In Florida, when a person is arrested for DUI, they are often asked to perform a breath test.  Many people are familiar with common defense attacks on the breath test machine (currently, it is the Intoxilyzer 8000).  But have you ever heard of the “denture defense”?

Hypothetically, it goes something like this:  “Yes, I blew over the limit, but not because I was DUI.  I blew over the limit because I was wearing dentures.  I drank alcohol earlier in the day and there must have been some residual alcohol left over in my dentures.  That’s why I blew so high.”  There are several variations of the defense, but you get the overall argument.

Unfortunately, in Florida, wearing dentures during a breath test does not invalidate the breath test results…and yes, there is a case on point.

Schofield v. State, 867 So.2d 446 (Fla. 3d DCA 2004) held that the presence of dentures in a DUI defendant’s mouth during the breath test does not invalidate the results, so long as the test is conducted according to the governing statute and administrative rules.  The Court went on to hold that Florida law does not require the removal of denture devices nor does the law impose an obligation on the officer to even inquire about the use of dentures prior to or during administration of alcohol tests.

In the Schofield case, the Defendant’s first breath sample resulted in a reading that stated “Invalid Sample–Mouth Alcohol”.  The officer then asked the Defendant to rinse her mouth with water and obtained two additional breath samples which had readings of .114 and .111.  Defendant’s defense expert testified that the invalid mouth alcohol reading was due to the presence of alcohol and that the dentures probably caused the alcohol presence, and that the failure to remove the dentures before rinsing her mouth with water rendered the subsequent breath test results unreliable.  The State’s experts could not explain how the invalid reading resulted in this case but one said the latter two results were valid because they followed the proper procedures.  The Court held that any effect of the dentures on the breath test goes only to the weight, not the admissibility, of the test results.

This holding aligned itself with the prevailing view from numerous jurisdictions.

(Disclaimer: This blog does not constitute legal advice.  If you are charged with DUI, please consult a criminal defense attorney to discuss your situation.)

Matthews Law Firm, P.A., offices in Polk County, Florida.


By submitting a comment here you grant Matthews Law Firm, Bartow Health Care Compliance and Criminal Defense a perpetual license to reproduce your words and name/web site in attribution. Inappropriate comments will be removed at admin's discretion.