Why a Florida DUI Defense Attorney Takes Mouth Alcohol Claims Seriously When a Breath Test Seems Wrong

If you were arrested for DUI in Florida and your breath test result came back higher than you expected, you may be asking a very important question, can mouth alcohol cause a false DUI breath test result?

Yes, it can. And in the right case, mouth alcohol is one of the most effective ways to challenge the reliability of a breath test, especially when the officer’s report does not match what really happened during the stop.

Most people think a breath test number is automatic proof. Prosecutors often treat it that way too. But a breath machine does not know whether the alcohol it detected came from deep lung air, which is what it is supposed to measure, or whether it came from residual alcohol sitting in the mouth, throat, or upper airway.

That difference matters, and it can be the difference between a conviction and a reduced charge or dismissal.

As a Florida DUI Defense Attorney, I treat mouth alcohol issues as a serious defense angle because I have seen real cases where a breath number looked bad on paper, but the testing process was flawed. When the process is flawed, the result can be challenged. When the result can be challenged, the entire DUI case can change.

This page explains what mouth alcohol is, how it can impact breath testing, what Florida law says about DUI breath testing, and how I fight these cases to protect my clients.

What Is Mouth Alcohol?

Mouth alcohol is exactly what it sounds like, alcohol that is present in your mouth, throat, or upper airway at the time of the breath test. It is not the same thing as alcohol that has been absorbed into your bloodstream and is being measured through deep lung breath.

Mouth alcohol can come from several sources, including:

  • Burping or belching after drinking

  • Acid reflux or GERD

  • Vomiting or regurgitation

  • Recent use of mouthwash

  • Breath sprays or cough syrups containing alcohol

  • Certain dental products

  • Alcohol trapped in dentures or dental work

  • Recently consumed drinks that have not fully cleared the mouth

If any of these things happened close to the time you blew into the breath machine, the breath test reading can be artificially high.

This is why a private attorney matters. Most people do not know how to raise this issue the right way. Officers rarely document it honestly, and prosecutors do not volunteer that the number may be unreliable. I know what to look for and how to use it.

Why Breath Tests Are Supposed to Measure Deep Lung Air, Not Mouth Alcohol

Breath machines are designed to estimate blood alcohol concentration by analyzing air that comes from deep in the lungs. That air is supposed to reflect alcohol that has been absorbed into the bloodstream.

Mouth alcohol interferes with this process because it can cause the machine to detect alcohol that is not coming from the bloodstream at all.

This can lead to:

  • A higher reading than your true blood alcohol level

  • Inconsistent breath results between samples

  • A “spike” in the first sample that drops in the second sample

  • Breath readings that do not match the officer’s observations

A private attorney matters because these patterns are not always obvious unless you know how to interpret the testing documents and the timing.

Florida DUI Law and Breath Testing, The Key Statutes

Most DUI cases in Florida are charged under Florida Statute § 316.193.

Florida Statute § 316.193, DUI

This statute covers DUI based on:

  • Impairment of normal faculties, or

  • A breath alcohol level of 0.08 or higher, or

  • A blood alcohol level of 0.08 or higher

Even though prosecutors often focus on the breath number, the statute still requires the state to prove the charge beyond a reasonable doubt. If the breath test is unreliable, the state’s case weakens.

Florida Statute § 316.1932, Implied Consent

Florida also uses Florida Statute § 316.1932, often referred to as the implied consent law.

This statute generally explains that by driving in Florida, a person is deemed to have consented to breath, blood, or urine testing in certain DUI investigations.

It also addresses consequences for refusal, including license consequences in many situations.

Mouth alcohol matters here because some people refuse the test after being told it is “mandatory,” while others comply and later find out the result may have been flawed. Either way, a private attorney helps you make sense of what happened and how to fight it.

Florida Statute § 322.2615, Administrative License Suspension Review

Many DUI arrests trigger an administrative driver’s license suspension process. Florida Statute § 322.2615 addresses the review process for license suspensions in many DUI cases.

This is critical because your license can be affected before your criminal case is resolved.

A private attorney matters because the breath test issue impacts both the criminal case and the license case. You need one strategy that handles both.

The 20-Minute Observation Period and Why It Matters

One of the most important safeguards against mouth alcohol is the observation period before a breath test.

The purpose of the observation period is to make sure the person does not:

  • Burp

  • Vomit

  • Regurgitate

  • Place anything in their mouth

  • Smoke or vape

  • Chew gum

  • Drink anything

If an officer does not properly observe you, the test may be contaminated by mouth alcohol.

Here is the problem, many officers say they observed you, but the video tells a different story.

I look for issues like:

  • The officer was doing paperwork instead of watching you

  • The officer left you alone in the DUI room

  • The officer was talking to other people

  • The officer was dealing with another suspect

  • You were coughing, gagging, or clearing your throat

  • You were asking for water or complaining of nausea

A private attorney matters because this is where cases can be won. When I can show the observation period was not done correctly, it creates serious doubt about the breath number.

How Mouth Alcohol Can Show Up in the Breath Test Data

In many DUI cases, the breath test prints two samples. Those samples should generally be consistent.

When mouth alcohol is present, you may see patterns such as:

  • A first sample that is noticeably higher than the second

  • A large gap between samples

  • An “invalid sample” message followed by a retest

  • Notes about “insufficient breath” or irregular blowing

These issues do not automatically prove mouth alcohol, but they raise questions that the state must answer.

A private attorney matters because I know how to obtain the breath testing documents and interpret them. Many defendants never see these records until it is too late.

Common Real-Life Scenarios That Create Mouth Alcohol Issues

Mouth alcohol is not rare. It happens in everyday situations.

Acid Reflux and GERD

Acid reflux can bring stomach contents back up into the throat and mouth. If alcohol is present, it can affect the breath reading.

Many people do not realize they have reflux until stress triggers it. A DUI arrest is stressful.

Burping After Drinking

Burping can release alcohol vapors from the stomach into the mouth, right before the test.

Vomiting or Dry Heaving

If you vomit or dry heave, mouth alcohol contamination becomes a major concern. Officers sometimes ignore this or fail to document it.

Mouthwash and Breath Sprays

Some mouthwash products contain alcohol. If used close to testing, they can cause a falsely high reading.

A private attorney matters because prosecutors may try to mock these explanations. I do not. I treat them as legitimate issues that can create reasonable doubt.

What If the Officer Never Mentioned Mouth Alcohol?

Most officers do not.

In fact, many DUI reports are written to make the case look clean. The report may say:

  • “No vomiting observed.”

  • “Subject was observed continuously.”

  • “No foreign substances in mouth.”

But the body camera may show something else.

This is why a private attorney matters. I do not defend your case based on the officer’s report. I defend your case based on evidence.

Mouth Alcohol Is Not the Only Breath Test Problem

Even if mouth alcohol is not the issue, breath tests can still be attacked.

Other common problems include:

  • Improper calibration or maintenance

  • Operator certification issues

  • Radio frequency interference

  • Improper instructions

  • Incomplete documentation

  • Rushed testing

  • Testing too long after driving, causing rising BAC issues

A private attorney matters because breath testing defense is technical. If your lawyer does not know the system, the state will control the story.

What the State Must Prove in a Florida DUI Case

Even with a breath test, the state must still prove the DUI charge beyond a reasonable doubt.

That means the state must prove:

  • You were driving or in actual physical control

  • The stop was lawful

  • The officer had probable cause to investigate DUI

  • The arrest was supported by probable cause

  • The breath test was properly administered and reliable, if used

Mouth alcohol attacks the reliability piece, and reliability is everything.

A private attorney matters because I treat the case like a trial from the beginning. That pressure changes outcomes.

Can Mouth Alcohol Help Get a DUI Reduced or Dismissed?

Yes, it can.

When mouth alcohol creates doubt about the breath number, the case may become negotiable in a way it was not before.

Possible outcomes can include:

  • Reduction to reckless driving when appropriate

  • Reduction of penalties and probation conditions

  • Avoiding harsh enhancements tied to a higher BAC

  • Dismissal in cases where the state cannot prove impairment without the breath test

A private attorney matters because reductions are not handed out. They are earned through preparation and evidence.

A Real Life Example, How I Won a Breath Test DUI Case

A client came to me after being arrested for DUI in Florida. The breath test result was over the legal limit, and the client was convinced the case was over.

The client told me something important, right before the breath test, they burped repeatedly and complained of nausea. They also had a history of reflux.

The officer’s report claimed the observation period was properly completed and there were no issues.

When I obtained the body camera footage, the video showed:

  • The officer was not watching the client continuously

  • The client was coughing and clearing their throat

  • The client made statements about feeling sick

  • The officer was focused on paperwork and equipment, not observation

I attacked the reliability of the breath test based on the failure to ensure a clean observation period and the strong indicators of mouth alcohol contamination.

As the case progressed, the prosecutor’s confidence dropped because the breath number could not be treated as reliable proof. We pushed the case into a position where the state had to choose between litigating a weak breath test foundation or resolving the case favorably.

Result, we obtained a far better outcome than the original DUI filing, and we avoided the most damaging penalties the client feared.

That is the difference private defense makes. I look for the detail that breaks the case open.

Why You Need a Private Attorney for a Mouth Alcohol Breath Test Defense

Mouth alcohol is a defense that requires evidence, timing, and technical understanding. It is not enough to tell the prosecutor, “The machine was wrong.”

A private attorney can help by:

  • Getting the breath test records quickly

  • Obtaining body camera and station video

  • Reviewing the observation period step by step

  • Identifying sample inconsistencies

  • Challenging the state’s foundation for admissibility

  • Filing motions to suppress when appropriate

  • Negotiating from a position of strength

If your breath test result does not feel right, do not assume the number is final. Fight it.

FAQs About Mouth Alcohol and DUI Breath Tests

Can mouth alcohol really cause a false high breath test in Florida?
Yes, mouth alcohol can cause a falsely high breath test result because the machine may detect alcohol that is sitting in your mouth or throat instead of alcohol coming from deep lung breath. This is especially common when someone burps, has acid reflux, vomits, or uses mouthwash close to testing. Prosecutors often treat breath results as automatic proof, but the test is only reliable when proper procedures are followed. A Florida DUI Defense Attorney can review the observation period, the video evidence, and the breath testing records to determine whether contamination is a real issue in your case.

What is the observation period before a Florida breath test supposed to prevent?
The observation period is designed to prevent mouth alcohol contamination. During this time, the officer is supposed to make sure you do not burp, vomit, regurgitate, smoke, chew gum, or put anything in your mouth. If the officer fails to properly observe you, the breath test result may be unreliable. Many DUI cases turn on whether this safeguard was followed. A private attorney can obtain the body camera footage and compare it to what the officer claimed in the report, and that comparison often reveals weaknesses that can help your defense.

What if I burped right before the breath test in Florida?
Burping can release alcohol vapors from the stomach into the mouth and throat, which can cause a breath machine to register a higher number than your true blood alcohol level. If you burped right before testing, it is a major red flag that mouth alcohol may have affected the result. The key is proving it through timing, video, and testing records. A Florida DUI Defense Attorney can use these facts to challenge the breath test and argue that the state cannot rely on the number as accurate proof.

Can acid reflux or GERD affect a Florida DUI breath test result?
Yes. Acid reflux and GERD can cause stomach contents to rise into the throat and mouth. If alcohol is present, it can contaminate the breath sample and inflate the reading. Many people have reflux without realizing how much it can affect breath testing. Stress and anxiety can also trigger reflux symptoms, and a DUI arrest is one of the most stressful situations a person can experience. A private attorney can connect the medical facts to the testing procedures and build a defense that challenges the reliability of the breath result.

How do I know if mouth alcohol affected my breath test results?
You may not know just from the number alone. But certain patterns raise suspicion, such as inconsistent breath samples, a large gap between the first and second reading, or video evidence showing coughing, gagging, nausea, or burping before the test. The officer’s report may not mention any of this. That is why a Florida DUI Defense Attorney reviews the full evidence package, including video footage and breath testing records, to determine whether mouth alcohol contamination is a credible defense.

Can mouth alcohol issues help get my Florida DUI reduced or dismissed?
Yes, in the right case. If mouth alcohol contamination creates reasonable doubt about the breath test, the prosecutor may lose confidence in the DUI charge, especially if there is not strong evidence of impairment otherwise. That can open the door to reduced charges, reduced penalties, or dismissal depending on the facts. A private attorney is critical because these outcomes do not happen by accident. They come from building a defense, challenging the evidence, and forcing the state to confront the weaknesses in its case.

Contact Musca Law 24/7/365 at 1-888-484-5057 For Your FREE Consultation

Musca Law, P.A. has a team of experienced criminal defense attorneys dedicated to defending people charged with a criminal or traffic offense. We are available 24/7/365 at 1-888-484-5057 for your FREE consultation. We have 35 office locations throughout the state of Florida and serve all counties in Florida, including Jacksonville, Miami, Tampa, Orlando, St. Petersburg, Hialeah, Port St. Lucie, Cape Coral, Tallahassee, Fort Lauderdale, the Florida Panhandle, and every county in Florida.