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Understanding Alcohol’s effect on the Breath Test for a DUI in San Diego
When you are being stopped for a DUI in San Diego, the San Diego law enforcement agent is most concerned with the alcohol content of the person they are stopping. In San Diego there are two charges that will be filed by the prosecuting authority. Under Vehicle Code section 23152(a) it is the actual driving under the influence charge, while Vehicle Code section 23152(b) it is a per se law of driving with a BAC of .08 or higher.
In order for San Diego law enforcement to check your blood alcohol level, they must first have probable cause that you are driving under the influence of alcohol. Pure ethanol or alcohol that is consumed has no flavor and only a faint smell. When an officer writes in the DS-367 report that they smelled alcohol on your breathe when you were driving, that is not enough for probable cause. It is a totality of circumstances standard. Furthermore, blood shot eyes with the smell of alcohol is not enough. That is why they want you to perform a field sobriety test which you are allowed to refuse without any penalties. Any expert will testify that alcohol has a faint smell because of substances known as congeners added to a beverage for flavor. This fact that the officer believes it is alcohol he is smelling is irrelevant and will be refuted by any reasonable expert in this field. Typical congeners include acids, ketones, aldehydes, esters, phenols, and tannins. These substances are additives used to control the fermentation process.
Furthermore, not all alcohol comes from alcoholic beverages. There are other products that contain alcohol that can contaminate the oral cavity when subjected to a breath test. This includes the following:
Brand Name (All items ™) | Manufacturer | Percent Alcohol (%) |
Listerine Mouthwash | Warner-Lambert | 26.9 |
Scope Mouthwash | Procter & Gamble | 16.6 |
Nyquil | Richardson-Vicks | 25.0 |
Benedryl Elixir antihistamine | Parke-Davis | 5.3 |
Cepacol | Marion Merrell Dow | 14.0 |
Triaminic Expectorant | Sandoz | 5.0 |
Sudafed Cough Syrup | Burroughs-Wellcome | 2.4 |
Geritol Liquid | Smith Kline Beecham | 12.0 |
Plax Mouthwash | Pfizer | 7.5 |
ACT Mouthwash | Johns & Johnson | 7.0 |
Viadent Mouthwash | Viadent, Inc. | 10.0 |
Hy-Top | Federated Foods, Inc. | 18.9 |
Many experts at a DUI trial in San Diego will testify that regarding the amount of drinks you would have to consume to be at a certain blood alcohol concentration. Basically, 180 pound man will consume 4 beers or 4 glasses of wine to reach a .08% blood alcohol concentration. However, measurements of drinks can vary. One shot of 80 proof ethanol can be the same as one ounce of 100 proof.
The most important is the alcohol concentration in the blood. The most common is weight per volume or grams/100 milliliters of blood. Blood alochol tests performed usually use mg/dL as the unit of measure. The amount ingested is converted to mililiters. The effect of being impaired at at a certain blood alcohol concentration is an arbitrary presumption because all people different weight and sizes have different tolerances for alcohol. If you hire an experienced DUI defense attorney in San Diego, make sure he or she knows how to discredit the prosecution’s expert witnesses. There is significant advantage in hiring an attorney that understands scientific principles and concepts where cross-examination can be effective. If you are looking for a free consultation with an experienced San Diego DUI Defense Attorney contact Attorney Vik Monder at the Monder Law Group at 619.405.0063.
