How Certain Foods You Eat Can Impact Your DUI Case
May 11, 2020

You might remember a famous episode of “Seinfeld” where Elaine is called into her boss’ office because she failed a drug test for opium. Elaine, surprised by the result, soon discovers that the reason was the poppy-seed muffins she often ate. Poppy seeds, as it turns out, contain the principal chemicals needed to produce opium and related drugs.

 As funny as that episode of “Seinfeld” is, there is nothing funny about something you ate causing a breathalyzer test to show alcohol in your system.  Many measuring devices have a margin of error and the breathalyzer is no different. Tests have shown that some non-alcoholic foods can register a positive breath alcohol reading on a breathalyzer.   

How Your Food Choices Create False Positives

How is it possible that non-alcoholic foods and drinks can fool a device that detects alcohol? One reason is that many foods, beverages, and hygiene products contain trace amounts of alcohol. For example, mouthwashes often have an alcoholic ingredient, and medicines like NyQuil often use an alcohol base. Many food dishes use beer, liquor, or wine as an ingredient as well. While not enough to get you drunk, that tiny amount of alcohol might still register on a breath test device.  The key to avoiding a potential false positive breathalyzer result is determining whether the device is measuring any mouth alcohol from a recently consumed food or beverage.  A properly functioning breathalyzer measures alcohol taken from the air from the lungs, which will not have alcohol from recently consumed foods.  It is important for an officer to observe a 15 to 20 minute waiting period prior to administering a breathalyzer test to make 

 Another reason is that fermentation – the natural process by which microorganisms such as yeast turn sugars into alcohol – is not just used in the creation of alcoholic drinks. Fermentation processes are also often used to create preservatives that make foods last longer and can even occur naturally in fruits that are ripe.

 It also occurs in the making of certain baked goods and bread, often because the yeasts used in bread creates a residual amount of alcohol that is not always removed in the baking process. In fact, Phil Price, an Alabama DUI attorney, tested bread as a source of false readings by eating bread and using one of the most commonly used breath test devices on the market, the Intoxilyzer 5000. He found that the device registered him as having a blood alcohol level of 0.05%.1 Price’s results were confirmed by the Washington State Toxicology Laboratory, which published its findings in the Journal of Analytical Toxicology.2

Honey Buns are very likely to cause false readings. Recently, North Carolina attorney James McGee demonstrated to a local news station that just one Honey Bun could produce results as high as 0.015%.3

The key to avoiding a potential false positive breathalyzer result is determining whether the device is measuring any mouth alcohol from a recently consumed food or beverage.  A properly functioning breathalyzer measures alcohol taken from air from the lungs, which will not have alcohol from recently consumed foods.  It is important for an officer to observe a 15 to 20 minute waiting period prior to administering a breathalyzer test to make sure that the person taking the breathalyzer test has not consumed any foods or drink.  

When a new client meets with one of our attorneys we want to know in every case all the food and drinks the person had consumed on the day they were arrested so we can review the breathalyzer results and compare the results with what we would expect them to be based on our client’s consumption of food and drinks.  A person arrested for a DUI in California typically has the option of choosing between a breath or a blood test.  We recommend choosing a blood test in most cases since the results of a blood test are more accurate than a breath test and because a blood sample is preserved so an attorney can request that it is re-tested. 

Products Known to Cause False Readings

Though the full list of products that might give a false reading is always changing, there are some foods and products that are known to cause false positives in handheld breath testing devices: 

Foods:

  • Ripe fruit
  • Honey Buns
  • Breads (such as white or sourdough)
  • Hot sauces
  • Protein bars
  • Sugarless gums
  • Dishes prepared with or cooked in beer, liquor, or wine

Drinks:

  • Energy drinks
  • “Non-alcoholic” beer or wine
  • Fermented sodasDUI coffee

Other Household Items:

  • Medicines, such as cough syrups or sleep aids
  • Asthma inhalers
  • Vitamins
  • Mouthwashes
  • Breath freshener sprays
  • Scented products used around the mouth, such as after-shaves or cosmetics

  

Contact the DUI Defense Attorneys at Wallin & Klarich Today

If you have been arrested for DUI, you will need an experienced and aggressive attorney to help you fight these charges. At Wallin & Klarich, our attorneys have over 38 years of experience successfully defending our clients accused of DUI. We work tirelessly to give our clients the best possible chance at successfully beating criminal charges.

With offices in Orange County, Riverside, San Bernardino, Victorville, West Covina, Torrance, Los Angeles, and San Diego, there is an experienced Wallin & Klarich DUI defense attorney near you, no matter where you work or live.

Call us today at (877) 4-NO-JAIL or (714) 730-5300 for a free phone consultation. We will be there when you call.

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