Can a, ahem, cough drop lead to a positive breathalyzer test?

A sign alerts motorists to a DUI checkpoint. Stock photo by Getty Images

Traditionally the Victoria Day long weekend is a big one for drunk driving arrests and motorists have used all sorts of whacky methods to beat their drunk driving raps.

A recent case saw an Ontario driver escape a DUI conviction by sucking on a cough drop. It’s not as bizarre as directly chugging alcohol, but nonetheless effective.

Some lozenges, such as the popular Halls brand, contain what is known as “sugar alcohols” such as menthol, sorbitol, xylitol, or maltitol and can potentially boost the alcohol content in your mouth that may lead to an increased reading when you blow into a breathalyzer machine.

Cops, however, are hip to these types of attempts to beat charges on technicalities and have procedures in place to deal with these seeming legal loopholes.

“If we stop them and they have a throat lozenge we’d ask them to take it out and have their mouth empty and then just wait, I think it’s 15 minutes, for any residual mouth alcohol to be eliminated from the mouth and then we can do the breath test without any interference,” says Ontario Provincial Police Sgt. Carey Schmidt.

In a decision released last week in R. v. Kelly, a Brampton, Ont., judge acquitted driver Patrick Kelly of his DUI charge, after determining Kelly’s positive breath test was obtained illegally, amounting to an “unreasonable search” under s. 8 of the Charter of Rights and Freedoms.

See: Charter cheat sheet: main sections

Kelly was pulled over shortly after leaving a bar and ordered to take a breath test by Peel Regional Police Const. E.J. Nicholson. The officer said he administered the test after smelling alcohol on Kelly’s breath and after the driver admitted he had consumed three beers at the bar.

Kelly, however, was not driving erratically, slurring, or having any balance issues.

The officer told the court he delayed giving Kelly the test immediately due to concerns of residual mouth alcohol. However, Nicholson made no mention of waiting due to Kelly having recently consumed a cough drop.

Kelly testified he had just finished chewing a Halls throat lozenge immediately prior to blowing into the approved screening device. The defendant also admitted he did not know the lozenge contained any alcohol, which would have implied he deliberately ate it to try to have the test result rendered inadmissible.

In his defence, Kelly’s lawyer referenced an OPP memorandum — issued in November 2013 — that lists certain substances that can interfere with the readings on some ASDs, such as the Alcotest 6810, which was the device used on Kelly.

According to the manufacturer of the Alcotest 6810, as stated in the OPP memorandum:

“. . . aromatic fruit juices (fruit juice), certain foods such as white bread and sugared foods, can cause an alcohol result if the test is conducted immediately after eating or while eating.”

Additionally, hand sanitizers and wiper fluid can mess up a test as “the ASD is capable of capturing alcohol based fumes in the surrounding area of the device.”

On cross-examination, Nicholson seemed to contradict himself, first saying that he didn’t know Kelly had a lozenge, before becoming more adamant that Kelly did not have anything in his mouth prior to the test.

In his decision, Justice Fabrice Brand said: “Resolution of this issue turns entirely on PC Nicholson’s credibility and reliability where his evidence conflicts with Mr. Kelly’s.”

He added: “The Lozenge Issue boils down to this: did Mr. Kelly have a lozenge in his mouth just prior to providing a sample of his breath into the ASD? If so, PC Nicholson would have made him spit it out before proceeding any further. He would have done so to satisfy himself that the cough drop did not contain alcohol.”

Because Nicholson did not use proper procedure in relation to the lozenge, the judge ultimately found the roadside screening test evidence was unlawfully obtained.

“These instruments tend to be reliable if they’re used properly,” says Brampton-based criminal defence lawyer Stephen Biss. “The problem that we run into in the court system is when they’re not used in accordance with the police officer’s standard operating procedures.”

Biss, who has run numerous tests on a variety of different ASDs, including the one used in the Kelly case, says when an officer takes a shortcut it opens the door to question the reliability of the result.

“It’s dangerous to assume that the automatic mouth-alcohol detection system in the instrument will kick in and will operate to alleviate the problems of the officer not following the standard operating procedures.”

While Sgt. Schmidt agrees officers need to follow the proper protocols, he says the breathalyzer tests are “very reliable” and cops use them “without question and have full confidence in their abilities.”

He cautions motorists trying to skirt the rules, that police don’t even need to administer the roadside tests if they have enough physical evidence that someone has likely had too much to drink.

“We’ll bypass the roadside screening test and go straight to the Intoxilyzer and by that time any little strategy that people have ... they’re not going to be successful.”

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