At the beginning of 2022, the law regarding DUI diversion changed. DUIs are no longer eligible for diversion in California. Please contact our office with any questions. Email us at OR Call us at: (415) 523-7878

We Are Open 24/7 And Offer Free In Person And Virtual Consultations.

Law Firm of Aaron Bortel

Being Falsely Classified As Refusing The Chemical Test

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. 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.

Contesting A Chemical Test Refusal In Court

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. If you don’t try to win, you have no chance to win, so you have to fight it.

Malfunctions In Breath Testing Machines In California

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.

Breath-Test Administration Training For Police

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 into 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.

Calibration Of Breath-Test Machines

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.

For more information on False Classification Of Breath Test Refusal, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (415) 523-7878 today.

Share this Article

Aaron Bortel
With 30 years of specialized experience in DUI defense, Attorney Aaron Bortel is a dedicated advocate for those facing DUI charges in the Bay Area. Committed to helping clients avoid jail, save their driver’s licenses and jobs, and prevent permanent criminal records, he combines deep legal expertise with genuine care for his client's welfare. Trust in a lawyer who not only defends but truly supports you through challenging times.

Call Us 24/7 For a FREE Case Evaluation (415) 523-7878

Get Help Now
Translate »
Accessibility Accessibility
× Accessibility Menu CTRL+U