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Maryland Criminal Defense — Can Mouth Alcohol be a DUI Defense?


Yes. In Maryland, what is commonly known as “mouth alcohol” — or “residual mouth alcohol” — can be a possible criminal defense to a charge of driving under the influence (“DUI”) depending on the facts of the case. If you are being charged with DUI in Charles County, Maryland (or any other part of Southern Maryland), call the experienced and courtroom-proven Maryland criminal defense lawyers at the Law Office of Robert Castro. Call us at (301) 870-1200. We can evaluate all the possible criminal defenses to your DUI charges, including mount alcohol. We are available around the clock, 24/7.

In simple terms, mouth alcohol involves tiny quantities of alcohol vapors, liquid, or other substances contaminating a breathalyzer test result while the test is being taken. These “in-the-mouth” substances and vapors can cause a breathalyzer test to be too high or otherwise false.

A breathalyzer test involves having a person place a tube in their mouth and blowing/exhaling air from their lungs into the tube. The exhaled air is collected and tested. From this, a person’s blood alcohol level (“BAC”) is determined. A person’s BAC is, in turn, used to determine if criminal DUI charges should be filed. Further, breathalyzer test results are often the key piece of evidence used during criminal DUI charges to obtain a guilty verdict.

Because of this, one of the best DUI defenses is to show that the results of a breathalyzer test are invalid, compromised, contaminated, etc. This is the purpose and value of the mouth alcohol defense to a DUI charge.

With respect to the mouth alcohol defense, most commonly, trace mouth alcohol re-enters the mouth through burping, regurgitation, or micro-vomiting. However, trace mouth alcohol can also seep into the mouth from dental work like dentures. Trace amounts of other substances can also result in contaminated breathalyzer readings. This includes chewing tobacco, mouthwashes, some types of chewing gums, and certain over-the-counter and prescription medications.

It should be noted that law enforcement officials are well aware that mouth alcohol is a good defense against a Maryland DUI charge. This is one reason that law enforcement officials have various regulations on how a police officer should act during a DUI arrest. For example, as more fully described in the reported opinion in the case Dejarnette v. State, the regulations require that an officer have an arrested person open their mouth to ensure there is nothing in the person’s mouth and that the officer observes the person for 20 minutes before administering the breathalyzer test. The purpose of the observation period is to have the officer watch for signs of mouth alcohol. As the officer testified, if an individual belches or vomits and is given a breath test within 20 minutes, “it would show mouth alcohol and would void the test.” Showing that the police violated these procedures can help bolster a mouth alcohol defense.

Contact Waldorf, Maryland Criminal Defense Lawyer Robert Castro Today

This article has been provided by the Law Office of Robert Castro. For more information or questions, contact our office to speak to an experienced Maryland criminal defense lawyer at (301) 870-1200. We are Waldorf, MD, Criminal Defense lawyers. Our address is 2670 Crain Highway, Waldorf, MD 20601.

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