Posted February 10, 2017
Refusal IRPs should be an easy thing for police to prove. Police demand an ASD breath sample and the driver refuses. Simple. But, based on my observations, it isn’t simple at all. The problem lies with the disclosure documents prepared by police each time they issue a Refusal IRP. It’s a problem because there is no objective way to measure the driver’s ability to blow, and consequently the police are often left insisting the driver was not blowing enough, while the driver says they were.
You see, ASDs (like the Alco-Sensor FST) automatically accept a breath sample for analysis; that is, the police officer does not cause the sample to be taken by simply pressing a button. So the police don’t really take the sample, the ASD does. As a person blows, the device measures breath flow (how hard a person blows) and time duration (how long a person blows), then accepts a sample when enough breath has been expelled to obtain a sample of air from the deep portion of the lungs. So if a sample is not taken, does that mean the driver didn’t blow adequately? Or does it mean the device has malfunctioned and wouldn’t take a sample no matter how hard the driver blew? That becomes the issue to be decided in many Refusal IRP adjudications.
The ASD doesn’t provide a report indicating how hard, or long, the driver blew, so the officer must write a description of what happened. That is one of the issues the Alco-Sensor FST training manual addresses. There are several instructions and recommendations provided to ASD operators to help them determine the difference between a faulty device and a refusing driver; if all this information is provided in the disclosure documents, the Refusal IRP is often confirmed.
In my experience though, it is far more likely, despite all their training, that the officer will do a very poor job describing the refusal. Maybe it is because the Report to Superintendent isn’t designed to capture this information, or maybe the police need a well designed checklist to guide them while writing the narrative. Whatever the reason, disclosure documents for Refusal IRPs are poorly completed and often don’t follow manual or training instructions.
When this happens, and a driver says they were willing to blow, it can be very helpful to have an expert with knowledge of the procedures outlined in the Alco-Sensor FST Operator Manual to detail the deficiencies that are apparent in most Refusal IRPs. Here at Point 08 Forensic Alcohol Consultants, we review all the disclosure documents for errors, omissions, or inconsistencies, and then we report them to our client. Our reports have helped our clients get Refusal IRPs revoked.
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