GERD Interference with Reliable Breath Alcohol Concentration Reading

The Effects of Residual Mouth Alcohol and Acid Reflux on Breathalyzer Results.

Residual mouth alcohol is the alcohol vapor that remains in the mucous tissues of the mouth and throat after a person has been drinking. This remaining alcohol vapor can contaminate the breath sample reading registered by the breathalyzer, creating an inexact blood alcohol reading. This problem can also be enhanced by anything retained in the mouth such as dentures, which can trap the alcohol vapors resulting in an inaccurately high blood alcohol reading. The alcohol vapors remaining in your mouth can be the difference between whether your blood alcohol content (BAC) reading is over or under the legal limit.

Acid reflux, which forces stomach acid into the throat can create an inaccurate reading of blood alcohol content as well. In 2004 the Illinois Supreme Court heard the case, People v. Bonutti 212 Ill.2d 182 (2004)regarding the effects of Gastro-Esophageal Reflux Disorder (GERD) on the breathalyzer test.

People v. Bonutti

Expert witness testimony during the Bonutti trial revealed that the defendant suffered from GERD and most importantly, that GERD is not noticeable to an outside observer. The defendant did not tell the police officer that he was suffering from GERD and that during the 20 minute observation period he had experienced a reflux episode. Since GERD is not noticeable, the officer did not observe the episode. The defendant’s BAC was recorded as above the legal limit and subsequently he was charged with DUI. Id at 186.

In Bonutti, the Court outlined the standards created by the Department of State Police, which are in the Administrative Code 20 Ill.Adm.Code § 1286.310(a) (2002). These standards were created to ensure a more accurate BAC reading. Id at 189.

The standards at the time were:

1. Prior to obtaining a breath analysis reading from a subject, the agency employee shall continuously observe the subject for at least 20 minutes.

2. During the 20 minute observation period the individual must not smoke, regurgitate or vomit, drink, or place anything in their mouth.

3. If any of these things occur the individual must be allowed to rinse out their mouth with water and the 20 minute observation period will begin again.

4. If the individual continues to vomit or regurgitate alternate testing shall be considered.

Since the defendant had been treated for GERD by a physician in the past and had an episode during the observation period, the Court held that the test results were compromised and inadmissable. In support of their ruling in favor of the defendant, the Court stated, “The problem, then is that, while the State’s reading of section 1286.310(a) ensures that breath alcohol tests are admissible, it does nothing to ensure that those results, once admitted, are reliable. And reliability, after all, is the paramount concern.” Id at 191.

In response to the State’s argument that “every future DUI defendant will walk into court with a manufactured GERD defense and walk out of court with an acquittal” the Court indicated, “[w]e note that this is not the type of suppression case in which clear evidence of criminal wrongdoing is withheld from the fact finder because of a prosecutorial misstep. Section 1286.310(a) exists because regurgitation within 20 minutes of a breath-alcohol test can render a false positive. In other words, a lack of compliance with section 1286.310(a) has the potential to create criminals out of people who are not. This is not a “technicality,” and it is not a contingency that this court will countenance.” Id at 192.

Modification of Statute Should not Squelch Argument

Since the ruling in the Bonutti case the Illinois State Police have amended 20 Ill. Adm.Code § 1286.310(a) and removed “regurgitation” as a prohibited activity during the 20 minute observation period. See People v. Lindmark, 381 Ill. App. 3d 638, 660-61, 887 N.E.2d 606, 625 (2008).

In a recent case where the Defendant was represented by effective dui attorneys, the Defendant was seated in the rear of the officer’s vehicle and the officer did not have a clear, uninterrupted view of the Defendant during the 20 minute observation period. The Defendant indicated that he had problems with stomach acid and during the observation period had regurgitated into his mouth. The judge held that “Although the relevant subsection of the administrative code has been amended to delete the prior verb of regurgitate, vomit is inclusive of bringing up ones stomach contents even though it may not be expelled from the mouth.” The court found that the observation period was not in compliance with the regulation for continuous observation and the Defendant won his license back and ultimately was found not guilty of DUI.

Even though the Illinois Administrative Code has been amended, a defendant in a DUI case can still make the argument that the BAC results were inaccurate based on residual mouth alcohol resulting from GERD. An effective DUI attorney can help answer your questions regarding the accuracy of your BAC test and make sure you receive the best defense possible.