For over one year, I have tried to convince our former head of the Department of Forensic Science, Breath Alcohol Section, Dr. Irma Adams, that GERD was a major problem in breath alcohol testing. I invited her to an intoxilyzer seminar, I sent her scientific articles and other literature on GERD, and continued to have discussions with her. Well for the past year she stayed cautious and said she wanted to do further study. You see the heads of our state labs are trained by the manufacturers of the machines that the machines are perfect. To Dr. Adams’ credit, she stayed open and read the literature and did other study on her own. Finally, about a month ago, she called me to tell me that she was now convinced that GERD can cause false results on the Intoxilyzer, AND that she was will to go to court to testify! This is tremendous news! She is still overly cautious in how far the results can be off, but still it is going to be fantastic to take her into court with me to help beat or get DUI charges reduced.
What is the GERD defense? GERD stands for Gastroesophogeal Reflux Disease. In layman’s terms, this is a weakening of the esophageal sphincter such that it remains chronically open. This allows reflux of acid, gas, and other stomach contents into the esophagus and mouth. GERD affects about 9% of the population. Acid Reflux is a symptom of GERD. Acid Reflux affects approximately 20% of the population on a regular basis. That is why medications such as Prilosec and Nexium are peddled through expensive magazine and television advertising.
People with GERD, or who are experiencing symptoms of acid reflux, are very susceptible to false results on a breath test. The reason for this is that all evidentiary breath test machines assume that the ethanol contained in the breath sample has come from the lungs. To get in the lungs, ethanol has to travel in liquid form to the stomach, then into the intestines, and then be absorbed into the blood. The blood then travels to all parts of the body. When blood containing ethanol gets to the brain, intoxication occurs. The blood also travels to the lungs. It is there that ethanol, in gas form, gets transferred from the blood into tiny air sacks in the lungs. The ratio between the ethanol molecules in the blood to what ends up in the lungs is estimated by the government to be a ratio of 2100:1. That means for every 2100 ethanol molecules in the blood, 1 goes through the lung wall partition into tiny air sacks. This is called a Partition Ratio. The fact of the matter is that partition ratios can vary from as low as 1555:1 all the way up to 3500:1. This can lead to false numbers as well but that is a topic for another day.
Back to Gerd. Breath test machines have no way to distinguish ethanol coming from the lungs from ethanol in gas form that is constantly coming from the stomach. Ethanol from the
stomach that is introduced into breath test machines is actually being multiplied by almost 2500 times! The makers of breath test machines claim that there are two safeguards. The first is the Slope Detector and the second is the waiting time between the two breath samples. The Intoxylizer 5000 and other breath testing machines read the level of ethanol during the entire blowing process. The machine then records the highest reading of each sample, compares the two, and prints the lowest result. If during the blowing process the slope detector sees too much of a downward slope in the reading it will kick out the result and print “Invalid Sample” on the certificate. The important thing to understand is that the slope detector only picks up a downward slope! If there is a constant source of ethanol coming from the stomach or if there is a spike at the end of the reading, there will be no slope to detect! Taking two samples that are both contaminated provides absolutely no protection to the accused. In Virginia, breath samples are taken only two to three minutes apart. In Europe and in some states, the time between the two samples is twenty minutes. The leading scientists in breath testing all advocate a fifteen to twenty minute wait between samples. That is because mouth alcohol will not evaporate in just two minutes.
How does ethanol from the stomach get into the mouth? Most judges believe that there has to be a burp for this to occur. This is not so. The esophagus, unlike the trachea, is completely open where it enters into the mouth. The trachea opens and shuts by automatic reflex by a muscle pressing against a bone called the epiglottis. When closed liquid and solids are prevented from entering into the trachea. When it doesn’t close quickly enough, we say that “it went down the wrong hole!” This is exactly what happens. In contrast the only closing of the esophagus is at the base of the stomach where the esophageal sphincter is. Not to be crude, but the esophageal sphincter works like other sphincters in our body… when it opens it allows gas and other matter to escape. When the esophageal sphincter opens, ethanol in both gas and liquid form can escape into the esophagus. When acid escapes from the stomach into the esophagus it burns the lining of the esophagus. This is commonly referred to as “heartburn.” Ethanol, like all gases, rises. People with GERD or who are experiencing acid reflux will have ethanol gases constantly rising from the stomach into the esophagus. When a person blows into the breath test machine, a venturi effect occurs, causing any air or gases from the esophagus to enter into the machine. This combination of lung air and ethanol gas from the esophagus is what causes elevated readings. Remember, the ethanol molecules coming from the esophagus are multiplied by almost 2500 times! This leads to false high results, which can lead to innocent people being convicted of DUI. I see people in my office every week with false results on the breath test. I am determined to continue to fight for them. Thank you for your trust and confidence.
Sincerely,
Michael C. Tillotson, Esq.
You can receive a FREE consultation with Mike if you have been arrested of DUI/DWI in Virginia by contacting our office today. Michael C. Tillotson – DUI Defense Attorney in Virginia. Office 757.969.5197 http://www.VaDUILawyer.com or email at info@vaduilawyer.org
