In Virginia, the observation period is 20 minute, and among the things that the police officer looks for during that 20 minutes is if the defendant burps, belches, gets sick, puts their hand to their mouth or anything else that could possibly taint the results of the breathalyzer. Police usually abide by the rules and follow the observation period protocol, as far as we can tell. The notes that we receive from the police officer in discovery, when compared with what our clients are able to tell us about the experience, indicate that the police officers virtually always follow the observation period protocol.
What Type of Operator Errors Can Cause an Inaccurate Breath Test Reading?
The operator of the breath test machine has certain protocols they must follow regarding the “warming up” of the machine prior to the breath test, including certain settings and certain steps in the breath testing process. If issues develop regarding those steps during the warming up period or the machine’s settings, they can influence the breath test results and result in inaccurate readings. Other factors that may influence the results can be problems with the machine servicing prior to the client using the machine, maintenance problems, prior issues with other defendants who have previously blown on the machine and the client “playing games” by not blowing hard enough.
There can be a combination of machine errors, combined with operator issues. There can be factors involving inaccurate breath test results based upon the way the client handles themselves in the process.
What Are Common Types of Breath Test Refusals?
There are several types of breath test “Refusals,” with the most obvious being when the defendant refuses verbally, saying, “I’m not going to take the breath test,” or simply refuses to follow the instructions without saying anything. In addition, the defendant may “play games” by pretending to blow hard by puffing their cheeks as if they’re blowing on a trumpet and making all kinds of noises without blowing at all, or blowing very softly or for not the lengths of time instructed to blow by the operator.
What is a False Refusal and How Can it Impact a Person’s Case?
Not blowing hard enough, pretending to blow hard, blowing softly and not blowing long enough are all false refusals. The fact that the defendant is faking it in the blow has no more bearing on the case than simply refusing outright; there’s no additional punishment for faking the refusal.
If you have been charged with refusal but believe you didn’t intentionally refuse, that is almost always a non-starter; unless you have emphysema or COPD, it is not hard to take a breath test, so almost everyone who is listed at having refused who claims they didn’t refuse outright is simply kidding themselves. In most cases, they were attempting to deceive the machine and if they weren’t, there is simply no way to prove they weren’t.
In Virginia, a non-result is the same as a refusal and if you are charged with an unreasonable refusal to take a breathalyzer test, it’s not a criminal charge, but there is a civil penalty for a first-time refusal of a one-year hard loss of driving privileges, with no possibility of restricted privileges for work or school or medical. You simply have to walk for a year.
What Evidence Do You Utilize to Refute the Breathalyzer Test?
The single greatest way and almost the only way, to attempt to refute the breathalyzer test results is to subpoena the breathalyzer test machine records for the two months prior to the time our client blew on that specific machine. In so doing, we will look for problems with the machine, including problems with servicing and maintenance, technical problems, downtime and machine anomalies, including unusual results, spikes and declines in the results, dead air, deficient samples and other such results that may undermine the value and credibility of the breath test machine itself in our case.
For more information on Observation Period Before Breathalyzer, a free initial consultation is your next best step. Get the information and legal answers you’re seeking by calling our DUI law firm in Alexandria, Virginia (703) 548-1462 today.
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