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-Ross W. Albers,Proven DUI Attorney

Insufficient Breathalyzer DUI Refusal

Category: Maryland DUI,Maryland DWI
May 31, 2017

Our client was facing a 270-day suspension of their driver’s license in Maryland for refusing to take the breathalyzer test after a DUI arrest.  But, our client didn’t actually refuse to take the test.

Let me explain.

Agreeing to take the breathalyzer, but marked as a refusal

Our client was arrested for driving under the influence in Carroll County, Maryland.  The client was taken back to the police station and advised of their rights with regards to taking or refusing the breathalyzer test.  The client agreed to take the breathalyzer test.  Prior to taking the test, the client advised the police officer that they had bronchitis.  This was noted in the police report.

On the first attempt, the client did not blow hard enough to register a BAC.  So, the officer had the client try again.  On the second attempt, the client did not blow hard enough to register a BAC.  The police officer asked the client to try a third time.  This time the client told the officer that she could not do it.

Despite agreeing to take the test, the police officer marked the client as a refusal because they couldn’t register a sufficient blow.  The MVA paperwork, minus any mention of the client’s bronchitis, was then submitted to the MVA as a “breathalyzer test refusal – insufficient blow.”

With our office’s help, the client requested a MVA hearing to challenge the MVA’s decision to suspend their license for refusing the breathalyzer test.

Insufficient breathalyzer blow law

In cases where the driver agrees to take the breathalyzer test but later fails to complete the test, the MVA must produce evidence that the driver intentionally frustrated the test and thus, by conduct, refused the test.

At a MVA hearing, the police officer does not testify and the MVA proves its case by uploading the officer’s paperwork.  Here, the MVA uploaded the police officer’s paperwork that indicated that the client agreed to take the breathalyzer test but did not provide sufficient breaths to register a BAC.

Applying the above law to our client’s case, we argued that the MVA failed to prove that our client intentionally frustrated the test.  There was no evidence that our client intentionally tried to beat the test by belching beforehand, putting any foreign substances in their mouth, making little puffs of breath, or not putting the device in their mouth.  None of these facts existed.

Had the police officer provided these facts, then our client would need to prove that there was an innocent explanation for their failure to complete the breathalyzer.

Even though our office didn’t believe the MVA had proved their case, we still provided the judge with an innocent explanation: our client’s bronchitis.

Our client’s doctor wrote a note explaining that two days prior to the arrest, the client had been diagnosed with bronchitis.  Additionally, our office put in evidence the officer’s police report that stated that our client told the officer prior to taking the breathalyzer that they had bronchitis.  A fact that the police officer did not include in their MVA evidence.  Probably because the office didn’t believe our client.

Without even getting to our innocent explanation, the court agreed that the MVA failed to prove that our client intentionally frustrated the test.  The burden of proof never even shifted to our client to prove their bronchitis.

The court order the MVA to take NO ACTION on our client’s license and refunded the client their $150.00 MVA hearing fee.

Columbia, MD DUI Lawyer

When seeking out a Columbia, MD DUI lawyer, consider the Law Offices of Ross W. Albers.  Ross W. Albers is an experienced and proven Columbia DUI lawyer who has the ability to get you the best possible outcome for your Maryland DUI case. For more information on The Law Offices of Ross W. Albers, or to schedule a free consultation, give us a call at 443-457-3890 or fill out the form on our website, today!

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