Michael: Yes I have seen that, and that’s usually because the police officer believes that that person either wasn’t complying with their request, the police officer might’ve been very impatient and not wanted to wait for the person’s response. I have seen situations where people flatly just did not refuse but it comes back and it says that they did refuse.

Some examples and some of the most common examples are when people are upset. It’s very common when someone gets arrested for a DUI that they’re distraught, upset, crying. When they’re taken back to the station sometimes they’re very upset and they’re crying. The officer says, “Hey, I need to read this to you before I take a blood test.” then they ask for consent. The person might say, “Well I want to read this first or I want to stop crying. Give me a second.” Sometimes when an officer is impatient, he’ll just say, “Well never mind,” and they’ll call that a refusal.

Well, these are cases that the refusal must be fought and we have to request an MVD hearing. That is where you need a lawyer to fight for you to prove that the person never actually refused, that this is a situation where the officer just was impatient and was unwilling to let the person read the form or answer the person’s questions regarding what it meant to take the blood or breath test.

Are Refusal Cases Defensible?

Interviewer: How defensible are those kinds of non-refusal refusals? Are they easy to poke holes in or are they pretty tough to defend?

Michael: It depends on the case. Some of them are very good and some are hard to poke holes in. There are lots of different types of situations that can happen when a person is being questioned about these.

Another example is when a person agrees to do the test and then later decides that they don’t want to and then decides to change their mind. That does happen a lot and people are allowed to change their minds. The law says that you’re allowed to change your mind and decide if you want to do a test. Again, sometimes the officers get frustrated and they don’t care. At that point, they’re going to call it a refusal no matter what. In these cases you need an attorney to fight being categorized as refusing the test. Every case is different in terms of the strength on whether or not they can be beaten.

Interviewer: How about medical reasons? What if someone’s hyperventilating, crying, they throw up into the machine, or they have gastro-esophageal reflux disease, or asthma? Does that play into refusals? Do you see that?

Michael: Yes, all those medical reasons are all legitimate defenses to a refusal because some of these things are out of the person’s control. That doesn’t mean that they refused. It just means they were physically were unable to and they just needed it a little bit more time. Officers have a lot of time to conduct these arrests and sometimes they become impatient. That is why these hearings are an opportunity to show that this could’ve gotten done, but for the impatience of the officer.

Can Equipment Failure Lead to a False Accusation of Refusal?

Interviewer: You said in Arizona the common breath-testing instrument is the Intoxilyzer 8000. Have you seen equipment malfunctions that lead to a failed breath test that’s marked as a refusal, like the person can’t blow the required volume of air into the machine, things like that?

Michael: Yes it’s very common. The most common is when they say it’s an insufficient test because the person wasn’t blowing hard enough. There are lots of people, especially people with smaller frames, who blow as hard as they can and the machine doesn’t register. That’s not a refusal. The person is trying. Those become judgment calls when the officer calls a refusal but it really isn’t, and those need to be fought as well.

Does the State of Arizona Videotape the Performance of the Chemical Tests?

Interviewer: The room or area where the people are blowing into the Intoxilyzer, is that on video? Can that be used as evidence to establish or disprove a refusal?

Michael: Most Arizona agencies do not use videos in those rooms. That’s not something that’s common in Arizona. Although the City of Mesa Police Department just got a grant where officers are going to have the ability to have video on their person, filming while they’re doing investigations and arrests. Those videos should be interesting to see how those turn out for evidentiary purposes.

By Michael Munoz

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