DWI & Criminal Defense Attorney,
Available 24/7

Can a breathalyzer tell the difference between mouthwash and vodka?

Close-up Of A Man Rinsing His Mouth With Mouthwash

It recently took a reporter a little over 20 minutes to prove just how unreliable breathalyzer BAC results really are.

From the KPRC 2's studio, a reporter in a suit and glasses tests whether a widely available handheld breathalyzer can distinguish between mouthwash and booze. The news team decides to review the Smartgear Digital Pocket-Sized Breathalyzer, which sells for about $25 to $30.

First, the reporter swallows a jigger of Tito's vodka then waits 20 minutes before blowing into the breathalyzer. The device measures a 0.01 BAC (blood alcohol content).

The reporter then swishes with blue Listerine, a powerful mint mouthwash, and, again, waits 2o minutes. This is the standard amount of time an officer waits before administering a breath test. Police protocol says they should keep suspects under observation for 20 minutes before using a breathalyzer. The point is to make sure that the suspect does not eat or drink something that may impact results.

This time, after using the mouthwash, the breathalyzer reports a 0.06 BAC.

The legal limit to drive is 0.08 BAC — at this point, you are considered legally drunk regardless of how the alcohol affects you.

The reporter concludes that the breathalyzer can be "tripped up" by mouthwash.

Breathalyzer shortfalls are nothing new

Breathalyzers are an inaccurate piece of equipment that, for decades, have been relied on by law enforcement and the legal system to determine DWI convictions. Breathalyzer results used to be "bullet-proof" evidence of someone's drunk driving. Now, the equipment is being discredited more and more.

In some states, for example, they won't even use breathalyzer results in drunk driving trials. In Texas, however, the breathalyzer is still of value — even though we now see that it might not be able to tell the difference between using mouthwash and doing shots at a bar.

For the most part, Texas does not allow handheld breathalyzer results at trial. Still, the data makes its way into court cases. Police officers still use handheld tests in the field. The results, they say, can show a cause for arrest. This means if a prosecutor asks an officer in front of a jury what factored into their decision to arrest and they say the breathalyzer results, the jury can read the results between the lines.

Breathalyzer test results can be submitted in Texas court if they were produced by a stationary breathalyzer such as the Intoxilyzer 9000. When calibrated correctly, which isn't always the case, breath tests done by a police officer on this machine can be convincing for a jury.

Even though breath tests are being discredited more and more, Texans facing DWI charges still need sharp defense attorneys to fight against allegations and unreliable evidence.

What causes false breathalyzer results?

Oral hygiene isn't the only thing that can throw off breathalyzer results. The following are some other common substances and situations that can skew results:

  • Asthma and over-the-counter medications — Some medications contain alcohol and could trigger a false positive.
  • Bread and pastries — Baked goods made with yeast cause fermentation in the dough. It's not enough to get you drunk, but if you have dough stuck in your teeth from a bready snack, the food could impact breathalyzer results.
  • Acid reflux — When you have this problem or another gastrointestinal issue, there is a good chance that foods your body should be further digesting are rising up in you as gasses and vapors. They could include the concentrated odor of alcohol, which could raise your BAC read-out.
  • Diabetics and people on low-carb diets — Some diets raise the level of ketones in your body, which are typically a byproduct of alcohol metabolism.
  • Emotional state — Stress can divert blood to your muscles and away from your stomach, thus slowing down the rate of alcohol absorption.
  • Human error — Mistakes happen. Even the most dedicated officer can mess up on a breathalyzer test. That doesn't mean you should suffer for someone else's mistakes. Far more troubling, there is evidence that undertrained officers have been administering breathalyzer tests in some states, putting even more DWI convictions under the microscope.

Texas DWI penalties can be severe

The penalties for DWI convictions in Texas are harsh.

For a first offense, (if your BAC is under .15) your sentence could include a:

  • fine of up to $2,000
  • up to 180 days in jail
  • up to one-year loss of driver's license
  • "state fine" of $3,000
  • If your BAC is over .15 you are facing a fine up to $4,000, and a “state fine” of $6,000.
  • If there is a child in the vehicle at the time of the offense, the fine could be up to $10,000 and you could get up to two years in jail.

The experience you want. The aggressive defense you need.

When your freedom and financial stability are on the line, you need an experienced DWI lawyer who can expose the weakness of a prosecutor's alleged evidence against you. Attorney Amanda Webb is a highly skilled DWI defense lawyer who fights for the rights of Texans facing drunk driving and other charges. A former assistant district attorney, attorney Webb gives her clients an insider's perspective on their cases and knows what it takes to get charges reduced or dropped.

If you are facing DWI charges in Conroe or the greater Houston region, contact DWI defense lawyer Amanda Webb for a free case evaluation. A member of our legal team will listen to you and let you know how our law firm can help you. We are ready to hear from you today—call or email us right now.

Trend: Massachusetts prosecutors stop using breathalyzer results in court

A police officer holds a breath test machine in his hand ready at a traffic stop with his patrol car in the background.*the officer was blurred on purpose to place focus on the mouth piece.

Massachusetts district attorneys just joined a growing movement to stop using breathalyzer results in driving while intoxicated (DWI) cases.

DWI defense attorneys have known for a long time about the many ways breathalyzers can produce inaccurate results. Now, prosecutors are finding it harder to defend the use of the faulty equipment.

Nearly all of Massachusetts' district attorneys now say that they no longer use breathalyzer results when building a DWI case or only use the data in rare instances.

Michigan's prosecutors have also declined to use the equipment at trial. The police there stopped using them, too. Now Michigan officers take suspected drunk drivers to local hospitals for drawn-blood alcohol analysis.

New Jersey is in a similar situation to Massachusetts. The state discovered poorly maintained breathalyzers led to thousands of possibly inaccurate results.

Florida and Pennsylvania have also put the roadside breath tests under more scrutiny.

Breathalyzer failures

In Massachusetts, the decision to ditch the breath tests may have been influenced by the recent discovery that, from June 2011 to about April 2019, many breathalyzer machines were not properly calibrated.

It has now also come to light that some of the people administering the breathalyzer tests were not properly certified to do so.

In late spring, Massachusetts' local prosecutors notified their communities of about 27,000 DWI convictions involving breathalyzer results that may be overturned. People interested in getting a second shot at justice must file for an appeal.

While district attorneys are declining to use the equipment, Massachusetts Gov. Charlie Baker's administration and state police are standing by them. State officials say very few uncertified officers administered the tests during the time in question. A trusted calibration schedule would put the alcohol-detection tool back in proper use, they say.

For those who know better, these are hardly reassurances of the test's accuracy. Even before their glaring failures were revealed, savvy defense lawyers were aware of the many ways breath tests can be wrong.

Texas' take on the breathalyzer

In Texas, portable breathalyzers are still used by police. The results of these roadside tests are not admissible in court for criminal prosecutions or in administrative license revocations, according to the Texas Department of Public Safety.

Some prosecutors try to get around the ban by asking the administering officer to testify in court that they gave the suspect a breathalyzer test and that, soon after, the person was arrested.

While roadside breath tests are not allowed at trial, breath tests and blood-drawn BAC results conducted at a police station can be presented to a jury.

Texas police use the roadside breath tests, instead, to determine probable cause, which can justify further investigation of a suspect. Before administering the tests, Texas police are required to be in the suspect's presence for at least 15 minutes. This way an officer can be sure that nothing has come up from or gone into the suspect that would influence results.

Breathalyzers are often unreliable

Breathalyzer results have never been a foolproof way to determine whether someone is driving drunk.  Outside factors easily impact results, like:

  • Residual mouth alcohol
  • User error
  • Stomach problems
  • Burping
  • Some medical conditions
  • Chemical exposure
  • Poor equipment maintenance and cleanliness

Under perfect conditions, breathalyzers may deliver trustworthy results. However, outside of a university lab, these conditions rarely exist.

Beating the breath test

For decades, prosecutors and police convinced juries that you "can't beat a breathalyzer," but more and more evidence is exposing this lie.

Many cops and DAs still want you to believe that breathalyzer results are bulletproof when, in fact, they're far from it.

Were you arrested or charged with DWI in Conroe or the greater Houston area? Call DWI defense lawyer Amanda Webb for a free case evaluation.

We can help you weigh your options and come up with a strategy to secure justice for you.

Not all breathalyzer tests are created equal

driver blowing into breath test

Drivers over 21 know that they are not allowed to drive with a blood alcohol concentration (BAC) over 0.08, and most are aware that they cannot accurately estimate their own intoxication. It's no wonder, then, that personal alcohol breath testing devices (or breathalyzers) are growing in popularity among motorists to test their own intoxication and see if they're legally okay to drive. Bars and restaurants may also offer personal breathalyzer tests to their patrons.

The problem with breathalyzers is that they vary quite widely in accuracy. You don't want to make a decision that could affect your legal rights based on unreliable information.

New study shows that smartphone breathalyzers consistently underestimate BAC

In a recent study published in Alcoholism: Clinical & Experimental Research, six personal breath alcohol testing devices paired with smartphones were tested against police-grade breathalyzers and blood tests. Some of the six devices were more accurate than others, but all were found to underestimate BAC by at least 0.01% — a difference that could be critical if someone is close to the legal limit.

In other words, personal breathalyzers often offer a false sense of security. They can be inaccurate for several reasons, including:

  • Inferior materials or engineering
  • Poor calibration, which most users are unable to do
  • False positives and false negatives

The key takeaway for drivers is to err on the side of caution. A personal breathalyzer test may tell you that you're below the legal limit, but that doesn't make it so; if the tests the police use show a BAC of 0.08 or higher, you can still be arrested and charged with DUI. The results of your personal breath test, even if they were below the legal limit, generally aren't admissible evidence in court, so that won't help you fight a DUI charge if you get one.

Police breathalyzers are hardly infallible

Of course, it's worth remembering that the tests the police use also vary widely in accuracy. There are two types of tests police use: a portable breath test (PBT) device that police carry with them, and the much larger full breathalyzer test, which is usually administered back at the police station. While the full breathalyzer is more accurate than the portable screening device, either system can register false positives if they are incorrectly calibrated or defective, or under certain other circumstances.

If a breath test result is the primary evidence against you, an experienced DWI lawyer can challenge that evidence. That's why it's so important to get experienced legal counsel as soon as possible when you're arrested or charged with DWI. An attorney with a deep knowledge of Texas DWI laws and police procedures can investigate your legal situation and develop a winning legal strategy.

DWI Attorney Amanda Webb has the experience and legal knowledge to fight for the rights of Texans charged with DWI, along with the case results to prove it. If you've been charged with DWI in Texas, contact us immediately to learn your legal rights and options in a free consultation.

How do you win a Texas DWI case?

A driver considers taking a breathalyzer test.

After a DWI arrest in Texas, you might feel hopeless about beating the charges.

The evidence probably looks strong: police witness testimony, breathalyzer results, body cam footage, medical records. You might have even said something during the arrest that you're sure the prosecution is going to use against you.

But looks can be deceiving.

Police and district attorneys want you to think there’s no way to get out of a DWI charge. In fact, you can beat a DWI. People do it all the time. Almost 1 out of 5 Texas DWI cases end in dismissal, a not-guilty verdict, or have their cases deferred or amended, according to MADD.

Attorney Amanda Webb has successfully represented hundreds of Texans who have been charged with driving while intoxicated, and what helps her better serve her clients is her comprehensive understanding of how the system works, your rights, and the limitations of the prosecution’s evidence and arguments.

Pulled over for DWI? Do this to protect your rights.

Here are some tips put together by our legal team on how to improve your chances of beating a DWI charge:

  • Keep your answers short and few. An officer that has pulled you over for suspicion of DWI is going to have a lot of questions for you. Your name and address are the only pieces of information you need to reveal. “I don’t know” is a fine response to many questions you may be asked after a traffic stop.
  • Be polite. While declining to provide details, be polite and cooperate with orders. Give him the documents he asks for like your driver’s license and car registration.
  • Say no. The answer to the question, “Do you know why I pulled you over?” is always “No.” You don’t know what an officer is thinking. This question is designed to get an early confession out of you.
  • If asked to get out of the car, ask the officer if you are free to leave.
    • If yes, leave.
    • If no, ask to speak to an attorney before saying anything else.
  • Do not agree to sobriety tests, to having your eyes tested, or another type of roadside test.
  • Do not agree to blow into a handheld breath tester or another type of breathalyzer. Under Texas law, declining to take a breath test means that your driver’s license will likely be suspended for up to 180 days. This is preferable to a guilty conviction where the penalties include suspension of driving rights for up to 2 years. You can, and should, file an appeal of the suspension within 15 days of the incident.
  • Do not lean against your car. The officer is watching your every move for signs of impairment that he or she can use to justify charges against you.
  • Hire a DWI defense attorney. The penalties for DWI increase for each new offense. If you’ve been charged with driving while intoxicated, a guilty conviction could result in up to 1 year in jail or up to 10 years in prison, thousands of dollars in penalties, hours of community service, and the loss of your driver’s license for up to 2 years. A lawyer’s fee doesn’t compare to the cost of these penalties on the life you’ve built for yourself and your family.
  • Do not discuss your case with other people. Only talk about the details of the incident and charges with a lawyer. Almost anyone else you speak with could be made to testify against you.

Experience counts when your freedom is at stake

Eastern Texas highway patrol and police — especially those in the Houston area, The Woodlands, Montgomery and Waller counties — spend a lot of time and energy patrolling streets and highways trying to catch drunk drivers. But they don’t always get it right.

If you're facing DWI charges, it's important that you consult with an attorney as soon as possible to protect your rights. You need a lawyer with a deep knowledge of Texas driving under the influence laws as well as the time and resources to fully investigate your case.

DWI Attorney Amanda Webb knows how to fight for the rights of Texans facing DWI charges because she has the knowledge and trial experience you need to get the best possible outcome in your case. If you or a loved one has been charged with DWI in Texas, contact us today for a free consultation to learn your legal rights and options.

This prom season remember: Texas has a zero-tolerance policy for minor DWI

Young woman in prom dress being arrested

After the pandemic shut down last year’s fun, the excitement around prom 2021 is palpable. Older teens are thinking about dresses, limos, dates, and dancing.

Amanda Webb - DWI Lawyer would like to add safety to that list of considerations.

Prom is a notoriously dangerous time for underage drunk driving. In one year, more than one-third of youth under the age of 21 killed in alcohol-related fatalities died during prom season, the months of April, May, and June, according to AAA.

Texas has a zero-tolerance policy when it comes to people under age 21 drinking or possessing alcohol. The punishments for breaking these rules can be severe. Texas has no problem trying minors as adults in drunk driving situations.

Penalties for driving impaired, drinking, or possession of alcohol as a minor can include fines, jail time, loss of driving privileges, community service, and mandatory education.

A driving while intoxicated (DWI) or driving under the influence of alcohol (DUIA) conviction can ruin a person’s life before they even reach adulthood.

If you are a minor who was arrested or otherwise has been charged with drunk driving or related charges, you have rights. One of the best ways to protect your rights when you're facing DWI charges is to contact an experienced attorney who can help you understand your case and weigh your legal options.

Texas underage DWI, alcohol laws

Texas has separate alcohol statutes for people under age 17, people ages 17-21, and those 21 and older.

If you are under age 21 and are stopped by a police officer on prom night, or any other time, for suspicion of driving with alcohol in your system, here is what you should know:

  • A police officer must first have a reasonable suspicion that a suspect is driving under the influence of drugs or alcohol before initiating a traffic stop.
  • The officer will stop the vehicle and ask the driver to perform a sobriety test.
  • If an officer suspects any detectable alcohol is in a minor driver’s system - even at levels below the 0.08% BAC standard - the officer can choose to handcuff and arrest the youth, have the car towed, and then bring the minor to a jail or police station for a breathalyzer test or a hospital/clinic for a blood alcohol test.

Implied consent of minors

Texas has implied consent laws for minors. That means that if a person under 21 is reasonably suspected of having any detectable alcohol in their system, they have automatically consented to a breathalyzer or blood test to determine the level of alcohol and/or drugs in their system.

If a minor refuses to take a breathalyzer, blood, or another similar test, the minor can be placed in jail until they are bonded out or make an appearance before a magistrate or juvenile court judge. The minor's driver's license will be suspended for 180 days the first time and 2 years for second or subsequent refusals.

Minors and alcohol penalties

Texas has alcohol-related penalties regarding minors providing, buying, drinking, and driving with booze in their systems. In serious cases, a minor can be charged as an adult for alcohol-related offenses.

The following are some of the charges and penalties a person may face:

Driving under the influence of alcohol (DUIA) by a minor (people under 17 years of age)

A fine of no more than $500 can be assessed for each offense:

  • First offense: 20-40 hours of community service, suspension of driver’s license for 60-180 days, mandatory attendance in an alcohol awareness course.
  • Second offense: 40-60 hours of community service, suspension of driver’s license for 120 days to 2 years, attendance in an alcohol awareness course.
  • Third offense: 40-60 hours of community service, suspension of driver’s license for 180 days to 2 years.

Non-driving alcohol-related offenses by a minor

Trying to buy alcohol if you’re underage, falsely identifying as 21 years old to fool someone into selling you alcohol, and consuming or possessing an alcoholic beverage are all considered non-driving alcohol-related offenses. The penalties for such offenses, as well as public intoxication, are:

  • First offense: A fine of no more than $500, 8-12 hours of community service, suspension of driver’s license for 30 days, attendance in an alcohol awareness course.
  • Second offense: A fine of no more than $500, 20-40 hours of community service, suspension of driver’s license for 60 days, attendance in an alcohol awareness course.
  • Third offense (for people 17 years of age or older, but under 21): A fine of $250-$2,000, 40-60 hours of community service, up to 180 days in jail, suspension of driver’s license for 180 days.

Driving while intoxicated by a minor (17-21 years of age)

  • First offense: A fine of no more than $2,000, 72 hours to 180 days in jail, suspension of driver’s license for 1 year. The length of suspension can be reduced to 90 days if the court orders community supervision and requires the use of an ignition interlock device.
  • Second offense: A fine of no more than $4,000, 30 days to 1 year in jail, suspension of driver’s license for 180 days to 18 months.
  • Third and subsequent offenses: A fine of no more than $10,000, 2-10 years in prison, suspension of driver’s license for 180 days to 2 years.

Minors charged as adults

In extreme cases, Texas courts will try minors as adults in drug and alcohol-related offenses. If convicted, the minor would receive the same penalties as an adult, which are:

  • First offense: A fine of no more than $2,000, 72 hours to 180 days in jail, suspension of driver’s license for 90-365 days. If there was an open container of alcohol in the vehicle at the time, the minimum stay in jail is increased to 6 days. A judge can show leniency and waive the jail time and license suspension, but only for a first offense.
  • Second offense: A fine of no more than $4,000, 30-365 days in jail, suspension of driver’s license for 180 days to 2 years.
  • Third and subsequent offenses: A fine of no more than $10,000, 2-10 years in a penitentiary, suspension of driver’s license for 180 days to 2 years.

Other felony adult DWI charges could be tacked on:

  • Intoxication assault: A fine of no more than $10,000, 2-10 years in prison, suspension of driver’s license for 180 days to 2 years.
  • Intoxication manslaughter: A fine of no more than $10,000, 2-20 years in prison, suspension of driver’s license for 180 days to 2 years.

What adults need to know

Purchasing or otherwise providing a minor with an alcoholic beverage in Texas is punishable by a fine of up to $2,000 and/or 80 days in jail. Selling an alcoholic beverage to a minor can result in a fine of up to $4,000 and/or up to 1 year in jail.

Protect your rights and learn your options

The state of Texas likes to make it seem like DWI and DUIA charges can't be disputed, but an experienced DWI lawyer knows what to look for to poke holes in a case. For instance, a failed breathalyzer test does not mean you are automatically guilty. In fact, many courts are starting to reject preliminary or portable breath test evidence because the results are unreliable.

A good opportunity to push back against a drunk driving charge is to request a hearing before an Administrative Law Judge to argue that the officer did not have probable cause to stop and arrest you for the presence of detectable drugs or alcohol.

Amanda Webb is a former assistant district attorney who has been defending clients in Sugar Land, the Woodlands, Houston, Conroe, Montgomery and Waller counties for more than a decade. Attorney Webb is well-versed in prosecution strategy and knows what it takes to get charges reduced or dropped.

If you or a loved one has been arrested for a Texas alcohol offense, contact us today for a free case consultation.