When a Breath Test Refusal is not a Refusal

by baronedefensefirm on June 12, 2009

How to Win the Michigan Implied Consent Hearing:

It should be well know among DUI defense practitioners that there are three kinds of breath test refusals.  The first two are “machine-based” and include those that occur when the subject blows into the DataMaster but the testing officer believes that the test subject is not making a “sincere” effort to deliver an appropriate sample, and those that occur when the machine itself “makes” this determination.  The third type is the only true refusal, and occurs when the subject simply refused to blow.

The two types of machine refusals are distinguished somewhat in the training manual, but both begin with the machine reading displaying “SUBJECT REFUSED? .  If the operator determines that the subject has not “made a sincere effort to provide a breath sample” then he/she may push “Y” and the evidence ticket (OD-80) will indicate “refused.” However, if the operator instead pushes “N,” then the subject can attempt to blow a second time.  This can continue for up to five attempts during the two minute time-out period, after which the machine will terminate the test sequence.  Here again, the OD-80 will indicate “refused.”  In either instance, the training manual provides that the testing officer should write on the ticket by hand either “operator” or “technical.”

With either type of refusal the DataMaster makes at least the initial determination that the subject sample is inadequate.  Consequently, to fully understand what a refusal is, how they happen, and how to defend them, it is important for the practitioner to understand how the DataMaster “determines” that the subject sample is inadequate, in other words, what the programmed sample parameters include.

The DataMaster uses an electronic device called a “thirmister” to measure the breath is it enters through the breath tube.  The thirmister” is located at the end of the breath tube, just as it enters into the DataMaster.   As measured by the thirmister, the following four parameters must be met in order for the sample to be accepted:

1.  Minimum flow rate of approx. 3.8 liters per minute needed to trigger the flow sensor circuit.

2.  While maintaining the min flow rate, a minimum total volume of 1.5 liters needs to be delivered.  (If flow rate drops below minimum, the volume calculation starts over).

3.  While maintaining the min flow rate, the rate of increase must slow to a max of .001 g% as shown by 2 consecutive 2 point averages (slope detection).

4.  After above 3 are satisfied, the flow rate needs to drop below the minimum to trigger test completion.

If any of the four parameters is not met, the test sequence will be aborted as described above.  It should be noted also that the third parameter is what is known as “slope detection” is chiefly how the DataMaster “determines” that mouth alcohol is present.  Thus, if the third parameter is met, the breath test ticket will indicate “INVALID SAMPLE” rather than “REFUSED.”

Consequently, the first step to winning the implied consent case is learning exactly which of the three possible refusals occurred.  If the refusal is machine based, then it might be possible to win the implied consent case by demonstrating through cross-examination that the subjective determination of either the machine or the officer is flawed.  In other words, by demonstrating to the Hearing Officer that the alleged refusal is really not a refusal at all.  This will probably require a showing that contrary to the allegations made; your client did in fact make a “sincere” effort to blow.  To embellish this argument look at other aspects of your client’s cooperation.  Did he/she submit to the PBT and/or to the field tasks?  Was he/she generally cooperative and did he/she treat the officer with appropriate decorum?

Once the Hearing Officer is better educated as to what exactly transpired during the arrest and subsequent breath test, and understands that your client did cooperate generally and specifically cooperated by attempting sincerely to provide an adequate breath sample, then it is far more likely that the implied consent appeal will be granted. 

It should be noted that the new DataMaster DMT will largely assist the defense when these issues arise in the future.  This is because with the new DMT the sampling system allow the display of a subject’s breath flow and alcohol absorption curve in real time. These allow an operator to determine a subject’s level of cooperation during a test.  For more information see “Michigan’s New DataMaster DMT.”


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This post was written by...

– who has written 204 posts on Michigan Drunk Driving Law Firm.

Patrick T. Barone is the author on two books on DUI defense including the well respected two volume treatise Defending Drinking Drivers (James Publishing), and The DUI Book – A Citizen’s Guide to Understanding DUI Litigation in America. He is also the author of a monthly DUI defense column for the Criminal Defense Newsletter, published by Michigan’s State Appellate Defender’s Office. Mr. Barone is an adjunct professor at the Thomas M. Cooley Law School where he teaches Drunk Driving Law and Practice. He is also on the faculty of the Criminal Defense Attorney’s of Michigan’s Trial Lawyer’s College where he provides trial skills training to Michigan’s criminal defense practitioners. Mr. Barone lectures nationally on various DUI defense topics, and he has appeared in newspapers, on television and on radio as a drunk driving defense expert. Mr. Barone has been certified as an instructor and practitioner of the Standardized Field Sobriety Tests and has also attended a 24-hour certification course at National Patent Analytical Corporation (the manufacturer of the DataMaster) and has thereby been deemed competent by the manufacturer to operate, perform essential diagnostic verifications and calibration checks on the DataMaster. Mr. Barone is a Sustaining Member of College for DUI Defense. Mr. Barone is the principal and founding member of The Barone Defense Firm, whose practice is limited exclusively to defending drinking drivers. The Firm is headquartered in Birmingham, Michigan.

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