Can over-the-counter medicines get you arrested for DWI?
In a word, yes. I recently defended a driver whose BAC (blood alcohol content) should not have been as high as the breath test revealed. She hadn’t had enough drinks to account for the reading. It turned out she had ingested alcohol from an over the counter medication without realizing it. She hadn’t given any real thought to the possibility the ingredients in her medication would increase her BAC and put her over the limit.
Vehicle & Traffic Law (VTL) § 1192(2) makes it illegal to drive with .08 BAC or more (DWI—a class A misdemeanor). Statutes and case law also make it illegal to drive with .05 to .079 (DWAI….VTL 1192[1]….a violation). Sometimes, just a little alcohol can make all the difference in a BAC reading and put you on the wrong side of the numbers.
The law provides no exception for where the alcohol comes from. Beer, wine, Romulan ale or cough syrup….a BAC higher than the limit can get you arrested. Alcohol’s debilitating influence does not vary with its source.
One of the tools police use in determining whether or not to make an arrest is an alco-sensor. It is a hand held breath device used during the traffic stop. It is not reliable for determining how much alcohol is in your system, but it is reliable for detecting the presence of alcohol. I witnessed a demonstration of this device with a person who had not drank any alcoholic beverage but had gargled with a popular mouthwash 5 minutes before the also-sensor test. His BAC was .50….ten times the legal limit! The membranes in his mouth had retained so much of the alcohol that it registered an exceptionally high amount of alcohol (most people would be dead of alcohol poisoning at .50 BAC). His actual BAC was not .50. It was closer to .00 as he had not drank any liquid with alcohol. But his also-sensor reading would have supported the finding of probable cause needed for his arrest.
The content of popular mouthwashes varies. Some are as low as 7% and some are as high as 70%. There are plenty of mouthwashes in the natural food sections of the market and at health food stores which do not use any alcohol. I recommend them as an alternative which leaves no room for false readings or misunderstandings.
Mouthwashes usually don’t change your actual BAC as measured by the breath test at the station which measures the alcohol in deep lung air (a much more reliable device than the also-sensor) Medicines containing alcohol which are ingested do increase BAC.
Some cough drops contain 22% alcohol. Alcohol makes up 10, 20 and even 25% of some cough medicines. It is like taking a shot of bourbon. Some laxatives, iron supplements, and medications for pain, toothaches, allergies, and even vitamins contain significant and possibly game changing amounts of alcohol.
There is a good list of medications and their alcohol content here:
http://www2.potsdam.edu/alcohol/HealthIssues/1127525665.html#.VKMvAcZtl4U
For a list of alcohol free medications, visit this site:
http://www.bot.ca.gov/licensees/alcoholfree_guide.pdf
(This list is a few years old, so always check the current labels)
Remember, no matter the source of the alcohol, the limit is the limit. And alcohol will impact upon your ability to drive regardless of what source it comes from.