Fire Captain Successfully Argues Mints Interfered With Breath Test

Ronny Hudson is a captain with the Little Rock, Arkansas Fire Department, and has been employed by the Department for 32 years. On May 15, 2003, Hudson went to the Southwest Regional Medical Center for a random drug and alcohol test, as required by Department policies. When two breathalyzer tests revealed that Hudson’s blood alcohol content exceeded the Department’s standards, the Department suspended him for 30 days and demoted him from the rank of captain to the rank of engineer.

Hudson challenged the City’s decision in court. When a trial court overturned the discipline, the City appealed to the Supreme Court of Arkansas. The Court also ruled in Hudson’s favor, ordering that the discipline be reversed.

The key to Hudson’s argument was that he had breath mints in his mouth while he was taking the breathalyzer test. The nurse who conducted the test did not tell Hudson he should not have anything in his mouth during the test.

After the breath test, Hudson called his wife to come pick him up. Hudson went to his doctor’s office, where he gave a blood sample to be tested for alcohol. Those test results were negative.

Hudson also submitted testimony from a physical chemist that the breath mints Hudson had been eating could have affected the results of the breathalyzer test, because the mints contained sorbitol, a form of alcohol. The chemist opined that if sorbitol were introduced into the machine used in Hudson’s test, the sorbitol would cause a positive result on the machine.

It was the combination of these three pieces of evidence that led the trial court to overturn Hudson’s discipline. Before the Supreme Court, the Department attacked Hudson’s evidence as being insufficient to counteract the readings from the breathalyzer. The Department also pointed to inconsistencies in Hudson’s testimony.

The Supreme Court rebuffed the Department’s contentions. As put by the Court, “the gist of the Department’s arguments is essentially that Hudson’s evidence regarding the existence or nonexistence of the mints, and the effects of the mints on the breathalyzer, was not credible. However, the trial court conducts a de novo review of the evidence, and on our review of the trial court’s findings, we give due deference to the Court’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Although the Department takes issue with the Court’s decision to give more credence to Hudson’s testimony, it was within the trial court’s province to do so.”

City of Little Rock v. Hudson, 2006 WL 1424040 (Ark. 2006).

This article appears in the July 2006 issue