Law Firm of Aaron Bortel

If You Have Been Falsely Classified As Refusing the Chemical Test

I will say that Aaron was a lifesaver in a huge time of need. “I have never been involved in any type of legal matters or ever had a lawyer before for that matter so I don’t have much to compare Aaron to; however, I will say that Aaron was a lifesaver in a huge time of need.

I contacted Aaron after doing research and finding out my license was suspended at the time of me being charged while driving under the Influence. I looked online and found out jail time may be required for this offense depending on the ruling so as you can imagine I was very hectic and stressed out. I called a handful of lawyers and made my decision on how sounded the most authentic as that would give me the best gut feeling, and I felt very confident by picking Aaron based on the fact he was the only one that told me to check other options and decide what was best for me….


Interviewer: Do you have clients come to you and say, I didn’t refuse the blood test. They just marked me as refusing it, but I did try. Did you ever have that scenario?

Aaron: Well, I have encountered clients who had problems with the breath test and blood test. Frequently, the officers are yelling at people to blow into the machines. And a lot of people, such as people with less lung capacity, smaller individuals, or smokers or people with a medical condition, or someone who has asthma, are going to have a lot of trouble getting a deep, long enough blow into those machines. If there is no phlebotomist available to do a blood test and they say a breath test is all you can do, that can be troublesome because the difficulties you may encounter result in a refusal.

Sometimes you have someone who has a blood clotting disorder, someone who is a hemophiliac, and they’re not supposed to give them a blood test, so a breath test is an only option, and if that person is having trouble blowing into the machine or the officer thinks that person is not blowing hard enough, they will mark it down sometimes as a refusal if they don’t get a result.

Can You Contest Being Classified as Refusing the Chemical Test?

Interviewer: Is that a refusal, or can you fight that?

Aaron: Oh, I can fight any refusal. The question is whether or not we’re going to be able to win it. If the law is properly followed, it makes it tougher. But officers make mistakes, and they don’t always write the reports up. It’s important to get this to the DMV and make them prove their case, if the officer is in there sometimes testifying about the refusal. I’ve had a number of refusal cases, where what’s in the report is not how the officers are going to testify. So, what may look like a refusal on paper may not be. And if you don’t try to win, you have no chance to win, so you have to fight it.

Medical Conditions May Prevent You From Properly Performing the Breath Test

Interviewer: So, some of the common problems you said are people who don’t have enough lung capacity and they can’t blow hard enough, the machine can’t register their breath test properly?

Aaron: Correct.

How Current Is the Breath Test Machines Technology?

Interviewer: And how many of these machines malfunction? They’re probably not state-of-the-art, cutting-edge technology. Do they break? Do they malfunction?

Aaron: Yes, in the San Francisco Bay area, almost nobody has new machines. There are machines that are newer than the Intoxilyzer machines. San Francisco uses the Intoxilyzer machines, and they’re ancient. They’re dinosaurs. You rarely see that these things have been serviced. They’re ancient technology.

There is better technology out there, and the older machines do have problems. There can be a lot of issues on breath testing. There can be mouth alcohol. There can be invalid samples. There could be ambient air where there is actually alcohol or some substance in the air that’s interfering with the machine so you’re not getting a clean breath sample. A lot of different things can go wrong. And because of that, again, it’s important to investigate into every aspect of a DUI arrest.

Do Police Officers Have to Be Certified to Administer Breath Tests?

Interviewer: Do the operators have to be certified in these machines? Or just any officer can use them?

Aaron: They have to be qualified to use them, which basically means they need to be properly trained to use the machine. It doesn’t take much. For example, in a DMV case, they just need to sign under penalty of perjury that they’re qualified to do this, and DMV takes that for granted.

They’re not even required to come in to the DMV and prove that. In court, they would need to testify that they’re qualified on the machine, and then the attorney can cross examine them to show their lack of qualification, but that’s usually not where we win these cases. Usually, the officer who is using the machine has been trained how to push the button. It’s not that difficult.

Do the Breath Test Machines Need to Be Calibrated?

Interviewer: Do these machines need to be calibrated?

Aaron: The machines themselves need to be calibrated. They need to be checked for accuracy, and those checks are supposed to be done every 10 days or every 150 tests. That does not always happen, so we go after that a lot.

By Aaron Bortel

Aaron Bortel

Get your questions answered - Call Us 24/7 For a FREE Case Evaluation (415) 523-7878.

Related Articles