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How Law Enforcement Officers Improperly Conclude that a Subject Refused to Provide a Breath Sample

How Law Enforcement Officers Improperly Conclude that a Subject Refused to Provide a Breath Sample

Posted by Robert J. Ault on Nov 13, 2014 | 0 Comments

The blog below comes from an article I wrote in November, 2012.  Such was published in the Washington Association of Criminal Defense Lawyers magazine.  This article outlines how subjects arrested for DUI often have difficulty providing a breath sample at the police station and are improperly found to have failed to provide an "earnest attempt" at a breath sample.

I can't think of a worse feeling as a criminal defense attorney than having to watch a client suffer the consequences for something he didn't do.  While one-word verdicts and thick envelopes from Department of Licensing are never easy to take, it's even more unbearable when a client didn't do what they are accused of.  Never is a driver arrested for DUI more likely to suffer the consequences of a false allegation than in an “earnest attempt” case.  While these can be the most frustrating cases (especially in front of a selective few Hearing Examiners), they can also be the most fun.  “[A] refusal…occurs where the conduct of the arrested motorist is such that a reasonable person in the officer's position would be justified in believing that such motorist was capable of refusal and manifested an unwillingness to submit to the test.”  Strand v. Department of Motor Vehicles, 8 Wn. App. 877, 882 (1973).  Further, “whether a driver has refused a blood alcohol test by refusing to comply with the testing procedure is a question of fact.”  Rockwell v. Department of Licensing, 94 Wn. App. 531, 535 (1999).  Finally, “if a subject has made an earnest attempt to furnish a valid breath sample, but it is not accepted by the instrument, [it] is not a refusal.”  WSP Datamaster Operator Information Manual, Breath Test Section, P.25, 2000. On the negative side, it is obvious that hearing examiners, judges, jurors and prosecutors are left to rely on an officer's subjective opinion when faced with the question of whether an alleged refusal was based on an earnest attempt.  On the positive side, we, as defense attorneys, have the opportunity to educate our respective audiences in how officers often reach their conclusions improperly and without utilizing tools recommended by our State Toxicologist.  While this is far from an exhaustive list of everything we should be looking at in an earnest attempt case, here are some thoughts I have after handling a few of these types of cases.

SUBJECT'S OWN ISSUES: While we all know that the Datamaster is a reliable, state-of the-art, error-proof device capable of determining one's exact breath alcohol content (why else would our state be willing to spend over a million dollars in this lousy economy to bring in the Draeger), it is important to remember that the Datamaster is incapable of taking into account each subject's individual medical conditions.  Various medical conditions and ailments can obviously affect one's ability to provide a breath sample (i.e. Asthma, Pneumonia, Bronchitis, Pulmonary Disease, small lung capacity, heavy smoking, shortness of breath caused by stress or medication, etc…)  Thus, a medical evaluation can be a necessity when a client tells you that they had difficulty providing a breath sample or blowing for an extended duration.  Pertaining specifically to petite women, a current employee of the WSP Impaired Driving Section testified in one of my hearings that “small, slender females can have extreme difficulty providing samples…”  Further, this is because “[female] lungs don't have the same volume as males.”  While you won't find these statements in any of the training manuals, this WSP employee testified that this information is communicated in most of the Datamaster training classes that they have attended (Feel free to contact me off-list if you want more information).  While our client's own medical issues may have played a significant part in the Datamaster's failure to produce a valid result, it is important to note that officers routinely fail to follow the instructions set forth and required by the State Toxicologist when administering breath tests.

FAILURE TO FOLLOW TRAINING PROTOCOL WHEN ADMINISTERING: When explaining how to provide a breath sample, officers are trained to inform the subject, “Blow steadily into the mouthpiece 10-15 seconds.  I will tell you to stop.”  “The blow need only be strong enough to stop “PLEASE BLOW” from flashing, but should be as long as possible.  A sound will accompany the blow when air is traveling thr[ough] the sample chamber.”  WSP Training Outline for BAC Datamaster, Infrared Breath Test Instrument, Operator Refresher, P. 21, 2008.  Breath samples can be accepted well before 10 seconds of exhalation has elapsed, but the training manuals clearly direct officers to use the 10-15 second language.  Officers are also trained that “consistent coaching will yield consistent samples.” Id.  Thus, it is important to know what your client was told prior to and during the time that they were attempting to provide a sample. In one of my hearings, I had an officer admit that they directed a client of mine to blow hard when attempting to provide a sample.  This testimony was somewhat of a gift since our own State Toxicologist has found that “a hard blow will not be accepted.”  Id.  In a different case, an officer wrote in their narrative that they had told my client that they needed to provide a slow breath.  This was also helpful testimony, as a slow breath is likely to lead to an inadequate amount of breath being offered into the machine.  How could someone slow their breath without reducing the force of their attempt?  Again, a subject is not to be told to blow hard or slow.  Rather, our clients should be directed to blow steadily into the machine.  “If after two minutes of PLEASE BLOW, a sample has not been accepted, the display will read SUBJECT REFUSE Y/N?”  WSP Training Outline for BAC Datamaster, Infrared Breath Test Instrument, Basic Operator, P. 39, 2008.  At this point, the Datamaster will prompt the officer to enter whether the subject has refused to comply with the test.  “The Officer must decide whether the subject is unable or unwilling to provide a proper sample and be able to articulate the cause/facts for his/her reasoning in the arrest report.  If unable [to provide breath sample], end test with an INCOMPLETE, then proceed with the Implied Consent Warnings for Blood.  If unwilling [to provide a sample], end test with a REFUSAL.  Be able to articulate the reasons for a refusal  Id.  The “unable” and “unwilling” language can obviously be extremely important.  In a recent case, a client vomited on the way to the police station and upon arrival, informed the trooper that they believed they might vomit again if they blew into the breath test machine.  The officer then advised my client of the ICW for Blood, which my client refused.  At the motions hearing, the court agreed that vomiting previously and exhibiting a fear of doing so again did not make my client “unable” to provide a breath sample.  Thus, the trooper lacked the authority to go to Blood, and the Blood Refusal was suppressed.  In other words, pay close attention to the specific language of the statutes, training manuals and case law. I had a different case where video evidence along with Datamaster records showed that nearly every subject directed to blow by one specific officer (regardless of the BAC machine) had exhalation times of over 20 seconds.  It turned out that this was the result of the officer administering breath tests in a manner for which a breath sample was unlikely to be accepted without a significantly long exhalation attempt.  I have heard stories of officers pulling the mouthpiece away from subjects, denying sufficient time to provide a sample; stories of the officer pulling the mouthpiece away from the subject before anything could be heard.  Whereas, in the officer's subsequent self-test, the officer was blowing into the machine even after a “beep” had been heard.  These were all officer-induced failures, not client-induced failures.

FAILING TO USE TOOLS IN REACHING CONCLUSION: RCW 46.61.506(3) makes clear that breath tests are considered valid only if performed according to the methods approved by the State Toxicologist.  Thus, a review of any/all training manuals is recommended in earnest attempt cases.  In such manuals, you will see that the State Toxicologist has provided officers with a few helpful tools to assist them when trying to determine whether a subject has made an earnest attempt.  “Check[ing] for condensation,” and “performing a self-test” are two things that the State Toxicologist has recommended, and in some cases, required officers to do when attempting to determine whether an earnest attempt has been made.  In regard specifically to a self-test, it is important to look closely at the language in the different WSP manuals.  For example, the 2008 Basis Operator manual states,“if [the officer is] in doubt about the sample acceptance of an instrument, the officer CAN run a test with his breath to check it.”   Id. at 13.  Whereas, the 2008 Operator Refresher states, “if [the officer is] in doubt about the sample acceptance of an instrument, the officer SHOULD run a test with his breath to check it.”  2008 Operator Refresher at 6.  I know which manual I would refer to regarding this issue…  Regardless of whether “can” or “should” is used, a self-test is one of the very few tools provided by the State Toxicologist to assist an officer in determining whether a subject has made an earnest attempt.  Thus, what explanation does the officer have for not attempting such? Though I would argue that a self-test should be done every time an officer is forced to make a decision regarding an earnest attempt, it is important to note that the occurrence of a self-test merely tells us that the Datamaster is capable of accepting a breath sample from a subject who (presumably) hasn't consumed any alcohol, has successfully provided breath samples into a Datamaster before, and doesn't have any medical limitations preventing them from providing a successful sample.  In other words, if no self-test, why?  If there is a self-test, it doesn't really tell us anything about the subject's capabilities anyway. Additionally, training manuals refer to what an officer will hear and see when administering a test (i.e. the “Please Blow” instructions on the machine, hearing a “buzzing sound.”  2008 Basic Operator at 13.  While noting these things in a narrative isn't required, don't we expect officers to dot their I's and cross their T's before reaching their conclusion as to whether a subject has made an earnest attempt?  Furthermore, if asked, most of those responsible for training officers on the BAC Datamaster will admit that unsuccessful breath attempts should be followed by a brief interview with questions pertaining to the subject's medical history, etc…  However, in my experience, it is far more common for officers to be angry with the absence of a result and merely assume that the subject must be messing with the machine or else a number would have resulted.  Unless absolutely certain that the subject is attempting to thwart the machine, officers have no excuse not to stop and interview after the machine fails to accept samples. As you already know, the WSP breath test website provides us with a significant amount of information pertaining to the breath test instrument, calibration, etc…  The website also provides us with information regarding how our clients blew into the breath test machine.  For example, the numbers below BA1, ET1, BA2, and ET2 tell us how many attempts our clients made in their individual breath sample and also provide us with the duration of the last individual attempt at a breath sample.  While this information can be useful, it is also often misinterpreted by our respective audiences.  For example, it isn't unusual to see a “0” under the ET1 or ET2 column when a refusal has been concluded.  Some Hearing Examiners and prosecutors mistakenly interpret a “0” in the ET column of an unaccepted sample as proof that our clients didn't blow at all into the machine (i.e. no exhalation time).  However, it can be important to educate our respective audiences that the number in the ET column only refers to your client's last individual attempt for their first or second breath sample.  Thus, while your client's BA1 may be “7” and their ET1 may be “0,” this tells us absolutely nothing about how long your client was exhaling into the machine on their first six breath attempts.  Rather, the “0” only refers to the very last attempt, and there are countless explanations for this that have nothing to do with failing to provide a sufficient exhalation time. You obviously want to review the database to determine if the specific Datamaster that your client tried to blow into tends to produce more unaccepted attempts than other machines.  As mentioned above, take a look at the officer's history of administering breath tests.  Does his breath test administration yield an unusual amount of unaccepted samples?  Request the officer's old narratives to find out if the officer did a self-test and a medical interview after a different subject's unaccepted attempt, but failed to do the same for your client.  Video taken from the BAC room, as in most cases, can be extremely helpful in an earnest attempt case.  How many times have we cringed while reading an officer's narrative only to watch the video and find out that the officer's account of things varies significantly from what is seen on video?  Video is invaluable.  If it's there, you want it.

USE OF WITNESSES: We, as defense attorneys, are often hesitant to have our clients testify.  However, in earnest attempt cases, testimony from your client can be absolutely necessary in certain circumstances.  Specifically in the DOL context, I have had my client testify in every single hearing when I was of the opinion that they were really trying to provide a breath sample.  Though this occasionally opens them up to questions that I would rather they not be asked, some examiners are going to want to hear from the only person who truly knows whether an earnest attempt was provided.  I think even the worst DOL Hearing Examiners don't want to see someone suffer the consequences for something they did not do.  Further, I think some examiners view earnest attempt cases as the rare opportunity to feel good about ruling for a driver.  From a human nature point of view, a hearing examiner is going to want to dismiss a proposed revocation when one's breath attempt may have been earnest much more than the guy who tells the cop to jump off a cliff, but isn't informed of the current ICW's. An expert witness in an earnest attempt case can be used to assist us in negotiation with the prosecutor, to provide testimony at a DOL hearing, and obviously, to get our point across in front of a judge or jury.  Some of you have retained Tony McElroy, former WSP Tech, to review your earnest attempt cases and/or testify in DOLhearings in the past.  For those of you who haven't used Mr. McElroy, I couldn't recommend someone more highly to assist with an earnest attempt case.  While expert testimony can fall on deaf ears (especially with certain hearing examiners), other examiners couldn't be more impressed with his testimony.  Further, his review of a case, breath test machine records, etc… has been extremely helpful in my cases in the past.  I had to laugh when during a DOL hearing of mine, we had subpoenaed a current WSP employee to testify along with presenting Mr. McElroy as our witness.  While attempting to patch through Tony for the hearing, the current WSP employee learned from the hearing examiner that we would be calling Mr. McElroy to testify.  This WSP employee, unaware that I was still on the phone-line, said something to the effect of, “Oh shit.  What are they calling him for?”  Needless to say, Tony knows his stuff when it comes to earnest attempt cases. As for common State experts (i.e. Officers, Forensic Scientist, Techs, etc…), subpoenaing witnesses in earnest attempt cases can, in certain circumstances, be in your client's best interest.  Don't forget that officers often know less than we do about earnest attempts and the inner-workings of the Datamaster.  Further, I had a WSP employee responsible for training others in the administration of the Datamaster provide honest and helpful testimony in a hearing when the arresting officer clearly ignored the mandates of their training.  No one likes seeing their training ignored.

DON'T LEAVE COMMON SENSE AT THE DOOR: One of the mistakes I have made in the past with these types of cases (according to my wife, I make mistakes daily) is getting too technical with the specifics of the actual breath test process.  While being familiar with the breath testing procedure and necessary protocol is obviously important, looking at earnest attempt cases from a rational point of view can be equally as important. Regardless of the audience (i.e. Hearing Examiner, Jury, Judge, Prosecutor), the question is essentially the same, “was your client really trying to blow into the machine or not?”  Thus, the behavior of your client throughout the night should be reviewed (not just the specifics of the BAC attempts).  In many cases, it doesn't make sense for a cooperative, “do everything the officer asks them to do” client to try to thwart the breath test machine just before the officer is going to make a decision to book or not.  It's important to look at what else your client did that night that goes against the idea that they would subsequently try to manipulate the machine.  Did your client provide a PBT sample?  Did they have difficulty with this?  Did the officer tell your client what their PBT result was?  I had a client who was informed by the officer immediately after their PBT sample came up that she was below the legal limit.  The same officer arrested her and subsequently concluded that she failed to provide an earnest attempt at the police station and gave her a Refusal.  Logically, it doesn't make sense that someone would blow below the legal limit into the PBT, yet subsequently attempt to thwart the Datamaster because they feared being .080 or greater.  While you and I know that a PBT sample just below the legal limit could be a .080 at the police station, most people arrested for DUI aren't familiar with the process of alcohol absorption and the inaccuracy of PBT devices.  Was your client told by the officer that they would be given a refusal if they didn't stop messing around with the machine?  While an officer isn't required to inform a subject of this, doing so puts them on notice that any continued “horsing around with the machine” is going to result in at least a 1-year revocation.  This is a different situation than when a subject is unaware that their future failure to produce a sample will have repercussions. Further, while having an IID on one's vehicle can be embarrassing and costly (not to mention more dangerous than drinking before driving in some cases), having such for 90 days isn't seen by most people as the end of the world.  In contrast, many view a 1-year revocation (or IID requirement if an ILL is obtained) as a consequence that must be avoided.  Thus, we see more of our clients provide a sample rather than refuse.  From a common sense perspective, was the chance of avoiding a 90-day suspension worth the risk of a 1-year revocation?  From a common sense perspective (admittedly, many of our clients are not at their “rational thinking” optimum when making this decision), does it make sense that your client would try to mess with the machine?  Though they may not always appear aware of this, judges, jurors, hearing examiners and prosecutors aren't that different than most of our clients.  Thus, with all the evidence in front of you, would it make sense to your respective audience that your client would really try to manipulate the machine?

MAKE A RECORD AND SPEND THE TIME My very first earnest attempt DOL hearing years ago didn't end the way I had hoped.  I had subpoenaed the officer (which was a good move for this case), but let the officer off far too easily with questioning.  Rather than obtaining the testimony necessary to be able to spoon-feed the Hearing Examiner (and subsequently, the Superior Court judge), I didn't go far enough with my questions.  As a result, I remember walking out of the hearing to Stay the License Revocation wishing I had made a better initial record.  Regardless, the lesson learned for me was to remember that my audience in an earnest attempt case most likely won't come into the hearing with much background.  Thus, be ready to go into the small details if necessary. When I began practicing, an attorney whom I consider a mentor, told me that the most common characteristic among the attorneys he considered to be the best in his area of practice were the ones who sincerely cared about their clients' cases.  At the time, I am pretty sure I rolled my eyes and didn't think much of it.  However, this turned out to be the most important thing someone could have told me, and I think earnest attempt cases are a great example of this.  If you sincerely care about your client's case and want to make sure that they don't suffer the consequences for something they didn't (or maybe did) do, you are going to spend the time researching, talking to experts and witnesses, prepping your witness, etc… to give your client the best chance of being successful.  While we may have lost earnest attempt cases/hearings in the past and may very well lose them again in the future, this shouldn't be a result of a lack of effort on our part.  Again, spending the time on an earnest attempt case (while still getting our teeth kicked in from time to time) may not be enjoyable, but having a client suffer the consequences for something they didn't do is unbearable.  Refusing to Accept a Refusal, DEFENSE Magazine, Published by Washington Association of Criminal Defense Lawyers; Volume 26, No.4, The Entire Criminal Defense Bar In Washington State, 2012.

If you or someone you know has been arrested for DUI in Washington State, contact Veitch Ault & Associates immediately (425-452-1600) to make sure one is given the best chance to defend themselves,

About the Author

Robert J. Ault

Rob's status as one of the premier DUI defense lawyers in the state includes being repeatedly recognized as a Super Lawyer Rising Star.


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