Interviewer: Do people say, “I didn’t refuse the breath test. I just couldn’t blow hard enough?” Are there other issues, but the police still mark them down as having refused?
Court: Yes, sometimes that is a bone of contention at the Driver License Division hearing. For instance, if you were to refuse the breath test, the police are required by statute to then read you an admonition.
The admonition is: If you refuse to take a breath test, then your driver’s license will be suspended for 18 months. I think they also mention the ignition interlock device restriction in the admonition.
If the police do not read you that admonition, then it is as though you have not been warned of the consequences. In that case, you can get the Driver License Division to not suspend your license for that period; and not require you to have the ignition interlock device. This is because you were not properly informed of the consequences of refusing the breath test.
It is not as common, but there are some cases where maybe a person does not refuse and the police officer thinks or says they refused. There are also cases where somebody might be afraid to take the test.
It does not happen as much with breath tests. However, if police were to request a blood test instead of a breath test and the person was afraid of needles and refused the test for that reason, then they will not have that suspension.
There may also be issues where you are unable to perform the test. It is not necessarily a refusal; but a physical reason. Maybe you are unconscious or you cannot get a sufficient breath sample.
You might end up being marked down as a refusal by the officer. However, if you go to the hearing and prove to the hearing officer that you did not actually refuse, then you will not have to face that suspension period.
Interviewer: In terms of refusals, what happens if you have asthma, pulmonary problems, you are hyperventilating or you are have other lung issues that prevent you from blowing hard enough into the machine to register or get a good reading?
Court: Those are the situations I was talking about where it is not really a refusal because you are unable to perform the test. At that point, an officer should take a different test. They should do a blood test instead, or a urine test.
But maybe they do not believe you. Maybe he or she is just not a very good police officer, not doing the job the right way. Instead of giving you a different test, they just mark down a refusal and then go about their business that way.
Then you are facing this huge driver’s license suspension. That is not right. So if that is the situation and you can prove it at the Driver License Division hearing, then you can get that suspension thrown out.