Man blowing into breathalyzer

Why Did I Fail the Breathalyzer If I Wasn’t Drinking? 

Venessa Bornost, P.A.  June 25, 2024

Failing a breathalyzer test when you haven't been drinking can be disturbing and stressful, especially when it leads to undeserved legal repercussions. If you're wondering how this could happen and what steps to take next, you've come to the right place.  

I’m Venessa Bornost, a criminal defense attorney based in Dunedin, Florida, and I serve clients throughout Hillsborough County and Pasco County. With a background in law enforcement and as a former criminal prosecutor, I bring a vast amount of experience and knowledge to my cases, and it is my priority to protect my clients’ rights and do everything possible to achieve a favorable outcome. If you think you may have received a false positive on a breathalyzer test, I am here to help.  

In this article, I'll cover everything you need to know about breathalyzer tests, including factors that can lead to false positives, legal implications, and practical advice for those who find themselves in this predicament. 

Understanding False Positive Breathalyzer Test Results

Breathalyzer tests, commonly used by law enforcement to measure blood alcohol content (BAC), can sometimes yield false positives. A BAC level of .08% or more is the legal limit in Florida, beyond which a driver is considered impaired. These devices work by measuring the amount of alcohol in your breath and converting it into an estimated BAC. Certain factors can affect their accuracy, leading to false positives. 

These inaccuracies can arise from various non-alcohol-related factors, including medical conditions, certain foods or drinks, the use of specific products, and human error or equipment malfunction. Understanding these potential contributing factors can help individuals better handle legal challenges if they find themselves facing a false positive. 

Factors That Can Impact Breathalyzer Results

Medications and Medical Conditions 

Certain medications and medical conditions can influence breathalyzer readings. For example, asthma inhalers contain alcohol-based propellants that can skew results.  

Medical conditions that can affect breathalyzer readings include: 

  • Diabetes: Individuals with diabetes may produce high levels of acetone, a substance that can be mistaken for alcohol by some breathalyzers. 

  • Gastroesophageal Reflux Disease (GERD): GERD sufferers might have stomach contents refluxed back into their esophagus, which can include small amounts of alcohol or other substances that interfere with breathalyzer results. 

  • Auto-brewery Syndrome: This rare condition causes the body to ferment ingested carbohydrates into ethanol, leading to elevated blood alcohol levels without consuming alcoholic beverages. 

If you have a medical condition or are taking a medication that could impact your results, I strongly recommend that you inform the officer who pulled you over and get a medical evaluation as soon as possible. 

Foods and Non-Alcoholic Beverages

Believe it or not, some foods and beverages can result in a false positive. Consuming items like ripe fruits, energy drinks, or even bread can introduce small amounts of alcohol into your system. Fermentation processes within the body can create measurable amounts of alcohol, fooling the breathalyzer. Some of the foods and beverages that can cause false positives include: 

  • Fermented foods: Sauerkraut, certain breads, and fermented dairy products can contain trace amounts of alcohol. 

  • Non-alcoholic beer and wine: Although labeled "non-alcoholic," these beverages often contain minimal alcohol levels that can register on a breathalyzer. 

  • Mouthwash and breath fresheners: Many mouthwashes and breath fresheners contain alcohol, leading to temporarily elevated BAC readings if used shortly before the test. 

Products and Environmental Factors

Various products and environmental exposures can also impact breathalyzer results: 

  • Hand sanitizers and cleaning products: Inhalation of alcohol vapors from hand sanitizers or cleaning agents can result in detectable alcohol levels in the breath. 

  • E-cigarettes and vaping liquids: Some e-liquids contain ethanol, which can affect breathalyzer readings. 

  • Paints and solvents: Inhaling fumes from these substances can introduce alcohol into the breath. 

Improper Calibration and Maintenance

Breathalyzers need regular calibration and maintenance to generate accurate readings. If the device has not been properly maintained, it can produce erroneous results. It's advisable to inquire about the device’s maintenance history if you believe your test was flawed. The potential equipment-related reasons for a false positive can include:  

  • Improper usage: Incorrect operation of the breathalyzer device can skew results. 

  • Equipment malfunction: Faulty devices may produce inaccurate readings, particularly if they are not routinely inspected and maintained. 

Rules and Protocols for Conducting Breathalyzer Tests

In addition to the various factors that can lead to a false positive, there are also protocols that officers are required to follow which can influence the accuracy of a breathalyzer test.   

The required protocols when administering breathalyzer tests include: 

  1. Observation period: Officers should observe the individual for a minimum period (usually 15-20 minutes) to ensure they haven’t consumed any substances that could affect the test. 

  1. Calibration and maintenance: Breathalyzers need regular calibration and maintenance to remain accurate.  

  1. Multiple tests: Administering multiple breath tests helps confirm the accuracy of the results. 

Legal Implications of a False Positive

Without proper legal counsel, even false positive breathalyzer results can lead to serious legal consequences, including DUI charges, fines, license suspension, and even imprisonment.  

In Florida, the penalties for a DUI conviction can include: 

First offense: 

  • Up to six months in jail 

  • Fines ranging from $500 to $1,000 

  • License revocation from 180 days to one year 

Second offense within five years: 

  • Mandatory ten days in jail 

  • License revocation for at least five years 

  • Up to $2,000 in fines 

Third offense within 10 years: 

  • Minimum of 30 days in jail 

  • License revocation for ten years 

  • Fines up to $5,000 

Having a proper defense can make all the difference when you’re facing false positive breathalyzer results. 

Contesting False Breathalyzer Results

In order to fight charges based on false breathalyzer results, there are several steps you can take: 

  1. Request a blood test: Blood tests are more accurate than breath tests and can be used to challenge breathalyzer results. 

  1. Obtain medical records: Documentation of medical conditions that could affect breathalyzer readings can support a defense. 

  1. Seek out witness testimony: Witnesses can attest to the individual's sobriety at the time of the test. 

  1. Request expert analysis: Hiring an expert to analyze the breathalyzer device's calibration records and maintenance history can highlight potential flaws in the testing process. 

  1. Hire legal representation: Engaging a knowledgeable attorney can help you protect your rights and present a strong defense. 

By being aware of the factors that can influence breathalyzer results and knowing the steps to contest a false positive, you can better protect yourself against unwarranted legal consequences. 

Reach Out for Legal Support

Failing a breathalyzer test while sober is more common than you might think, and understanding why it happens can help you take the right steps afterward. From medical conditions to improper device maintenance, many factors can lead to false positives. If you are facing DUI charges over a false positive breathalyzer result, I advise you to seek immediate legal counsel to protect yourself. For those in Dunedin, Hillsborough County, and Pasco County, Florida, stay informed, stay safe, and don't hesitate to reach out to Venessa Bornost, P.A. for the legal support you need.