Meet with an attorney

  • This field is for validation purposes and should be left unchanged.

The Mouth Alcohol Defense In An Ohio DUI Case

Facing An OVI in Ohio

If you or someone you know has been charged with drunk driving in Ohio, you need an attorney that will fight for your rights.  In Ohio, drunk driving is a crime punishable by fine or even imprisonment.  Ohio law enforcement officers primarily use the term “OVI” (operating a vehicle under the influence) when describing what most states call “DUI.”

Ohio DUI attorneys realize what it takes to fight your case.  You need an experienced Cincinnati DUI lawyer that will be by your side through every stage of your case.  Having a zealous attorney on your side may help to reduce your penalties and costs.

Drunk driving charges can shatter your life’s trajectory.  If convicted, you can lose your license, be forced to pay significant fines and higher insurance premiums, or even face jail time.  Choosing the right Ohio DUI lawyer is one of the important decisions to make.

What Is The Mouth Alcohol Defense?

Cincinnati DUI lawyers know that one of the well-recognized defenses to OVI/DUI charges in Ohio is the so-called “mouth alcohol defense.”  BAC tests are reputedly designed to test deep lung air, not mouth alcohol.

This defense strategy basically points out that many of Ohio’s breath testing devices can sometimes be fooled by negligible amounts of alcohol that might remain in one’s mouth from legal sources such as mouthwash or breath spray.  In addition, medical conditions such as acid reflux can sometimes cause a similar effect, leading to dramatically higher BAC readings.

Understanding Breath Tests And The Impact Of Mouth Alcohol

Breath tests are aimed not at measuring one’s mouth alcohol, but rather the air from deep within your lungs, known as “alveolar” air.  Because breath tests aim to analyze alveolar air, most will require that you blow a long, continuous breath into the device—so that it can get a good sample of your deep-lung breath.  After blowing air from deep within your lungs, most breath tests will analyze the percentage of alcohol vapor that has been released by the blood flowing into and out of the lungs. This is supposed to be a direct measure of your blood alcohol concentration (BAC), or how intoxicated you are.

Mouth alcohol comes into play when you are required to take a breath test shortly after using a mouthwash or breath spray.  Sometimes, this negligible amount of alcohol can result in a failed breath test — causing the testing device to register a “failing” number that is higher than the legal limit of .08.

What Can Cause “Mouth Alcohol”?

Several legal substances can cause mouth alcohol:

  • Mints and breath spray: certain mints and breath sprays can contain small amounts of alcohol that can result in mouth alcohol.
  • Chewing tobacco: certain tobacco products often contain amounts of ethyl alcohol which can result in a mouth alcohol effect.
  • Cough medications: there are several over-the-counter and prescription cough syrups that can be legally taken that contain alcohol, which can result in mouth alcohol.
  • Dentures: certain dental devices (like dentures, dental bridges or caps) can have the tendency to trap alcohol in a manner that can result in mouth alcohol.
  • Belching or burping: if you have consumed alcohol, even a small amount, burping or belching can cause an unrepresentative amount of alcohol to surface in your mouth.
  • Acid Reflux: medical conditions such as acid reflux can cause dramatically higher BAC readings based off of mouth alcohol.
  • Low carb or ketogenic diets: Consumption of carbs while someone is in a state of ketosis can cause the body to produce isopropyl alcohol (see our detailed Diabetes, Low Carb Diet or “Ketosis” as an Ohio DUI Defense page here)

Does The Fact That I Was Drinking Prohibit Me From Using The Mouth Alcohol Defense?

Under Ohio law, it is only illegal to be operating your vehicle when your BAC is .08 or above.  Thus, you can still register higher BAC results due to mouth alcohol.  As mentioned above, you can be subject to mouth alcohol from sources other than mouthwash, trapped mouth alcohol or mouth spray, such as when you burp after having only a few drinks.

Proving That Mouth Alcohol Affected Your Breath Test

Cincinnati DUI lawyers know that there are several factors that can lead to a successful mouth alcohol defense argument.  Generally, the way to prove that mouth alcohol was the reason you failed your breath test is by “circumstantial evidence.”  Such evidence can include proof (such as receipts) that you purchased or used mouthwash or breath spray; receipts from bars detailing the exact number of drinks you consumed prior to your arrest; eyewitness accounts corroborating the fact that you use mouthwash or breath spray; or medical records detailing that you suffer from acid reflux, use dentures or other dental fixtures, or that you adhere to a low carb diet.