San Diego DUI Law Center

It is important to remember that if a San Diego DUI officer ruins your 4th of July holiday weekend, there are a number of defenses to breath test results. If you or your loved one needs to speak to a premier San Diego DUI defense attorney, consider the free San Diego drunk driving lawyer survey.

Starting with scientific and physiological defenses in San Diego DUI cases, here’s a sample of ways to consider in a drunk driving breath test case:

1. Vomiting, regurgitation, burping or belching within 15 minutes of test – no rinsing of mouth, or inadequate deprivation period before retest.
2. You may not be a proper subject for breath testing. You have a physical problem or health limitation:
1. gastric reflux, hiatal hernia or intestinal problem (e.g. Gastro Esophageal Reflux Disease, Irritated Bowel Syndrome, or Acid Reflux Syndrome) diagnosed and treated before date of arrest;
2. dental condition (e.g. gum disease/gingivitis/pockets around roots, dentures or bridgework which may trap mouth alcohol and contaminate a breath machine sample); or
3. respiratory problem (e.g. asthma, bronchitis, emphysema or chronic obstructive pulmonary disease).
3. The breath test room or circuitry has a problem (e.g. Radio Frequency Interference from a cell phone, officer’s radio, copy machine or other equipment with surge capabilities) which may cause machine to give artificially high reading; smoking in or near machine; shared power supply with heater or other appliance – must be dedicated “clean” electrical source; or recently painted walls or trim).
4. You have had recent environmental exposure to volatile fumes (lacquer, gasoline, paint, dry cleaning fluids or even 409) which have cumulative reading, causing chemical interference/falsely elevated result.
5. Air bag defenses – “the Tyndall effect’ – diffusion of light; propellant exposure; cut lips; lung and airway irritation & fluid build-up from caustic gas propellant.
6. Unintentional alcohol (e.g. from Nyquil, Vicks Formula 44, lip balms, toothache drops).
7. Something in mouth containing alcohol (e.g. Breath Drops with SD alcohol).
8. Something in mouth that contains interfering or contaminating substance (e.g. Skoal snuff – wintergreen; Altoids curiously strong mints).
9. Officer not trained or marginally trained in accordance with the standards of Title 17 of the California Code of Regulations (e.g. not trained in theory of operation of machine).
10. Elevated breath temperature (e.g. caused by fever, hot tub, sauna, detention in hot sun or back of patrol car in summer, dancing, menstrual cycle, etc.)
11. Breath/blood ratio (2100:1) not proven to be your ratio; show how minor error gets multiplied 2100 times; 0.12 = 17/10,000,000th of an ounce. Show you have abnormally low blood/breath conversion ratio through testing and expert.
12. Inherent sampling variability
13. Margin of error (e.g., 0.088 reading – state acknowledges +/- 0.01% precision problem).
14. You have blowing pattern irregularity (e.g. blubbering and crying causing artificially high water vapor problem).
15. You have been on strict high protein diet and then introduce carbohydrates, thereby triggering auto-generated alcohol production when ketones are converted to isopropyl alcohol (or the “auto-brewery” syndrome).
16. You have diabetes, are borderline diabetic or are hypoglycemic and consume alcohol in any amount, causing conversion of high acetone levels into isopropyl alcohol.

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