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Wednesday, July 14, 2010
By Michael Nichols
If you have symptoms of a condition commonly called “GERD” or gastroesophageal reflux disease, your breath test result may be literally contaminated. “The issue is that regurgitation from reflux can send your stomach contents into your mouth,” said Michigan-DUI/OWI expert Mike Nichols. That means that mouth alcohol is getting into the instrument chamber. Mouth alcohol contaminates a breath sample. The reason is that the breath instrument that tried to measure the amount of alcohol in your breath is supposed to measure alcohol coming from the deep lung region of your body. If the instrument is measuring both it is no different than standing on your scales at home with a 50 pound back of rocks and expecting the scale to measure your accurate body weight.”
Mr. Nichols recently explained this to a jury in Clinton County with the assistance of expert neuropsychopharmacologist Dennis Simpson, PhD and the client’s treating doctor. The client blew .11/.12 on the Michigan-Datamaster but the video of the breath test showed the arresting officer step out of the breath room or at least away from the client. While she was not paying attention, the client reached his hand up to his chest once and put his hand over his mouth as if to suppress the sound and smell of regurgitation. “We pointed out that the deputy did not follow the rules of administering a breath test by watching the subject for 15 minutes continuously for regurgitation. We put the administrative rule in our power point at closing. The result? NOT GUILTY,” Mr. Nichols added.
The client was charged with an OWI 1st and faced the possibility of jail time and enormous expenses. The client also would have been ineligible to obtain a Michigan-commercial-driver-license (CDL).
There was a discrepancy between how well the client performed on the field-sobriety-tests and the results of the breath test that showed him to be over the limit. Mr. Nichols argued to the jury that it was just as likely that the client was not over the limit but that the datamaster was reading both mouth alcohol delivered from the subject’s stomach as well as alcohol from the deep lung region.