Our criminal defense law firm frequently handles drunk driving cases involving the use of breathalyzer devices. Unlike a blood test, a breath best is a much less intrusive chemical analysis and much more convenient. This is primary reason why the United States Supreme Court found that police do not need a search warrant to obtain a breath sample, but found that a warrant is required for a blood draw. Read my article on the decision in Birchfield v. North Dakota for more on this issue.
DUI breathalyzer refusal cases are some of our most difficult matters because the prosecution can convict our client without having to establish a specific blood alcohol content or concentration (BAC) and only that a driver was (1) placed under arrest for driving under the influence; (2) was requested to submit to a chemical test – breath test; (3) was informed that a refusal to submit to this test would result in a license suspension; and (4) that the licensee refused to submit to the chemical test.
One of the most common questions that we receive from clients in these chemical test refusal cases involving a breathalyzer pertain to deficient or insufficient breath samples. Frequently, clients tell us that they attempted to comply with the officer’s instructions to blow into the machine, but were repeatedly told that they had failed to make a proper attempt.
It is important to understand that in Pennsylvania, a failed attempt to supply a sufficient breath sample is a “per se” refusal. This means that if the police officer or other law enforcement testifies that a person failed to provide a proper breath sample, the court is obligated to find that the person refused the breath test; will result in a one year license suspension, two days in jail, mandatory court costs and fines.
While an insufficient breath sample is considered a per se refusal, a defendant must understand that this is an opportunity for him, through counsel, to present evidence that the he or she was incapable of successfully blowing into the machine due to some medical condition or illness. A good faith attempt to supply a sufficient breath sample and testimony regarding that “good faith” attempt, is still insufficient to excuse the failure to complete a test. The only proper defense is medical evidence which specifically addresses a person’s inabilities to blow into the device. Pennsylvania’s Commonwealth Court has repeatedly held this position, but judges on that court have dissented with regard to the “good faith” testimony regarding an attempt.
Alcohol breath tests must be administered within two hours after an arrest for DUI. In addition to this requirement, there is also a 20 minute observation period in which the operator must observe the defendant to ensure that he or she doesn’t eat, drink, swallow or vomit anything that could corrupt the test results. Further, the breath test operator must be certified and the device itself must meet certain accuracy and calibration requirements in order for the results to be admissible in court.
For more information regarding drunk driving defenses in Pennsylvania and New Jersey, I encourage you to read my monthly newsletter, my blog and visit the free download section of my website.