Did you know you could cooperate with the police, blow in to the evidentiary breath test device as hard as you can, and still be charged with a refusal? It’s true. We call this a false refusal.

What Can Lead To A False Refusal?

If you’ve never had to blow into a breath test device, then you don’t realize just how much air it takes. The police tell you to blow really hard until the machine finally beeps. In the state of Virginia, their machine, the EC/IR II, requires 1.5 liters of breath which is 1,500 cubic centimeters of breath, aka a lot of breath. The problem is that this is close to the lung capacity of some smaller people, older people, smokers, or anyone with any sort of lung difficulty. Even for a larger healthy adult, it is a huge amount of air.

Whenever the breath test device doesn’t register enough air, the operator is going to find one thing at fault and it is you. They are always going to say that their machine, which by the way, is among the cheapest on the market, is never at fault. I routinely hear, “Well, he just didn’t blow hard enough,” or, “He was playing games and was attempting to fool the device.”

The police do not know any of this to be true but they like to say it is. This breath test device, the EC/IR II, requires 1.5 liters of air which is a completely arbitrary number. This number is set by the company, which isn’t elected or given the authority to decide how much air should be in your lungs. However, the Virginia Department of Forensic Science and the company that owns the EC/IR II have arbitrarily decided if you blow 1500 cubic centimeters of air, you’re cooperating and doing it right. If you blow 1499 cubic centimeters of air, you are refusing.

How Can A Drunk Driving Lawyer In Northern VA Help?

The attorney that you choose to represent you needs to get a hold of the calibration documents and the results of your breath test, not just the sheet that they issue. Your lawyer should do either a Freedom of Information Act request or a subpoena duces tecum to the Department of Forensic Science for all the information about these breath tests.

What you will see is that very often the person who’s accused of a refusal has produced 1350 ccs of air or 1425 ccs of air. They are not attempting to evade the law. That’s just all the air they could force out.

There are lots of other great pieces of information that you can get from that subpoena, or from that FOIA request. Make sure to ask your attorney to do this, especially if they are not going to do it.