Asthma, Inhalers, and NJ DUI Defense

Can You Beat a DWI Charge based on Asthma in New Jersey?

How to Use Asthma to Beat a Drunk Driving Charge in NJ Something everyone takes for granted, breathing, can be a daily struggle for those with asthma. A condition characterized by inflamed bronchial tubes, asthma is a chronic condition that seizes its victims with coughing, wheezing, gasping, and shortness of breath. Asthma sufferers number in the millions, so it is a common condition. The Centers for Disease Control and Prevention (CDC) estimates that 1 in 13 U.S. residents have asthma since childhood, although adults develop asthma as well. Environmental and other factors may trigger asthma, even when the condition seems to have disappeared for years. Unfortunately, asthma is incurable but manageable with treatment.

The Asthma – Inhaler Connection

When asthma strikes, a person may experience chest tightness, pain, or pressure. They may cough and breathe rapidly, feeling short of breath or wheezing. Asthma attacks may happen suddenly or build up over time. Either way, the severity of the attack can land a child or adult in the hospital. Most asthma patients take daily corticosteroids to help prevent attacks, but they also keep fast-acting inhalers to open the airways and find relief. One type of inhaler contains quick relief from beta-agonists, such as epinephrine, albuterol, or levalbuterol. Other types, anticholinergics, take longer to act but reduce mucus and clear airways with ipratropium or tiotropium. Some inhalers contain both.

Effects of Asthma Inhalers on Breathalyzer Test Results

Inhalers work by injecting a puff of medication, which contains high levels of alcohol, into the lungs, especially inhalers with Albuterol, Budesonide, or Salmeterol. That could spell trouble for anyone stopped by police on suspicion of impaired driving, maybe even due to an asthma incident. The injected mist stays in the lining of the lungs so that when an asthmatic blows into a breathalyzer, the machine picks up the alcohol in the inhaler medication and can register a blood alcohol concentration above the legal limit.

Chlorofluorocarbons (aerosols), the gas that propels the medication, also raise breathalyzer readings. By design, the breathalyzer picks up methyl-related components, such as ethanol in alcoholic drinks, that have been ingested and digested before exhaling into the machine. A breathalyzer measures blood alcohol by calculating 2100 alcohol units in the blood for each unit in the breath. When asthmatic blows in the breathalyzer, it will pick up excess alcohol units in the lungs from an asthma inhaler and multiply them by 2100 to produce a blood alcohol concentration (BAC). In other words, the inhaler could cause a distorted breathalyzer result that could end in a DWI arrest. In fact, a sober person who has had no alcoholic beverages but has had two puffs of an inhaler can register as impaired by a breathalyzer reading.

Blowing Capacity of Asthmatic Drivers Charged with DWI in New Jersey

An asthmatic’s weak breathing capacity could affect the breathalyzer reading. The breathalyzer’s BAC reading comes from the bottom of the exhale into the machine before the device stops because alcohol concentrates deep in the lungs. Thus, the end of the exhale contains the highest amount of alcohol. When someone with asthma blows into a breathalyzer, they must breathe out harder than those without asthma because asthma affects the exhale, specifically. As a result, the asthmatic’s breathalyzer reading is higher.

For example, an individual who feels an attack coming on may drive erratically or pull over to the side of the road to get their inhaler. When an officer approaches the driver, they may see someone confused, sweaty, and lightheaded. They may believe the driver is on alcohol or drugs. Then, when they cannot blow into the breathalyzer strong enough to get a good reading or the reading exceeds the legal limit of .08%, the officer may charge the driver with a DWI and/or refusal to submit to a breath test.

Impacts of Asthma on Urine Screening in Drug DUI Cases

Inhalers may also create a false positive in a drug test. A urine screening for amphetamines or methamphetamine may come up positive for nasal inhaler users. Since colds or allergies trigger asthma attacks, many people with asthma use nasal inhalers for congestion. One such inhaler, Benzedrex with propylhexedrine, is a stimulant. An individual using a Benzedrex nasal inhaler may appear like they are on amphetamines, with elevated heart rates and jitters in the hands and legs. An officer may mistake the signs of a DUI with drugs and arrest a person with asthma using nasal sprays.

Another problem arises with an ignition interlock device (IID) that a person convicted of a DWI must install in their primary vehicle. The device is a breathalyzer. A driver blows into the IID in their car, which will not start with even trace (0.05%) amounts of alcohol in the breath. For some asthmatics, blowing into the IID may be problematic because of their weak lung capacity. Another pitfall is the inhaler or other medications that contain ethanol or other methyl products. A vehicle will not start with an IID and alcohol in the driver’s system soon after using their inhaler.

Can an Inhaler or Asthma Medicine Affect an Interlock Device?

Another problem arises with an ignition interlock device (IID) that a person convicted of a DWI must install in their primary vehicle. The device is a breathalyzer. A driver blows into the IID in their car, which will not start with even trace (0.05%) amounts of alcohol in the breath. For some asthmatics, blowing into the IID may be problematic because of their weak lung capacity. Another pitfall is the inhaler or other medications that contain ethanol or other methyl products. A vehicle will not start with an IID and alcohol in the driver’s system soon after using their inhaler.

What Happens when You Use an Inhaler Before or During the 20 Minute Observation Period in NJ?

The breathalyzer results are even more skewed when the driver uses their inhaler during the observation period before taking a breathalyzer. When officers suspect a driver of DWI, they must observe the driver for 20 minutes before administering the breathalyzer test to ensure the accused does not put something in their mouth. When the driver uses an inhaler to prevent or deescalate an asthma attack during the 20 minute period of observation, the BAC reading from the breathalyzer can be inaccurate and subject to challenge as evidence at a DWI trial. An attorney can file a motion to suppress the breathalyzer reading, so the state cannot use it as evidence against the driver.

NJ Courts Place the Burden of Proof on the Defendant in DWI Cases Involving Asthma

However, the New Jersey Appellate Court put the burden squarely on the driver who alleges that they have a condition that would affect their ability to blow into a breathalyzer. The defendant is required to demonstrate to the court through evidence of their condition and inability. In State vs. Monaco, the defendant was arrested after going through a stop sign and crashing. She could not produce sufficient breath for the breath test at the station, and there was disagreement in the case over whether this was due to her asthma or her unwillingness to truly attempt to blow into the device, in compliance with New Jersey’s implied consent law. She also used her inhaler prior to the 20-minute waiting period before taking the breathalyzer.

The defendant could not produce enough air for a proper sample after three tries when breathing into the breathalyzer. The breathalyzer works when a person blows 1.5 liters of air from a vigorous exhale for minimally 4.5 seconds. In three attempts, she never blew the 1.5 liters. At trial, her doctor of 25 years testified that she had asthma and had an exhalation capacity of about 56% of what a woman of her age, weight, and height has. But he also testified that her breath capacity improved with medication. Her doctor did not definitively state that she could not perform the test due to her condition.

The Appellate Court affirmed the trial court’s DUI and refusal conviction, noting that the defendant did not meet her burden of proof regarding her inability to perform the breathalyzer test due to her asthma. The takeaway from this case for DWI cases involving asthma is for those with asthma to be prepared with evidence proving their inability to take a breathalyzer test.

Have Asthma and Charged with a DWI in NJ?

Our skilled DWI attorneys at The Tormey Law Firm know how to challenge a breathalyzer test reading for inaccuracy, including after one of our clients used an inhaler before taking the test. We comb through all of the evidence in your case, review the certifications and documents pertaining to the specific Alcotest device that you were tested with, and develop a tailored defense approach based on all of our years of training and experience. If you were charged with a refusal based on your inability to take a breathalyzer test, our lawyers know how to collaborate with DWI experts and medical experts to successfully meet the burden of proof of your medical condition when defending your case at trial. Our firm practices statewide in New Jersey, including in Paterson, Livingston, Jersey City, Palisades Park, Teaneck, Fort Lee, Parsippany, Union, and Bridgewater.  To discuss your DUI charge, call (201)-556-1570. You can also request a free consultation online.

Additional Information:


  • No promises, just a Pro!

  • Excellent Lawyer... Helped me in every step off my Case..

  • Great work

  • Best lawyer!!

  • FRO removal success!!

  • Easy to work with, straightforward

  • Kept my license

  • Father of client

  • Excellent Attorney , Charges Dismissed as promised

  • Helped every step of the way

  • Avoid mandatory jail time on shoplifting charges


  • Help

  • Did the job he was hired to do

  • Great lawyer

  • Simple assault charge was dropped

  • Top Notch Representation

  • Well worth it.

  • DUI Case Dismissed

  • 2 felony charges dismissed

  • Cameron bury

  • great attorney

  • Hands Down Professional and delivers results!!!

  • DUI case dismissed

  • 125 stars out of 10!!

  • Excellent at getting best outcome

  • Excellent Attorney

  • TRO Dismissal

  • Efficient Excellent attorney.

  • Excellent attorney

  • Travis successfully defended me in an unprecedented Final Restraining Order Trial with ease

  • Kick Ass Attorney!

  • Efficient and professional attorney

  • Great Lawyer And Great Results

  • Top Notch DUI Attorney

  • Client Domestic Violence

  • Restraining Order

  • A real pro in a time of need - DWI Dismissed.

  • The most experienced, patient and affordable attorney

  • Travis Tormey successfully had a False TRO against me dismissed.

  • Underaged Drinking

  • Underaged Drinking

  • DUI Dismissed

  • Saved me from a DUI. HIGHLY recommended

  • Restraining Order

  • Case dismissed with Data Driven Facts

  • Respectful. Attentive. Professional.

  • Trespassing and Under the Influence Disorderly Persons charges

  • If you are reading this- You have reached the right place! Undoubtedly, the BEST Law Firm in New Jersey!

  • Amazing attorney with a heart of gold

  • Exceeded my expectations, Highly Professional Attorney

  • Responsive and knowledgeable.

  • The Tormey law firm was very kind and professional

  • Expungement

  • Travis Tormey is a True Professional Who Kept Me Out of Jail

  • Saved me a whole ton of problems

  • Travis Tormey Review

  • A nightmare case, with a happy ending.

  • Elite NJ Marijuana Attorney! 5 Stars!!

  • An Excellent lawyer!

  • Great lawyer for DUI

  • I highly endorse Travis Tormey.

  • Travis Tormey Law Firm

  • Travis is a Lifesaver

  • Travis J. Tormey - Evaluation

  • Great Lawyer. Got me off exactly what I wanted

  • Consummate Professional!

  • Great Criminal Defense Lawyer

  • Good Service

  • Exceptional Lawyer

  • Exceptional Lawyer

  • Hired to defend me for aggravated assault

  • Hired to defend me in a restraning order

  • Excellent attorney, highly recommend his talents

  • DWI Counsel

  • I highly recommend Mr. Tormey

  • Great attorney

  • Travis Tormey, Esq. - Great Results!

  • Travis Tormey - Excellent Attorney-Kind and Trustworthy

  • Excellent Attorney-Trustworthy and Kind

  • An Outstanding lawyer!!! That will represent you in the correct way!

  • Excellent Attorney! You will not be dissapointed....

  • Travis Tormey Gets Results!

  • tormey

  • Success!!

  • Travis Tormey Review

  • Only Lawyer I Recommend

  • Very Grateful

  • Attorney review of Travis Tormey

  • Excellent

Experience You Can Trust

With unmatched knowledge and experience in the practice of law, the seasoned attorneys at The Tormey Law Firm are committed to serving their clients and tenaciously confronting the allegations against them.

We will examine every facet of your case in order to defend your constitutional rights and reputation. With a dedicated legal advocate to assist you, our attorneys will ensure that you are never forced to navigate the complex legal process on your own.

  • This field is for validation purposes and should be left unchanged.

Learn More About How to Fight Your Charges

If you've been charged with a criminal offense, disorderly persons offense, or traffic / DWI violation, you have the right to an attorney who will defend you against your charges and fight for your best interests. To learn more about how your attorney can fight to have your charges dismissed or reduced, click a link below to see our video library of legal defenses and strategies.

The Tormey Law Firm

Areas we serve

Bergen County, Essex County, Morris County, Passaic County, Hudson County, Middlesex County, Somerset County including Morristown, Denville, Dover, Mount Olive, Parsippany, Hackensack, East Rutherford, Elmwood Park, Englewood, Fort Lee, Garfield, Lodi, Lyndhurst, Mahwah, Palisades Park, Paramus, Ridgefield Park, Saddle Brook, Teaneck, Clifton, and Wayne.

  • Hackensack Office

    254 State Street Hackensack, NJ 07601

    (201) 556-1570

    view larger map

  • Morristown Office

    55 Madison Avenue Suite 400, Morristown, NJ 07960

    (908) 336-5008

    view larger map