Instead of a dry, boring article, the following is an excerpt from a recent interview with Attorney Leckerman on the subject.
Interviewer: How many times do you have to give a value breath sample so that it’s valid? Is it just one or more?
Kevin Leckerman: It depends on the jurisdiction. In Pennsylvania the standard is really ambiguous to a certain degree. An officer can complain that the driver failed to create “a proper seal” with his or her mouth around the tube. The police officer will try to make out circumstances that the driver was just pretending to blow into the machine. So, if that driver did that twice, for example, the officer could just say, at that point, “I think you are trying to purposefully not give a valid breath sample therefore I believe you refuse to blow into the machine”. The officer then sends a form to PennDOT stating that a refusal occurred and the driver gets a 12-months suspension. The only way to fight the allegation is to appeal the suspension.
In New Jersey the device that’s used is the Alcotest 7110. And that machine has been programmed to take up to 11 breath samples. The officer has an opportunity to give the subject 11 separate chances to blow into the machine. However, the law doesn’t specifically say how many bad attempts have to be made before the officer can call it a refusal. It’s really, again, somewhat ambiguous in New Jersey, as well. But if a person blows poorly into the machine twice, then that probably wouldn’t’ be deemed a refusal under the law.
The other thing I wanted to say is that some of these breath test machines, like the Intoxilizer 8000, the Alcotest and the DataMaster, have display screens that will show how many liters of air has been produced in a breath sample attempt. So, let’s say that the breath sample for the Intoxilizer 8000 was only 1.0 liters of air. The machine is going to deem it to be an insufficient sample, however the officer will know how many liters of air were actually blown into it, and could see that the person has been trying to give a valid sample.
Interviewer: Oh, Okay. So if the officer sees .2 liters, they’re more than likely to say, “You’re not really trying, you’re trying to fake it” because it’s so far away from 1.1?
Kevin Leckerman: That’s right. The Alcotest 7110 printout will show specifically how many liters were produced. Part of your defense is going to be based on the fact that a client did make a valid effort by producing, let’s say, .8 liters of air or 1.1 liters of air. With the Alcotest, you need 1.5 liters of air. If a person blew 1.3, 1.4 liters of air, that’s a very valid attempt.
Interviewer: Do you ever have anyone blow into a machine and he or she blows too much, so it messes up their reading?
Kevin Leckerman: Well, you can’t blow too much air into the machine. You can potentially blow too fast into the machine, or stop your blowing too quickly; even though enough air has been blown into the machine. There’s a standard flow rate that has to be achieved for the actual flow of air. It’s just set for each machine, and if the flow of air that’s being blown is too fast or too slow that could definitely cause the sample to be invalid. But I don’t see that too often, frankly. But it can happen.