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State Senator Escapes DUI Conviction, Arguing 'False Positive'

A case on the other side of the country is relevant for anyone who believes that a Breathalyzer test indicated an illegal amount of alcohol in their system when they weren't actually over the limit. It involves a Mississippi state senator named Terry Burton.

Burton was arrested for DUI after he ran his SUV off the road and into a traffic sign. However, he argued that the breath test showed a "false positive" of .10 blood alcohol content created by a combination of breath spray and cough syrup.

He said that after his air bags deployed in the accident, "all the powder and dust" caused him to have a coughing spell. He said he took some Nyquil because he had no water or other liquids to drink in his vehicle. He then said "I used breath spray because my mouth felt like cotton."

Burton admitted that he had been drinking earlier in the day at a concert, but had nothing to drink later than that afternoon. A man who regularly drives the senator testified that he dropped him at his car earlier in the evening of the 10 p.m. accident and that he didn't appear to be impaired. The judge in the case believed his side of the story and found him not guilty.

Had Burton been found guilty, he may have faced some harsh consequences since this was the second time he had been charged with DUI over the past five years. He pleaded guilty in 2014 to a DUI charge, admitting that he had a couple of drinks that evening at dinner after having taken a non-narcotic prescription painkiller earlier in the day.

Burton said, "I knew I was guilty then. My daddy taught me to stand up and say you're guilty when you're guilty....That's why I contested this one. I knew I was OK."

There are a number of things that can cause a person's BAC to read higher than it actually is. Sometimes the Breathalyzer or other instrument isn't properly calibrated. In some cases, other substances beside alcohol, like cough syrup, can impact the reading.

That's why it's always wise to have a Nevada criminal defense attorney on your side who can work to see what options there are for challenging the results and to mitigate any consequences of a guilty verdict. If you have been accused of DUI, contact Viloria, Oliphant, Oster & Aman L.L.P. right away to consult a Reno DUI defense lawyer.

Source: The Clarion-Ledger, "Sen. Terry Burton found not guilty of second DUI," Geoff Pender, June 17, 2016