DWI Defense
Police administered roadside breath testing
Q. Is it a refusal or is the driver unable to complete the test because of impaired respiratory physiology or the impact of one of many medical disorders?
A. In 2005 the State of New Jersey introduced the ALCOTTEST MK breath testing apparatus for testing of drivers thought to be driving while intoxicated. This new testing equipment was a major change from the older breathalyzer equipment. An inability to actuate a breath testing device had always been considered a “refusal” and carried with it a stiffer sentence.
However, with the introduction of ALCOTEST the volume and duration of exhalation make it physiologically impossible for certain individuals to trigger the device. For those with asthma, COPD, Lung Fibrosis or hundreds of other respiratory, cardiac and other medical disorders, it is impossible to perform these tests. Once these medical conditions are documented and presented by a credible expert report, the courts frequently modify duration of suspension, or they may contribute to dismissal of charges.
Medical disorders and their impact
There are numerous medical conditions that may give the appearance of intoxication to the arresting officer, who may have limited awareness of these factors. Some of these include:
• Undiagnosed/untreated sleep disorders such as Sleep Apnea
• Narcolepsy and numerous other sleep disorders
• Residual effects of physician prescribed sleeping medication from the night before
• Sleepiness while driving may result in erratic driving and be misinterpreted as intoxication
The aforementioned may result in traffic stops and arrests. In addition, roadside sobriety tests may be inaccurate and misleading to the arresting officer. These tests are known to be invalid in those over 65, according to the National Highway Traffic Safety Administration (NHTSA) Guidelines, and are of questionable value in those with many other medical problems such as diabetes, peripheral neuropathy, many neurologic disorders such as Parkinson’s disease and numerous other disorders that give a similar impression to the casual observer. Furthermore, many with minor obesity may be unable to perform these accurately – day or night.
Because of the many ways these and other factors may affect the outcome of a DWI case, it is essential that a detailed medial history be taken in the assessment of each new DWI case. If need be, the history should be discussed with a medical expert experienced in such matters.