VOP by gargling mouthwash

[D21stockhausen]

Pinellas County, Florida

I need advice on a vop on a misdemeanor DUI probation case. I'll try to make the step-by-step account as short as possible. So I was on misdemeanor probation for 8 months for my first and only DUI, no ankle monitor or anything like that. Then one day after a visitation with my son I was at my brother's house(next door to my house) and I took a midday nap. My brother woke me up saying there was a Sheriff out front asking for me. I woke up went to the bathroom to pre, put my hair up to look presentable and gargled mouthwash and walked outside. He asked me if I was myself and said we're going to do a breathalyzer so without even thinking twice I said sure. Apparently I blew a .012 and he grabbed my arm breathalyze me again with similar results and then arrested me. A day later I posted Bond for 500 and the judge ordered to put me on an ankle monitor as a condition of my bond. How do I go about telling the judge that this was just a positive because of mouthwash. A week before this in my monthly probation appointment I took a random urine test and breathalyzer both passing. I do not drink so my question is where do I go from here and how do I go about it because I want this ankle montior off and this VOP dismissed. Thank you in advice.

 

[xylene]

It was extremely likely you were advised as a term of probation NOT to use any products containing alcohol.

Can it. Just can it with the "I don't drink" routine.

Get a lawyer, get over yourself. Your violation is very likely to stand.

 

[Taxing Matters]

First, for a lot of reasons you probably should be buying mouthwash that does not have alcohol in it. Second, never use the alcohol mouthwash just before an encounter with the cops.

The mouth alcohol that results from using a mouthwash with alcohol has a very different effect on you than does alcohol in your blood. Specifically, mouth alcohol can start out giving a very high reading on a breathalyzer when done seconds after using the mouthwash but the effect rapidly declines. Within half an hour the breath test often will once again show no alcohol from the mouthwash. This is one reason why cops do several breath tests and spread them out by 10 or 20 minutes between them. If the results are vastly different between the two tests, that can indicate that the machine is picking up mouth alcohol rather than the blood alcohol that the police are interested in seeing. So if the two tests that were done were at least some minutes apart and the results were the same on both, that would suggest that mouth alcohol is not to blame — and instead, what is being picked up is blood alcohol. You'll need a good lawyer, and probably an expert witness, to make a convincing case that this was all due to mouthwash.

 

[D21stockhausen]

Wow Sir.. I'm in no way full of myself.. I'm coming to the site in time of need.. For no other reason than for why this site was created. When I wrote that I do not drink, I was talking about since I've been on probation. What I have posted are true accounts of what happened to my and are extremely embarrassing.. My issue is that of money, obviously why on on this site. Thank you for your time anyways and to any other posters that may have legal or all around advice on how to approach this unfortunate event would be greatly appreciated.

 

[D21stockhausen]

Yes my brother was with me the whole time... The Sheriff did the 2 tests back to back immediately. I asked at the police station to re-breathalyze me.. But they did not seem to care.

 

[xylene]

Improper administration of the test may be an issue. You aren't going to prove that without an expert. And the rules about alcohol are there for a reason.

Using ANY Mouthwash immediately before a police encounter is extremely suspect, and they are trained to spot that.

 

[quincy]

I do not think you will escape having an ankle bracelet for awhile because it was a condition of your bond.

The .012 is low enough that you potentially could argue successfully against the probation violation by saying mouthwash caused the elevated reading on the breathalyzer. This is best argued with the help of a skilled attorney, who could test your explanation in court with the mouthwash and a breathalyzer test.

edit to add: I would NOT try to demonstrate without an attorney as it might not turn out as you hope.

Good luck.

 

[jdbofky]

Florida deputy sheriffs have no role in monitoring misdemeanor probation. Standard terms of probation are that you must submit to urine, blood or breath testing any time you are asked to by Probation or a Community Control Officer, or the professional staff of any treatment center where you are receiving treatment. There is no requirement to submit to the demand of a deputy sheriff.

Furthermore, if you failed a breath test then your probation officer would file an affidavit with the court and you would get a violation of probation arraignment. You would not be taken immediately into custody unless you were being arrested on some other charge already. So I don't believe what is being represented here at all based on my personal extensive experience with Florida.

 

[FlyingRon]

.012 is way in the noise of detectability. Many people naturally have that much floating around in their bodies even without drinking.

 

[Zigner]

Florida deputy sheriffs have no role in monitoring misdemeanor probation. Standard terms of probation are that you must submit to urine, blood or breath testing any time you are asked to by Probation or a Community Control Officer, or the professional staff of any treatment center where you are receiving treatment. There is no requirement to submit to the demand of a deputy sheriff.

Furthermore, if you failed a breath test then your probation officer would file an affidavit with the court and you would get a violation of probation arraignment. You would not be taken immediately into custody unless you were being arrested on some other charge already. So I don't believe what is being represented here at all based on my personal extensive experience with Florida.

And yet...here we are...

 

[quincy]

... You would not be taken immediately into custody unless you were being arrested on some other charge already. So I don't believe what is being represented here at all based on my personal extensive experience with Florida.

What is being represented here is all we have to go on. It is based on D21stockhausen's personal experience.

 

[jdbofky]

Quncy, when I have personal knowledge of Florida's criminal justice system and its misdemeanor probation procedures I think it's appropriate to point those things out. Now, no doubt a deputy sheriff could violate procedures, but unfortunately they do not have portable "breathalyzer" devices in the state of Florida. They are not authorized to have them or use them. Therefore, in order to believe what had been represented we would have to believe that a deputy sheriff somehow obtained such a device in violation of not only department policy but also the alcohol testing policies of FDLA, then illegally take the OP into custody, and then a judge illegally applied an ankle monitor as a condition of the release on a violation of probation. Ankle monitor for what? Ankle monitors are used to monitor people who are a danger to other people. That might be done if a person violated a restraining order or was on probation for domestic violence to ensure they don't go near the person they pose a threat to. But it would serve no purpose for a person found to have a trace of alcohol on their breath. And Pinellas county specifically does not operate this way. But if it is not appropriate for me to point these things out then I'll simply shut up and go away.

I do notice xylene asserted that "It was extremely likely you were advised as a term of probation NOT to use any products containing alcohol." That is also nonsense because there is no such standard or even special term of probation for DUI in Florida. A person can only be ordered not to consume alcohol. And there must be a waiting period followed by repeat tests in order to eliminate the possibility that mouth alcohol is being detected. You can't deprive someone of their liberty without following the proper procedures, and the risk of measuring mouth alcohol rather than blood/breath alcohol is well understood.

 

[quincy]

Quncy, when I have personal knowledge of Florida's criminal justice system and its misdemeanor probation procedures I think it's appropriate to point those things out. Now, no doubt a deputy sheriff could violate procedures, but unfortunately they do not have portable "breathalyzer" devices in the state of Florida. They are not authorized to have them or use them. Therefore, in order to believe what had been represented we would have to believe that a deputy sheriff somehow obtained such a device in violation of not only department policy but also the alcohol testing policies of FDLA, then illegally take the OP into custody, and then a judge illegally applied an ankle monitor as a condition of the release on a violation of probation. Ankle monitor for what? Ankle monitors are used to monitor people who are a danger to other people. That might be done if a person violated a restraining order or was on probation for domestic violence to ensure they don't go near the person they pose a threat to. But it would serve no purpose for a person found to have a trace of alcohol on their breath. And Pinellas county specifically does not operate this way. But if it is not appropriate for me to point these things out then I'll simply shut up and go away

I didn't mean to give the impression that I thought what you wrote in your post was inappropriate or wrong. I apologize if it came off that way.

What I was trying to say is that all we have to go on is what a poster tells us.

If a poster fails to disclose relevant facts, what we provide in the way of information or advice might not be all that helpful to the poster. It appears D21 might have left a lot unsaid. But we have to be careful not to replace our own experiences with what a poster tells us was his, even when the poster's experience seems outside the norm.

Again I apologize if you thought I was discounting what you said. That was not my intention.

 

[justalayman]

Quncy, when I have personal knowledge of Florida's criminal justice system and its misdemeanor probation procedures I think it's appropriate to point those things out. Now, no doubt a deputy sheriff could violate procedures, but unfortunately they do not have portable "breathalyzer" devices in the state of Florida. They are not authorized to have them or use them. Therefore, in order to believe what had been represented we would have to believe that a deputy sheriff somehow obtained such a device in violation of not only department policy but also the alcohol testing policies of FDLA, then illegally take the OP into custody, and then a judge illegally applied an ankle monitor as a condition of the release on a violation of probation. Ankle monitor for what? Ankle monitors are used to monitor people who are a danger to other people. That might be done if a person violated a restraining order or was on probation for domestic violence to ensure they don't go near the person they pose a threat to. But it would serve no purpose for a person found to have a trace of alcohol on their breath. And Pinellas county specifically does not operate this way. But if it is not appropriate for me to point these things out then I'll simply shut up and go away.

I do notice xylene asserted that "It was extremely likely you were advised as a term of probation NOT to use any products containing alcohol." That is also nonsense because there is no such standard or even special term of probation for DUI in Florida. A person can only be ordered not to consume alcohol. And there must be a waiting period followed by repeat tests in order to eliminate the possibility that mouth alcohol is being detected. You can't deprive someone of their liberty without following the proper procedures, and the risk of measuring mouth alcohol rather than blood/breath alcohol is well understood.

There are ankle monitors that are not location devices but in fact monitor for the presence of alcohol. Maybe that’s the type of monitor ordered.

Regarding your statement that portable breathalyzers are not used in Florida. This is from a Florida attorney’s website. I won’t post whose since it would violate tos but just the germiaine statement

Types Of Breathalyzers
There are several types of portable breathalyzers that are used by the police officers in Florida. Portable devices are carried with officers for use on the road and more sophisticated machines are used at the police station.


So apparently portable devices are used in Florida, contrary to your claim.

Here is a news article speaking to the use of portable breath testers

http://amp.wftv.com/news/local/dui-suspects-refusing-breathalyzers-frustrating-pr/288022582

It also appears the terms of probation are codified in state law.

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0900-0999/0948/Sections/0948.03.html



That does allow for modifications as a court sees fit in general and is quite liberal in its allowances. I suspect that can include some authorized entity to administer a pbt either randomly or with cause. It also addresses testing for alcohol.

The fact the deputy immediately demanded a pbt and no mention of any other reason for being there suggests either the op was reported by some entity of a possible violation or it is in fact part of the terms of their probation.

 

[xylene]

I do notice xylene asserted that "It was extremely likely you were advised as a term of probation NOT to use any products containing alcohol." That is also nonsense because there is no such standard or even special term of probation for DUI in Florida

Please note, I used the word advised. This is told to many people in many jurisdictions, including Florida, with the goal of preventing false positives.

SCRAM, the op is refering to that. That's definitely used to monitor in FL probation. AND They definitely order you no mouthwash.