Tobacco Use and Breath-Testing
Interviewer: Will chewing tobacco or the fact that someone smokes effect the breath test or cause them to have residual mouth alcohol?
Leckerman: Smoking will not cause an increase of breath alcohol concentration. Smoking comes into play because it may affect the driver’s ability to give an adequate breath sample. However, smokeless chewing tobacco can potentially affect the breath test results. In New Jersey, the Supreme Court (State v. Chun) has required the breath test operator make sure that the driver did not have any tobacco in his or her mouth prior to doing the test.
There is still the question of whether the operator has to physically check the driver’s mouth or does the operator simply have to ask the driver if he had any tobacco in his mouth. Sometimes a breath test operator will not do either. If the operator asserts that no tobacco was present, then defense has to put forth evidence showing that the driver did use tobacco earlier that evening and was not given the opportunity to rinse his mouth prior to breath testing. Procedurally, a breath test result is going to be excluded if the driver had tobacco in his mouth at the time of testing.
Interviewer: Does tobacco or chewing tobacco in a driver’s mouth affect the breath test results?
Leckerman: I’ve been trained to use a number of breath testing devices, including the Alcotest 7110. I’ve had some chewing tobacco in my mouth at the time of testing and found that certain types of chewing tobacco do not affect the breath test results. However, some types of chewing tobacco contain raw ethanol, so certainly if somebody has chewing tobacco in his mouth that contains the raw ethanol, that’s going to affect the breath test reading. It’s an issue of whether that particular chewing tobacco has alcohol in it or not. Of course, a defense to the breath test reading can be asserted when chewing tobacco was in the driver’s mouth without having to prove the chewing tobacco had alcohol in it.