When the test results get skewed, the officer blames the driver, accusing them of playing games and “refusing” the test — when in fact it was their own fault!
A recent client was pulled over for weaving and charged with DUI and refusing a chemical (breath) test — a serious charge that carries mandatory jail time and suspension of drivers license for a year.
I subpoenaed the arresting officer to the DMV hearing, and also a former sheriff’s criminalist, to challenge the refusal allegation. Their testimony showed that my client had in fact cooperated, providing three separate and valid breath samples.
When I questioned the officer, he revealed that his tests resulted in “Insufficient Sample” readings from the breathalyzer machine. He interpreted this to mean that my client was not blowing hard enough into the machine — i.e., she was playing games, being uncooperative, refusing to take the test.
Many police don’t know how to use a breath test machine
Even many DUI attorneys don’t understand the technicalities of the breath test!
The problem is that “Insufficient Sample” is really a misnomer.
It should say, “Incomplete Sample.” Here’s why. Title 17 requires an officer to collect at least two breath test samples. Both readings must be within two points of each in order other to be valid — and must be taken within three minutes of each other.
If an officer is filling out paperwork and doesn’t administer the second test within three minutes, the machine will “time out” and print the (misleading) message: “Insufficient Sample.”
Many officers and attorneys don’t know this!
The only way to discover this is to go to the crime lab to see the usage log, which shows the results for each suspect. In my client’s case, she gave a sufficient sample, but the officer did not get a second and third sample in a timely fashion, so his arrest report simply showed “Insufficient sample” three times.
We won the DMV refusal hearing — my client’s license was not suspended — and got the Prosecutor to dismiss the refusal allegation and reduce the charges to a “wet reckless driving” charge.
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