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Reasons for Refusing Breath Tests

“But I didn’t refuse to take the breath test! I tried to take it, but the officer said that I didn’t comply with his instructions.”

This, sadly, is a scenario that New Jersey attorneys who focus on Driving While Intoxicated cases commonly hear.

Maybe the police officer who arrested you just didn’t think that you were giving a good enough try each time that you blew into the breath testing machine, so he or she simply marked it down as a refusal. And now you’re facing a refusal charge on top of a driving under the influence charge.

When working with these kinds of cases, DUI lawyers will work to prove that you made a legitimate effort to provide a breath sample. In some cases, a police officer can be quick to jump to the wrong conclusion, even if you are really trying your best to cooperate. Maybe you were physically incapable of providing the sample due to a limitation such as asthma. Or maybe the police officer did not properly operate the Alcotest 7110 breath testing device.

What Are Some Reasons Why People Try to Take the Breath Test and Fail?

Lung capacity is the main reason.

If you have problems with your lungs, whether related to smoking, cancer, or another type of physical disability, it can result in your being unable to provide an adequate amount of air when you are blowing into the breath testing machine.

Here are just a few examples of situations that can arise.

Chronic Obstructive Pulmonary Disorder (COPD)

Chronic Obstructive Pulmonary Disorder, or COPD, is one such disease. It is the most common reason that people have trouble with the breath test.

Many people who suffer from the disorder eventually require the use of an oxygen tank every day, because they have such difficulty breathing in and out air. Someone who suffered from this serious issue may not have been able to provide the necessary volume of air that the breath machine required for results.

Just how much air do you have to provide? It’s different for different breath testing machines. In New Jersey, the Alcotest 7110 requires a minimum of 1.5 liters of air.

Here’s the good news: you can fight this charge of refusal by getting medical records and expert reports. A pulmonologist (lung doctor) can test someone who has COPD to find out what is the maximum volume of air that he or she can expel. You can use this data to show that you were not refusing; you were simply physically unable to comply with the request.


Getting arrested for driving while intoxicated (DWI) can be a very stressful and traumatic situation. In some cases, the person being arrested will become so upset or anxious that he or she hyperventilates. This can get in the way of being able to breathe properly, which can mean that a proper sample is unable to be obtained.


If you suffer from asthma, you may have trouble breathing properly. This can be further exacerbated if you’re asked to provide samples multiple times. For example, if you’re asking to provide 11 different breath samples, you may be totally winded and fatigued by the 7th or 8th. The repetitive act of deep breathing can cause lung inflammation, making it hard for you to comply with the requirements of the breath test machine.

What If You Don’t Have a Physical Limitation?

Do you just feel like the police officer jumped the gun by assuming you were refusing and ending the test before you really had a chance to provide an adequate sample? This is a frequent issue that people confront when they believe they’ve been falsely charged with refusal to submit to a breath test (N.J.S.A. 39:4-50.4a or 39:4-50.2).

Since there are no standard guidelines for how to handle the situation, it is very subjective. It’s simply the officer’s opinion: did you refuse or not? This decision can be called into question by a good DUI attorney who is armed with knowledge of your case.