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Instead of a dry, boring article, the following is an excerpt from a recent interview with Attorney Leckerman on the subject.

Interviewer:Do people ever throw up, or are there any other factors or things that would disqualify someone from even being able to do the breath sample at all, legitimately?

Kevin Leckerman: I’m trying to think of your question and I understand what you’re asking. Let’s put it this way. A police officer can purposefully create a refusal situation. As I stated before, the breath test operator can see on the screen how much air is being given; and can tell a subject to stop prematurely and claim that the subject actually stopped on his or her own, before he was told to do so. So, the officer can be looking at the screen and see that 1.0 liters of air has been given to this Intoxilizer 8000, and then tell the person to stop. Now, the person breathing into the machine is not going to be able to look at the screen due to the way they’re set up in the breath testing room. So, the officer can claim anything, essentially, if he is a person who’s trying to create some type of refusal situation.

It also goes for the Alcotest machine. The officer has an opportunity to see how many asterisks are appearing across what’s called an LED screen. If there are fewer than 10 asterisks across the screen, that’s going to typically mean that the person has not given enough volume of air. So, again, the officer can say to the person “Okay, that’s enough.” The person stops, and now the machine records the person having only given 1.2 liters of air when he would have continued to try to give air, but for the officer telling him to stop. That’s a situation where a dishonest officer can create a refusal.

Interviewer: Are there any ways that someone could let the police know that they can’t do the breath test and would it matter? You know, if I was in the room and I said “Officer I have really bad asthma” or “I smoke two packs a day, I don’t know if I’m going to be able to do this” or “I’m hyperventilating. I can’t do it.” That kind of stuff. Does that work? Should people say that? Do officers listen?

Kevin Leckerman: The person should always inform the officer about any reasons or physical infirmities that would prevent the person from giving a valid breath sample. Then the person should actually try to give the valid breath sample. If he can’t do it, there is always this reason that was given beforehand. If somebody has asthma, the person is usually going to be able to produce medical records showing asthma’s been diagnosed, or that an inhaler has been prescribed. So, that’s going to be a way to defend against a refusal charge. Clearly, if somebody’s very upset, that may be indicated in a police report or, if there’s a video in the station, it’s going to show that. The officer should give the person an opportunity to calm down, before breathing into the machine. If the officer does that, then that excuse of hyperventilation would go away; but the person who’s going to be blowing into the machine should absolutely inform an officer about any reason there may be ahead of time to cause a potential refusal.

By Kevin Leckerman

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