A conviction for driving under the influence, or DUI, in Nebraska can result is significant negative consequences ranging from a term of imprisonment to loss of a professional license. If you have been charged with DUI, or any other alcohol related driving offense in Nebraska it is critical that you do everything possible to avoid a conviction. Exploring all possible defenses, therefore, only makes sense. For example, mouth alcohol – is it a defense to DUI?
As a general rule, the strongest evidence the prosecution has against a defendant in a DUI prosecution is the result of a chemical test. Typically, when a motorist is stopped by a law enforcement officer and the officer suspects that the motorist has been drinking, the officer will ask the motorist to perform a series of field sobriety tests. If the motorist fails those (as subjectively determined by the officer), the officer will place the motorist under arrest and transport the individual to the jail or station. At that point, the motorist will be asked to submit to a chemical test — usually a breath test – to further check for the presence of alcohol in the individual’s system. If the chemical test shows a result of 0.08 percent breath alcohol concentration, or BAC, the results will become part of the State of Nebraska’s case against the individual. If the motorist holds a commercial driver’s license, is under the legal drinking age, or is currently on probation, a test result of less than 0.08 can even be detrimental.
Because a breath test analyzes your breath for the presence of alcohol, any alcohol in your mouth can result in a false positive. “Mouth alcohol” is exactly what it sounds like – alcohol present in your mouth that is not the result of alcohol you consumed. Mouth alcohol can be caused by a number of things, including:
- Mouth wash or breath spray, such as Listerine, that contain alcohol.
- Acid reflux or heartburn
- GERD or other medical conditions
- Medications such as Nyquil that contain alcohol
- Dental work that causes food and liquids to become trapped
If mouth alcohol is present in your mouth at the time you are given a breath test the test results will likely be significantly higher than the amount of true alcohol in your blood stream at the time.
If you are facing Dui charges in Nebraska and you believe that mouth alcohol caused a false positive on your breath tests results, contact the Omaha, Nebraska law office of Petersen Law Office 24 hours a day at 402-513-2180 to discuss your defense.
Attorney Petersen was invited to join the National Advocacy for DUI Defense (NAFDD) organization in 2013. NAFDD vets thousands of lawyers and only chooses those who have achieved stellar results in DUI defense cases. Attorney Petersen was named one of the Top 50 defense attorneys in Nebraska out of more than 5,000.
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