Why is the Mouth Alcohol Defense so important in Georgia DUI cases?
By Ben Sessions on June 30th, 2024 in
In my mind, the mouth alcohol defense – in whatever form the DUI defense lawyer puts it forward – remains the most reliable defense that we have to a per se DUI charge in Georgia. If the state has made it beyond motions (they have shown that the stop was valid, the arrest was supported by probable cause, implied consent was properly read, consent to testing was voluntarily obtained, and a proper foundation was shown for the test), my 1st course of action is generally to determine (1) if there are any specific issue relative to my client that might make a breath test unreliable and (2) whether the state can show adherence to the observation period requirement in order to eliminate mouth-alcohol contamination of the breath test.
Not Sure Why the Mouth Alcohol Defense Is So Important?
Well, I could write all day about why the mouth alcohol defense to breath tests in Georgia is so important to know and understand, but it’s probably more helpful to hear it from the director of a state’s breath testing program:
The Significance of “Mouth Alcohol” in Breath Testing
The mouth alcohol defense is a breath test defense premised upon the possibility of alcohol from some source other than alveolar air being measured by the testing device. It is important to recognize that the mouth alcohol defense is not limited to the presence of alcohol within the mouth. It is recognized within studies produced by state breath test agency employees that “[c]ontributions to breath alcohol concentration (BrAC) arising from alcohol in the mouth can falsely elevate the reading.”[1] However, we need not (indeed, we should not) limit our consideration of extraneous sources of alcohol to the mouth only.
Residual alcohol that is present along the air passageways, alcohol that is re-introduced to the airways from the stomach, and any other source of alcohol beyond that contained in alveolar air must also be guarded against by the state. The defense bar has long limited this defense by adopting the government’s terminology when discussing the possible impact of residual alcohol in breath testing. The government must ensure that alcohol from any source other than end-expiratory air is protected against.
There are two categories of mouth alcohol defenses. The first deals with fact-specific defenses such as GERD, where your client has a known condition that may cause mouth alcohol to be present. The second, and more universally applicable defense addresses law enforcements failure to adhere to their own established testing protocol. As a general rule, more fact-specific challenges to a breath test are preferred over more general challenges,[2] but this general rule cannot and should not always be followed, particularly in the mouth alcohol realm. Whatever type of defense is used, a basic understanding of the fundamentals of the mouth alcohol defense is critical.
The first step is determining whether you have a fact-specific breath test defense in your case: was your client was chewing tobacco, gum, or did he have any other foreign substance in his mouth prior to the administration of the breath test; did he use mouth spray, inhaler, or mouth wash prior to the administration of the breath test; when was his last drink; does he have any dental devices (bridges, crowns, fillings, etc.) that may trap alcohol, and whether the client has any oral jewelry.[3]
Mouth Alcohol defense to Georgia DUI Per Se Charges and Breath Tests
If you are interested in learning more about how I present a mouth alcohol defense to a Georgia DUI per se charge and breath test, you can watch the entirety of a breath alcohol presentation at my YouTube channel and here is a clip from that mouth alcohol defense presentation:
More Information on “Mouth Alcohol” in Breath Testing
The mouth alcohol defense to DUI breath tests remains viable no matter what breath test machine was used in your DUI case.
The Breathalyzer Models 900, 900A, and 1000, which are no longer in production, require the operator to determine when a deep lung breath sample has been provided. Unlike most modern devices, the Breathalyzer Models 900, 900A, and 1000 do not have an automated slope detection system. Many devices, such as the Draeger Alcotest 9510 and Alcotest 7110 MKIII-C, and the Intoxilyzer Models 5000 and 8000, employ an infrared slope detection system in the effort to detect mouth alcohol. In those devices that use infrared slope detection, the breath testing device is programmed so that it has a “picture” of what an acceptable breath sample should look like. If the sample does not fall within the acceptable parameters of what the device believes that a breath sample should look like, the machine should produce an error message. These devices presume that the alcohol concentration will rise sharply until it plateaus (or flattens out). It is estimated that first 2/3 of the breath sample introduced into the device is discarded in the effort to obtain a test comprised of end-expiratory air.
If the subject’s breath test is performed upon a Breathalyzer Model 900, 900A, or 1000, failure of the officer to comply with 20-minute pre-test observation requirements will be very difficult. In DUI cases involving breath tests performed upon a Breathalyzer Model 900, 900A, or 1000, the officer performing the test is responsible for ensuring that alveolar air is tested. In contrast, if the test is performed upon a device equipped with an infrared slope detector, such as the Draeger Alcotest 9510 or Alcotest 7110 MKIII-C, the practitioner must be prepared to demonstrate the inadequacies of the slope detector. The discussion below of the inadequacies of slope detectors may serve as a good starting point.
Don’t forget to investigate your state’s own internal tests of various breath test devices and their respective ability to detect to mouth/residual alcohol. Below is an example of what you may find:
Identifying Safeguards Necessary To Protect Against the “Mouth Alcohol” Problem
Generally, there are three (3) basic safeguards that are designed to prevent the risk of mouth alcohol artificially inflating breath test results. First, a 15- to 20-minute deprivation-observation period must be completed. Second, between the 1st and 2nd sample tested, the results must not vary by more than .02 grams. Third, the machine’s mouth alcohol detector, otherwise known as the slope detector, must be functioning properly. If the state fails to establish that any of these 3 safeguards, the mouth alcohol breath test defense is available to us.
A. The Importance of the 15-Minute Observation Period
In “Quality Assurance in Breath-Alcohol Analysis,” Dr. Kurt Dubowski discusses in great detail the importance of requiring an observation-deprivation period of at least 15 minutes and requiring at least two (2) sequential breath specimens. Dr. Dubowski calls a pretest deprivation-observation period of at least 15 minutes and analysis of least two separate consecutive breath specimens “necessary scientific safeguards in forensic breath-alcohol measurement.”[1]Regarding the 15-minute deprivation-observation period, Dr. Dubowski stated:
Although the aspects of the actual testing process are important in a QA [Quality Assurance] sense, the scientific safeguards are the most critical. A pretest deprivation-observation period of at least 15 minutes should precede the subject test. During that time period the test subject must refrain from intake of food or drink, smoking, or presence of foreign objects or substances in the mouth (especially use of breath-fresheners and mouthwash), and there must also be assured absence of regurgitation of gastric content or emesis. In any of the latter events, the mouth is rinsed thoroughly with water at body temperature, and the 15-minute deprivation-observation period is repeated.[2]
The significance of the observation period is illustrated in the regulatory provisions governing the administration of breath tests in California and New York. Section 1219.3 of Title 17 of the California Code of Regulations requires at least 15 minutes of continuous observation of the subject prior to administering a breath test:
A breath sample shall be expired breath which is essentially alveolar in composition. The quantity of the breath sample shall be established by direct volumetric measurement. The breath sample shall be collected only after the subject has been under continuous observation for at least fifteen minutes prior to collection of the breath sample, during which time the subject must not have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten, or smoked.
Section 59.5 of the New York State Department of Health Rules and Regulations for Chemical Tests (Breath, Blood, Urine and Saliva) also requires observation of a suspect for at least 15 minutes prior to the administration of a breath test:
The following breath analysis techniques and methods shall be a component of breath analysis instrument operator training provided by training agencies and shall be used by operators performing breath analysis for evidentiary purposes:
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(b) Continuous observation of the subject shall be maintained for at least 15 minutes prior to the collection of the breath sample during which period the subject must not have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten, or smoked or be allowed to place anything in his/her mouth; if the subject should regurgitate, vomit, smoke or place anything in his/her mouth, an additional 15-minute waiting period shall be required.
Further, Section 59.4(a)(2) of the New York State Department of Health Rules and Regulations for Chemical Tests (Breath, Blood, Urine and Saliva), which requires that “[b]reath samples collected for analysis shall be essentially alveolar in composition[,]” is incorporated into Section 59.5(a).
B. The Importance of Consecutive Analyses of Breath Samples
Regarding the consecutive analyses of breath samples, Dr. Dubowski stated:
Repeating an analysis is a widely employed QA practice in chemical analysis. Collection and sequential analysis of at least two separate breath specimens has become accepted practice, as recommended by the NSC Committee on Alcohol and Other Drugs. The Committee recommended that ‘[t]he breath samples should be collected at intervals of not less than 2 nor more than 10 minutes, after an initial deprivation period of at least 15 minutes.’ Any difference between the duplicate results greater than a predefined maximum should be regarded as an indication of a potential problem. Conversely, acceptable agreement of the duplicate results eliminates the unrecognized presence of such actual or supposed irregularities as the effects of mouth alcohol….[3]
C. Limitations of the Slope Detector
The limitations of the mouth alcohol (slope) detector, particularly of the Intoxilyzer 5000’s slope detector, have been studied a great deal.[4] There are numerous studies conducted by state employees that testify primarily on behalf of the state. It is important to understand the literature produced by experts that testify primarily on behalf of the defendants, but it is more important to know the basic literature produced by the state employees. When forced to confront a state crime lab witness regarding the reliability of the slope detector, be prepared to address the more conservative figures in “The Effect of Swallowing or Rinsing Alcohol Solution on the Mouth Alcohol Effect and Slope Detection on the Intoxilyzer 5000,” authored by J.G. Wigmore and G.M. Leslie.[5]
Basically, Wigmore and Leslie had subjects, who had not been drinking prior to the commencement of the study, rinse their mouths with alcohol and drink alcohol in order to evaluate the effectiveness of the Intoxilyzer 5000’s mouth alcohol detector. Subjects were tested after both drinking events after 5 minutes and 10 minutes. The most troubling statistics with regard to the reliability of the slope detector are produced in Table II of their study. Obviously, most people charged with DUI/DWI have actually swallowed alcohol. Wigmore and Leslie found that, with regard to those subjects that swallowed alcohol, the Intoxilyzer 5000 correctly detected mouth alcohol in only 66% of subjects after 5 minutes. After 10 minutes, the Intoxilyzer 5000 only accurately detected mouth alcohol in 30% of subjects. After swallowing alcohol and testing 5 minutes later, 2 subjects had a reported BrAC concentration of .100 and .118. The authors presume that the effect of prior drinking, in combination with a mouth alcohol event, would be negligible, but there was no testing of that hypothesis.[6]
[1] Kurt M. Dubowski, Quality Assurance in Breath-Alcohol Analysis, 18 J. Anal. Toxic., 306, 308 (1994)(emphasis added).
[2] Id. at 309.
[3] Id. at 310.
[4] Given the effectiveness of strict adherence to the 15-minute observation requirement and requiring a .02 agreement between subject samples, one might be surprised by the volume of study on the slope detector. However, as discussed below, the willingness of the courts to permit the use of breath test evidence where these requirements have not been followed has most likely required further inquiry into the reliability of the slope detector.
[5] J.G. Wigmore and G.M. Leslie, The Effect of Swallowing or Rinsing Alcohol Solution on the Mouth Alcohol Effect and Slope Detection of the Intoxilyzer 5000, 25 J. Anal. Toxic., 112-114 (2001).
[6] Id.
The Willingness of the Courts To Admit Questionable Breath Testing Evidence Has Fostered the “Mouth Alcohol” Defense
Breath testing evidence is usually admissible even when law enforcement fails to follow their own department’s protocols regarding the observation period prior to breath testing. This failure to perform the observation period “goes to weight, not admissibility.” It is well-recognized within the forensic breath-alcohol testing community that “[m]ost mouth alcohol-based challenges can be successfully avoided by strictly adhering to a pretest observation and alcohol deprivation period and demonstrating agreement between duplicate breath tests.”[1] Nonetheless, the mouth alcohol defense remains fertile ground largely as a result of the refusal of the courts and/or legislatures to require law enforcement to adhere to scientifically acceptable protocol during the administration of breath tests. As demonstrated in Appendix A, most courts have continually held that questionable adherence to the required observation-deprivation period goes to the weight, not the admissibility, of breath test evidence. As a result, almost every breath testing case will come with a built-in defense that may not even require an expert.
Closing Argument in a “Mouth Alcohol” Breath Test DUI Defense Case
Below is a portion of a sample closing argument that I did in a seminar for the New York State Bar Association. This closing argument was an adaptation from a trial that I recently had in Fulton County, in which a mouth alcohol breath test defense was used:
