A briefcase icon

free initial consultation

Let us fight for you.

My BAC Was More Than The Legal Limit And I Didn’t Even Drink: Some Common Causes Of False Positives On The Breathalyzer Test

If you have been stopped by law enforcement in South Carolina, you may be asked to submit to field sobriety tests, also known as FSTs.  Oftentimes, an officer will ask you to take a portable breath test at the scene as part of the routine FSTs.  However, did you know that it is possible to blow a false positive, meaning, a result indicating you have a blood alcohol content of 0.08 percent or more when you didn’t even have a drink?  A false positive result still provides law enforcement with enough evidence to arrest and charge you with driving under the influence, even if you claim that you were not drinking before driving.

There are some common causes that may contribute to a false positive breath result.  Did you use mouthwash before getting in the car and driving?  Many mouthwashes contain alcohol, and after swishing, you can still have a high concentration of alcohol in your mouth.  Taking a breath test subsequent to rinsing your mouth with mouthwash can result in a false positive.  Other breath fresheners such as mints, cough drops, or even gum have the potential to cause a false positive due to ingredients such as menthol or sorbitol.

Sometimes a medication you are taking can also cause a false positive on the portable breath test.  For example, if you have a cold sore, canker sore, or a toothache, and you use medication such as Anbesol to help relieve the pain, it is possible to blow a false positive.  Other medications that can cause false positive results include cold and flu remedies that contain menthol, so be very careful when driving after treating your cold symptoms.

Another interesting cause of a false positive test is, if you are a diabetic, your blood sugar level can affect the test results.  A higher blood sugar level can result in a false positive result on the portable breath test.

Finally, sometimes it may just be that the calibration of the portable breath device itself is off causing the device to read breath samples incorrectly.  While this is not an exhaustive list of facts or circumstances that can cause or contribute to a false positive portable breathalyzer test result, it is important to note that if you have been stopped by law enforcement, and the officer requests that you submit to the initial hand-held portable breathalyzer, you do have the right to refuse the test.  However, if the officer determines that there is enough probable cause or suspicion to arrest you for DUI, you can still be arrested even if you refuse to submit to the test.

Contact Harwell Law Now for Seasoned Representation

If you do submit to the portable breath test after a law enforcement officer stops you, and you fail that test by blowing a BAC of 0.08 percent or more, the officer may determine that they have probable cause to arrest you for driving under the influence.  However, breath samples are not one hundred percent accurate, and as the above illustrates, they are unreliable indicators of whether you are actually intoxicated.  Accordingly, even if you have been arrested and charged with DUI as a result of your breath test, it is possible to fight your charge by challenging the reliability or validity of the breath test based on the circumstances in your case.  The attorneys at Harwell Law Firm, P.A., can review the facts and evidence in your case, advise you of your rights and responsibilities, and help you make an informed decision as to how to best proceed in your case.

get started

the police are building their case against you.