Most DUI attorneys can tell you that there are many factors that can alter the results of a chemical breath test that measures alcohol in the body. A breath test works by reading the amount of alcohol that has been converted to gas that is present in a suspect's lungs.
One defense that is occasionally used is that the suspect has Gastroesophageal reflux disease (GERD) or acid reflux disease. Recently, co-owner of the Colorado Rockies, Charlie Monfort, was arrested for DUI. He initially plead guilty stating that he suffered from acid reflux disease and his heartburn caused him to fail the breath test. This is not the first time that this defense has been used, but is there any merit to it?
According to a document by the National Highway Traffic Safety Administration (NHTSA) entitled “Challenges and Defenses II”
Gastroesophageal reflux disease (GERD) is a chronic digestive condition in which stomach contents leak upwards from the stomach into the esophagus, frequently causing heartburn.
This document goes on to explain that GERD could, in fact, cause mouth alcohol contamination meaning that alcohol could be regurgitated from the stomach into the mouth causing the results of the breath test to be artificially high.
The NHTSA also reported that the chances of this actually happening are very slim and even cited several studies that showed GERD suspects were able to provide accurate breath samples. When it comes to the law, however, sometimes a possibility is all that a suspect needs. The mere fact that mouth alcohol contamination is not entirely impossible might be enough to persuade a jury that there is a reasonable doubt.
In summation, acid reflux or GERD is not the best defense for DUI and can be a hard fight to prove, but even the NHTSA acknowledges that it is not beyond the scope of possibilities and an experienced DUI lawyer can work with that.