New Jersey DWI Attorney John Menzel

Will Blood Alcohol Levels Continue To Rise After You Quit Drinking?

For most people, once alcohol level peaks, it will be eliminated at a fairly constant rate. In rare cases, some people experience auto-brewery syndrome (ABS), in which a certain bacteria can create ethanol or isopropanol in a person’s gut. That bacteria can generate waste products that will register as ethanol, isopropanol, or other chemical that can cause breath testing equipment to register as BAC. In defending such cases, you either hope that the state makes a mistake or that a medical doctor can explain this syndrome to a judge so as to raise reasonable doubt in light of all the evidence.

Have You Ever Had A Case Like That?

I’ve have had cases involving auto-brewery syndrome, but they don’t come up that often. Even when they do, the biggest limitation is the resources people have to defend these cases. Keep in mind that we have serious practical consequences in New Jersey. If you get convicted, it can lead to some loss of license or inconvenience with an interlock. In more serious cases involving third or subsequent offenders or vehicular assault or vehicular homicide, people face definite jail if convicted.

More common than ABS cases, however, are contamination defenses based on other physiological conditions like gastroesophageal reflux disease (GERD). About one-quarter to one-third of all people suffer from GERD. GERD is so common that people don’t even think of it as a disorder that requires treatment. Chronic heartburn or indigestion may be manifestations of GERD.

Gastroesophageal reflux disease involves the sphincter muscle above the stomach. If it doesn’t close all the way, stomach contents can migrate into the mouth and mix with a breath sample, causing an overstatement of breath alcohol result. A fundamental assumptions of partition ratio is that all of the alcohol in the breath is coming from the blood as it exchanges in the lowest levels of the lungs. If somebody has GERD, this assumption is destroyed because the act of making the deep breath that is required for a breath sample can create a vacuum that would draw alcohol vapor from the stomach into the breath sample. A defendant can challenge the use of a contaminated breath sample before trial as irrelevant for the purpose of inferring a blood alcohol content. Even if the judge does not exclude the breath test result from evidence at trial, contamination evidence may still raise reasonable doubt. Other sources of contamination include diabetes and mouth alcohol.

In New Jersey, officers are supposed to check a person’s mouth, then watch the person for at least 20 minutes immediately before he or she submits a breath sample. An interruption in the observation period will render a breath test result inadmissible at trial. If a person happens to have something in the mouth that was not noticed by the officer, that can affect the admissibility of the reading. That can come up with people who have dentures or an orthodontic appliance like as Invisalign that may go undetected by the observing officer.

Sometimes, people have chewing gum or tobacco in their mouth. Others have tongue studs or lip rings. Failing to remove those items defeats the purpose of the 20-minute observation period. During the 20 minutes, alcohol will dissipate. But if such items are in a person’s mouth, they can help retain alcohol longer than the 20-minute observation period and potentially skew the breath test result by making it higher and destroying the concept of a breath sample as an equivalent to a blood sample.

For more information on DWIs In New Jersey, a free 20 min phone consultation is your next best step. Get the information and legal answers you are seeking by calling (732) 218-9090 today.

John Menzel, J.D.

Learn your options - call me for your free, 20 min phone consultation (732) 218-9090

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