Breath testing has been touted as an accurate and reliable method of determining a person’s blood alcohol in driving under the influence cases. However, for millions of Americans, their own physiology may make breath testing inappropriate in practically all situations. A person suffering from gastroesophageal reflux disease (GERD) may be unable to prevent undigested alcohol in his stomach from constantly contaminating the saliva in his mouth. This would inevitably invalidate any breath test results from that person.
GERD is a chronic medical condition where stomach acid leaks into the esophagus. It is caused by the sphincter between the stomach and esophagus, called the cardia, failing to completely seal. This allows stomach contents to pass the cardia into the esophagus, often regurgitating into the mouth. The most common symptom of GERD is heartburn. It is estimated that the prevalence of GERD in western populations is from 20-30%. That means that 30-60 million Americans probably suffer from GERD.
If alcohol in the stomach is allowed to pass through the esophagus and into the mouth, the alcohol reading of a breath test will be higher than that person’s true blood alcohol. Prosecutors may counter that the pre field sobriety test questions and 15 minute observation period eliminate the possibility of mouth alcohol from regurgitation. However, any sufferer of GERD will tell you that they long ago learned to deal with constant regurgitation. They can do it without any outward indication, and often without even realizing themselves that they just burped. Making matters worse, even small amounts of alcohol can cause GERD flares to occur. Add spicy food to the mix, and there is no way that someone with GERD can prevent regurgitating for 15 minutes prior to a breath test.
Unfortunately, officers do not ask the correct questions in their pre FST list. They ask if you are under a doctor’s care, but they do not ask specifically if you have GERD, or take GERD medications, such as Prilosec (omeprazole), Nexium (esomeprazole), and antacids. They also do no inform suspects that GERD may affect the accuracy of the breath device when offering the choice between breath and blood testing. Many GERD sufferers would probably choose blood testing if they knew that their condition may cause their breath alcohol readings to be higher.
If you have been charged with a DUI, submitted to a breath test, and suffer from GERD, it is important that you inform your attorney of your condition. Obviously, it is also important to choose an experienced DUI attorney in the first place who is aware of the GERD defense.
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