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.)
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