During a Kansas DUI investigation, the arresting police officer is going to request that you take a breath test. If during the test you “refuse” to take the test, your refusal will be used as evidence against you at trial. Additionally, the refusal leads to at least a one year suspension of your driver license under the administrative regulations.
But what if you tried to take the test, but simply could not breath hard enough or long enough? Law enforcement will still deem it a refusal. However, you can potentially defend against this allegation if you have Chronic Obstructive Pulmonary Disorder, known as COPD. You may not even know you have COPD as 50% of Americans are unaware when they have it. About 30 million Americans have COPD. COPD is what it is called when a person has one of the various lung diseases that inhibit breathing, such as asthma, chronic bronchitis and emphysema. COPD can prevent you from being able to breath hard enough to register a valid breath sample when taking a breath test due to the limitations of airflow. Breath testing machines like the Intoxilyzer 9000 or Intoxilyzer 8000 won’t be able to diagnose you with COPD, but if you couldn’t provide enough breath to register a result, that could be a symptom or sign that you do have COPD.
Some of the symptoms include chest tightness, wheezing, frequent coughing, and difficulty breathing. To determine the extent of the COPD and ability to breath, there are different tests one can take, such as an FEV1 test. A persons accused of refusing, even though they genuinely tried, should take a spirometry test from a respiratory specialist. If a person has an FEV1 (Forced Expiratory Volume) below 2.3, then they are physically incapable of producing enough air to take a breath test. To get a full reading on most breath testing machines, you must be able to exhale consistently for 5-6 seconds, forcefully enough, and also produce somewhere between 1.1 and 1.5 litres of breath. It should be noted, that even if you can breath long enough, it doesn’t mean that you can also breath with enough force, and vice versa. If you are dealing with a DUI charge and allegedly refused to take the test even though you tried to take it, speak with your criminal defense attorney about your potential defenses.
In case you were wondering, if you have COPD, and blow over the limit, there is currently no evidence that COPD will result in elevated levels of BrAC (Breath Alcohol Concentration). So, having COPD may not be a defense for your DUI defense lawyer to utilize if you were able to register a breath test result and it was over the limit.