GERD, Acid Reflux or Heartburn as Nevada DUI Defenses

In Nevada, GERD or acid reflux disease can sometimes be used as a medical defense against DUI charges if you took a breath test before or after your arrest. GERD can falsely elevate blood alcohol concentration (BAC) readings by causing alcohol trapped in your esophagus to be burped into the breathalyzer.

Here are four key things to know:

1. It is per se illegal to drive with a BAC of 0.08% or higher, even if you are unimpaired.
2. When your “deep lung air” mixes with your residual mouth alcohol, a breathalyzer may return falsely high BAC readings.
3. Police must wait 15 minutes before breath-testing you to ensure you have not burped and to give any mouth alcohol time to dissipate.
4. Heartburn and hiatal hernias can also trick breath-testing machines into returning artificially inflated BAC results.

Our Las Vegas DUI lawyers address the following:

• 1. How can GERD, acid reflux or heartburn cause an incorrect BAC reading?
• 2. What is “hiatal hernia” and how can it affect my DUI test?
• 3. How mouth alcohol “counterfeits” DUI breath tests
• 4. How can I tell if reflux or hiatal hernia affected my breathalyzer test?
• Additional resources

1. How can GERD, acid reflux or heartburn cause an incorrect BAC reading?

In normal digestion, the lower esophageal sphincter (LES) opens to allow food to pass into the stomach. After you have swallowed, the LES closes to prevent stomach contents from flowing back up.

In people who suffer from medical conditions such as gastroesophageal reflux disease (GERD), however, the lower esophageal sphincter is weak. It can allow stomach acid and contents to flow back into the esophagus, especially after a heavy meal; in some cases, these stomach contents can even be regurgitated all the way up and into the mouth.¹

If there is alcohol in your stomach when this occurs, this will result in mouth alcohol. Unless this alcohol is given time to dissipate, it will mix with deep lung air when you blow into an Intoxilzyer 8000 – the evidentiary DUI breath testing device currently used by Nevada law enforcement.

The officer or technician performing your Nevada DUI breath test is supposed to watch you for a 15-minute period before starting the test to ensure that this does not happen. Even the most observant technician, however, cannot easily tell when you vomit or otherwise regurgitate into your mouth; as a result, people with digestive disorders such as GERD are at especially high risk of falsely elected BAC readings.

2. What is “hiatal hernia” and how can it affect my DUI test?

The esophagus runs through a hole in the diaphragm (the organ in the abdominal cavity that expands and contracts to help you breathe) and connects to the stomach. In people with a hiatal hernia (also known as a “hiatus hernia”), however, a small part of the stomach protrudes above the diaphragm.

As a result, people with hiatal hernia often suffer from reflux and other symptoms similar to GERD. These symptoms can include the backflow of undigested food and other stomach contents into the mouth.²

3. How mouth alcohol “counterfeits” DUI breath tests

Unlike a blood test, a breath test does not directly measure the amount of alcohol in your blood. Rather, a DUI breath testing device measures the amount of alcohol contained in a sample of “deep lung” air and mathematically converts it to a roughly equivalent blood alcohol concentration (BAC).

Prosecutors claim that modern DUI breath testing equipment is sensitive enough to distinguish mouth alcohol from deep lung air.³ However, tests have shown that this isn’t always the case, especially in people with digestive orders who may be regurgitating stomach contents within the 15-minute observation period.

4. How can I tell if reflux or hiatal hernia affected my breathalyzer test?

We will conduct a thorough interview and investigation to see if a medical condition could have caused a false “positive” on your DUI breath test.

You can help by telling us if:

• you suffer from any medical conditions (whether or not they seem relevant) or
• you were experiencing any stomach upset when you were arrested for DUI.

With the help of your doctor or a DUI expert witness, we will explain the science of DUI testing to the prosecutor and, if necessary, the jury. We will show the trier of fact how your medical condition could have caused the high reading on your DUI breath test.

As Las Vegas DUI defense lawyer Michael Becker explains:

“Police officers are only human. Sometimes they get bored or distracted and don’t recognize the symptoms of GERD. And when they get distracted, innocent people go to jail. But even under the best of circumstances, it can be hard to tell when someone is burping or regurgitating. That’s why it is critical to retain a drunk driving lawyer who understands the science of Nevada DUI breath testing.”

Additional Reading

For more information about issues related to breath testing and gastric conditions, refer to the following:

• Journal of Breath Research – Peer-reviewed journal publishing on breath analysis including alcohol testing.
• Gut – Leading medical journal on gastroenterology and hepatology with articles on reflux and breath testing.
• The Effects of Gastroesophageal Reflux Disease on Forensic Breath Alcohol Testing – A J. Forensic Sci. article on how having high concentrations of alcohol in your stomach can cause inaccurate breath testing results.
• Approved Evidential Breath Measurement Devices – list of devices approved by the U.S. Department of Transportation to test breath
  
• Intoxilyzer 8000 – the breath testing device used by Nevada police following a DUI arrest

---

Legal references: