Can Breath Spray Send You to Jail?

Last month CNN ran a story from their affiliate, WSB, in Atlanta, about the Breathalyzer Equalizer. The product claims to “help” people taking a breath test by eliminating “mouth alcohol” that could create a “false positive” on a breath test.

There are a lot of quotation marks in that sentence.

Some background

Yes, mouth alcohol is something that can linger in the mouth for several minutes, caused by the consumption or use of a product with high alcohol content (cough syrup, mouthwash, breath spray). You can get positive results on a breath test without having actually swallowed a product with alcohol and without being intoxicated. The results are coming from the mouth, not via the lungs (and thus metabolism of the alcohol in the body).

In 1998, a peer-reviewed study by Barry Logan and Sandra DeStefano took the question a step further to determine if the consumption of some foods or beverages could cause “mouth alcohol,” and hence false positive readings on breath tests. The study concluded that some soft drinks and even leavened breads have enough alcohol to cause these results if the test was taken immediately following ingestion, or while the food was still in the mouth, albeit at very low levels. The highest test result, from someone with food in their mouth while testing, was a .046 BAC, below even the Drinking While Ability Impaired limit of .05 BAC that some states employ.

The study concluded that when a 15-minute deprivation period is observed (where someone is observed to ensure no use of an alcohol-containing product and that nothing has been consumed), the risk of mouth alcohol reading positive on breath tests was reduced to zero.

Zero.

The product in this story out of Atlanta portrays itself as serving justice by preventing mouth alcohol false positives. The piece includes an interview with the director of Georgia’s chapter of Mothers Against Drunk Driving (MADD), who did a great job of pointing out that the way the product is marketed—complete with a martini glass in the logo—will encourage people to think they can drink, drive, then utilize the product to avoid blowing positive on a breath test. In the process they very well may kill or injure someone in an alcohol-related traffic fatality.

We absolutely agree. The implication from this product is that it sobers you up. Not that it just clears your mouth of the dreaded breath spray. (And who would use breath spray when being pulled over by a police officer? Likely someone who has been drinking.)

We see many news stories throughout the year where reporters use mouthwash and then show staggering results on breath tests conducted immediately after gargling, implying there are enormous risks involved in these roadside sobriety tests. These stories almost always fail to mention that:

• Roadside breath tests are not evidentiary. In other words, they aren’t precise enough to be submitted as evidence in court.  A positive roadside test provides probable cause for either an evidentiary blood or breath test that is used to charge a driver.
• A roadside breath test is one of a number of tests and assessments, all court-validated, conducted roadside to determine if there is probably cause to arrest someone.
• Many jurisdictions are increasing the use of “phlebotocops,” who are trained in blood draws and assigned to conduct roadside blood tests.
• The aforementioned “wait times” when an offender is observed for several minutes before conducting a roadside breath test also ensures that the dreaded breath spray is not an issue. Those wait times are standard protocol in most jurisdictions.

If it seems too good to be true, it is. Guaranteed. Let’s hope people don’t get hurt or injured in the process, because drivers think they can swish a product in their mouth and blow sober after drinking.