California DUI lawyer and blogger Lawrence Taylor writes about a case in Kentucky where a DUI defendant is fighting DUI charges based on a claim that his chewing tobacco contained small amounts of Tennessee whiskey (for flavoring purposes) and that the breath test inaccurately showed an over-the-limit blood alcohol level.

Attorney Taylor explains that:

To obtain the percentage of alcohol in the blood, the breathalyzer machine is basically programmed to multiply the amount by 2100 times (called the partition ratio) to get the equivalent amount in the blood.  This is because the alcohol in the lung air (called  alveolar air) has been greatly attenuated in the process of being transferred from the blood into the lungs.  In other words, the machine is programmed to assume that the sample is alveolar air.  If the alcohol has not passed through the body and into the lungs, however, but is still in the mouth, the machine is multiplying alcohol 2100 times when it should not be multiplying it at all.  And it doesn’t take much alcohol to get a high reading if it’s being multiplied 2100 times.

I am not aware that this defense has been tried in Georgia, but it is intriguing.  How many common products include alcohol?  Mouthwash, cough medicine, pastries (rum cake).   If anyone has tried this defense, please let me know.