You might not realize it, but if you drive after using mouthwash or a breath freshening spray, you could actually face DUI charges in California. Some of these substances contain alcohol, which will trigger a false positive result on a breath test device, also called a breathalyzer.
Raising the defense of mouthwash or breath spray in a DUI case is a daunting matter, best attempted by an experienced California DUI attorney. This defense, also called mouth alcohol defense, can be successful in the right circumstances.
Can You Get a DUI From Mouthwash or Breath Spray?
Sometimes, people can cause higher results of a breathalyzer blood alcohol concentration (“BAC”) reading through their use of a breath spray or mouthwash immediately before taking the breathalyzer test. This situation could arise in the following hypothetical situation: Let’s say a person was pulled over by the police, but they had had a drink at dinner and worried their breath may have smelled like alcohol. In their preoccupation of this thought, the person then used a breath spray or mouthwash to try to mask the smell of alcohol on their breath.
However, it’s important to note that the police are aware that people may try to cover up the scent of alcoholic beverages by using mouthwash or breath fresheners, so the person’s actions in our above hypothetical may have only increased their suspicion of the presence of alcohol.
When alcohol is swished around in the mouth, a breathalyzer will detect the presence of alcohol. However, it will not be able to distinguish whether that alcohol is scotch or Listerine. In fact, people who struggle with alcohol addiction often refrain from using breath freshening sprays or mouthwash because the amount of alcohol in these products could cause a recovering alcoholic to “fall off the wagon.”
In addition to mouthwash and breath sprays, over the counter remedies such as cough syrups, NyQuil, or other cold medications also contain enough alcohol to generate a false positive reading by a breathalyzer. Some naturopathic or homeopathic compounds have an alcohol base that can trip up a chemical breath test device. Even cooking extracts like vanilla or almond extract have an alcohol base.
How a Breath Test Works
Duke University describes how a DUI breath test device like a breathalyzer works. There are many different types of breath analyzers on the market today, which all function in generally the same way as the original breathalyzer.
The chemical testing device is about the size and shape of a cell phone, with two chambers inside the testing device. These chambers contain a reddish-orange liquid, called potassium dichromate. The person suspected of being intoxicated exhales into one of the test chambers through a mouthpiece. Any alcohol in the breath sample will react to the potassium dichromate solution and turn green. The level of alcohol in the breath sample will directly affect the degree of color change. The more ethanol vapor present in the breath sample from the suspect, the more that green color will appear on the photocell.
The second chamber in the device contains the potassium dichromate solution separated from the breath sample. The chemical solution in the second chamber should not react. The difference in the degree of colors in the two chambers creates an electrical current that the device then converts into a quantitative value that represents the blood alcohol concentration of the breath sample.
Can Mouthwash Cause Breathalyzer Test Failure?
Yes; mouthwash can cause a breathalyzer test failure. As mentioned above, you can actually blow a higher BAC number if you recently used mouthwash than if you had not swished this product around in your mouth. Whether you were stone cold sober and simply used mouthwash as part of your oral hygiene routine or you tried to cover up the smell of alcohol on your breath when you saw the flashing police car lights behind you after you had a few drinks, you could fail a breathalyzer test because of mouthwash.
Many types of mouthwash contain alcohol, which can leave a highly concentrated alcohol vapor in your mouth. This “mouth alcohol” will get detected by a chemical breath test device, meaning you could appear to have been drinking even when you were not. Also, a BAC that is below the legal limit could get boosted to a high enough number to get you arrested and charged with a DUI because of the additional alcohol present in your mouth from mouthwash.
How Does Mouthwash Affect Breathalyzer Results?
Breath test chemical analyzers do not know the difference between alcohol from mouthwash and alcohol from beer, wine, or spirits. Even though your breath sample is supposed to be “deep lung air,” the sample has to pass through your mouth to get into the chemical analysis device. Some of this specimen will be alcohol vapor from inside your mouth, rather than deep in your lungs, which can impact the results of the test.
What Is Mouth Alcohol and How Does It Affect My DUI Case?
Mouth alcohol is the presence of alcohol vapor created by swishing alcohol containing substances around in your mouth. Although this article focuses largely on breath fresheners such as mouthwash, mouthwash is not the only product that can cause mouth alcohol. Swallowing liquid cold or flu medicines that contain alcohol can also create mouth alcohol.
Alcolock, a manufacturer of ignition interlocking devices (“IIDs”) says that the alcohol content of some mouthwashes is surprisingly high. For example:
- The original formula Listerine has an alcohol content of 26.9%;
- The mint flavors of Listerine have nearly 22% alcohol;
- The alcohol content of Scope is 18.9%; and
- Cepacol contains 14% alcohol.
In comparison, wine contains 12% alcohol and beer contains 3 to 7% alcohol. According to Alcolock, mouthwash can cause a person to fail an interlock test.
They warn that, in addition to mouthwash, breath sprays, cold and allergy medications, and cough syrup, your breath could contain mouth alcohol from vinegar, some energy drinks, and “non-alcoholic” beer. Please note that non-alcoholic beers are not necessarily alcohol-free. Rather, their alcohol content is below the level to qualify as an alcoholic beverage.
How Long Does Mouth Alcohol Last?
Because the body can usually metabolize the equivalent of one alcoholic beverage an hour as a general rule, people often think that alcohol is not detectable after that time. On the contrary, alcohol detection testing devices can discover the presence of alcohol in your system for 6 to 72 hours, depending on the type of testing performed.
For example, according to American Addiction Centers, alcohol can remain in a person’s system:
- Up to six hours in the blood;
- For 12 to 24 hours in the breath or saliva;
- For 12 to 24 hours in the urine when older detection methods get used and 72 hours or longer with the most current testing methodology; and
- As long as 90 days in the hair.
Some sources suggest that mouth alcohol dissipates quickly and that you can swish water around in your mouth and ask the officer to wait for 15 or 20 minutes and then perform a retest. However, the likelihood of receiving a significantly different result on the second test will depend on many factors, like the quality of chemical breath testing device and whether you have had any alcohol to drink in the past 24 hours.
How Does Individual Health History Affect Mouth Alcohol?
A person with certain gastrointestinal diseases like acid reflux disease, a hiatal hernia, or GERD might fail a breathalyzer test because of mouth alcohol. These medical conditions can cause alcohol vapors to travel back up the esophagus and into the mouth, where they can get detected by a breathalyzer.
Additionally, a person who wears dentures or an orthodontic retainer could have residual mouth alcohol which was trapped by their dental appliance. When they blow hard into the chemical breath testing device, the trapped mouth alcohol could get released into their breath sample and cause a false positive.
What Happens if I Fail a Police Breathalyzer Because of Mouthwash?
If you failed a police breathalyzer and you think it was because of mouthwash, you should seek the help of an experienced drunk driving attorney immediately. Your defense attorney can offer guidance on how to prove that the mouthwash caused the false positive result.
Can Mouth Alcohol Be Used as a DUI Defense?
Yes, the presence of mouth alcohol can be used as a DUI defense if it caused you to have an inaccurate or misleading BAC reading on a breathalyzer.
Frequently Asked Questions About Mouth Alcohol and Mouthwash
People who have been charged with a DUI based on a breathalyzer test which they believe produced inaccurate results due to mouth alcohol from liquids such as mouthwash have many questions. Some of the more common things they want to know are:
Can Mouthwash Get You a DUI?
Yes, mouthwash can get you convicted of the offense of driving while under the influence of alcohol. If you do not successfully challenge the breathalyzer results, you can face a conviction for a crime you did not commit.
Can Mouthwash Cause You to Fail a Breathalyzer?
Yes, mouthwash that contains alcohol can make you fail a breathalyzer test. Breath testing devices do not distinguish between the alcohol in mouthwash and “drinking” alcohol.
Can Mouthwash Make You Test Positive for Alcohol?
Yes, mouthwash can make you test positive for alcohol on a breathalyzer test if the type of mouthwash you used contains alcohol.
How Much Do Mouthwashes Affect Breathalyzers?
Mouthwashes can greatly affect breathalyzers. If you recently used a mouthwash with alcohol as one of its ingredients, a breathalyzer could have a false positive rating.
Does Mouthwash Affect Ignition Interlock Devices (“IIDs”)?
Absolutely. Mouthwash can cause you to accidentally fail an ignition interlock device test if the mouthwash contains alcohol. Makers of IIDs urge people who use interlock devices to refrain from using mouthwash or other everyday products that contain alcohol for as long as they have their ignition interlock device installed. There are alcohol-free brands of mouthwash that can provide the sensation of fresh breath without causing a false positive on an IID.
Responding the Right Way to an Unfair Breathalyzer Result
Your defense attorney can handle the response to an unfair breathalyzer result in your DUI case. The precise steps they will take to fight the criminal charges will depend on the particular facts of your situation.
We offer a free consultation to talk to you about whether false readings on a breath machine from mouthwash, cough drops, dental work, or some other cause could be used as a mouth alcohol defense. If you’d like to learn more about applying this defense to your case, you can speak a DUI Defense attorney today by reaching out to us here.
Sources:
https://sites.duke.edu/apep/module-4-alcohol-and-the-breathalyzer-test/content-how-does-the-breathalyzer-work/
https://alcolockusa.com/faq/can-mouthwash-cause-a-failed-interlock/
https://americanaddictioncenters.org/alcoholism-treatment/how-long-in-system
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