Did not Drink but Failed a Test? What to do if a False Positive Breathalyzer showed a positive result when you did not have alcohol?
What You Need to Know about False Positive Breathalyzer Test Results?
Common household products and typical everyday food products can lead to false positive breathalyzer test results, which can have serious legal consequences. Understanding the causes and implications of these errors is essential for protecting your rights.
What Can Cause A False Positive Breathalyzer Test Result?
Modern breathalyzers are extremely sensitive to any traces of alcohol that may be contained in different products. Even portable devices today can determine extremely low traces of alcohol. Many everyday items contain trace amounts of alcohol or substances that can interfere with breathalyzer accuracy. Let’s explore some common culprits:
1. Sauces and Vinegars
Certain foods, like teriyaki sauce or other types of sauces (i.e. vanilla, soy sauce, etc.) and other products made with balsamic vinegar may trigger false positive readings. These sauces often contain fermented ingredients that can produce trace alcohol levels. Although harmless in a meal, they might skew breathalyzer results if consumed shortly before a test.
2. Mouthwash and Breath Sprays
Many oral care products contain alcohol, which can linger in your mouth even after spitting them out. Mouthwash brands like Listerine, for example, have alcohol concentrations as high as 26%. If you’ve recently used these products, it’s advisable to wait at least 15 minutes before undergoing a breathalyzer test.
3. Fermented Foods
Kombucha, kimchi, and other fermented drinks or foods can register a breathalyzer reading due to their natural alcohol content. Even though these products are health-focused, they can momentarily impact breathalyzer accuracy.
4. Medications
Over-the-counter cough syrups and prescription medications often contain alcohol. Products like NyQuil and other cold medications may leave residual alcohol in your system, leading to inaccurate breathalyzer readings.
5. Hand Sanitizers
Breathalyzer Brands and Measurement Errors
Excessive exposure to alcohol-based hand sanitizers can be inhaled, leading to false positives. This is especially concerning for individuals who frequently use sanitizers, such as healthcare professionals.
Breathalyzer models vary in price and accuracy. Understanding the differences between them can help you make an informed decision about their reliability:
- BACtrack S80 Professional Breathalyzer ($129): Known for its accuracy, this model is frequently used for personal and workplace testing. However, like all devices, it can occasionally produce errors.
- AlcoMate Premium AL7000 ($150): This model offers replaceable sensors for consistent readings, making it a popular choice for regular users.
- Dräger Alcotest 3820 ($850): A premium device with advanced sensor technology, this breathalyzer is commonly used by law enforcement and is considered one of the most accurate on the market.
Despite their differences, even high-end breathalyzers are not immune to measurement errors. According to manufacturer specifications, most models have an error margin of ±0.01% BAC (Blood Alcohol Content). While this may seem negligible, it can make a significant difference in borderline cases.
Documented Measurement Errors and Statistics
Research indicates that up to 10% of breathalyzer results may be false positive due to environmental factors, user error, or device malfunctions. Studies have found that variations in breath temperature, device calibration, and even the user’s breathing technique can impact the accuracy of readings.
In some cases, these inaccuracies have led to wrongful DUI charges. In the context of a divorce or family law case, a false positive breathalyzer test result may lead to losing a child or having a requirement to produce more breathalyzer test results every time you see a child.
How Breathalyzer Errors Impact Family Law Cases
Breathalyzer inaccuracies don’t just impact criminal cases; they can also play a significant role in family law and divorce matters. Imagine a contentious divorce or custody battle where one party is accused of alcohol misuse based on flawed breathalyzer results. Such accusations can affect parenting agreements, visitation rights, and the overall outcome of a case.
At Progressive Legal Solutions, we understand that family law cases are complex and often emotionally charged. A false positive breathalyzer result can be weaponized to paint an unfair picture of your character and judgment. Our legal team is experienced in challenging questionable evidence and ensuring that the truth prevails.
How to Protect Yourself
If you have received a questionable breathalyzer reading, there are steps you can take to protect your rights:
- Follow Steps as Outlined in the Manual of the Breathalyzer Manufacturer: Usually, manufacturers of breathalyzer devices have a manual which includes a section on proper steps to take in case of a positive reading. Usually, such steps would include waiting a certain period of time (i.e. 20-30 minutes) and re-taking the test.
- Take a Blood Test At an Emergency Department: Blood tests are generally more accurate than breath tests and can provide a clearer picture of your actual BAC. You can go to an ER and take a blood test within a few hours of the original false positive breathalyzer test. Since blood tests allow to determine BAC levels as far at least 12 hours, a negative blood test may confirm that the original breathalyzer positive test was false.
- Document Your Actions: If you recently used any products known to cause false positives, make a note of them. This information can be valuable in legal proceedings.
- Seek Legal Assistance: Navigating the legal system on your own can be daunting. An experienced attorney can help challenge inaccurate breathalyzer results and ensure your side of the story is heard.
Why Legal Representation Matters when false positive breathalyzer occurs?
At Progressive Legal Solutions, we know that breathalyzer errors can complicate an already difficult divorce or family law case. Our experienced divorce lawyers and family law lawyers are here to protect your rights, whether you are facing accusations of alcohol misuse or dealing with other complex divorce and custody issues.
Recent Example of Our Lawyer’s Actions at Trial Addressing False Positive Readings of the Client
Our principal lawyer represented a client at a difficult and complex family law trial. One of the main allegations against the client was alcohol abuse. The client has had been conducting daily breathalyzer tests (several times per day) for almost two years by the time of the trial for a total of close to a thousand tests. There was a number of positive tests followed by clean tests. Despite having been retaking the test as per the instructions, the opposing party still continued to accuse the client of drinking.
Our principal lawyer came up with an idea of showing to the judge that such a common product as soy sauce can trigger a positive breathalyzer reading. This was a risky move for several reasons: firstly, it is not an accepted practice in Ontario courts to conduct experiments at the witness stand; secondly, our principal divorce lawyer had no way to know if soy sauce would in fact cause the breathalyzer to show a false positive. Mr. Osipov just trusted his client on that because the client advised that they had been to a sushi place and after having dinner the breathalyzer showed a false positive, so they deduced that soy sauce could have triggered it.
Mr. Osipov and his client were lucky that the judge was eager to see some action during a family law trial and allowed such experiment. The client took the first breathalyzer test prior to having any soy sauce, which showed zero alcohol. Then the client had a small sip of soy sauce and re-took the test. The breathalyzer showed a positive for alcohol result, which greatly surprized the judge. It was clear that visualization of the client’s position was impactful. As the saying goes, “it’s better to see once than to hear twice.”
Final Thoughts
Breathalyzer tests are a common tool for law enforcement, but they are not infallible. Understanding the potential for false positive results and knowing your legal rights can make all the difference. If you find yourself facing legal challenges related to breathalyzer readings, do not hesitate to reach out for professional legal advice.
Contact us today at Progressive Legal Solutions for a consultation and ensure you have the representation in divorce and family law cases.