In Illinois, individuals who suffer from gastroesophageal reflux disease (GERD), or acid reflux, could be at a disadvantage if they are ever required to take a breath test for suspicion of drunk driving.

A council member from another state who was arrested for drunk driving is currently appealing his DWI conviction and plans on using GERD as his defense. His attorney said that he will use the defense on appeal if the video of the arrest does not show signs of drunkenness during field sobriety tests.

When a person takes a breath test, the test measures how much alcohol is in the alveolar air -- the air from deep in the lung tissue. The amount of alcohol in the alveolar air allegedly corresponds with the amount of alcohol in a person's blood.

If a person has GERD, semi-digested or undigested acids that contain alcohol get regurgitated into the throat or mouth. It could also enter the mouth because of heartburn or belching after a spicy or greasy meal. When this type of alcohol is in a person's mouth, the breath test machine measures this alcohol content instead of the alcohol content of the alveolar air, which can result in false readings or unusually high readings.

Using GERD as a defense strategy is rare, but it has been used successfully in drunk driving cases. When using the GERD defense, it can still be difficult to win a case if prosecutors use video and other evidence from a DUI arrest in addition to the breath test to prosecute drunk driving charges.

Source: News & Observer, "Apex council member fights DWI," Anne Blythe, Feb. 4, 2012