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  1. #11
    Join Date
    Sep 2005
    Location
    California
    Posts
    20,321

    Default Re: Breath Test Deemed a Denial Due to the Defendant's Lung Condition

    The point is there is usually options available. If not per the driver, then per the officer. An officer is NOT - or SHOULD not - get away with a refusal for someone who lacks the ability to blow into a machine, or who is a hemophiliac or suffers some other ailment prohibiting a blood draw. In the training I have received, even from other jurisdictions outside this state, options are apparently the standard in the literature. As I said, there may be some states that offer NO options but breath ... I am personally not aware of one, but, I suppose there are.
    **********
    Retired Cal Cop Sergeant & Teacher

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM

  2. #12
    Join Date
    Oct 2014
    Posts
    7,306

    Default Re: Breath Test Deemed a Denial Due to the Defendant's Lung Condition

    The problem occurs when officers do not believe a suspects statement of a medical problem that prevents the suspect from being able to make a good blow and thus will simply ding the suspect with a wrongful refusal rather than take the extra effort to take the suspect in for a blood draw. Perhaps you’ve never done that, but I have seen instances where cops have done just that.

  3. #13
    Join Date
    Sep 2005
    Location
    California
    Posts
    20,321

    Default Re: Breath Test Deemed a Denial Due to the Defendant's Lung Condition

    Quote Quoting Taxing Matters
    View Post
    The problem occurs when officers do not believe a suspects statement of a medical problem that prevents the suspect from being able to make a good blow and thus will simply ding the suspect with a wrongful refusal rather than take the extra effort to take the suspect in for a blood draw. Perhaps you’ve never done that, but I have seen instances where cops have done just that.
    I have seen officers do that only to get roasted in the DMV hearing when the suspect brings in medical documentation to support the contention. No test can also put the entire case in peril. I have seen people game it, but never those with anything approaching a believable medical excuse. When they make the claim that they cannot because of one lung, emphysema, etc., we go for blood, instead. Officers who shortcut it for their own expediency are ... well ... not doing their job.
    **********
    Retired Cal Cop Sergeant & Teacher

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM

  4. #14
    Join Date
    Sep 2010
    Posts
    19,059

    Default Re: Breath Test Deemed a Denial Due to the Defendant's Lung Condition

    Quote Quoting jdbofky
    View Post
    It's not a matter of choice.
    I wasn't commenting on whether the breath test might have been inappropriate, I was commenting on an earlier post that intimates that the COPD had a right to chose a diffrerent test. That is incorrect in many states.

    Again, there's no point in conjecture on this without knowing what state he actually is in.

  5. #15
    Join Date
    Jun 2006
    Location
    Massachusetts
    Posts
    23,963

    Default Re: Breath Test Deemed a Denial Due to the Defendant's Lung Condition

    And, considering the post hx, whether this is an actual event or just a hypothetical musing.

  6. #16
    Join Date
    Jul 2015
    Location
    Florida
    Posts
    301

    Default Re: Breath Test Deemed a Denial Due to the Defendant's Lung Condition

    Again, it is not a matter of "choice" but rather alternatives where a person is unable to perform as required. The suspect/defendant doesn't get to pick. However, if he suffers some disability that makes a particular evaluation impossible or unreliable then alternatives exist.

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