GERD or heartburn can cause you to fail a breath test even though you were not over the legal limit.

One of the most dubious tools used in DUI cases is the breath test. In theory, a breath test is supposed to measure trace alcohol on your breath, from air deep in your lungs. It can then estimate your blood alcohol concentration (BAC). But many factors throw breath tests off, making them unreliable in DUI cases. One of the most surprising factors that can interfere with a breath test is heartburn, also known as acid reflux or GERD.

GERD stands for gastro-esophageal reflux disease. It’s a painful condition characterized by frequent heartburn. This heartburn happens because some of the contents of the stomach—including acid—make their way back up to the opening of the esophagus. The acid burns the esophagus, creating the sensation of heartburn.

But acid isn’t the only thing that comes up with GERD or reflux. If you had an alcoholic drink, some of the alcohol comes up too. This puts alcohol vapor in your mouth, which can dramatically skew the results of your breath test.

To use an example, say that you had 1 glass of wine with dinner before driving home. Most likely a breath test machine would say you’re well under the legal limit. However, if you suffer from acid reflux, the same machine might get your BAC wrong and say you broke the law.

If you suffer from GERD, you may be able to use the mouth alcohol defense.

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