When is a Refusal Not a Refusal?

Posted On April 10, 2023 Charles Ramsay

Lately, I’ve been writing about the scientific aspects of breath, blood, and urine alcohol testing. There are plenty of problems with those tests to focus on. 

But today, I wanted to bring attention to the legal aspects of refusing to submit to a chemical test. In Minnesota, refusal to submit to a breath test is punished just as harshly as being twice the legal limit.

Today’s blog is for the lawyers and judges out there. There are legal, scientific, and common sense reasons to consider when defending against a refusal charge.

Standardized Field Sobriety Testing (SFST)

Field sobriety testing is one of the least reliable methods of determining probable cause. Anyone who’s actually tried these tests sober will realize that standing on one leg for a full 30 seconds without swaying or hopping, and keeping your arms at your side isn’t as easy as it seems! 

To attack the ridiculousness of these tests, you need to be familiar with the NHTSA SFST Manual. You can show a jury the ways that the officer performed the test improperly and the lack of scientific validation of these tests.

Just because these tests have the allure of science behind them, doesn’t make them legitimate. 

Do your homework. Don’t let these tests get in unchallenged.

Exclude the PBT

Bring a pre-trial motion to exclude the PBT. Under the 4th amendment, warrantless breath tests must be suppressed. The only recognized exception under U.S. Supreme Court case law is “incident to arrest.” Remember, statutes, including Minn. Stat. sec. 169A.41, don’t trump the Constitution. 

Point out that these handheld devices aren’t calibrated to the same level of accuracy as the more advanced DMT breathalyzer at the station. Instead, the PBT is typically calibrated by an officer who has limited training in the type of reference material to use. 

PBTs require special dry gas tanks for calibration. If the officer uses the wrong tank, the measurements can be off. 

Don’t forget about other scientific challenges, including no observation period or whether the driver administered his or her inhaler before taking the PBT!

The right to counsel & due process

Bring two other pre-trial motions: the right to counsel and a challenge to due process. 

While Minnesota case law is against us at this point on the right to counsel for blood and urine tests, you can make a good faith challenge. Depending on the facts of the case you can ask that it be changed under the Minnesota Constitution.

When it comes to due process ask: 

“Does it put the average person on notice of what conduct constitutes a crime?”

The statute itself prohibits refusing to “submit” to a blood and urine test. But what does it mean to submit to a chemical test?

For example, did the officer explain in plain language to the driver that it’s a crime to refuse? If your client refused to have blood drawn, did the officer give your client a chance to urinate into a cup instead? Does the law require your client to give verbal consent? What does it mean to “submit”? 

Change of mind

Last week, I wrote about a refusal case that we won in court. In that case, my client asked to speak with an attorney, but instead, the officer placed her in a holding cell (without her cell phone) for 30 min while he got a warrant. 

After the officer told her that he “deemed” her unwillingness to take the test a refusal, he let her talk to her attorney. She then told the officer that she wanted to take the test. But, for him, it was too bad, so sad. 

The jury saw through the officer’s overzealous policing and returned with a verdict of NOT GUILTY.

Let the jury know that getting arrested and being charged with a crime is a traumatic experience. It’s natural to be leery of taking a test that you don’t understand. People should be allowed to change their minds once they’ve spoken to legal counsel. 

Physical inability

It’s a fact that not everyone can provide the minimum volume into Minnesota’s breath machine. But, unfortunately, the State’s breath alcohol lab hasn’t studied the general population to determine what percent of Minnesotans have trouble meeting the minimum breath standards. 

Without doing those studies, we don’t know who can or cannot legitimately meet the minimum standards for a breath sample. 

The State used to have a minimum of 1.1 liters of air. But when the State rolled out the DMT in 2012, they decided to bump it up to 1.5 liters of air. And just a few miles south of us in Iowa, the DMT is programmed to accept 1.3 liters of air

The point is that if a subject is giving a good faith effort, they shouldn’t be charged with a refusal.

Keep in mind that blowing into the breath machine isn’t the same as freely exhaling air. You must pressurize several feet of tubing just for the breath machine to start measuring air. 

In a stressful situation, most people tend to take shallower breaths, making it harder to meet the minimum breath volume.

Never let an officer get away with doling out a refusal charge because your client didn’t meet the minimum breath volume.

Don’t give up 

Refusal cases are never easy. As the defense counsel, you need to think hard about all the different aspects of the case. Don’t just focus on one part while neglecting the details.

If the case goes before a jury, appeal to their common sense. 

It isn’t right to charge someone with enhanced penalties because they were confused, changed their mind, or couldn’t provide the minimum requirements into the breath machine.

If you’ve got a tricky case, reach out to us at Ramsay Law. We’ll work together to show that a refusal is not always a refusal.

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