Instead of a dry, boring article, the following is an excerpt from a recent interview with Attorney Leckerman on the subject.
Interviewer: We’ll talk about chemical test refusals first. Do you commonly run into situations where someone is accused of refusing a chemical test, (the breathalyzer) and the client telling you “I didn’t refuse it. I tried to blow” or “I tried and the police officer said I refused but I didn’t”.
Kevin Leckerman: I do commonly come across that issue, but there are cases where the client flat-out refuses to give breath samples.However, I have just as many clients who attempted to give valid breath samples, but the police officer believed that the person wasn’t giving a good enough attempt each time the breath samples were done. So, a lot of the issues that I come across have to do with people who give legitimate effort in trying to provide breath samples, but they are either physically unable to provide adequate breath samples or the police officer comes to an incorrect conclusion about the effort that’s been given. Some of these officers will really jump the gun and charge somebody with a refusal when the accused was trying all along.
Interviewer: So what are some of the ways people try and fail? What are some of the things that prevent them or stop them or cause that?
Kevin Leckerman: Well, one of the basic issues would be lung capacity. There are a number of people who have problems with their lungs that could be related to smoking or cancer or just any physical disability that results in an inability to give a specific volume of air when blowing into the machine. One example would be Chronic Obstructive Pulmonary Disorder or COPD. That essentially is one of these diseases where people may ultimately have to use an oxygen tank on a daily basis. They have trouble breathing in air and expelling air. So, no matter how hard they try, they’re not going to be able to give the required or programmed amount of volume that the breath machine wants.
Now there are different breath-testing machines that have different required volume amounts. For example, the Intoxilizer 8000 and the Intoxilizer 5000 are both programmed to require 1.1 liters of air. Well, if you have COPD, you’re probably not going to be able to give 1.1 liters of air. And that’s a condition that can actually be proven through medical records. Pulmonologists will often test someone with COPD to determine that person’s maximum amount of liters of air or volume that can be expelled. This medical information is essential when defending a refusal.
Interviewer: So what about people that have asthma, or people that are so upset by the experience that they are hyperventilating? Do you run into that with people who are accused of refusing?
Kevin Leckerman: Absolutely. There are many people who are quite upset after being arrested and that condition could certainly prevent them from being able to give full breath samples. We’ve all seen people who are hyperventilating, because they get themselves so riled up and upset, become unable to breathe or expel a full breath. I’ve seen that on a number of occasions. I’ve also seen where some people have tried numerous times and they just became fatigued with giving breath samples. For instance, the person may be asked to give up to 11 different breath samples and, by the time you get to number eight or nine, the person is fatigued. Additionally, if that individual has a condition like asthma, this repetitive act of deep breathing may aggravate the condition, causing that person from being able to comply with the requirements.
Interviewer: What’s the most common things you see that cause a problem? You talk about COPD, but what’s the most frequent stuff that causes these problems?
Kevin Leckerman: Well, the most frequent issue that I see is a police officer who just comes to a premature decision about a refusal. It’s a very subjective issue when a person is at least trying to blow into the machine. With the officers who make these decisions to charge somebody with a refusal and terminate the testing, that’s really up to them. There’re no standard guidelines. That’s the biggest issue that I see.
The second biggest would be the Chronic Obstructive Pulmonary Disease, or COPD. Sometimes asthma comes into play. Sometimes you deal with clients who have pretty serious smoking habits, and they believe that their ability to breathe in air has been affected by their chronic smoking. So, I suggest that these clients a pulmonologist, in order to get a lung capacity study done.