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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 91961
Experience:  Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
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Is it legal for a police office to tap on the breathalyzer

Resolved Question:

Is it legal for a police office to tap on the breathalyzer machine after you have blowed in it? I took a test, then the office started tapping on the machine after I blowed. He then put refusal on my ticket, even though I blowed. I also asked for a blood test and the officer refused to do that. I'm trying to find out if it's legal for the officer to do the things he done.
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

Please explain what the officer did in detail when you say "tap on the breathalyzer machine after you have blowed in it" What did he "tap on." Describe exactly what happened on the test.

When you were blowing was there a continuous beeping noise and did you blow until the beeping stopped or the officer told you to stop blowing? Was the beeping noise on and off or continuous?
Customer: replied 1 year ago.

I blew until the office told me to stop blowing. Then he started tapping on the machine. I then asked him to let me see what I blowed and he refused to show me. He asked me to blow again, but I wouldn't because he had been messing with the machine. I then asked for a blood test and the officer refused to do that. My ticket says that I refused the test, but I didn't.

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

You say you were blowing until the officer told you to stop, was the machine making a continuous tone when you were blowing or was it beeping on and off or was it not beeping at all?

I am asking because in addition to being a licensed attorney, I am also a certified breathalyzer operator and field sobriety expert and these instruments operate in a very specific way and in order for me to try to give some insight on what you can argue I need to know specifically what happened in the testing process.
Customer: replied 1 year ago.

I blew for about 15 seconds, then it beeped and the police told me to stop then. No other field sobriety tests were performed.

Customer: replied 1 year ago.

I blew for about 15 seconds, then it beeped and the officer told me to stop.

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

While you are not giving me the in depth details I was asking for and you are supplying limited information, if you do not want to provide more (which you can do by clicking on reply to my answer), I will give you the general way the instrument works and it works this way by computer program which no operator can interfere with by tapping on the instrument or doing anything else, including unplugging the instrument, as the instrument gives out a computer printout on what happens on each and every test. Tapping on the machine cannot change a test result. Also, there is no law saying the officer cannot tap on the machine or that the officer has to show you the results, the results have to be submitted to the court as part of the arrest paperwork.

If you "blew for about 15 seconds" and the instrument was not making a continuous tone sound while you were blowing, then you were improperly blowing into the instrument and the instrument will printout a result stating "Insufficient Sample." In order for someone to be blowing properly, they have to blow hard enough for the instrument to make a continuous tone and they stop only when told to do so by the operator. If the instrument is making a on and off beeping tone or no tone at all when someone is blowing, this is an insufficient sample caused by the test subject not blowing right in the tube. Failure to blow properly into the tube is considered a "refused test" and will be accompanied by a computer printout from the instrument saying "Insufficient Sample" or "refused test."

A defendant is not entitled to more than one test or opportunity to blow into the instrument and it is up to the law enforcement agency as to what type of test (breath or blood) that they will administer pursuant to the GA Implied Consent Law (the law everyone with a driver's license agrees to abide by and comply with simply by agreeing to get a driver's license). Thus, if you did not blow properly into the instrument, the officer can consider that a refusal and does not have to offer the defendant any further test. You must read your paperwork from your arrest and you MUST file for a driver's license administrative hearing within the time specified on your paperwork, because failure to do so means you cannot later try to obtain any restricted or limited license during your suspension time (this is separate from your criminal charge and you must do both, the administrative and criminal portion of the DWI suspensions).

Now, onto your DWI arrest. In order for an officer to arrest someone for DWI they must have probable cause in every aspect. First, they must have probable cause to stop you, which means an accident or some traffic violation observed by the officer. Second, they must have probable cause to decide you should be taken for a breath test, which means a strong odor of alcoholic beverage on you, slurred speech, unsteady balance etc, your appearance in general. This can also be developed by giving you a field sobriety test unless the officer believed and can articulate why giving you a filed sobriety test was not proper (you appeared to intoxicated or traffic conditions made it too dangerous). If the officer did not have and articulate probable cause for your stop and for taking you for a breath test, these are both grounds that a DWI case can be attacked. Also, if there are no test results submitted with your arrest paperwork (including one that says "insufficient sample" or "refused" or anything else), then this is another ground to seek dismissal on the basis no test was offered or given as they would have no proof a test was given and you blew improperly or whatever happened with your test.



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Customer: replied 1 year ago.

I don't understand this. I did what the officer asked me to do. I blew until he told me to stop. I was never advised that I wasn't blowing properly or that I was doing it wrong. He also asked the other officer that was with him should I get him to blow again.

Customer: replied 1 year ago.

What grounds do I have based on what I have told you. All the information I have given you, is everything that took place.

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

You have given me, as I said above, very limited and little detail about what occurred and all I can base my response on are the facts you have given me.

Based on what you said, it sounds like your grounds are that they did not properly administer the test to you and that would be your basis to challenge the test being a refusal. The court is going to make you get an attorney to represent you on the criminal case (not the administrative case, so again, do not forget to file for your driver's license revocation hearing with DMV) and your attorney will request any video tapes to try to support your statement that he asked the other officer about getting you to blow again. Also, they will get the printout from the instrument to see what that says happened on your test.
Customer: replied 1 year ago.

So you feel like I have a good reason to argue this case?

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

Without having been there and with me only having very limited facts you have provided, all I can tell you is that based on what you said it is something that you certainly need to explore as a potential defense. I cannot tell you if it is a "good reason" because I cannot see any of the documents and evidence I would need to tell you that and I have very limited information from you, but I have given you the all of and the best information I can based on the information you have given me regarding your case.
Law Educator, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 91961
Experience: Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
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