Charged with Test Refusal? Don't Let the Man(chine) Get You Down
For years now, we've blogged about problems with the Intoxilyzer 5000 - and one problem in particular. In a typical scenario, a driver is arrested for DWI and told that they have to submit to a breath test. They try - and try, and try - but the machine will not accept the sample, and ultimately reports a "deficient sample.| These people are charged with the crime of Test Refusal (always a gross-misdemeanor, sometimes a felony).
In court, the arresting officer will usually say that the driver was trying to |fool the machine| by blowing around the straw, blocking the straw with their tongue, or not actually blowing any air. This may be true in some cases, but in our experience, its more likely that the driver WAS trying to give a sample - and the machine still rejected it, for reasons unknown.
The question is |who should the judge trust?| The arresting officer, the driver, or the machine? The answer matters, because if the court chooses to trust the officer, the driver is going to lose; if the judge decides to |trust| the machine, it means that the defense needs to have the opportunity to examine that machine's source code - and the driver can win.
We recently won a huge case at the Court of Appeals that helps settle the matter. In Hansen v. Commissioner of Public Safety, we convinced the Court that it takes more than the testimony of the arresting officer to convict someone of test refusal - the machine itself needs to be analyzed. This is a potentially huge win for our clients and for anyone else charged with |refusal by conduct.| It means that the Courts are finally beginning to accept what we've said all along - the Intoxilyzer is not a perfect machine, and one area where it is prone to failure is when it deems otherwise-valid samples |deficient| for unknown reasons.