Minnesota Vikings wide receiver Michael Floyd is currently on probation and house arrest for a DWI in Arizona from when he was a member of the Cardinals. Among the conditions of his probation is to submit to and pass breath alcohol tests several times per day. In mid-June, Floyd failed several of these tests. Specifically, he blew .055 at 5:30 a.m., .045 at 5:54 a.m., and .044 at 6:23 a.m. Floyd denied having consumed alcohol and, therefore, skipped his next test.
Because of these test results, the Arizona prosecutor wants Floyd’s probation revoked and the star wide receiver sent to jail.
Floyd adamantly denies having consumed any alcohol. Instead, he asserts that he had been drinking Kombucha Tea. Floyd’s attorneys argue two key points:
- The fermented alcohol inherent in the tea increased his alcohol concentration to .05
- Because he took a drink of the tea immediately preceding his test, the mouth alcohol artificially elevated the results.
Non-alcoholic Beverages Defined
Under the law, a beverage is considered non-alcoholic if it has an alcohol content of less than .5 percent. Some drinks—like Kombucha tea and other non-alcoholic malts—have the potential to lead to false arrests and wrongful DUI/DWI charges. In fact, other celebrities have cited Kombucha tea ingestion when arrested for DUI/DWI.
Kombucha is centuries old and comes in many flavors. Fermenting black, green, or oolong tea with refined sugar, yeast, and bacteria create Kombucha tea. This beverage is slightly sour, slightly sweet, slightly vinegary, slightly effervescent, and contains probiotics and B vitamins—things the body needs—and it becomes more palatable by adding juice. In order to maintain its probiotic benefits, Kombucha is typically left raw and unpasteurized.
In 2015, Kombucha was the fastest-growing functional beverage with sales projections expected to exceed $1.8 billion by 2020.
Currently, Kombucha Tea’s manufacturer is facing civil litigation because of the potential for the product to increase in alcohol content as high as 3.2 percent as it sits around waiting to be consumed. Of particular concern is that many sports trainers recommend this type of tea to its players—including the Minnesota Vikings.
Several defense attorneys have successfully relied on the alcoholic propensity of Kombucha tea in defending clients accused of violating their ignition interlock device (IID) program requirements. In reality, however, several things can result in IID failures. These include:
- Broken down food in the teeth
- Cologne or perfume
- Over-the-counter (OTC) cough syrup
- White bread
The interaction of these items with one’s mouth results in mouth alcohol that can falsely provide “evidence” of alcohol consumption, and many jurisdictions have zero tolerance for IID failures.
The biggest problem is differentiating mouth alcohol from body alcohol. Mouth alcohol occurs from residual vapors in the mouth from the stomach that contain alcohol and can result from taking a drink of something, using breath spray, burping, and/or regurgitating.
Generally, a person’s BAC will decrease by approximately .15 per hour after s/he has stopped drinking. Therefore, if a person blows a .055 BAC and then ten minutes later the same person blows a .015, the likely assumption is that “mouth alcohol” contributed to the initial higher reading.
In Floyd’s case, however, his alcohol concentration did not decrease by much at all, thus lending credence to the possibility that it wasn’t mouth alcohol that contributed to his high BAC reading. Since the decrease in Floyd’s BAC measurement was slow and steady, the possibility remains that it was not mouth alcohol causing the elevated reading. However, it remains important to understand that breath testers are notoriously inaccurate and do produce false positives. Floyd is adamant that he did not violate the terms of his probation.
Thus, that Floyd’s BAC tests were elevated could still be due to mouth alcohol, and only time will tell as to what the final outcome will be.