A man who claimed he blew three times over the legal breath alcohol limit due to using too much mouthwash has failed in his bid to quash his sentence for a second time.

Paul Anthony Blair appealed his drink-driving conviction to the Court of Appeal, attesting that his 761 micrograms of breath alcohol reading was due to him "liberally" applying an alcohol-based mouth gel to his mouth plate some 45 minutes before getting busted.

Blair contended that the breath alcohol device failed to distinguish between the alcohol in his mouth, allegedly from the "Medijel", and that in the blood stream, as reflected in "alveolar breath".

Alveolar breath is deep breath from the lungs.


However, the court noted that Blair did not give any evidence as to the precise quantity of Medijel he put in his mouth plate or provide any expert evidence as to whether that quantity would have been sufficient to account for the excess above 400 micrograms at the time he was breathalysed.

Accordingly the district court sentencing judge, Judge Treston, was satisfied the elements of the offence were made out and convicted him. Blair then took it to the High Court and failed before heading to the Court of Appeal.

The court said there was no requirement under the law that the evidential breath test, test alveolar breath.

Blair did not elect to have a blood test to confirm the accuracy of the EBT, something he was entitled to do.

The court found there was no basis for his argument and even if there was the evidence didn't support his proposition that the reading was based on anything other than the proportion of alcohol in his alveolar breath.

His conviction stands.