Some people may attempt to use the “mouthwash defense” to avoid a DUI conviction. This defense claims that the alcohol present in mouthwash led to an inaccurately high reading on a breathalyzer test.
While it may seem plausible, it often fails in court. In Montana and many other states, law enforcement must observe a 15–20-minute wait before administering a breath test. This time allows any residual mouth alcohol to dissipate.
Using this defense is risky
The mouthwash defense argues that residual alcohol from products such as mouthwash, breath sprays and even certain foods can lead to inaccurate test results. Using this as a defense can be challenging because:
- Short-lived effects: Alcohol from mouthwash evaporates quickly.
- Officer observations: Police officers look for signs of intoxication beyond breathalyzer tests. These include slurred speech, unsteady movements and the smell of alcohol.
- Field Sobriety Tests: Failing field sobriety tests can undermine the mouthwash defense.
While the mouthwash defense sounds promising, it is important to note that it is not a guaranteed way to beat a DUI charge.
Rarely successful on its own
In Montana, DUI laws focus on impairment and blood alcohol concentration (BAC). The legal BAC limit is 0.08%.
Courts and prosecutors know the mouthwash defense and may scrutinize it closely. They will argue that the amount of alcohol in your system, as indicated by the breathalyzer test, is still sufficient to support a DUI conviction, regardless of the source of alcohol.
Calling a seasoned attorney when confronted with DUI allegations is crucial. They can help examine the evidence and craft an effective defense strategy for you.
