This is the second installment in our multi-part blog post on challenging BAC breath testing in Kansas DUI cases. Johnson County DUI attorney Stacey Schlimmer recognizes that many people plead guilty in driving under the influence cases because they erroneously believe that breathalyzer results are based on sound science that is essentially unassailable. In reality, Ms. Schlimmer can and does frequently challenge chemical tests of breath in Johnson County DUI cases. If you have not yet reviewed Part I of this blog discussing the legal requirements for a stop and initiation of a DUI investigation, we invite you to do so before reading about the additional defenses discussed in the balance of this multi-part blog post.
Deprivation Period/Mouth Alcohol
Many motorists stopped for DUI do not realize that the Intoxilyzer 8000 does not actually test the alcohol content in one’s blood. The device tests the metabolized alcohol in the deep lung tissue, which is then converted via an algebraic ratio to provide an estimate of the equivalent level of alcohol in one’s blood. If the breath sample is not from the deep lungs, the results of the breath test may be compromised. Mouth alcohol is a common example of this problem because alcohol that remains in the mouth or is regurgitated into the mouth has not been metabolized by the body. This means that the alcohol concentration of this breath sample may be much higher and result in a driver who is not intoxicated testing over the .08 percent BAC legal threshold.
Police officers are supposed to observe a mandatory twenty minute deprivation period to allow any mouth alcohol to dissipate and ensure that nothing is consumed that could create mouth alcohol. However, mouth alcohol is frequently the result of GERD, heartburn, regurgitation and belching which an officer may fail to notice even if the officer is paying attention during the deprivation period. As a practical matter, the officer may be engaged in other activities, such as communicating on his or her radio or completing paperwork during the deprivation period. Ms. Schlimmer may request your medical records if you have a history of GERD or related conditions that may cause mouth alcohol. Further, she may review statements by the officer and footage from the squad car that shows the officer was distracted during the deprivation period.
Even if the deprivation period is carefully observed, this does not mean that a driver does not have mouth alcohol trapped in dental work like a filling or crown. The presence of mouth alcohol essentially makes the results of a breath test unreliable so Ms. Schlimmer analyzes the evidence and facts to determine whether this may explain a BAC test over the legal limit of .08 percent. Even if there is also evidence of erratic driving or failed field sobriety tests, this evidence can often be explained away especially where there is no reliable breath test results.
Overland Park criminal defense attorney Stacey Schlimmer provides aggressive defense to protect her clients who face DUI charges in Johnson County or the surrounding areas of Kansas. Our Kansas criminal defense law firm offers a confidential free consultation so call us today at 913-341-0484 or contact us online.