What Are The Best DUI Defenses?
Lawrence Taylor discusses some of the factors that can distort the alcohol measurement that a Breathalyzer provides and how these factors can lead to a defense for a DUI suspect. There is no certain or set list of defenses for a DUI case, every case is unique and as such, they are defended on a case-by-case basis. There are all types of circumstances that can distort the reading that a breathalyzer provides. This includes everything from having a periodontal disease, which can trap food containing alcohol in your mouth, to spraying a breath freshener into your mouth as you are getting pulled over. This phenomenon is called “mouth alcohol.” Alcohol stays in a person’s mouth for about fifteen minutes after ingesting an alcoholic beverage and can stay even longer if there is something in the mouth, like food, to trap that alcohol. This means that this “mouth alcohol” will be breathed directly from the mouth, not from the lungs, into the breathalyzer. The breathalyzer then multiplies the amount of alcohol it reads by twenty-one hundred times because it assumes that it’s coming through the lungs. In the end, the combination of “mouth alcohol” and the way the breathalyzer multiples the amount of alcohol it detects, leads to inaccurate measurements and, in turn, a defense for a DUI suspect.
Richard Jacobs (RJ): What are some of the most important and fruitful defenses that a DUI lawyer can assert for their clients to help them?
Lawrence Taylor (LT): Well, again, we don’t create defenses, we don’t make up facts, we don’t suborn perjury; we deal with each case on a case-by-case basis.
RJ: I understand.
LT: Each case is unique. Each client is a unique human being. Each police officer is different and so on. And so, we have to look into each of those cases and find where the weaknesses are, and there are always going to be weaknesses. There are always going to be holes in the DA’s case and it’s our job to find those. And, to hopefully find a lot of little ones or one big one or whatever, which we can bargain, plea bargain from a position of strength and have the ability to go to trial to back up our position. Now in any given case it might be question of, like I said GERD, perhaps our client has a GERD condition. We’ll bring a physician in to testify to that. It might be a question of tolerance on a DUI issue and that this individual had high tolerance of alcohol. It might be any number of things; one common one, for example, we see it over and over again, is mouth alcohol. Mouth alcohol refers the phenomenon of the individual having alcohol in their mouth.
LT: Alcohol stays in their mouth for about fifteen minutes after ingesting an alcoholic drink. It can stay for hours if there are other things present. For example, if you have periodontal disease, if you have false teeth, if you have things like bread stuck in your teeth, it has absorbed the alcohol and is keeping it. You can be, you can burp or belch alcohol from the stomach up into the mouth. Now, what does this mean? It means the alcohol is being breathed directly from the mouth into the machine, not from the lungs, but from the mouth or possibly the stomach. I told you earlier that, that machine is multiplying the number, the amount of alcohol it reads, by twenty-one hundred times because it assumes that it’s coming through the lungs . . .
LT: the breath, the blood, it’s not. It’s getting a straight shot of alcohol, so a very infinite - testamentary tiny - invisible amount of alcohol in the mouth, can have a huge result. Multiply it twenty-one hundred times; it doesn’t take much alcohol to send that machine up pretty high.
RJ: Yeah, that is important to know.
LT: And that may be a factor that may be a defense in a given case.
RJ: Well I’ve, you know, I’ve known people that were being pulled over and they get nervous, so they get breath spray and you know, spray their mouth so that they.
LT: Yeah, most breath sprays, breath fresheners, gargling things, Listerine, whatever, are going to have alcohol in it.
RJ: Oh, wow!
LT: And that’s mouth alcohol. And that’s going to stay there, worst possible time; that breath freshener is just before you’ve been stopped or as you’re being stopped by a police officer.
LT: Yeah because you’re going to be breathing that alcohol directly into the machine.