Refusing the Breathalyzer Tests

Interviewer: Let’s say the machine malfunctions, or the person trying to blow into it can’t make it read properly, or the operator is not following the instructions? What will the police do in those circumstances? Will they you were uncooperative or you refused the test?

Dale: There are serious implications if you refuse the test, especially if you have any OVI convictions within the last 20 years. Because now to determine how many you have for enhanced penalties purposes they go back six years. But if you refuse the look-back period becomes 20 years. So now, say you had one 10 years ago and you had one 15 years ago, those come into play to enhance your penalty if you refuse.

Another implication of refusing, it is 30 days before you can receive occupational privileges, as opposed to 15 days for a first-time offense. Third, there are some courts, and you’ve got to know your courts where if you refuse they will not grant you occupational privileges while your case is pending. Sandusky, Ohio is a court that does that. If you refuse, you will not be granted any driving privileges.

Interviewer: What kind of sentence will the Sandusky court impose?

Dale: If you have a good defense your case might go on for four or five months. Therefore, that’s four or five months where you can’t legally drive.

Interviewer: What other penalties are attached when you refuse the breath test?

Dale: If you have one OVI conviction within the last 20 years you’re basically going from a minimum of three days in jail to six days in jail, and now the restricted plates are required.

Interviewer: In other words, the plates are similar to scarlet letter plates, advertising that you have an OVI conviction.

Dale: Yes, the yellow and red plates let everyone know that you are a convicted drunk driver.

Interviewer: Any other consequences of refusals? For example, what if you have two refusals that occur within a certain period of time?

Dale: There is. If you’ve had refusals in your past, it enhances the administrative license suspension, and also the time to get privileges. And that’s very significant because everybody has to get on the road legally. I keep that in mind every time a client comes in, I think I have to get this client on the road legally; otherwise, they’re going to end up driving, and they might get into more trouble.

If you have two refusals in six years and you cannot receive driving privileges for 90 days. That’s tough. If you do not refuse the breath test, you will receive driving privileges in 15 days. It’s always a tough call whether to blow or not blow. There are so many variables involved.

Interviewer: How often do you encounter people that said, “I did blow, I did use the machine, but they still marked me as refused anyway.”

Dale: That’s happened a few times. I mean it’s not infrequent when someone will give a breath test; two of them; and they come back with an invalid sample, and the officers mark it as a refusal. Now, that is absolutely wrong because when you get a test result that says invalid sample that means that the machine has detected the presence of mouth alcohol, and it invalidates the test result.

What you need to measure someone’s BAC is deep lung air. What it is, is if you spike right away, if the machine detects a lot of alcohol right away, and then the curve goes down as you continue to blow, that’s an invalid result because it’s detecting mouth alcohol.

Interviewer: Can the presence of mouth alcohol come from someone vomiting or coughing?

Dale: Yes, for example someone with gastrointestinal reflux disease, or someone that has a piercing in their mouth, and also someone that has extensive dental work in their mouth. Anything that can retain alcohol in the mouth can skew the results of the test.

Mind you, what the police call slope detectors to determine mouth alcohol as opposed to deep lung air do not work 50% of the time. So, if you have a client that looks on the video as if he or she is sober; and yet they have a high BAC test result that disconnect should raise a flag.

Interviewer: What about people who are crying or they have asthma or pulmonary problems, such as emphysema. They can’t blow hard into the machine. Will the machine work properly? Will they be marked as refused?

Dale: Well, it can come back marked as an insufficient sample, which is different. That means the machine didn’t get a measurement because there wasn’t enough air. Officers will invariably write you down as a refusal if it comes back like that.

But, if there is an explanation why you could not give it a sufficient example, then in fact, that refusal goes away. Again, as a defense attorney, you HAVE to obtain the booking video. You may see your client huffing and a puffing and they can’t produce a valid sample. And I did have one case with one department where I overheard these officers talking about a leak in the hose. So, these people were blowing as hard as they could, trying to produce a result, and they couldn’t because there was a leak in the hose.

Interviewer: You mentioned that the officer could continue to have the person blow into the device even after it reaches its 100% mark. Can you see that happening on the police video?

Dale: You might be able to. In fact, there are two things that go on. The police should stop the testing at the 100% mark. There is a beep that goes off if you are beyond 100%, and if you hear that beep you know that the person you are testing has blown beyond the 100% mark.