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Sometimes it is not possible to provide enough of a breath sample to satisfy the breathalyzer in a Massachusetts driving under the influence case. When this happens, the person taking the chemical breath test will often be considered as having “refused” to submit to the test and the Massachusetts Registry of Motor Vehicles will revoke that person’s license for 180 days, 3 years, 5 years, or lifetime, depending on the person’s age and prior drunk driving record.
As a matter of law and fairness, a breathalyzer refusal suspension should not be imposed if the person suspected of DUI tries his or her hardest, but is unable to provide the required volume of breath due to a legitimate reason, such as a documented medical condition. For example, a person with chronic obstructive pulmonary disease (COPD) might not be able to expel the required volume of deep lung air which the Drager Alcotest 9510 requires. Also, for the breath test to be considered valid, Massachusetts breath testing regulations require two (2) valid breath samples. This means that the person arrested for OUI has to provide one breath sample, wait until the breathalyzer performs a calibration analysis, and then provide another sample of deep lung air for the test to be considered valid. Certain medical conditions might make providing the required breath samples difficult.
On the other hand, in many cases, defendants try to thwart the breathalyzer by intentionally not blowing hard enough, not blowing long enough, or by not forming a tight enough seal between their mouths and the mouthpiece. This type of circumvention rightfully constitutes a refusal. However, if the defendant is unable to provide a sufficient breath sample, through no fault of his own, that should not constitute a license suspension triggering chemical test refusal. I have successfully argued this point at the district court level by appealing the Registry’s decision.
