Photo of Christy M. Hall
Effective Criminal Defense Since 1998
PLEASE NOTE: To Protect your safety in response to the threats of COVID-19, we are offering our clients the ability to meet, via telephone or FaceTime. Please call our office to discuss your options.

Can using mouthwash land you in jail for suspected OUI?

Do you think it is possible to face OUI charges in Wisconsin if a police officer pulls you over in traffic and you have not consumed so much as a drop of alcohol beforehand? If you answered, “No,” then you’d better keep reading. If you answered, “Yes,” then you’re likely aware that there are numerous conditions and commercial products that can cause false positive results on a preliminary alcohol screening test.

This test occurs at the scene of a traffic stop. This is different than a chemical Breathalyzer, which determines the amount of alcohol in your bloodstream. A preliminary test uses a mobile test device and merely detects whether or not there is alcohol on your breath. The only problem is that there are many things besides alcoholic beverages that happen to prompt such devices to register positive. You are in for quite a challenge if you plan to fight OUI charges in a Wisconsin court.

Factors that can cause skewed preliminary test results

Imagine getting ready for a date and wanting to have fresh breath, so you use a bit of your favorite mouthwash. On the way to pick up your date, a cop pulls you over and asks you to step out of the car. Police typically do this if they believe you are an impaired driver. The following issues may cause you to face arrest:

  • Many mouthwashes contain alcohol as a main ingredient. If you submit to a mobile breath test, it could cause the device to register positive.
  • Smoking tobacco products has also been known to skew breath test results.
  • There are numerous breath fresheners that contain alcohol, which could cause you to fail a mobile breath test.
  • Have you been taking medicine to relieve a cough? If so, taking a roadside breath test might not end in your favor because alcohol is a main ingredient in many over-the-counter cough syrups.

You are under no legal or administrative obligation to submit to a preliminary alcohol screening during a traffic stop. If anyone threatens you with arrest for refusing, you may have grounds to request a case dismissal based on violation of your constitutional rights. Refusing to submit to a chemical test following your arrest, however, is another matter, which activates penalties, such as license suspension.

Protecting your rights

The more you know about your rights ahead of the time, the better. If you are currently facing legal problems because of a suspected OUI arrest and you believe your breath test results were inaccurate or that someone has violated your rights, you may reach out for defense support at any time.