Can Dental Work Cause a False High Reading?
Welcome back to the DUI Trial Lawyers Academy, this podcast is brought to you by silvaandsilvalaw.com, great lawyers, helping great people. And now for your host sought after speaker, avid mountain bike racer, and renowned DUI Trial Lawyer, Patrick Silva,
Welcome back to the DUI Trial Lawyer's Academy, this is your host, DUI trial lawyer, Patrick Silva. Well, it's the first of the year, 2020, and we're going to talk about a defense associated with a person's dental health. This could be bridges, cavities, gum issues, and I'm a firm believer if you ask yourself a different question, you'll get a different answer. So let's ask ourself, can dental work cause false high breath readings? The reason dental health is very important, is that no matter what is occurring inside your client's mouth, it could be bridge work, cavities, if there's pockets where alcohol can be trapped, is it possible that a person's breath reading could be, let's say a 0.15, and at the same time of the breath reading, they have his blood drawn and tested, and it comes at a 0.05, well, that's a 0.10 difference. That's the difference between a conviction and a not guilty, is it even possible? Well, there's a couple scientists that believe it is.
The name of this study is called Breath Alcohol Concentrations may not Always Reflect the Concentration of Alcohol and Blood. That's in the Journal of Analytical Toxicology, it's a July/August, 1994 publication, and it could be found on page 225. The authors are D.J.H. Trafford, T-R-A-F-F-O-R-D, and H.L.J. Makin, M-A-K-I-N. You might be doing Google searches, but if you go to pub med, P-U-B-M-E-D dot com or dot org, you'll be able to pay for subscription, pay for certain articles, enter the author's name, find the article, and it costs about 35 bucks to download the article. You're in a sense paying for their work, but it was in this study that the authors actually took a person, and he had three different bridges.
The study conducted a breath test, I don't know what type of machine, you'll have to read the study, it was a 0.15 result, and at the same time had his blood draw, and his result on the blood was a 0.05. They concluded that the possible explanation, therefore, based on the difference, is that the excessive breath might be due to mouth alcohol retained in the bridges, or periodontal spaces. Could a person wearing false teeth have periodontal spaces? Well of course, that's why you see the advertisements on TV for dentures, Fixodent, where they'll put the sticky glue, or adhesive in-between their gums and their false teeth, but there's still going to be a space. What else can cause periodontal spaces? Well, I had a client come in once where he had some wisdom teeth extracted and he still had the cotton packing, and of course he went out having a good night out on the town.
And guess what? The alcohol soaks into that cotton swab packing. Now I remember when I was a kid, I had my wisdom teeth pulled. I believe I had the packing, which was a cotton gauze, in there for five to seven days before I went back and the dentist pulled it out. So what happens with cotton? Well, it's going to soak up anything you're drinking. Yeah, he might not should have been drinking alcohol at that point, but he did. And he had a crazy high breath reading, that was a good indication that, hey, there's some paradoxical spaces, the packing that soaked up the alcohol and caused a false high breath reading. He didn't walk, talk or act like he was a 0.28, but in fact it was a very high breath reading on my client.
What about a cavity? Well, I think that's going to be just a little bit too small for periodontal space, but let's just say you have a mill, and the mill consists of some type of, let's say chips, chips and dip, chips and guacamole, something, the chips get stuck in certain parts of your teeth, and if you're drinking alcohol that could capture a molecule of alcohol, that's going to be tested. Remember what you're doing is you're trying to explain that, hey, there's a reason that this breath reading is so high, and it doesn't correlate. I.e. there's a disconnect between the breath reading, and the way he acts, talks, walks, the way he was driving, and there's no correlation.
You're trying to show a disconnect between the false high reading, now, how are you going to get this evidence in? Well, in order to lay a foundation, you're going to have to get the dentist in there, explain the client's health, the dental health, what he did, the current conditions, past conditions, were there are any air pockets? And then your second expert will be your forensic toxicologist, he's going to come and take the stand said, yeah, I have a basis for my opinion, based on these articles, and of course, you're going to feed him the articles you want to read, if your toxicologist hasn't read them already. And of course, these are the articles I'm giving to you, and he's going to logically come up with the opinion that based on the dentist's testimony that he had periodontal spaces, he had bridges, dentures, whatever he had, based on the current literature, that there is a possibility, and based on, let's say his performance on the field sobriety tests, and that's assuming that your expert is a field sobriety test expert training, and most all the toxicologists have gone through that training.
Yes, there's a very high prop probability that his point 15, his point 18, his point 20 breath reading is not a true reflection of what's in his blood. And that's where you come up with your disconnect. So if disconnect is going to be your theme, for trial, that's going to be something you're building through your voir dire, through your opening, through your cross.
And remember, when I talked about looping, which you establish through the testifying officer on the field sobriety test, you can bring up, hey, certain people do not reflect their breath alcohol, blood alcohol, with a performance, there's a disconnect. And you'll get them to say, "Yeah.", And then you start looping your disconnect question and theme back through your cross of the state expert, and through the direct of your experts.
This is a short and sweet one, but I think this was important. It's not something you see every day, but it's definitely something that you need to ask your clients when you're sitting down and having a consult. One of my last questions is always, let's talk about your dental health, and you'd be surprised at what they're going to tell you. Once you get the dental records, and you share them, you know, through your discovery process, the prosecutor's going to know where you're going. I mean, they're going to have to combat the defense you're putting up.
All right, you know what to do, put on the boxing gloves, climb in the ring, have a great fight. This is your DUI Trial Lawyer, Patrick Silva, over and out, bye.
Thank you for listening to the DUI Trial Lawyers podcast. This episode brought to you by Silva and Silva law dot com.
Patrick J. Silva - Attorney at Law
A Professional Law Corporation
Who do you want as your attorney? The Master or the student? Patrick Silva has over 21 years of DUI experience, he has been published in DUI reference books, he has spoken in front of hundreds of attorneys at conferences, taught classes to lawyers on his secrets and strategies, and has a nationally listened to podcast dedicated to teaching other DUI lawyers how to win. (909)798-1500
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