It is illegal in New Jersey for motorists to drive with a blood-alcohol content (BAC) of 0.08% or higher. Many police officers who stop someone suspected of driving under the influence will ask to give a breathalyzer to test their BAC. Roadside chemical tests can be unreliable, not only because the devices must be properly maintained and calibrated by certified officers, but results can be corrupted by what the driver ate, not just what they drank.

A healthy diet typically includes fruits, protein bars and nuts – natural foods that can unduly influence an alcohol breath test. Then there is the ketogenic diet in which users replace carbohydrates with fat to fuel the body and shed weight. During ketosis, the liver breaks down fat into an acetone byproduct which the body exhales as isopropyl alcohol. Breathalyzers cannot always differentiate isopropyl alcohol from ethanol alcohol that is in beer, wine and liquor.

Is it benign or booze?

A former American Airlines flight attendant blames ketosis for triggering a 0.05% BAC during a 2019 breathalyzer test. Andrew Riley, who was fired by the airline because he had also failed a breath test in 2013, says he was guilty of being on the keto diet, not of drinking booze. He wants flight attendants to be tested for alcohol with a different exam.

Riley is fighting to keep his job. Federal law says a flight attendant who is punished a second time for an alcohol-related offense can be banned for life from working for any airline. The stakes are similarly high for Garden State motorists.

All licensed drivers consent to a breathalyzer. If you refuse to consent to a breath test, you may face additional penalties. These penalties can include:

  • First offense: $600-$1,000 fine and license suspension for 1-3 years
  • Second offense: $1,000-$2,000 fine and license suspension for 4 years
  • Third offense: $2,000 fine and license suspension for up to 20 years

A DUI conviction will certainly cause your insurance premiums to skyrocket. Refusing to take a breath test can cause comparable economic hardship. That is why it is important to understand the flaws in breathalyzers and how to defend yourself if arrested.

Challenging a test

An experienced criminal defense attorney who knows the circumstances of your arrest and how breath tests can produce false-positive results may be able to discredit the prosecution’s evidence and keep it from being used in court.

Was the police officer certified to use the device? Was it administered and preserved properly? Did your medication or diet affect the test?

Your freedom, financial stability and driving privileges could hinge on the answers. Take a deep breath and consider the alternatives before letting the criminal justice system dictate your future. Arrested? Get in touch with Anthony Palumbo by calling 908-643-6801 or emailing the firm to arrange a free consultation.