Police Officer Preparation & Law Enforcement Resource - Archive

I recently submitted to a breathalyzer test and on the first attempt saw "specimen accepted" on the machine. When I asked the officer what the reading was, he ignored me. Then he asked me to submit another sample. On the second attempt he repeatedly yelled "BLOW HARDER, BLOW HARDER, BLOW HARDER, BLOW HARDER!" In which case I stopped and asked if he was supposed to be yelling at me like that while attempting to provide a breath sample. At that point his attitude changed and he stopped yelling at me. The second specimen was not accepted and I was issued a refusal to submit a breath sample. Now I am looking to have my license suspended pending a Administrative License Revocation hearing and I do not know what the accepted specimen read.

I'm looking forward to hearing any thoughts on how admissible the accepted specimen is in making a decision on the suspension of my driver's license based on these facts and whether or not the actions of the officer are protocol for suspicion of DWI. Thanks in advance.

If you live in a state that requires you to submit to two samples, then you did not submit the second sample as required.

In Missouri, I only need one sample to use in court, but I can require an arrested driver to submit to two tests. (They can be breath/blood/urine/saliva... any combination of two). If the first one was accepted, then I can use that reading in court against you. If you submit one, but fail to submit the other as instructed, then I can use the first one in court AND go with the suspension/revocation for refusal too.

-Citicop.

Figuratively speaking, you blew it when you stopped blowing.

In order to complete the breath test you have to blow twice, a certain number of minutes apart. The second test not only validates the first test, but it determines if your blood alcohol level is rising or descending. If it is rising (and depending on the level and time from your arrest) this has been used to show that a defendant was under the legal limit at the time they were driving, actually causing the charges to be dismissed. You missed your chance on that one.

A certain level of air pressure is required within a limited amount of time for the test to be properly completed. You were not blowing hard enough, hence, the officer repeatedly told you to blow. Instead of complying, you decided to stop the test in order to debate the officer's manners with him. Your actions were deliberate and willful. Because of them, the second blow could not be completed within the time limit, invalidating the test. This made you a refusal.

You can appeal the resulting license suspension to an Administrative Law Judge at a DMV hearing, but saying you stopped the test because you felt the officer was rude and you wanted to debate his manners with him is not a valid defense to a no blow.

Now, if you don't believe the test was invalid, watch your attorney challenge its admissibility at your DUI trial because you did not complete the second blow. He will scream like a stuck pig trying to prevent it from being admitted as evidence. Even if he is successful, the officers still have years of expertise testifying as to symptoms of intoxication, administration (and failure) of field sobriety tests, and their credibility will probably outshine yours in court. In addition, they will also have dash cam video of you taking and failing the field sobriety test, your conversations with them along with your temper tantrum when you refused to complete the breath test. Courts and juries usually view conduct like that as an acknowledgment of guilt by someone who doesn't want to complete the test because they are afraid doing so will reveal their excessive blood alcohol level.

In short, you messed up big time. Depending on what state you live in, plan on taking the bus for the next six to 12 months.

Were you arrested for DWI?

It is not uncommon to assertively tell an arrestee to blow harder. It may have seemed he was being rude, but more than likely he was just trying to help you. We see all too much where people say they'll take the test, then they want to give a half-assed blow likely in an attempt to try to beat the machine, but in turn they just screw themselves because it gives an invalid sample. I personally don't want to send in a refusal form on someone who genuinely wanted to give a sample so I try to help them by emphatically telling them to blow harder so they give a sufficient sample.

It's not really that complicated. The intoxilyzer only knows two things, you're either giving a good enough breath sample or you aren't. If you aren't you get the result you got. It doesn't judge intent of the subject or attitude of the officer.

You stopped blowing in the middle of the test to ask the officer if he was supposed to be yelling at you?

I hope that moment of sarcasm was worth it. Seems like an evening of bad decision-making on your part.

Oregon only requires one test (or at least used to), but you have to blow pretty hard into the machine to get an accurate reading. The operator routinely keeps telling the person to blow hard to get it. Not blowing hard enough and not getting an accurate result is considered a refusal. Getting your feelings hurt probably cost you your license for a while, but you will know for sure when you get to the hearing. They'll explain it all there.

PA gives 72 hr jail time simply for the refusal , then add 12-18 months loss of license. Not to mention what the actual DUI will add on.

Thank you everyone for your replies. I appreciate your honesty and willingness to provide me with insight. I admit I may have been too emotional at the time of the arrest from previous bad experiences with officers and that had affected this instance. However, the administrative judge found there to be a lack of reasonable suspicion or probable cause to make the stop or arrest; and, failed to prove that I refused to submit to the taking of a specimen on request of the officer. This was simply based on my testimony against the police report.

Has anyone seen this judgement play a role in the actual DWI hearing?

Thank you everyone for your replies. I appreciate your honesty and willingness to provide me with insight. I admit I may have been too emotional at the time of the arrest from previous bad experiences with officers and that had affected this instance. However, the administrative judge found there to be a lack of reasonable suspicion or probable cause to make the stop or arrest; and, failed to prove that I refused to submit to the taking of a specimen on request of the officer. This was simply based on my testimony against the police report.

Has anyone seen this judgement play a role in the actual DWI hearing?
In Connecticut the administrative DMV hearing is completely separate from the criminal case. I have seen the DMV hearing go entirely in the defendant's favor, and then seen the same defendant get hammered in criminal court. I have also seen the opposite happen.

In Connecticut the administrative DMV hearing is completely separate from the criminal case. I have seen the DMV hearing go entirely in the defendant's favor, and then seen the same defendant get hammered in criminal court. I have also seen the opposite happen.

Same in Oregon. The administrative hearing is held by a representative from DMV and has nothing to do with the court case in front of a judge.

Ssame in PA. The refusal hearing is not part of the criminal charge, it is a civil penalty. It doesn't help the officers case but it certainly doesn't torpedo it either.