DOL Decision-No Refusal of Breath Test

Posted Wednesday, March 14, 2018 by Andrew Charles Huff

Great outcome this week in an administrative hearing with the Department of Licensing based on an alleged “refusal” to take a breath test after my client’s arrest.

In this case, the arresting officer claimed my client “refused” to provide a breath sample when, after several attempts, she was unable to provide enough air into the machine because she was crying so much, causing her to hyperventilate. The officer believed that she was playing games and purposely trying not to provide sufficient air.

However, I argued that the officer also wrote that client had previously agreed to provide a breath sample for testing and never directly said she would not do so. In other words, she never expressed “a positive unwillingness to comply with the officer’s request for a breath sample.” Furthermore, I pointed out that client was clearly having problems providing enough air into the machine because she was hyperventilating and not able to take a good breath.

The Hearing Examiner agreed with our factual argument and supporting case law, ruling that this attempt was not a deliberate “refusal” but rather due to my client being unable to provide a sufficient amount of air into the breath machine.