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What Foods Can Give You a False Positive on a Breathalyzer Test?

Driver being subjected to a breathalyzer test by police for suspicion of DWI.

When you're pulled over for suspicion of driving while intoxicated (DWI), police will often administer a breathalyzer test to determine your blood alcohol content (BAC) level.

But did you know that certain foods and household items can actually give you a false positive on a breathalyzer test?

In Texas, the legal BAC limit is 0.08%, and if a driver's breathalyzer test shows a BAC above that limit, they can be charged with DWI.

If you have been charged with a DWI in Montgomery County, TX, it's important to take it seriously and contact an experienced DWI attorney to learn more about your potential legal options.

Types of foods that can cause a false positive

Alcoholic beverages, such as beer, wine, and liquor, will be detected by a breathalyzer. However, there are other foods that contain chemicals that may also be detected by a breathalyzer. For example, many fruits, including cherries, apples, and peaches, can become fermented as they ripen and contain small amounts of alcohol.

Other foods, drinks, and household items that may cause a false positive on a breathalyzer include:

  • Mouthwash: Many types of mouthwash contain high percentages of alcohol, which can register as false positives on breathalyzer tests.
  • Breath Spray: Like mouthwash, many breath freshener sprays contain high amounts of alcohol that can lead to positive readings on breathalyzer devices.
  • Spicy Foods: When consumed, spicy foods can create methane gas in the stomach, which can be mistaken for alcohol by breathalyzer devices.
  • Yeast-Containing Foods: Bread, pastry, pizza, and other baked goods can register positive readings on breathalyzers if yeast-containing food particles are present in the mouth when the test is administered.
  • Fruit Drinks and Other Non-Alcoholic Beverages: Some fermented beverages, such as fruit drinks, kombucha, and energy drinks, can produce minimal amounts of alcohol that can register on breathalyzers.
  • Vinegar: Some types of vinegar, made from wine, contain trace amounts of alcohol that can lead to false positives on breathalyzer tests.
  • Vanilla Extract: According to FDA standards, pure vanilla extract must contain 35% alcohol, which may not cause impairment, but can lead to a positive reading on a breathalyzer test.
  • Low-Carbohydrate Diets: People on low-carb diets may enter a state of ketosis, a process in which the body burns fat for energy. This can create acetone, which can lead to false positives on breathalyzer tests.

It is important to note that these items do not contain enough alcohol to cause impairment, but they can lead to a false positive on a breathalyzer test. In addition to the above, certain types of cough syrups contain high levels of ethyl alcohol. This type of alcohol is not metabolized as quickly as other types of alcohol and can take longer to leave your system. Therefore, it can cause a false positive on a breathalyzer.

Contact Amanda Webb - DWI Lawyer,  if you were charged in Montgomery County, TX.

Driving while intoxicated (DWI) is a serious offense in Texas with potentially serious repercussions. A DWI conviction can lead to jail time, significant fines, probation, community service, the installation of an ignition interlock device on your vehicle (that you have to pay for), and other penalties. In addition, depending on the severity of the crime and any prior convictions, a judge may also order suspension or revocation of your driver's license.

The effects of a DWI conviction can also be long-lasting, making it difficult to find a job or housing. Insurance companies may also increase your rates or cancel your policy altogether due to a DWI conviction, and you could be ineligible for certain jobs or educational opportunities because of your conviction.

If you have been charged with a DWI in Montgomery County, Texas, it's important to seek experienced legal advice. To learn more about your legal rights and options, contact us for a free consultation.

What To Know About Prescription Medication DWI Arrests

impaired male driver sitting in a car alone at night, in the dark.

It’s common knowledge that drinking too much alcohol before getting behind the wheel can lead to a DWI arrest in Texas. The same can happen when using drugs before getting behind the wheel – even if you have a prescription.

Under Texas state law, DWI charges can be brought if a person is caught driving under the influence of ANY substance or dangerous drug that impairs the ability to safely operate a motor vehicle. This includes alcohol, illegal drugs – and prescription medication.

What prescription medications can impair the ability to safely operate a motor vehicle? They include Vicodin, Valium, Xanax, antidepressants, barbiturates, and products containing codeine.

A DWI conviction for prescription drugs has consequences

The penalties for a first-time prescription medication DWI offense are the same as driving under the influence of alcohol. These penalties include a maximum fine of $2,000, up to six months in jail, and a one-year suspension of your driver’s license.

A prior conviction or aggravating circumstances can mean additional penalties. These include community service, probation, installation of an ignition interlock device (IID), mandatory educational courses, and a mandatory treatment program.

Then there are the other consequences. A DWI conviction can affect your ability to get a job, get a loan, rent private housing, and get approved for public housing.

How do police prove a driver is impaired by prescription drugs?

Since breathalyzer tests don’t detect the presence of prescription medications, officers rely heavily on field sobriety tests. The problem is that these tests are very subjective, and poor performance can be explained by many other factors.

If a driver is arrested for DWI based on a field sobriety test, police can request the driver submit to a blood test. While a blood test may detect certain prescription drugs, it is not always effective.

In many cases, police look for evidence of prescription medication because the driver admitted to taking them. If you tell a police officer about taking any prescription medication, pain reliever, sedative, or antidepressant, that statement will be used against you. That’s why it’s important to remain silent until you speak to a DWI defense attorney.

Defending against DWI charges

The fact that you have a valid prescription for medication is not a valid defense. But depending on the circumstances of your case, there are a number of legal strategies that can be used to defend a DWI charge involving prescription medication. They include:

  • Police did not have reasonable suspicion to pull your vehicle over.
  • Police lacked probable cause to arrest you.
  • Test results were inaccurate, or proper procedure was not followed when administering them.
  • Police violated your constitutional rights.

But every case is different. That’s why you need an experienced and aggressive Texas DWI lawyer. Attorney Amanda Webb has been defending clients against criminal charges in Montgomery County since 2009. As a result, she is very familiar with Texas DWI laws and how they apply to the use of prescription medications.

There’s a lot at stake if you’ve been arrested for DWI. Learn more about how we can help. Contact us for a free consultation.

Five Surefire Tips For Avoiding A Holiday DWI

Abstract Background concept of alcoholic beverages and driving.

The holidays are a great time to celebrate! But they are also an especially bad time to drive after you’ve been drinking. The police are very aware that people will be drinking. An experienced DWI lawyer can help you fight charges, but the best thing to do is make sure you don’t get arrested for DWI at all. Here are five tips that are guaranteed to prevent a DWI over the holidays.

1. Don’t drink.

We’ll start with the most obvious. Sure, it’s the holidays, and you want to celebrate with friends and family. What’s the harm of a few drinks? If you’re driving later, you could get pulled over by police, who are looking for drunk drivers this time of year. The harm could be a license suspension, criminal charges, heavy fines, higher insurance rates, and even jail time. Stick to non-alcoholic options until you get home.

2. Ask for a ride.

You went to a party or dinner at someone’s house, and you had too much to drink. Ask someone there who has not been drinking if you could catch a ride home. Or ask a friend or family member ahead of time if they could pick you up if you need a ride home. Just make sure it’s someone you know who will not be drinking that day.

3. Agree on a designated driver.

If you are planning to attend a celebration with other people, choose a designated driver before you go. Maybe you can agree to play that role next time. Be sure it’s someone you know will not give in to pressure to accept a drink if offered. If you’re going somewhere with a cash bar, offer to pay for that person’s non-alcohol drinks.

4. Use Uber or Lyft.

Using a ridesharing service is a great way to ensure the police don’t pull you over on the way home. Make sure you have the app on your phone. Maybe you don’t like the idea of leaving your car at someone’s house or in the parking lot of a bar. But you will enjoy being arrested for DWI even less. It’s not worth the risk.

5. Considering hosting.

When you have people over, you won’t have to drive home. Another option is to book a room with some friends and celebrate at the hotel’s bar or restaurant. If you have a few drinks, you don’t have to worry about a DWI because you won’t be getting behind the wheel that night.

Contact a DWI lawyer for help

A DWI can have consequences beyond a license suspension, fines, and insurance rate hikes. If your job involves driving, it could be at risk. You may not be able to rent a car. Your reputation can be damaged.

If you are arrested for DWI in Texas, you need experienced legal representation. Attorney Amanda Webb has been practicing criminal defense in Montgomery County since 2009. She knows the Texas DWI laws and how the court system works. Her track record of success speaks for itself.

Attorney Webb is ready to fight for your rights. Learn more about how she can help. Contact us for a free consultation.

Will All New Cars Have Anti-Drunk Driving Systems?

Woman being stopped by police for driving while intoxicated.

People throughout the Houston area face DWI charges every year, and the stakes are high. Texas takes a very tough stance on people who have been arrested for driving while intoxicated. That's why it's important to have an experienced DWI lawyer who knows the laws and can build a strong defense.

The federal government also considers driving while intoxicated a serious issue in the United States. Now the National Transportation Safety Board (NTSB), a federal advisory agency, is recommending the use of technology that they hope will reduce the number of impaired drivers on the road.

The board has called for all new vehicles to be equipped with "passive vehicle-integrated alcohol impairment detection systems, advanced driver monitoring systems, or a combination of the two that would be capable of preventing or limiting vehicle operation if it detects driver impairment by alcohol."

A horrific accident prompts calls for changes

These recommendations come after an analysis of a crash on January 1, 2021, near Avenal, California. The driver of an SUV collided with a pickup truck on State Route 33. The driver and all eight occupants of the pickup truck were killed. Investigators found that the driver of the SUV had a high level of alcohol intoxication and was also driving at an excessive speed.

​"Technology could've prevented this heartbreaking crash – just as it can prevent the tens of thousands of fatalities from impaired-driving and speeding-related crashes we see in the U.S. annually," said NTSB Chair Jennifer Homendy.

What does this recommendation mean for new cars, exactly?

One thing it doesn't mean is that all cars will be equipped with breathalyzers. For example, some drivers convicted of DWI are ordered by the court to have alcohol ignition interlocks installed in their vehicles for a certain amount of time. These devices prevent a car from starting if alcohol is detected on the driver's breath.

The NTSB recommendation instead calls for the use of "passive" systems. There is some technology currently in use that could meet this definition. For example, some systems use a camera to monitor the eyes of the driver. If the driver's eyes drift from the road, the driver may be alerted, or driver assists may be deactivated.

An attorney can help if you've been charged

Tesla uses technology that detects muscular inputs in the human hand to ensure the driver's hand is always on the steering wheel.

Under the federal infrastructure bill passed in August, the National Highway Traffic Safety Administration (NHTSA) has three years to write rules governing the use of alcohol monitoring systems in cars. These rules will likely provide more information about the types of systems being discussed.

A conviction for DWI in Texas can result in thousands of dollars in fines, suspension of your driver's license, and potential jail time. You could lose your job if it involves driving, as well as damage to your reputation. Other consequences include higher insurance rates and the inability to rent a car.

If you were arrested for DWI, attorney Amanda Webb can help you aggressively fight your charges. Contact us for a free consultation.

Are Field Sobriety Tests Mandatory in Texas?

Texas police officer makes a DWI stop

The short answer: no. These tests are optional in Texas.

It's an iconic part of a DWI traffic stop: the officer instructs the driver to stand on one leg, walk a line, or follow an object with their eyes. Despite their unreliability, these roadside exams are administered every day in Texas.

Field sobriety tests are not a trustworthy way to estimate a driver's level of intoxication. The "results" rely on a police officer's gut instincts to help support drunk driving charges. That means there is a lot of room for even sober people to be arrested for driving while intoxicated (DWI).

Amanda Webb - DWI Lawyer, knows how to demonstrate that field sobriety tests are flimsy excuses for arrests. If you are facing DWI charges in Harris County, Montgomery County, Waller County, The Woodlands, or the greater Houston area, contact our Conroe-based criminal defense law firm. Whether you took a field sobriety test or not, our Texas DWI attorneys can help.

What you need to know about the field sobriety tests

Since field sobriety tests remain a tactic for Texas police departments, it's important to understand them. Here's what you need to know.

  • In Texas, taking a field sobriety test is voluntary. No matter what an officer tells you, in Texas, participating in a field sobriety test is optional. If you are pulled over by an officer for DWI or any other reason, you do not have to take the field sobriety test. Unlike chemical tests, there is no license suspension or other consequence for refusing a field sobriety test.
  • There are several types of tests. The standardized field sobriety tests (SFST) have specific challenges and guidelines for administration, while the non-standardized ones do not. The SFST tests include the horizontal gaze nystagmus, the one-leg stand, and the walk-and-turn.
  • Other factors can affect these tests. People who are tired, have physical disabilities or mental health disorders, have height and weight differences, or are in a heightened emotional state may "fail" the field sobriety tests even though they are not intoxicated. The anxiety of the traffic stop itself is also a factor in the field sobriety tests.
  • It's just an opinion. Field sobriety test results come down to the opinion of a single officer. Their interpretation of your reactions and behavior is not a fact.
  • A "failed" field sobriety test does not mean you will be found guilty.

Can I be arrested for not taking a Texas field sobriety test?

Again, field sobriety tests are optional in Texas. You can politely decline to participate. Refusing the test also doesn't give the officer probable cause to arrest you. That said, you can still be arrested if the officer has some other evidence that establishes probable cause to suspect DWI, such as smelling alcohol on your breath — but that would be the case regardless of the field sobriety test.

There are only a few things you have to do at a traffic stop: show the officer your license and registration, give your name and address, and exit the vehicle if you are instructed to do so. That's it.

Relentless DWI criminal defense in Texas

Again, just because you "failed" a field sobriety test doesn't mean you will be convicted of DWI. The Texas DWI attorneys at our law firm know how to attack field sobriety test results through in-depth investigations, aggressive negotiation, and sharp litigation.

If you have been charged with a DWI in Conroe or the surrounding area, you need to protect your freedom. Our law firm focuses on DWI cases. We offer free case consultations to people facing intoxicated driving charges.

A member of our team is available to hear from you anytime, day or night. Contact Amanda Webb - DWI Attorney, to schedule your free case consultation today.