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Mouth Alcohol Can Create a Falsely High BAC Reading in New York

When facing charges of DUI or DWI in New York, law enforcement may consider your blood alcohol content, commonly referred to as your BAC. BAC is a measure of the concentration of alcohol in the bloodstream, typically expressed as a percentage. In New York, as in many other states, the legal limit for BAC while operating a non-commercial vehicle is 0.08%. This means that if your BAC is 0.08% or higher, you can be charged with DUI or DWI, regardless of whether you are actually impaired. While it is commonly assumed that when BAC is measured, it is only measuring the amount of alcohol in the bloodstream, that is not always the case. It may also measure mouth alcohol. Mouth alcohol can create a falsely high BAC reading in New York. As a result, you may face charges or even be convicted of driving while under the influence of alcohol when in fact you were not. If you are facing a DUI or DWI charge in New York, it is critical to immediately consult with an experienced New York DUI lawyer who has the experience and knowledge to challenge BAC evidence and help ensure that your legal rights are protected.

Mouth Alcohol

Mouth alcohol refers to any alcohol that remains in the mouth or throat after consumption, rather than being fully absorbed into the bloodstream. While this residual alcohol can result from the recent consumption of alcoholic beverages, it can also result from other sources, including:

  • Mouthwash: Some mouthwash products contain alcohol as an active ingredient, which can leave residual alcohol in the mouth and contribute to mouth alcohol during breathalyzer testing.
  • Breath Sprays: Certain breath sprays and oral hygiene products may contain alcohol, which can introduce mouth alcohol and affect breathalyzer test results.
  • Medications: Certain medications, such as cough syrups, cold medicines, and antiseptics, may contain alcohol as an ingredient, which can lead to the presence of mouth alcohol.
  • Dental Products: Some dental products, including rinses, gels, and topical treatments, may contain alcohol, which can result in residual alcohol in the mouth and impact breathalyzer readings.
  • Mouthguards: Individuals who wear mouthguards or oral appliances, particularly those made of materials that absorb liquids, may retain alcohol in the mouth and contribute to mouth alcohol during breathalyzer testing.
  • Dentures: Dentures or dental prosthetics that are not properly cleaned or rinsed may harbor residual alcohol, which can be released into the mouth and affect breathalyzer results.
  • GERD and Acid Reflux: Gastroesophageal reflux disease (GERD) and acid reflux can cause stomach contents containing alcohol to regurgitate into the mouth, leading to the presence of mouth alcohol during breathalyzer testing.
  • Vomiting: Individuals who have recently vomited or experienced nausea may have residual alcohol in the mouth from stomach contents, which can affect breathalyzer readings.
  • Belching or Burping: Belching or burping shortly before a breathalyzer test can release alcohol vapors from the stomach into the mouth, contributing to mouth alcohol and potentially influencing breathalyzer results.
  • Smoking: Smoking tobacco products can introduce alcohol and other compounds into the oral cavity, which may contribute to mouth alcohol during breathalyzer testing.

The presence of mouth alcohol is problematic during breathalyzer testing because breathalyzer devices are designed to measure the concentration of alcohol in the deep lung air, which reflects the alcohol content in the bloodstream.

Mouth alcohol, unlike bloodstream alcohol, doesn't affect impairment or driving ability. In DUI cases, it can contaminate breath samples, leading to falsely high BAC readings. For instance, in People v. Codrington, 72 Misc. 3d 1222 (N.Y. Crim. Ct. 2021), the officer delayed the BAC test to mitigate mouth alcohol's impact. However, the court ruled the delay insufficient, suppressing the BAC results. This highlights how mouth alcohol can influence DUI/DWI charges unfairly. A skilled New York DUI lawyer can navigate such complexities, ensuring fair treatment for clients.

Understanding the Legal Consequences of Varying BAC Level

The legal consequences of having a high BAC level in New York vary depending on the specific offense and the individual's prior DUI or DWI history. In general, New York imposes escalating penalties for DUI or DWI offenses based on the driver's BAC level and other aggravating factors. Here's an overview of the potential consequences at different BAC levels:

  1. BAC Below 0.08%: In New York, the legal limit for BAC is 0.08% for drivers aged 21 and over operating non-commercial vehicles. If your BAC is below this threshold, you may not be charged with DUI or DWI based solely on your BAC level. However, you can still be charged with impaired driving if your ability to operate a vehicle safely is impaired by alcohol or drugs. It’s important to understand that even if BAC evidence is unavailable or excluded, other evidence such as law enforcement’s observations may be sufficient for a conviction. See People v. Codrington, 72 Misc. 3d 1222 (N.Y. Crim. Ct. 2021).
  2. BAC Between 0.08% and 0.17%: If your BAC is between 0.08% and 0.17%, you may be charged with a standard DUI or DWI offense, depending on the circumstances of your arrest. See VTL § 1192(2). Penalties for a first-time DUI or DWI offense in New York may include fines, license suspension, mandatory alcohol education programs, and potentially jail time. In People v. Grant 2022 N.Y. Slip Op. 50788 (N.Y. App. Term 2022), the defendant was convicted of driving while intoxicated (per se) and common-law driving while intoxicated after being arrested with a BAC of 0.17%. Her sentence included: a $500 fine, a six-month license revocation, and a one-year mandatory ignition interlock device (IID) period, as outlined in Vehicle and Traffic Law § 1193 [1] [b] [i], [ii]; [2] [b] [ii].
  3. BAC Above 0.18%: If your BAC is above 0.18%, you may be subject to enhanced penalties under New York's aggravated DWI law. See VTL § 1192(2-a). Aggravated DWI carries steeper penalties than standard DUI or DWI offenses and may include fines ranging from $1,000 to $2,500, a minimum one-year license revocation, mandatory attendance at a Drinking Driver Program, and potential jail time of up to one year. In People v. Clanton 75 Misc. 3d 1206 (N.Y. Dist. Ct. 2022), the defendant's blood alcohol content (BAC) was reported as 0.21% according to the toxicology report prepared by the Suffolk County Medical Examiner's Officer. As a result, the defendant was convicted of Driving While Intoxicated (DWI) and Aggravated Driving While Intoxicated (Agg-DWI).
  4. BAC Above 0.08% for Commercial Drivers: Commercial drivers in New York are subject to stricter BAC limits than non-commercial drivers. If your BAC is 0.04% or higher while operating a commercial vehicle, you may face commercial DUI or DWI charges, which can jeopardize your commercial driver's license and employment prospects.
Challenging Blood Alcohol Concentration

Mouth alcohol can create a falsely high BAC reading in New York. Challenging BAC test results requires a comprehensive understanding of the legal and scientific aspects involved, particularly when it comes to addressing the issue of mouth alcohol. Here are several strategies that can be employed to challenge a BAC test in New York:

  • Question the Validity of the Test: One approach is to question the validity of the BAC test itself. This may involve examining factors such as the calibration and maintenance records of the testing equipment, the qualifications of the testing personnel, and adherence to proper testing protocols. Any irregularities or deviations in these areas could undermine the reliability of the test results.
  • Challenge the Chain of Custody: Another avenue of defense is to challenge the chain of custody of the blood or breath samples used for testing. By scrutinizing the documentation and procedures followed from sample collection to analysis, any gaps or inconsistencies in the chain of custody can be identified, which may call into question the integrity of the test results.
  • Address the Issue of Mouth Alcohol: Mouth alcohol refers to any alcohol residue remaining in the mouth or throat, which can lead to falsely elevated BAC readings. Defense attorneys can challenge BAC test results by presenting evidence of potential sources of mouth alcohol, such as recent consumption of alcohol, the use of mouthwash or other oral hygiene products containing alcohol, or medical conditions such as gastroesophageal reflux disease (GERD) that can result in regurgitation of stomach contents containing alcohol.
  • Seek Expert Testimony: Expert witnesses, such as forensic scientists, toxicologists, or medical professionals, can provide testimony on the limitations and potential sources of error in BAC testing. Their expertise can be instrumental in challenging the prosecution's evidence and raising doubts about the reliability of the BAC test results.
  • Present Alternative Explanations: Defense attorneys can also present alternative explanations for the BAC test results, such as environmental factors that may have impacted the testing process or medical conditions that could affect the metabolism or absorption of alcohol.

In challenging a BAC test in New York, it's essential to work with an experienced DUI attorney serving New York who can carefully examine the circumstances of the case, identify potential weaknesses in the prosecution's evidence, and develop a strategic defense tailored to the specific facts and circumstances involved. By utilizing these strategies effectively, individuals facing DUI charges can increase their chances of achieving a favorable outcome in court.

Contact Stephen Bilkis & Associates

Mouth alcohol can significantly impact breathalyzer test results, leading to falsely high BAC readings and unjust DUI or DWI charges. If you've been arrested for DUI or DWI in New York and believe that mouth alcohol may have influenced the test results, it's essential to seek legal representation from an experienced DUI attorney in New York who can assess the circumstances of your case, challenge the validity of the breathalyzer test results, and advocate for your rights in court. Remember, facing DUI or DWI charges can have serious consequences, but with the right legal defense, you can work towards minimizing the impact on your life and protecting your future. Contact Stephen Bilkis & Associates at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We serve clients in the following locations: Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County, and Westchester County.

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