By: Bob Battle

Bob Battle — Sat, 09 Oct 2010 14:39:38 +0000

As a DUI lawyer, I feel the “deficient sample” issue is a huge problem. Alka Lohmann is correct that the EC/IR II machine requires a slow steady breath. However, the preliminary breath test offered by the officers at the scene requires the “huffing and puffing” just like one would use to blow up a balloon. Blowing in this exact manner in the EC/IR II will cause a “deficient sample” reading. Like the defense lawyers mention in the article, I have seen a huge increase in the number of “deficient sample” results. This does not mean the same thing as an “insufficient sample.” Here is the problem- after 2 “deficient samples,” the breath test operator is “declaring” a refusal. Ms. Lohmann’s own PowerPoint training of the breath test operators taught them that they could conduct “3 or 4 tests” in the allotted 3 minute time. Yet, the breath test operators have chosen a “2 strikes and you’re out” policy. A refusal is a separate offense that carries a 1 year license suspension for first offenders and a 3 year license suspension for those with a prior DUI or Refusal conviction with no ability to obtain a restricted license.
In Wyoming, where they also use the same breath machine as is used in Virginia, breath test operators who saw that people trying their best to give a sample but could not do it on this machine have instituted a policy that if there are 2 “deficient samples” then the person is taken for a blood test rather than being declared to refuse a test they honestly did not refuse to take!
Yesterday, I was able to get a DUI and Refusal charge reduced to Reckless Driving when I presented evidence on the meaning of a “Deficient Sample,” the Wyoming case law and some legitimate health issues with my client.

By: Charlottesville Attorneys

Charlottesville Attorneys — Fri, 08 Oct 2010 15:30:43 +0000

Interesting article. Thanks for sharing.

Comments on: New breath machine, new DUI defenses?

By: Bob Battle

By: Charlottesville Attorneys