Asthmatics Punished for Inability to Give Breath Sample?

Posted by Lawrence Taylor on March 28th, 2006

Almost all states now have increased penalties for refusing to submit to blood-alcohol testing, usually involving added jail time and/or longer license suspensions. A few states even make refusing a separate and distinct crime. A large percentage of those charged with “refusing” are innocent.

One of the most common refusals is the failure to breathe hard enough to produce a breath sample.

The various breath machines all require the suspect to breath through a narrow breath tube hard enough to lift an inner piston, permitting the sample to enter the sample chamber. The reason is that blowing hard forces the suspect to produce the air from the deepest part of his lungs (alveolar air) — air with the highest percentage of alcohol; the harder the blow, the higher the blood alcohol level. When there is insufficient pressure from the suspect to activate the sample-capturing mechanism, the machine will signal that the test is invalid. At that point, the officer assumes that the suspect is purposely not breathing hard enough in order to avoid incrimination, so he discontinues the test and reports it as a refusal.

But how does the officer know that the reason for the failure to produce a breath sample is intentional? He doesn’t, of course; being a police officer, he merely assumes it. But the amount of pressure required to lift the valve can be misadjusted, and many of them begin sticking after constant use. And the tube can be too narrow; the manufacturers of the most common machine used today, the Intoxilyzer 5000, had to enlargen the breath tube in later models because of large numbers of complaints.

Many individuals, particularly the elderly and cigarette smokers, simply do not have the lung power. And then there are the millions suffering from emphysema or asthma.

Researchers in one scientific study of asthmatics found that only 2 of 51 subjects were able to breathe hard enough to activate a breathalyzer. P.J. Gomme et al., “Study into the Ability of Patients with Impaired Lung Function to Use Breath Alcohol Testing Devices”, 31 Medical Science and Law 221 (1991). In other words, 49 of them would have been prosecuted and punished for “refusing” a breath test.

The law, in its wisdom and majesty, continues to punish citizens for not breathing hard enough to activate these machines — with little or no evidence as to the reasons why. And as is common in DUI cases, the reasons are presumed (see “Whatever Happened to the Presumption of Innocence?”) — and, of course, who is going to believe the defendant’s denial?

(Thanks to Dr. Ronald Henson.)


    Just make sure if you are an asthmatic, you don’t take an inhaler-hit immediately before you try and blow a breath sample.

  • elf

    thanks for the information. i am facing this issue in regards to a car breathalyzer. i have an indented chest which results in my having decreasing breathing capacity. i could not it , even after it was made easier after i sunitted a letter to medical review board.

    i have had to have another lung function test getting from dr to submit to the review board again.

    i got a refusal at the police station because of inablity to do it.
    its on my report that i told the cop that i have this issue. the cop kind of a question mark next to it.

    something needs to be done, i can’t get my license due to something i was born with. i submitted information from a lung dr, supporting this fact.

    i feel this discrimination on the bases of physical disablity.

    i am going to stand up and fight
    because someting needs to be done.

    i have been dealing with this issue for almost a yr.

    there needs to be a provision for medical issues.

    lets stand up and fight!


  • elf

    i got another letter from a second lung dr per dmv’s request. it was rejected right away. my lawyer is appealing it.

    i am being punished dmv medical review board because i was born with an indented bone.
    i have decreased breathing capacity as a result of it.
    i am discrimnated against because of something i was born with.
    after doing reasearch online, i found out there is no one on the medical review board who is capable of making decision regarding breathing problems.

    i also found no medical provisions for those with breathing problems.

    the dmv is jury, judge and excutioner, but also playing dr as well.
    as far as i am concerned they have become a para police agency