Issues with DWI Breath Testing:
Gastroesophageal Reflux Disease
DWI Breath Testing Limitation and Effective Criminal Defense
It is possible for a person arrested for drunk driving who is suffering from GERD to have a DWI breath test result that is way too high. So what does ”way too high” really mean? It’s impossible to say, but with GERD the breath test result could be as much as 100% too high. It is more likely however that the breath test result is closer to between 20% and 80% too high. As with any breath test issue it can be extremely complicated and technical. You need a DWI defense attorney that understands the technical aspects of a DWI breath test AND a skilled DWI trial lawyer that can effectively communicate those issues to a jury.
GERD is an acronym meaning “Gastroesophageal Reflux Disease.” GERD is usually caused by changes in the barrier between the stomach and the esophagus, including abnormal relaxation of the lower esophageal sphincter, which normally holds the top of the stomach closed; impaired expulsion of gastric reflux from the esophagus, or a hiatal hernia. These changes may be permanent or temporary (“transient”). Obviously, temporary conditions cause greater hurdles when presenting evidence from a DWI defense perspective. If you suffer from this condition you should inform you DWI Lawyer. It may be an important fact to educate the jury about.
The common name for this is condition heart burn and can be known as gastro-oesophageal reflux disease (GORD), gastric reflux disease, or acid reflux disease. The reason the breath test result is falsely high is because with GERD the machine, called in Intoxilyzer 5000, is not measuring breath alcohol or deep lung air. Instead, the DWI breath test machine is measuring alcohol gases or vapors erupting from the stomach into the mouth which are then blown into the Intoxilyzer. In this case the Intoxilyzer is measuring stomach gas alcohol rather than breath alcohol collected from a sample of deep lung air. Most DWI arrests occur later in the evening when acid reflux can be at its worse. Further, the terrible stress of being accused of a DWI and being arrested can certainly aggravate these digestive system issues.
Another problem occurs when the machine measures mouth alcohol rather than deep lung air. In this case the raw alcohol erupts into the mouth, thereby causing a false Intoxilyzer result. This is why the observation period is so terribly important. Either way, GERD causes a breath test result that is falsely high.
You need a knowledgeable and skilled DWI Defense Lawyer
If you have been arrested for DWI, have been diagnosed with GERD and you think that your GERD may have impacted the Intoxilyzer result, then it is important to substantiate this diagnosis. In other words, you must undergo confirmatory testing.
The first confirmatory test is called an endoscopy. Endoscopy in this context means looking inside the body for medical reasons using an instrument called an endoscope. During this test, a small catheter is placed into the esophagus and photographs are taken of the esophagus and the Lower Esophageal Sphincter (LES). Patience are sedated during this procedure. After the test is complete, the gastroenterologist looks at these results (including photographs) to determine if there is evidence of damage caused by acid erupting into the esophagus from the stomach. The photographs will also be inspected for evidence of a possible hiatal hernia, which increases the likelihood of GERD due to mechanical and motility factors. In the absence of a medical diagnosis, it’s important for a DWI defense attorney to draw the jury’s attention to this limitation of the DWI breath testing machine.
Tests reveal that the LES is open, then the patient has a Gastroesophageal Reflux Disease (GERD) condition with a constant reflux/regurgitation. This is significant as it pertains to DWI breath testing because with an open LES there is essentially an uninterrupted or open chamber beginning in the stomach, continuing into and through the throat and finally into the mouth. This allows stomach gases (including alcohol) to escape (back flow/regurgitate) into the mouth from the stomach. During a DWI breath test these stomach alcohol gasses mix with the deep lung air (containing alcohol), and the accumulated gasses are “read” by the machine in a cumulative fashion thereby causing a false breath test result. This is undocumented at the time you submit to a DWI breath test and generally ignored by the State’s attorney.
GERD also creates the potential of raw alcohol erupting into the mouth from the stomach. Although mouth alcohol dissipates rapidly, the issue arises when an open LES the patient suffers from a condition that may produce constant reflux/regurgitation. Or the test is conducted immediately after one of these stomach alcohol eruptions. The “slope detector” is intended to guard against this mouth alcohol skewing the DWI breath test results, but this is yet another function of the machine that has limitations. If this condition exits, and if the conditions during the breath test are appropriate, then a 15 minute observation period will not stop a false high breath test result. You need a DWI Lawyer that is familiar with the breath testing program in Texas and with the issues that GERD can create. Cody Cofer is a Fort Worth DWI Defense Attorney that is a former prosecutor knows the limitations of the Intoxilyzer and can effectively communicate that to a Tarrant County jury.
Fort Worth DWI Defense Lawyer (817) 810-9395