- May 20, 2018 |
- Category: DUI Testing
According to the American Lung Association, Chronic Obstructive Pulmonary Disease, commonly referred to as COPD, which includes chronic bronchitis and emphysema, is a chronic lung disease that makes it difficult to breathe. According to the World Health Organization, the condition affects 65 million people worldwide. Interestingly, COPD affected one Canadian woman in an unexpected way – it caused her to fail a breath test in a DUI case.
Connie McLean, a 64-year-old Canadian woman, suffers from COPD. McLean reports that she has substantial difficulty completing basic household chores and yard work, like carrying firewood and shoveling her driveway. “When I’m carrying in wood, I can only carry in a couple sticks at a time and I usually have to stop and get some air before I go and get some more,” she said last week. “And shoveling is even worse.”
In March of 2018, McLean was pulled over by local law enforcement. Upon questioning by the investigating officer, McLean reported that she consumed a single beer earlier in the afternoon. At that point, the officer produced a roadside portable breath testing device and asked her to submit a breath sample in an effort to ascertain her blood alcohol content. Predictably, as a result of her COPD, McLean could not blow into the device hard enough to provide an adequate sample. “I tried several times, but due to COPD and mucous in my airway I wasn’t successful,” she said. “And he just almost hollered, ‘You’re not trying, you’re under arrest and you’re going to jail.’”
Unbelievably, McLean was charged with refusing the breath test, which resulted in her vehicle being impounded for thirty days and her driver’s license being suspended for ninety days. “It makes perfect sense to us that if you have severe COPD that it would be impossible to exhale for any length of time,” said Henry Roberts, a member of a non-profit agency called COPD Canada. “I would hope the police would show some compassion to people who have difficulty breathing.”
McLean’s situation is not all that unusual in Canada or the United States. As an Ohio DUI lawyer, I’ve represented a number of DUI clients over the years who tell me they tried to blow into the breath testing device, however, they were unable to produce an adequate sample because of a health condition. The breath testing devices currently approved for use in Ohio (BAC Datamaster, Intoxilyzer 5000, and Intoxilyzer 8000) all require deep lung air, known as alveolar air. If a person cannot submit a sample of deep lung air, it’s likely the investigating officer will simply claim the person refused the test and automatically suspend the person’s Ohio driver license.
Fortunately, there are remedies for an Ohio DUI suspect in this situation. The individual, through his DUI lawyer, should immediately file an ALS appeal with the local municipal court handling the DUI charges. Presented with adequate evidence, I find that most Ohio courts are sympathetic to my clients in these types of situations. The key is challenging the suspension quickly at the beginning of the case and gathering credible evidence of the client’s health condition.
