Defending Yourself When Accused Of A Breath Test Refusal

Instead of a dry, boring article, the following is an excerpt from a recent interview with Attorney Leckerman on the subject.

Kevin Leckerman: Most of the time breath testing is not videotaped and audio taped. So, you’re going to have to trust the word of your client or use the police reports themselves to point out discrepancies. There are particular standards that have to be followed by a police officer in determining whether the breath test refusal is a valid one. If there were specific situations where you can show that the machine wasn’t functioning properly, then that so called refusal may be thrown out just because the police failed to follow proper procedures. That can usually be determined by looking at a police report. It does happen fairly often. However, there are instances where a police officer or a breath test operator is being video and audio taped. In those circumstances, you can see exactly what’s happening in the room. You want to make sure that, for instance, mouthpieces are changed. If they’re using old mouthpieces, there obviously could be build-up in it from another person’s saliva in the old mouthpiece. The changing of the mouthpiece is a requirement for each new breath test, but there have been officers who have failed to do that. And if you have a mouthpiece that has obstructions in it, then the person, no matter how hard he tries, is not going to be able to give a full breath sample. There are other instances where police officers simply leave on their audio taping equipment from their vehicles. For example, an officer may come into the station and forget to turn off his in-car video recording system. In that case, the wireless microphone that’s attached to the officer stays on and you can hear everything that’s going on in the breath testing room.

In these cases, I can tell if the officer is following protocols properly. If the officer has an electronic device in the room, the electronic device can cause radio frequency interference with the breath machine, which, in turn, could affect the way the machine is operating. In that instance, the refusal charge should be dismissed.