyzer tests result in failure. When a person that suffers from GERD, acid reflux, or heartburn is under stress or anxiety, the gasses that expel out of the mouth often increase. When you are pulled over by the police, your stress levels increase and combined with GERD, the vapors in your stomach do as well trap alcohol residue in the esophagus.
Some machines have slope detectors which are designed to detect BAC when alcohol levels lower quickly while samples are being measured. Such a test could potentially indicate mouth or stomach alcohol gasses that may be interfering with the test. It is important to note; however, that although these methods exist, their reliability is generally not workable in cases of a DUI investigation.
You can, in fact, use GERD, acid reflux, or heartburn as a defense, but only if there is alcohol in your stomach. The most common example is when a person consumes an amount of alcohol that would normally be within the legal limit but then eats a rather large, fatty, and spicy meal. If you are a victim of GERD, there is a possibility that your BAC level may test higher than if you were not suffering from active symptoms of the disease. How will you know if GERD potentially affected your BAC? Perhaps you vomited prior to the test, or you felt heartburn leading up to the test; and, finally, you were belching before, during, and after the test.
If you were to use GERD, acid reflux, or heartburn as a legal defense, then it is recommended that you have appropriate documentation from your medical doctor, documentation of any medication to treat GERD or documentation of what you ate and/or drank prior to the administration of the test.
Regardless of the classification of the offense, it is important that you seek the assistance of competent legal counsel to help you best understand your legal defense while identifying an outcome that best minimizes your risk. We here at the H Law group patiently await your call.