In all states today there are sanctions for refusing to submit to chemical testing for blood alcohol concentration (BAC). In some states, the sanction is an administrative one: the license will be suspended, usually for a longer period of time than for having a .08% blood alcohol level — even if the driver is later found to be not guilty of DUI. In other states, the fact of refusing will increase the jail sentence if convicted of the underlying DUI. In still others, refusing constitutes a separate crime in its own right. In most states, the consequences will be a combination of these.
Because these consequences can be severe, some police officers are more than happy to find that a suspect has “refused” to cooperate in testing — particularly if the officer is not confident that the test results might show less than .08% BAC. This is even more true today, since many officers have found that they can “have their cake and eat it, too”: if the arrestee refuses to cooperate, officers will hold him down and forcefully withdraw blood — and, with the blood results, charge the individual with both .08% and refusing to submit to testing.
Predictably, police are increasingly motivated to find a “refusal” — followed, often, by a forced blood draw. And in an increasing number of cases, there was no real “refusal”. But, of course, it is the officer’s word against the defendant’s….Or is it?
The usual procedure in a refusal case is for the officer to set up the breath machine for a test; if the suspect refuses to blow into it, the officer enters the fact into the machine and the information is displayed — and stored in the machine’s memory. Exactly what kinds of information are stored within the memory is controlled by the machine’s software. Depending upon the program for the particular machine, it may store data concerning past tests, error messages, diagnostic tests, calibration checks, etc.
Being of necessity a resourceful lot, some defense attorneys have noticed that if they obtain records from a breathalyzer’s computer of past tests, certain officers seem to have a higher percentage of refusals than other officers – often much higher. Over an extended period of time, for example, the printout may show that drivers arrested by Officer Jones refuse to take a breath test 15% of the time, that the average for all officers is 26% – while those arrested by Officer Smith “refuse” 80% of the time.
Juries tend to be interested in little things like this. Consequently, we can expect to see fewer police agencies entering refusal data into breathalyzers, preferring to rely instead upon the officer’s written report. (Note: It is virtually impossible to obtain all of an officer’s DUI reports and compare them to the reports of all other officers.)