Posted February 25, 2017
Can lung disease make it difficult to blow into an ASD?
The answer is undoubtedly yes. But it may not be easy to prove that to an IRP adjudicator.
In a recent judicial review of a Refusal IRP, a driver said she suffers from lung disease and provided statements from her doctor and a friend in support of her assertion. She said she was trying to provide a breath sample into an Alco-sensor FST at the roadside, but was unable because of her lung disease.
The police officer gave her several opportunities to provide a sample over about 9 minutes, and he gave a detailed description of the pattern of blowing and status messages generated by the ASD device. But when she was unable to provide the sample, he also gave her a Refusal IRP.
At the IRP review hearing, the driver said her lung disease prevented her from providing the sample and that she was having difficulty breathing while attempting to blow. Unfortunately, the police officer didn’t recognize her difficulty, and she never told the officer she had lung disease. Failure to mention the disease became an issue for the IRP adjudicator who wrote:
It makes sense to me that if you were intending and genuinely trying to provide a breath sample but a medical condition was impeding your ability, that you would advise the officer of such at the time. …
Her lawyer argued that the officer should have asked her about any medical conditions that could prevent her from blowing hard enough for the ASD. But the adjudicator said there is no requirement for police officers to ask about medical conditions. While this may be true, it would certainly help in determining the correct cause for the failure of the ASD to collect the breath sample by eliminating all other possible causes. Samples may not be provided for many reasons including:
1. deliberately not blowing hard enough.
2. a blocked mouthpiece.
3. a malfunctioning device.
4. a driver with a condition that limits their ability to blow hard enough.
So when the ASD doesn’t take a sample, even when a driver is blowing only a little, it would be a very good practice for ASD operators to rule out other causes by checking and replacing the mouthpiece, checking the ASD, and asking about conditions that might limit lung function.
In this case, the driver submitted a letter from her doctor describing her lung disease:
I am writing to advise you that she has a diagnosis of COPD. As a result, she is frequently short of breath and has been more so as of late. It is my understanding that she, after several attempts with a breathalyzer, was unable to provide enough air sample for a sufficient test. It is my opinion that her medical condition would preclude her from being able to provide an adequate sample in this regard as she would not have enough air to blow up a balloon.
The adjudicator responded:
I acknowledge the letter from (your doctor) regarding your COPD; however, I note that he speaks to your ability to “blow up a balloon”, not your ability to provide a breath sample into an ASD and there is no evidence before me that these require the same capacity of breath or that he is aware of the volume of air required to produce a suitable breath sample on the Alco-sensor FST.
The evidence fell short of what was required because medical doctors don’t know how ASDs work, or how much breath flow is needed.
It would have been helpful to consult a forensic alcohol expert . We can give the evidence on how much breath flow is required by the ASDs, and we can quote the scientific papers which show that people with diminished lung function are often unable to provide ASD (or breathalyzer) samples.
That kind of forensic alcohol evidence could have made all the difference in this case.