It is not uncommon in some DUI accident cases for the driver to sustain injury to their face from the deployment of the airbag. The force of the bag hitting the facial area can be quite substantial causing cuts to the cheeks and sometimes cuts to the inside of a person’s mouth, gums and lips.
Quite often these injuries are not severe enough to require medical attention. When the cut is serious enough to leak blood into the mouth these types of injuries can cause problems with the breath machine, here’s why.
First, you might ask yourself, what difference does it make if the person has blood in their mouth, as long as it is in their blood doesn’t that mean you’re still testing it for alcohol? Yes, but here is the problem in a nutshell: Blood testing is a direct analysis that measures the alcohol content based on percentage in your blood. However, DUI Attorney Matthew Ruff explains breath testing is not a direct analysis, the machine inflates the actual alcohol content 2100 times to arrive a a breath alcohol level and it is here where an otherwise innocent person can be falsely accused, explained more fully below.
Breath testing in drunk driving cases involves the collection of a sample of breath from the suspected impaired driver for the purpose of determining the ethanol content in their blood. In order to determine a person’s BAC level the machine is designed to capture a sample of deep lung air that originates from the subject’s alveolar region of the lungs. The theory behind this is that the alveolar air contains molecular levels of ethanol which can be extrapolated to determine their blood level by using a partition ratio of 2100 to 1. This extrapolation takes place inside the machine whereby the device literally multiplies the alcohol molecules 2100 times and reports it as a concentration of BAC. For example, .08% which is the legal limit in California. Alveolar refers to the smallest air sacs in the lungs and to that portion of the expired breath which is in equilibrium with respect to alcohol with the immediately adjacent pulmonary blood. In California a breath alcohol concentration shall be converted to an equivalent blood alcohol concentration by a calculation based on the relationship: the amount of alcohol in 2,100 milliliters of alveolar breath is equivalent to the amount of alcohol in 1 milliliter of blood.
With regard to the issue at hand, imagine a person who may have had a small amount to drink and subsequently that alcohol gets absorbed in the body and makes its way to the bloodstream. If the drinks were minimal, say a couple beers, the person’s BAC or blood alcohol level will be relatively low such as .03-.05 which is not above the legal limit. However, now assume that person gets in a collision and their lip is busted from the airbag explosion. Now lets further imagine they are arrested for driving under the influence because the officer smells the alcohol on their breath and they are off balance due to the impact of the accident. That person chooses a breath test and blows into the machine while small amounts of blood are leaking into the mouth.
The sample collected contains the alcohol in his blood which gets converted into a ”breath air” concentration by multiplying it 2100 times. This molecular level of alcohol in his blood now fools the breathalyzer into thinking it was alveolar air but it was not. As a result the reported concentration is now inflated artificially resulting in a false high level of BAC. Experts in the field have stated the problem this way: “the increase in alcohol molecules caused by blood leaking inside the mouth disrupts the equilibrium upon which the breath test is based and will thus lead to “overreported” results” (See People v. Ernsting, 2018 IL App (5th) 160330).
It must be remembered, alcohol is a volatile organic compound (VOC). A Volatile Organic Compound is a chemical that easily evaporates at room temperature and normal pressure. Therefore, once the blood that contains alcohol enters the mouth it will “off-gas” into the expired breath.
When a subject has fresh blood in his or her mouth and that blood contains even low levels of alcohol, the results of the breath test is not reliable within a reasonable degree of scientific certainty. The problem of mouth blood that contains molecular levels of ethanol is that it also arguably violates California Code of Regulations, Title 17 which governs breath testing in the state.
Most DUI Attorneys agree that if the sample collected is contaminated by sources that do not originate from the deep recesses of the lungs then the sample is not ”essentially alveolar air” which is what the Regulations require. Moreover, some states prohibit ”foreign substances” in the mouth during the testing process, in many of those states blood in the mouth qualifies as a foreign substance so as to invalidate the results.
There is no scientific study for active bleeding in the mouth during breath alcohol testing. The Wigmore study, “A SIMULATION OF THE EFFECT OF BLOOD IN THE MOUTH ON BREATH ALCOHOL CONCENTRATIONS OF DRINKING SUBJECTS”, is often cited by prosecution experts, but is very flawed. The study involved subjects who were asked to have a sample of their own blood squirted into their mouth and subsequently spit it out, they were then tested using a breath machine. The study failed to test subjects who were actively bleeding, such as if they had a cut or laceration in their mouth, gums or inner lip. Wigmore concluded that blood in the mouth actually lowered the BrAC, thus a benefit to the accused. The problem is he squirted room temperature blood in to the mouth (less than 34 degrees C). It is known that cooling the breath sample will lower the result. Moreover, the study allowed the subjects to spit out the blood before testing. There was no active bleeding into their mouth as may be the case with a recent injury which could be leaking fresh blood into the oral cavity during breath testing.
In a recent criminal case involving charges of DUI and driving above .08 in Torrance California, Matthew admitted evidence of a cut on the inner lip from his client from an airbag injury and followed up with expert testimony from a toxicologist. The jury was unable to reach a unanimous verdict on the blood alcohol count notwithstanding the breath results of .19%/.19%. Those charges (VC23152b) were dismissed by the Court. Interestingly, the biggest contention raised by the prosecution in that case was not a wholesale attack on the scientific basis, but whether there was blood in the mouth at all. The officer testified there was not any blood observed at any time, vs. the defendant’s testimony she had a cut on the inside of her lip from the airbag.
Bottom line- Can a cut on the inside of the lip or laceration of the gums cause a false breath test reading? Yes, according to most toxicology experts. Blood in your mouth from a busted lip or cut gum can falsely inflate the breath test number causing an inaccurate result if active bleeding is occurring concurrently while the test is being administered.
If you are an attorney with a case involving blood in the mouth and a high breathalyzer result, contact Matthew for a copy of the studies mentioned in this article.
If you or someone you know has been in an accident, sustained a mouth area injury and was charged with DUI and believe the breath test was wrong, call Torrance Criminal Defense Lawyer Matthew Ruff for a consultation and discussion about your case.
Call Matt for a consultation at 310-686-1533.
