False Positives on Indiana Breathalyzers: Medical Conditions and Dietary Triggers
A breathalyzer in Indiana measures breath alcohol, but certain medical conditions like GERD or diets like the Keto diet can cause false-positive OWI results. The Intox EC/IR II machine can mistakenly read stomach vapor or dietary ketones as illegal intoxication.
When an Indiana police officer tells you that you blew over the legal limit of 0.08%, it can feel like your fate is sealed. The breathalyzer machine prints out a receipt, and the prosecution treats that number as absolute scientific fact. However, these machines are not flawless. The primary evidentiary device deployed across the state under 260 IAC 2.5-3-2 is the Intox EC/IR II, a dual-sensor instrument combining an electrochemical fuel cell for quantitative alcohol measurement and an infrared (IR) sensor to track breath profiles and detect mouth alcohol. While advanced, it makes critical assumptions about human biology that simply do not apply to everyone.
Certain medical conditions, strict dietary habits, and even common over-the-counter medications can trick the machine into registering a falsely high Blood Alcohol Concentration (BAC). If you were arrested in Bloomington, Gary, or Indianapolis but know you were not intoxicated, you are not out of options. By hiring an aggressive OWI defense attorney from our US Attorneys directory, you can challenge the underlying science of the machine and fight to have the false readings thrown out of court.
How GERD and Acid Reflux Skew BAC Results
Breathalyzer machines are designed to measure 'alveolar air'-the deep lung air that theoretically reflects the amount of alcohol in your bloodstream. To do this accurately, the machine assumes that the only alcohol in your breath is coming from your lungs. For individuals suffering from Gastroesophageal Reflux Disease (GERD), acid reflux, or hiatal hernias, this assumption is dangerously incorrect.
If you have GERD, the sphincter muscle separating your stomach from your esophagus does not close properly. This allows stomach gases and undigested alcohol vapor to travel back up into your mouth and throat. When you blow into the Intox EC/IR II, the machine captures this highly concentrated 'mouth alcohol' rather than just deep lung air. This can cause a breathalyzer to register a massive BAC spike, even if you only had one drink hours ago. A skilled defense lawyer will use your medical records to argue that your GERD invalidated the strict testing protocols required by Ind. Code § 9-30-6-5.
The Keto Diet and Ketosis False Positives
The popular Ketogenic (Keto) diet, as well as medical conditions like untreated diabetes, forces the body to burn fat for energy instead of carbohydrates. This metabolic state is called ketosis. When your body is in ketosis, the liver produces high levels of chemicals known as ketones, which are excreted through your breath and urine.
During ketosis, the body produces three ketone bodies-acetoacetate, beta-hydroxybutyrate, and acetone-with volatile acetone being excreted through the lungs. While older breath testing technologies frequently confused breath acetone with ethanol, the certified Intox EC/IR II operates under 260 IAC 2.5-4-1 using an electrochemical fuel cell that does not oxidize acetone, preventing false positives from ordinary nutritional ketosis. However, in severe metabolic disturbances such as diabetic ketoacidosis (DKA), biochemical reactions can produce secondary alcohols, or instrument maintenance flaws can lead to sensor cross-reactivity. Defense attorneys frequently bring in forensic toxicologists to explain these biochemical nuances to judges in venues like the Hamilton County Superior Court, Noblesville.
Can Asthma Inhalers or Cough Syrup Cause a DUI Arrest?
Yes, everyday products can severely impact a breathalyzer test. Many over-the-counter cough syrups, such as NyQuil, contain significant percentages of alcohol. If you take a dose right before driving, the residual alcohol coating your mouth and throat will blow directly into the roadside Portable Breath Test (PBT), resulting in an immediate arrest.
Furthermore, individuals with asthma use inhalers (like Albuterol) that rely on propellants containing small amounts of ethanol to deliver the medication into the lungs. If you use your inhaler during a traffic stop due to the stress of police interaction, the immediate breath sample will be overwhelmingly contaminated. Indiana law mandates a strict 15-minute observation period before a certified test is given to ensure mouth alcohol dissipates, but officers frequently rush or improperly monitor this period.
Challenging the Intox EC/IR II in Indiana Courts
Under 260 IAC 2.5-4-1, the Indiana State Department of Toxicology, Indianapolis (ISDT) strictly regulates how breath testing machines must be maintained and calibrated. If the police department fails to calibrate the Intox EC/IR II properly, the results are legally inadmissible.
In key precedents like State v. Molnar, 803 N.E.2d 261 (IN Court of Appeals 2004), the courts have examined the strict procedural compliance required by officers administering these tests. If the officer failed to watch you continuously for 15 minutes to ensure you didn't burp (which brings up stomach alcohol), vomit, or put anything in your mouth, your attorney can file a motion to suppress the breathalyzer results entirely.
Step-by-Step Process to Fight a False Positive
Defending against flawed machine science requires a methodical legal strategy.
Step 1: Secure Your Medical Records
Provide your attorney with all medical records confirming your diagnosis of GERD, acid reflux, diabetes, or asthma. If you are on a strict Keto diet, dietary logs or recent blood work showing high ketone levels are vital evidence.
Step 2: Demand Machine Calibration Logs
Your defense lawyer will issue a subpoena duces tecum under Ind. Trial Rule 45 and Ind. Crim. Rule 1.4 to compel the police department and the ISDT to turn over the maintenance history and inspection logs of the specific Intox EC/IR II machine used in your arrest. They will look for skipped inspections or recent software errors.
Step 3: Review the Observation Period
Your attorney will scrutinize the police booking room video. They will watch the mandatory 15-minute observation period leading up to the test. If the officer left the room, looked at their phone, or if you burped or used an inhaler and the officer did not restart the 15-minute clock, the test protocols were violated.
Step 4: File a Motion to Suppress
Armed with expert testimony and video evidence, your lawyer will file a formal Motion to Suppress in a court like the Marion Superior Court, Indianapolis. If the judge rules the test was scientifically unreliable, the BAC evidence is thrown out, often forcing the prosecutor to dismiss the case.
How Much Does it Cost to Defend?
Challenging scientific evidence often requires bringing in outside experts, which increases defense costs.
| Defense Expense | Estimated Average Cost (USD) |
|---|---|
| Experienced OWI Attorney Flat Fee | $3,500 - $6,000+ |
| Forensic Toxicologist Expert Witness | $1,500 - $3,500 |
| Medical Records Retrieval | $50 - $150 |
| Court Costs (if convicted of lesser charge) | $300 - $800 |
How Long Does the Process Take?
Filing complex scientific motions takes time. While a standard plea deal might be reached in a few months, fighting a false positive BAC reading through pre-trial suppression hearings and expert witness depositions typically takes 8 to 14 months to reach a resolution or a trial date.
Frequently Asked Questions (FAQ)
Should I tell the officer about my medical condition during the stop?
You have the right to remain silent, but respectfully informing the officer that you have severe GERD or asthma before taking the test can create a helpful written record. However, you should not answer questions about how much you have had to drink.
Are roadside breathalyzers (PBTs) admissible in an Indiana court?
Generally, no. Portable Breath Tests are notoriously inaccurate and are only used by police to establish probable cause for an arrest. The prosecution relies on the certified machine at the station for the actual trial evidence.
Can chewing gum or using mouthwash cause a false positive?
Yes. Many mouthwashes contain high levels of alcohol. If you use it shortly before a traffic stop, mouth alcohol can trigger a false positive. Chewing gum does not contain alcohol, but it can trap stomach vapor from a burp, which is why officers must ensure your mouth is empty during the 15-minute observation period.
If the breathalyzer is thrown out, can I still be convicted?
Yes. The prosecutor can still attempt to convict you based on the officer's visual observations, such as failing field sobriety tests, slurred speech, or erratic driving, even without a specific BAC number.
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