Interviewer: Let’s do the breath-test refusals now. How often do you hear from people, “I had to take a breath test at the police station. They say I refused it, but I didn’t refuse it?”

Freddy: I hear that all the time. What happens is that the testing officer tells them to blow into the machine. If they don’t get the reading they want, they’ll want them to keep and keep blowing longer and longer, hoping to be able to get them convicted of a DUI. Hoping to get a higher test result. If they don’t give them what they want, they say, “You didn’t blow hard enough.” That’s not true. These people blew hard and the machine may not have registered it, but the officer really wants a conviction.

To be able to support that conviction, the officer will put that down that they refused to take the test. That’s a means of scaring them to say, “You refused your Breathalyzer test. Now that you’ve refused, we’re going to take your license away.” Then they get you saying, “No. I’m sorry. I apologize. I shouldn’t have done this test when you asked.”

Then they have even more evidence for a conviction. It has nothing to do with helping you as an individual.

Are Breath Tests Videotaped?

Interviewer: Are the breath tests videotaped in South Carolina?

Freddy: Yes. Breath tests are video taped and they maintain that video. An important thing to note is that sometimes when they maintain that video, they don’t even have a complete video. Sometimes they can have a really bad video, and if they’ve got a really bad video, they’re going to stand by it. That is unless a lawyer says, “You got a bad video. I’m going to make you produce me a good video, or you’re going to have to dismiss it because you don’t have a good enough video.” That’s another reason that having a defense lawyer becomes important.

Interviewer: In South Carolina, is it required that the breath test be videotaped?

Freddy: Yes. But in many places there are really bad videos. Videos that are really poor quality.

Does Evidence Ever Got “Lost” in a DUI Case?

Interviewer: Do your clients’ videotapes ever go missing?

Freddy: The evidence goes missing all the time. When that happens, if your lawyer can capitalize on that and say, “You don’t have video evidence. You can’t convict my client of something where you have no video evidence.” What are you going to do? At that point, the prosecutor’s going to have to make a deal because he can’t make a case and that benefits the client as well.

When a Breath Test Refusal Benefits Your Case

Interviewer: What’s the law on breath testing? How many times do you have to blow, and how many times can they make you blow before it’s not illegal to have you do it?

Freddy: You can refuse at any time. They can make you blow as many times as you’re crazy enough to keep doing it. What you probably should do is just say, “I’m not going to blow. I refuse to blow.” You’re going to give them less evidence. Yes, they’re going to suspend your license, but we can usually get your license back by requesting an administrative hearing.

A Review of Consequences for a Refusal When You Do Not Have Legal Representation

Interviewer: What’s the normal legal consequence of refusing the breath test, if you don’t have a lawyer?

Freddy: A one year loss of driver’s license. That you’re going to have to attend this ADSAP program. Also, you are going to end up paying a lot of money in fees and fines. You’re going to lose your license, but most people are scared enough about losing their license. Who wants to be without a license for six months to a year? You got to get to work. You have things to do.

In the south, we don’t have the transportation systems you might have in New York. If you lose your license in New York, you just lost your license. You’re riding trains. You’re riding the subway. If you don’t have a license in South Carolina, you’re not going to be able to get to work, and going to lose your job. It really matters here.

Can Physical Disabilities or Ailments Prevent You From Performing the Breath Test?

Interviewer: Are there circumstances that would exclude you from being eligible to take the breath test? Let’s say you have asthma, or acid reflux, or physical problems. What physical problems would rightfully exclude that?

Freddy: You may have emphysema. You may have lung problems. I’ve had clients before who had one lung. They wanted them to blow hard into a Breathalyzer test. They’re like, “I just had surgery to remove my lung.” They didn’t care. They say, “You got to blow anyway.” They find them guilty and the person did not even have the power in your lungs to do the test. Again, their goal is just to get a conviction. Their goal isn’t really to find truth. All they want is a conviction.

Interviewer: How about people that are hysterical, crying, or they throw up?

Freddy: They can throw up but that doesn’t prevent them from taking test. They can get hysterical. They can cry. They’ll wait for you to finish crying and then they’ll go ahead and test you.

Interviewer: What if you’re hyperventilating?

Freddy: That’s not important to them. What’s important to them is securing a conviction and they’ll do whatever they got to do to secure that conviction.

Breathalyzer Malfunctions and Assistance for Your DUI Defense

Interviewer: What kind of malfunctions have you seen that are more common in the breath test machines that allow you to defend either a good result or a refusal?

Freddy: The breath machine was defective, or in one jurisdiction they had the breath machine showing the exact same result for everybody. You end up with a situation where they claim, “That’s a good breath machine,” or “It’s a good breath test on the breath machine,” and the breath machine is showing that everybody blew a 0.12. That’s theoretically impossible, but because nobody compared the machine and nobody challenged him or her on it, they kept using that same result and they could care less about what happened to the public.

It’s not justice that these particular people were concerned about; it was how are they able to get a conviction? All officers aren’t the same. I’ve met very reasonable officers who saw evidence, didn’t think they had a case and they were honest and it was incumbent upon them to say, “I don’t really have a case.” I’ve met some officers who were the exact opposite and they wanted a conviction no matter what.

Interviewer: In defending a case with a breath test result do you look at calibration?

Freddy: Calibration of the machine means, not so much in “lawyer speak” but in normal speak, was the machine operating properly? Were the people who gave you the breath test licensed or did they have the authority to be able to give you the breath test? Have they had the training necessary to be able to administer the breath test? Do they have the skills necessary to even read the results?

Things like that are extremely and increasingly more important. You find a lot of abuse in the system, and it’s not abuse on the hands of the people who were charged, more abuse of the people who can manipulate the system to make those results say whatever they want to.

By Freddy Woods