Some San Diego DUI attorney prosecutors and most San Diego DMV hearing officers generally believe a refusal is any situation when a testing machine does not report a numerical result, including but not limited to:
1. When the San Diego DUI estimating machine accepts a breath sample that is of the appropriate volume and pressure, but which when analyzed the machine reports a problem with the breath contents, often an “Invalid Sample”. If these are reported as “Refusals”, and the DUI subjects have done everything they are able to do, then the citizens cannot comply and are being unfairly convicted and/or suspended by San Diego California DMV.
2. When the machine is malfunctioning, and cannot accept a sample from the subject. In Florida, a DUI lawyer expert identified over 1000 times of experiencing this sort of problem, and presented at the National Association of Criminal Defense Attorneys conference in Las Vegas (September 2008), entitled: “Was your client tested on a broken machine: How would you know?”
3. When the subject is unable to provide a sample of breath that is required, and yet is charged with a refusal in a significant number of cases. See State v. Foley, 370 N.J.Super. 341, 851 A.2d 123, which holds that no citizen be charged with a refusal if they supply at least .5 liters of air as a breath sample, this is one third what the machine requires, and failure to provide the 1.5 liters of breath is a refusal in most other states.
4. When the volume of air that is required in order to avoid being charged with a refusal is arbitrary, and different in different states. If your DUI subject is charged on a machine manufactured by CMI, an Intoxilyzer, the volume of breath required is 1.1 liters of air. If they are tested on a Draeger 7110 in Alabama, the volume of air required is 1.3 liters of air. If tested in Massachusetts, the volume required is 1.5 liters of breath. There is no scientific basis for the differences yet a DUI subject in one sate would be charged with a refusal who would not be charged in another state.
5. When the machine is blown into by elderly people and women who have a lower capacity to satisfy the requirements for a breath sample. The DUI subjects will be charged with a crime based upon their capability, which is a function of their age and gender. A top DUI attorney expert has published the average breath volume supplied in Florida in a paper at the Suffolk Law School Journal of High Technology.
6. When the DUI subject has a physical disability: COPD, asthma, or another infirmity (e.g. only one lung) that prevents the DUI subject from supplying a breath that the machine decides it requires. These DUI subjects are ok to drive, but will become criminals when the government decides they need to supply a breath sample to a machine, and the machine refuses to accept their breath sample based on criteria for the average DUI subject or citizen.
7. When the results from a machine will vary based on the way the sample of breath is provided. How hard, how long the sample lasts, and other factors will cause a different result, or a refusal. The instructions given to the DUI subject make a difference, and are not administered consistently. There are recorded instances of subjects who have supplied all the breath they could, and have had the law enforcement officer take the tube away just as the sample was about to become sufficient to record a numerical result.
These are “Refusal by Cop”, because the San Diego DUI officer caused the refusal, not the DUI subject.