How Easy Is It For Police To Hit The Refusal Button?

Interviewer: How often do you see someone marked as refusing?

Shannon: I see that fairly often. There is another situation similar to what we just talked about. The person is really just trying to get clarification on what their best situation would be, or what their options are. They are asking a lot of questions.

The officers are tired of answering their questions. They see them as being annoying at that point. So they hit refusal. There are some officers who hit refusal on the machine as soon as you make further inquiries beyond what was read in the implied consent paperwork.

Interviewer: Is there literally a button to push on the machine that says refusal?

Shannon: Yes; the police officer can enter refusal.

Interviewer: Is a refusal written in paperwork?

Shannon: It is both. They have the Intoxilyzer machine. It runs through everything the officer is supposed to do. They are trained how to operate it. Simultaneously, they have in front of them the implied consent paperwork. They are doing both at the same time.

Interviewer: Regarding the false refusals you have seen, what is the most common reason police say it was put down that way?

Shannon: The most common reason is the officer just blew through the implied consent checklist. The person did not really understand what was being read or asked of them. They are handed the actual paperwork to read and sign. Then, they realize you could be suspended for up to a year for refusing.

The person says, “I did not know this is what it meant. When you were reading, you went so fast. I would like to consent to a breath test. I was confused.” Even at that point, the officers are not going to turn the machine on again and allow you to take the test. According to the officer, it is going to be a refusal.

Interviewer: What are other scenarios of refusals entered, although people did not mean to refuse?

Shannon: Like I said before, someone is asking additional questions beyond what is written on the Implied Consent Checklist because they are trying to get clarifying information. The officer can hit refusal just because they are taking too long to say yes or no.

Interviewer: How about if someone is crying and cannot stop hyperventilating?

Shannon: It would not surprise me if an officer entered a refusal in that case.

Interviewer: What if someone is blowing and they have asthma? What if they hyperventilate and cannot blow the volume of air required for the machine to get a sample? Have you seen those kinds of cases?

Shannon: It is a possibility. If the person is physically unable to perform the test, the officer might view it as them trying to purposely sabotage the test. They say this person is not cooperating.

However, there is a good argument there is a physical limitation or medical reason for that person being physically unable to provide a sample. That is a great point. That would be a good argument against actual refusal.

Interviewer: How often do you see physical and medical reasons for the refusal versus the person not understanding what they were read?

Shannon: Physical and medical reasons are rare. They are more common with older people who have respiratory issues. They increase as people age. In my experience, most refusals occur when people are looking for further clarification. They do not really understand what is read to them. Therefore, they say, “I do not want to take it.”

When things become clear in their mind, they realize they made a mistake. They want to change their answer. They want to say, “I consent.” However, it is too late at that point. That is the most common one for refusal.

Shannon I. Wilson, Esq.

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