Appeals court: No teeth in denture defense

False teeth can’t help you talk your way out of a license suspension for drunken driving.

So ruled the Kansas Court of Appeal in a Morris County case, where a DUI defendant argued that his dentures may have trapped alcohol in his mouth, causing him to blow a too-high reading on a police breath tester.

The case stemmed from a 2008 traffic stop in which breath testing showed the defendant, Gary Bolton, had a blood-alcohol level of .24 percent, well above the .08 percent limit for driving under the influence, according to court records.

Bolton challenged the results of the test in trying to stave off a decision by the Department of Revenue to suspend his driver’s license.

He argued that police should have had him remove his dentures before he blew into the Intoxilyzer 8000. Across the country, DUI defense lawyers have had some success arguing that wearing dentures can trap alcohol or other substances in the mouth that can swing the results of a breath test from legal to intoxicated.

But in Friday’s decsion, the Kansas Court of Appeals ruled that police had complied with a requirement that the subject of a breath test be kept under observation at least 20 minutes to allow mouth alcohol to dissipate and ensure they don’t put anything else in their mouth.

“Bolton argues that letting him blow into the machine with dentures in his mouth violated the directive not to let him ‘have oral intake of anything.’ But it certainly did not do so under the ordinary usage of the word intake: the dentures were already in Bolton’s mouth, and he did not take them in during the 22 minutes the officer observed him before the test,” said the appellate opinion, written by Judge Steve Leben. “Nor has Bolton provided any evidence that having dentures in one’s mouth affects the breath-test result in any way.”

The opinion said the only evidence in Bolton’s favor was a statement by the officer who gave him the test that if he’d known Bolton was wearing dentures, he’d have asked him to take them out.

“But the officer said he would have done this ‘just to be safe and avoid issues down the road,’ not because anyone had trained him to do so.” Leben wrote. “We conclude that an officer need not ask a driver to remove his or her dentures to comply with the established testing procedures.”

Jeremy Platt, one of the lawyers who represented Bolton, said he saw the decision as limited.

“All it says is that an officer doesn’t have to ask a person if they’re wearing dentures,” he said. “I think that’s a pretty important issue (because of) the possibility that some substance, alcohol, food or adhesive, could affect the intoxilizer test.”

Platt said Bolton has 30 days to decide whether he wants to appeal the appellate ruling to the state Supreme Court, but no decision on that has been made yet.