You’ve been arrested. You’re at the police station and you’re just about to blow into the breath device. The police officer says, “Don’t burp,” but when they are not looking, you let out a bit of burp. Does that matter? The answer might surprise you.
How Can A Burp Affect Your BAC?
Virginia law requires that the police officer observe you for at least 20 minutes prior to you
blowing into the evidentiary breath device. This is to make sure that you haven’t swallowed anything, eaten anything, put anything in your mouth, or burped because all of those things can cause your reported breath alcohol concentration to be much higher than your true breath alcohol concentration.
Breath machines like Virginia’s EC/IR II are looking for an incredibly tiny amount of alcohol. Specifically, they’re looking for 0.08 grams in 210 liters which us like looking for 3 grains of rice in a 55-gallon drum.
Obviously, the human body doesn’t hold as much air as a 55-gallon drum, so the breath test actually measures about 1 and a half liters. And so, the amount of alcohol that it’s actually looking for is roughly equivalent to three grains of sugar.
As you can see, even a few extra molecules of alcohol in your breath can make a huge difference, and a burp can bring up alcohol from your stomach that wasn’t in your blood. This will coat the mucous membranes of your mouth and your sinuses, and can artificially raise that BAC by a very significant amount.
When you burp, you bring up alcohol from your stomach. This is alcohol that’s not in your blood, not affecting the brain, and it can coat the mucous membranes of your throat, your mouth, and your sinuses, causing the measured BAC to jump up. It’s very important that this not happen.
During this 20-minute waiting period, you should watch the officer because very often, these folks are not taking this duty very seriously. In my experience, they’re often chatting with other officers or doing paperwork or even completely out of the room.
In fact, it is very common that police officers believe that anything that goes wrong with their breath test device is your fault. Naturally, if you’re burping, it must be because you’re trying to do it on purpose. They’ll tell you, “Look, you burped once. I’m going to give you a break, but if you burp again, I’m going to charge you with refusal to take the breath test device.”
What If You Absolutely Have To Burp?
Very few people have the reflexes and ability to control their burping. It’s super common that people come into my office and say, “You know, the officer warned me not to burp and they warned me I’d get another charge if I did burp, and then I burped, but I didn’t tell them I did because I didn’t want to get in trouble.”
You just raised your BAC by some unknown quantity. You might have walked out of there without a criminal charge if you had just told the officer, “Please give me another chance. I burped.” Always tell the officer if you burped.
