Perhaps surprising, people can get arrested for driving under the influence of Listerine, Nyquil, a few sips of a cocktail, or any other liquid or substance that contains alcohol. It’s not that these drivers are necessarily “under the influence,” but it is due to the fact that the substances mentioned are all capable of producing an illegal blood alcohol concentration (BAC) of 0.08% or greater. The concept has to do with a condition known as mouth alcohol.
1. What is mouth alcohol?
Mouth alcohol is alcohol that remains in the mouth. When present, mouth alcohol can fool a DUI breath testing instrument. And although it typically dissipates quickly, mouth alcohol can linger, depending on the circumstances.
For example, if someone had a tiny piece of alcohol-saturated bread trapped in his/her dental work, that alcohol could remain in the mouth for quite some time.
Regurgitation, acid reflux, GERD, and heartburn are notorious for causing a continuous flow of alcohol to the mouth that can remain for a significant period of time.
It is important to note that the “alcohol” in mouth alcohol does not have to be from heavy drinking, nor does it even have to be from an alcoholic beverage. It can be caused by any amount of alcohol that enters and remains in the mouth, including the alcohol found in Listerine.
Note, too, that mouth alcohol fools a DUI breath testing instrument as mentioned above. For example, while your reported BAC may be a 0.12%, your actual BAC may only be a 0.06%. Since a significant number of scientific studies support this foolery, mouth alcohol is a difficult DUI defense to ignore. (See our article, “Can a California DUI conviction be removed from my record?“),
2. What are the penalties for a first-time DUI in California?
All in all, the consequences of a first-time DUI conviction under California law can include:
- 3 to 5 years of informal misdemeanor probation (typically 3 years),
- DUI school ranging from 3 to 9 months (typically 3 months),
- fines and penalty assessments totaling between $1,500 and $2,000 (depending on the county),
- a 6-month driver’s license suspension (though people may be able to get a restricted license or drive immediately with an ignition interlock device (IID) restricted license),
- installation of an ignition interlock device for six months (unless the defendant chooses not to drive),
- up to 6 months in county jail (depending on the county),
- in some counties, work release,
- attending a victim impact panel, and
- indirect consequences (such as increased car insurance premiums and harsher penalties if the defendant gets convicted of a subsequent DUI).
