Why did the officer charge me with refusal when I blew into the breathalyzer/said that I would take a blood test instead?

Post on: Dec 13, 2017By Steve Birocco

The two most likely reasons are that the sample you provided was for the preliminary breath test, or that there was a problem with the breath sample for the breathalyzer. During most DUI arrests for alcohol, there are two breath tests. The first test occurs during the traffic stop before the arrest. It is a “preliminary breath test” or “PBT.” Sometimes it is incorrectly called a “preliminary breathalyzer.”

Taking the preliminary breath test is not a substitute for taking the breathalyzer or blood test when required under the implied consent law. In the past drivers could choose between a blood or breath test, but the law no longer gives drivers that choice. The police often consider it a refusal if the driver requests a blood test when asked to provide a breath sample for the breathalyzer.

If you blew into the breathalyzer (the model used everywhere in Virginia is the Intox EC/IR II) at the magistrate, and the police officer still charged you with refusal, something likely went wrong with the test. The machines display an error code and print a certificate when they cannot calculate BAC. The police are required to provide you with a copy of the certificate at the time of the test.

Some of the common messages that relate to problems with the breath sample are:

  • Deficient sample. Not enough breath provided for a valid sample. The machines are very sensitive to changes in breath pressure. If they detect a pressure change, the test stops, the machine resets and then allows another attempt to provide a sufficient sample. If the machine does not receive a sufficient sample within three minutes, the test stops and prints the error code.
  • Interferent detected. The machine detects a chemical besides alcohol in the mouth or on the breath.
  • Invalid sample. The breathalyzer detects alcohol in the mouth, which could result from burping or an insufficient observation period to allow mouth alcohol to dissipate before the test.
  • No sample given. The machine detects no breath pressure.
  • Sample parameters not met. To calculate BAC, the breathalyzer requires two valid breath samples for comparison. If the results are not close enough to each other, the machine requires a third sample to calculate BAC. This error code means the results of the breath samples were too far apart to calculate BAC.
  • Test result over range. The breath sample contains more alcohol than the breathalyzer can accurately measure.

Any of these error codes could result from a problem with the machine or something beyond the driver’s control. Some people cannot provide enough steady pressure for the breathalyzer because of respiratory problems, being nervous, or other reasons. Inability to complete the test is not a refusal in Virginia.

In fact, if the problem is due to a medical or physical condition, the police must offer a blood test instead of the breathalyzer. If they did not, and you can show that your condition prevented you from providing an adequate sample, the court must dismiss both the refusal and the DUI charges at trial.