Breathe test

[sarahburgess]

I have been charged with failure to provide a breath test but I didn't fail I couldn't due to my asthma and the next day went to the doctors and my peak flow was 180, who can i see to prove I really couldn't provide the sample?

[andyrrc]

I think you need to speak with your lawyer. I am not really up on law but I do know that failure to give a breath test is likely to be more harsh. I really would speak to the lawyer with a letter explaining the issue clearly. If you are not using a lawyer then you need to get as much medical evidence together to show to the court. I know it does work and I sympathise with you. Police quite often cannot tell the real sufferers from the scam artists that try it on. I don't think they get much training I this aspect either

[sarahburgess in reply to andyrrc]

I do have a lawyer and we have seen the CCTV which shows I tried my hardest, waiting to hear if a specialist can help

[andyrrc in reply to sarahburgess]

I hope it all works out well for

[stone-UK]

Hi

Interesting read for you and your legal team.

mphlastala.com/Breath.pdf

[y_not in reply to stone-UK]

Interesting read - thank you

[stone-UK]

Hi

Extra point.

If it was the road side test, they could have conducted a “ field impairment test”

If it was the police station test, they could have opted for a blood sample.

[sarahburgess in reply to stone-UK]

I asked for a blood test but they said the breath test is callibrated and very effective, it's the police mans discretion if they offer a blood test...very unfair

[hypercat54]

Hi I am confused on this coz I thought if you couldn't do the breath test they automatically did a blood test instead. Why didn't they do this? I am sure you are not the only person who couldn't do the breath test for whatever reason.

[2greys in reply to hypercat54]

That is my understanding too.

[hypercat54 in reply to 2greys]

I think if the policeman decided not to do the blood test then he is liable for not getting proof and I think it will be seen that way. x

[2greys in reply to hypercat54]

"Evidential Alcohol Breath Testing

Once a person has been arrested for an alcohol related motoring offence, the police will require that person to provide two evidential specimens of breath for analysis by means of an evidential breath testing device type approved by the Secretary of State OR to provide a specimen of blood or urine for a laboratory test.

The type of evidential specimen that is required whether it be breath, blood or urine will depend upon the circumstances. However, it will usually be an evidential breath specimen that will be required, unless certain circumstances apply.

~~~~~~~~~~~~~~ And~~~~~~~~~~~~

If a suspect refuses to provide a specimen of breath after this final warning, the police officer will ask if there are any medical reasons why they cannot or should not provide two specimens of breath as required."

drinkdriving.org/police_bre...

Clearly the police have violated their own procedures if the original post is accurate and correct.

[sarahburgess in reply to hypercat54]

It is up to the policeman’s discretion, he said I sucked on the breath test and then didn’t blow hard enough, I was blowing to the best of my ability but it wasn’t strong enough, I tried to get my breath back but they make you do the next one so quickly that I couldn’t. I did request a blood test they said no, I also said the reason I couldn’t do it was asthma. My solicitor thinks they didn’t get me to do the blood test as it takes a few hours and I would have passed it as I’d only had one glass of wine.

[hypercat54 in reply to sarahburgess]

I should imagine any judge would say that if the policeman knew you had asthma then he was out of order not doing a blood test instead. I think s/he would question the policemans decision and this would go in your favour. x

[Sandyeggo]

Hi, yeah I know how ya feel a few years back when my mitral valve was failing an I couldn’t breath I told the cardiologist and he said” you wouldn’t be talking if you couldn’t breath” my reply... bleep bleep bleeeeping bleep! Whoever ordered the tests is the only one it needs to be discussed with. Maybe I shouldn’t say that if you are from a different place than myself but that’s how it works in the USA. Take care and relax don’t get yourself stressed out I find it makes daily breathing even harder.

[Sandyeggo]

Oh I’m sorry I misunderstood-you’re talking about cops. I’m so sorry I can’t help laughing b/cuz I’ve had a major stroke(many years ago) and those guys wanted me to put my “hands up” during an ordeal and I yelled across the street”I wish I could” then Officer A Hole demanded I walk a straight line( again I wish) but I laughed so hard I peed my pants. Surely your PCP or one of your docs has to be cool enough to vouch for you?

[Tugun]

Hi,

I wouldn't worry too much. The doctor's report should hopefully be enough. Have you asked the doctor to provide a written statement stating your illness, lung capacity on the day after etc. Your lawyer should be able to let you know the details. Sometimes doctors haven't had a lot of experience with the ins and outs of certain organisations and their requirements so a letter from your lawyer detailing what is required in the statement would prove helpful. Your lawyer would be able to let you know if there is someone to see at the police station. I know it's hard but don't let it worry you. I once couldn't breathe hard enough for the breathalyzer but I was lucky enough that the policeman let me go. I only found out later that he could have demanded a blood test. Wishing you all the best.

[Timberman]

From my court experience (bit dated now) the police had little choice since they requested the test and for whatever reason you failed. Your solicitor should be able to explain how you can prove this in court - the CCTV will be critical and a court experienced medical expert will be vital. The court should find that you did follow the procedure and either clear you or give you an absolute discharge with no penalty. However the police could have proceeded against you under the old drink driving laws if you had been 'legless' as it were. The fact they did not suggests your situation was marginal anyway. You should also provide evidence that you are not in the habit of driving over the limit - friends of good standing may be called in aid.

But discuss with your solicitor and if you are not sure they are up to it change solicitor fast. Good question is Have you done this before?

[santisuk in reply to Timberman]

Sarah said she failed to provide a breath test Timberman. Your reply seems to imply* she said she provided a breath test but failed the test.

Good point though about any prior record needing to be considered (whatever the situation re testing)

*first sentence plus "your situation was marginal"

[santisuk in reply to santisuk]

Wrong of me above - looks like she provided a test that either was ruled not sufficient (and therefore a failure) or showed over the limit. Unclear but an important distinction.

Although still not clear what she meant my bad for jumping to a conclusion. Apologies Timberman!

[sarahburgess in reply to Timberman]

I wasn’t legless, I am also on medication for depression so I don’t usually even have one drink. The police officer wasn’t friendly at all and I feel just lumped me in a category of a drunk driver, this whole situation has had a very detrimental effect on my health. I do have a character reference and a work reference.

[Timberman]

No problem - if you were confused I have to be to blame; I am the one what writ it!