Posted On: April 8, 2012 by Stephen Bilkis

Early one morning in March, 2004, two police officers directed a gentleman to pull over

Early one morning in March, 2004, two police officers directed a gentleman to pull over in his car due to an inoperable brake light, as well as what appeared to be excessive window tinting. Upon asking the gentleman to step out of his car, his unsteadiness was noted, as was the smell of alcohol; at which point, he was placed under arrest for driving while intoxicated. The Defendant was then taken to the police station to have a breathalyzer (an Intoxilyzer 5000, which was in good working order) administered, wherein he was videotaped, along with the two arresting officers and two additional officers out of camera view (one operated the camera).

It should be noted that the Defendant is Spanish-speaking, with some English spoken through a heavy accent. Bearing this in mind, a Spanish-spoken videotape is played for Defendant, explaining the conditions of the driving while intoxicated arrest and inquiring as to whether Defendant wants to take a chemical breath test, which Defendant agreed to do. The breathalyzer was then calibrated and prepared with a removable mouthpiece by one of the two arresting officers, who gave a brief demonstration prior to administering the test. The first attempt did not register a breath sample, leading to a series of additional failed attempts (numbering four or five), during which the Defendant was instructed repeatedly to blow again.
Each additional time the Defendant blew for the test, he was instructed with phrases alternating between English and Spanish, particularly the phrase "Mas," which was barked 20 times in 20 seconds at one point. The Defendant responded with tears, emotions and confusion, even looking to the off-camera officers for support, only to receive silence in return, each time he repeatedly blew as requested by the same arresting officer who initiated the test. This same officer subsequently played the second part of the Spanish videotape for Defendant, which explained a refusal to submit to the test or any part of it would result in immediate suspension or revocation of driver's license and the accompanying privileges, whether guilty or not, and that information could be used as evidence in court.

Nevertheless, the same events continued to no avail when Defendant resumed testing -- the machine not taking in enough breath, the arresting/testing officer getting more frustrated, repeating the same phrases over and over, even trying to explain to take deep breaths, all while the Defendant repeated his appeals to the other officers present off-camera. Ultimately, the arresting/testing officer decided the procedure was over, concluding the Defendant had refused to take the test. Further, the officer determined no coordination tests would be given as a result of the language barrier.

All of this was testified to by the arresting officers, with the videotape played, during a court hearing on the refusal. The testimony included the arresting/testing officer declaring that the Defendant did in fact breathe into the machine, with the problem being the short duration and lack of strength of his breath, so that the machine could test it properly. Although determining the Defendant was fake-blowing and refused the test, the officer did acknowledge not one of the other officers in the room tried to tell the Defendant (in English or Spanish) blowing longer or harder was required for the test to be done properly. Based on the testimony and evidence given during a motion to suppress hearing, the court determined a reasonable basis existed for initially stopping the Defendant, with probable cause for the arrest. In its oral decision, the court also found the breathalyzer's administration during the required two-hour period with proper warnings on refusal, all with the assistance of the Spanish videotape, were enough grounds to deny the Defendant's motion.

The issue, though, was not with those grounds for the court's decision; it is, however, with the court's finding the burden was not met by the state to show a true refusal by conduct occurred. With this as its central finding, the court did not allow any evidence at trial of the Defendant's refusal to take the breathalyzer test. The court heard re-argument on this issue, but determined its original decision stood.

The evidence at the hearing did not demonstrate an intent to refuse the breathalyzer, but rather, the evidence supported good faith attempts to take the test despite a failure to complete it due to his lack of understanding for the need to blow harder and longer for the machine to work properly. The state needed to demonstrate two things. First, they needed to show that by a preponderance of the evidence a clear and proper warning of refusal was given. Second, and again by a preponderance of the evidence, the Defendant then truly and persistently refused. This second part, resulting from Defendant's unintentional failure to complete the test, did not amount to a refusal by conduct.

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