If you’ve been arrested for drunk driving in Michgian, you were probably given a breath test. If you have heartburn, then the test result can be wrong, and that’s a big problem. Even a small difference in your breath test reading can be the difference between being charged and being let go.
The most serious form of of heartburn is called GERD. (Gastroesophageal Reflux Disease) This kind of heartburn can cause a falsely high reading on a breath test instrument used to measure breath or blood alcohol levels in intoxicated driving cases because of the way alcohol is metabolized and processed in the body.
Michigan just introduced a new breath test instrument called the Intoxilyzer 9000, and even though this is the latest and greatest, heartburn and GERD is still a problem that can lead to falsely high breath test results. Here’s why.
How Heartburn Causes False High Alcohol Breath Test Results
When a person consumes alcohol, it is absorbed into the bloodstream through the stomach and small intestine. Once in the bloodstream, alcohol is distributed throughout the body, including the lungs, where it can evaporate and be expelled through exhaled breath. Breathalyzers work by measuring the alcohol content in a person’s breath to estimate the alcohol concentration in their blood.
However, GERD is a condition where the contents of the stomach, including stomach acid and partially digested food, can flow backward into the esophagus (the tube that connects the mouth to the stomach). This backward flow, known as acid reflux, can introduce alcohol vapors from the stomach into the esophagus and mouth. If a person with GERD undergoes a breath test, these alcohol vapors from the stomach can be detected in the breath, leading to an inaccurate reading on the breathalyzer.
In other words, the presence of alcohol vapors from the stomach in the breath can falsely inflate the measured alcohol concentration, making it appear higher than it actually is in the person’s bloodstream. This phenomenon is known as “mouth alcohol” or “residual mouth alcohol.”
To ensure accurate readings, law enforcement officers are generally advised to observe the person being tested for a period before administering the breath test, during which the person should not eat, drink, or regurgitate. This observation period helps minimize the risk of mouth alcohol affecting the breath test results.
Additionally, some modern breathalyzer devices are designed to detect and account for the presence of mouth alcohol and may require multiple breath samples to confirm the accuracy of the reading. Blood tests are considered more accurate for measuring blood alcohol levels, but breath tests are often used for their convenience and speed in field sobriety testing.
Your Lawyer Should Seek to Confirm that GERD Exists
If you think your heartburn caused a false alcohol breath test, then tell you lawyer, who will want to have the condition confirmed. The first confirmatory test is called an endoscopy. According to Wikipedia, “endoscopy means looking inside and typically refers to looking inside the body for medical reasons using an instrument called an endoscope.” During this test, a small catheter is placed into the esophagus and photographs are taken of the esophagus and the Lower Esophageal Sphincter (LES).
The more detailed way to describe this is as follows: “Esophagogastroduodenoscopy (EGD) (a form ofendoscopy) involves insertion of a thin scope through the mouth and throat into the esophagus and stomach (often while the patient is sedated) in order to assess the internal surfaces of the esophagus, stomach, and duodenum.” Id.
After the test is complete, the specialist will look at these results (including photographs) to determine if there is evidence of damage caused by acid erupting into the esophagus from the stomach. The photographs will also be inspected for evidence of a possible hiatal hernia, which “increases the likelihood of GERD due to mechanical and motility factors.” Id.
If the EGD reveals that the LES is open, then the patient has a Gastroesophageal Reflux Disease (GERD) condition with a constant reflux/regurgitation. This is significant as it pertains to breath testing because with an open LES there is essentially an uninterrupted or open chamber beginning in the stomach, continuing into and through the throat and finally into the mouth.
With this condition stomach gases are able to escape (back flow/regurgitate) into the mouth from the stomach. The defective sphincter (LES) allows the gases/molecules, including of course alcohol molecules, to leave the stomach and pass into the mouth. During a breath test these alcohol gasses mix with the deep lung air, which also contains alcohol, and the accumulated gasses are “read” by the machine in a cumulative fashion thereby causing a false breath test result.
Another problem with GERD is the potential of raw alcohol to erupt from the stomach into the mouth. While it is true that mouth alcohol will dissipate rapidly the problem is that with an open LES the patient suffers from a condition that may produce constant reflux/regurgitation. If this condition exits, and if the conditions during the breath test are appropriate, then a 15 minute observation period will not stop a false high breath test result.
The presence or absence of this condition is confirmed by a second test, called a 24 hour pH test (pH denoting the acidity level in a person). According to Wikipedia, Esophageal pH monitoring is the current gold standard for diagnosis of Gastroesophageal Reflux Disease (GERD). It provides direct physiologic measurement of acid in the esophagus and is the most objective method to document reflux disease, assess the severity of the disease and monitor the response of the disease to medical or surgical treatment. Id.
Esophageal pH monitoring is being performed using one of the following three techniques:
- Single sensor pH monitoring using a pH catheter
- Dual sensor pH monitoring using a pH catheter
- Wireless pH monitoring using Bravo pH capsule
The duration of the test is 24 hours in the first and second techniques and 48 hours or more for the Bravo capsule. Id.
Unless the Bravo capsule is used an esophogeal pH test requires a catheter to be inserted through the nostril, into the throat, and down into the esophagus where it is stopped slightly above the LES. The catheter remains in the subject for 24 hours. The recorder monitors every episode of reflux/regurgitation during this time period.
If the appropriate medical tests are given and if they confirm the existence of GERD and the extent of the problem, then you will have an excellent potential defense to the breath test.
Heartburn is Not a Perfect DUI Defense
The heartburn defense is not without its detractors. You should expect the government lawyer to argue that the slope detector will cure this breath testing problem. To substantiate this claim, the government relies on a single, limited study published in the Journal of Forensic Science nearly ten years ago. The author of this study was none other than A.W. Jones. This study used only ten subjects, and only four of whom were definitely experiencing GERD effects at the time of the study. The fact that the authors concluded from this very limited study that a false breath test was “highly improbable,” only underscores that an erroneous result is certainly possible.
In a later article that appeared in the DWI Journal: Law & Science, Dr. Jones explains his 1999 study cited above. In this subsequent article Dr. Jones acknowledges that the DataMaster’s slope detection is inadequate to detect mouth alcohol. Dr. Jones reiterated this position in Fitzgerald, Intoxication Test Evidence, where he again acknowledges that GERD can cause false results.
In another more recent DWI Journal: Law & Science article, published in 2007, Jones indicated:
It is widely known that many breath alcohol instruments currently used by law enforcement worldwide are inept at detecting mouth alcohol under some circumstances. For example, there is no published evidence that the more dangerous form of mouth alcohol, namely that which might erupt from the stomach in connection with a burp, belch, or regurgitation is successfully detected and distinguished from alcohol originating from the lungs.
Thus, even Jones, the author of the study relied upon by the government, has acknowledged that slope detectors don’t work well enough to detect mouth alcohol that originates from GERD.
Courts Have Recognized the Heartburn Alcohol Breath Test Defense
The so-called GERD defense has been recognized as a valid breath test defense in drunk driving cases in at least one state. In People v Bonutti, 212 Ill 2d 182; 817 NE2d 489 (2002), the Illinois Supreme Court recognized the potential danger that GERD could have in creating a false breath reading. The Bonutti Court upheld the suppression of breath test results of a defendant who was suffering from GERD at the time of test.
There, the court said:
In closing, we 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) [of the breath-testing administrative rules] 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.
Bonutti at 192; 817 NE2d at 495
While the Bonutti decision was subsequently superseded by statute, which precludes suppression of a breath test result from regurgitation short of a test-taker’s vomiting, a defendant is still permitted to argue the validity of the test results using expert testimony. See, People v Lindmark, 381 Ill App 3d 638, 660; 887 N.E.2d 606, 625 (2008).
WARNING: If you suffer from GERD and have been arrested and charged with OWI based on UBAL (unlawful bodily alcohol level) you could be wrongly convicted of drunk driving. Contact the Barone Defense Firm today for your FREE consultation.