Failure to Provide a Sample of Breath

Unless there is a reasonable excuse, failure to provide a specimen of breath, blood, or urine is an offense under Section 7 of the RTA. In the United States, refusal leads to automatic license suspension and, in some states, may actually constitute a separate crime; police are under an obligation to ensure that drivers are made aware of that. The motorist must understand the mandatory warning of prosecution if a specimen is not produced. Failure to understand, at least in the United Kingdom, is a reasonable excuse for the nonprovision of a sample (38). The decision regarding whether there is a medical reason not to supply a sample of breath is left to the police officer and is summarized in case law. There is no provision or requirement at that stage for a doctor to be summoned or to give an opinion.

Examples of medically acceptable reasons include mouth, lip, or facial injury; tracheotomy; rib injury; and neurological problems. Case law has stated that fear of acquired immune deficiency syndrome (AIDS) not amounting to phobia (39), shock (40), and even intoxication (41) can, in certain circumstances, be regarded as reasonable excuses.

Many cases have been challenged on the basis that the person was unable to blow into the intoximeter because of respiratory problems. Research has now clarified some of these situations. Spirometry has shown that if a person has a forced expiratory volume in 1 s (FEV1) of less than 2 L and a forced vital capacity (FVC) of less than 2.6 L, then that person would generally be unable to use a breath alcohol testing device (42). A further study of healthy people of small stature (less than 166 cm tall) showed that if their FEV1, FVC, and peak expiratory flow rate were greater than 2.31, 2.61, and 330 L/min, respectively, then they should be capable of supplying a suitable breath sample (43). This article was particularly useful because most forensic physicians do not have access to spirometry but do have access to a simple peak flow reading in the custody situation.

A study in Victoria, Australia, showed that persons with an FEV1 greater than 1.51 could provide an adequate screening sample on the Lion Alcolmeter SD2 roadside screening device (44) and that with an FEV1 greater than 1.0 and FVC greater than 1.75, individuals were able to provide adequate samples on the Drager Alcotest 7110 (as used in Victoria) evidentiary breath testing machine.

A more recent study (45) on the new Lion Intoxilyzer 6000 concluded that some subjects with lung diseases may have difficulty in providing evidential breath samples. However, these were subjects who would generally have been considered to have severe lung diseases.

A recent fashionable defense is that the presence of a metal stud through a hole pierced in the tongue invalidates the breath alcohol test because of the prohibition against foreign substances in the mouth and because of the potential for the jewelery to retain alcohol and interfere with the breath test. However, experimental work has shown that the rates of elimination of mouth alcohol were no different in subjects with a tongue stud as opposed to controls and that for the purposes of breath alcohol testing, oral jewelery should be treated the same as metallic dental work and left in place without affecting the outcome of the breath test (46).

Beat The Battle With The Bottle

Beat The Battle With The Bottle

Alcoholism is something that can't be formed in easy terms. Alcoholism as a whole refers to the circumstance whereby there's an obsession in man to keep ingesting beverages with alcohol content which is injurious to health. The circumstance of alcoholism doesn't let the person addicted have any command over ingestion despite being cognizant of the damaging consequences ensuing from it.

Get My Free Ebook


Post a comment