Posted On: March 27, 2012 by Stephen Bilkis

At about six o'clock in the morning

At about six o'clock in the morning, two police officers directed the defendant to pull his car over because one of his brake lights was not working and because the window tint on his car appeared excessively dark. One of the officers asked the defendant to step out of his car. The officer noted that defendant appeared unsteady on his feet and gave off an odor of alcohol. The officer placed defendant under arrest for driving while intoxicated.

Another officer came to the station house to conduct a breathalyzer test for the presence of alcohol in defendant. The test procedure was recorded on videotape. Four officers were present during the test. Two of them appeared on the tape while the other one was out of the camera's view. The fourth officer operated the camera. The machine was in good working order at that time. Defendant speaks Spanish and also some English. Defendant verbally agreed to take the test after being explained by a Spanish woman using a videotape explaining driving while intoxicated (DWI).

The defendant blew into the machine several times but his breath did not register in the machine. One of the officers had to barked at him to blow for several times. As a result, the defendant became emotional, teary-eyed and confused.

On the second part of the tape about driving under intoxication (DUI), the Spanish woman relayed to the defendant that if the latter refuse to submit to the chemical test or any part of the same, his failure will result in the immediate suspension or revocation of his driver's license or privileges, regardless of whether he is guilty or not of the charges for which he has been arrested. His refusal could also be used as evidence against him in any process, trial or hearing. The defendant agreed to take the test and the same frustrating series of events continued. Defendant blew into the machine several times but the machine did not take in enough breath to be tested. One of the officers grew increasingly frustrated and angry.

One of the officers declared that the defendant had refused to take the test and that due to the language barrior, there would be no attempt to ask the defendant to take coordination tests.

The two officers testified and the tape was played before the court. One of the officers formed the opinion that defendant was "fake-blowing" and therefore had refused the test and thus, must be charged with a criminal case. The court found that there was a reasonable basis for the initial stop of defendant's car, and that there was a sufficient cause for defendant's arrest. The court however found that the officers had not met the requirements as to demonstrate a true refusal by conduct had occurred on the part of the defendant thus precluded any evidence at trial of the defendant's purported refusal to take the test. Such is the decision that the officers would like to reargue.

In a proceeding involving drunk driving, the law expressly permits the officers to introduce evidence that defendant refused to take the tests required. Such evidence will be admitted only upon a showing by the officers that the defendant persisted in refusing to take the test after being given sufficient warnings, in clear and unequivocal language, of the effect of such refusal.

The law as regards vehicle and traffic applies to a persistent refusal to take the test. It does not apply to a mere failure to take or complete the test. A refusal can consist of a direct verbal refusal or by conduct.

The instructions given to a defendant by an officer administering the breathalyzer can be significant in evaluating whether that defendant intended to evade the breathalyzer test. Intentional disobedience of clear instructions given by the officer can be an indication that defendant was trying to evade the test; on the other hand, the officer's failure to give clear directions can mean that defendant failed to complete the test merely because he was confused as to what he was required to do.

The defendant failed but did not refuse to complete the test. The officers testified that the defendant did in fact breathe directly into the machine each of the many times he was asked to do so. Thus, the defendant did not decline the test. The evidence at the hearing showed that defendant acted in good faith and tried to take the test, but failed to complete it because he truly did not understand what was required of him. Such scenario is not a refusal as contemplated by law. It cannot therefore be received as evidence in trial.

It is upon the officers burden at a hearing as regards the refusal to show by sufficient evidence the warnings given and that a true and persistent refusal then followed. Therefore, the defendant's argument to preclude his refusal as evidence was granted.

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