Breathalzyer Refusal Revocations for Insufficient Breath Samples

breathalyzer_attorneyTo avoid a “breath test refusal” license revocation in Massachusetts, those arrested for drunk driving must provide two long and continuous breath samples, so that the breathalyzer registers the air volume as sufficient and produces a BAC result. When the person taking the test provides an insufficient volume of breath, no alcohol reading will register.

Massachusetts police departments use breathalyzers manufactured by Draeger Safety Diagnostics, Inc. Some Departments use the Alcotest 7110 MKIII-C and all Massachusetts Police Departments are transitioning to the Drager Alcotest 9510. Both of these units require a considerable amount of breath to operate. The Alcotest’s infrared chamber captures and analyzes the breath sample provided, which consists of deep lung air. Both breathalyzer models require 1.5 liters of breath volume to register BAC readings. If a person does not blow long or hard enough, the breathalyzer will not produce a blood alcohol reading and the police will consider the driver’s conduct a “refusal.” Police officers have been instructed that failure to provide a proper breath sample constitutes a “refusal.” However, this definition of a “refusal” may be too broad.

Sometimes, the failure to provide sufficient breath samples is intentional. The driver deliberately does not blow long or hard enough, so the breathalyzer will not record his blood alcohol content. However, in other cases, the driver cannot provide a sufficient sample due to a respiratory or other medical condition. For example, those with COPD, emphysema, asthma, lung cancer, or related respiratory conditions may not be able to blow long or hard enough to satisfy the breathalyzer. Also, there have been documented cases of women over 60 years of age being charged with chemical test refusals because they were physically incapable of providing the required sample of 1.5 liters of breath.

To summarize, if a driver who is stopped for driving under the influence of alcohol (DUI) in Massachusetts fails to provide a sufficient breath sample for testing as directed by a police officer, the failure will be construed as a breathalyzer refusal, resulting a license suspension. This chemical test refusal suspension can only be avoided if the driver can convince the Registry or Court the failure was due to his or her physical inability caused by a medical condition unrelated to any consumption of alcohol.

In order to avoid a license suspension ranging from 6 months to life, breathalyzer refusal suspensions should be appealed to the Registry, District Court, or Board of Appeal. The avenue of appeal will depend on the suspension reason and type of appeal. If you have received a letter from the Mass. RMV regarding a chemical test refusal suspension, you should contact a lawyer, such as Attorney Brian E. Simoneau, who has successfully challenged a large number of breathalyzer refusal suspensions and gotten his clients’ licenses reinstated. If you are physically incapable of completing a breath test, the Registry should not suspend your license.