Breath test must be correctly administered before inadequate sample considered refusal.

Topic: DUI, Decided by: Judge Kennedy 
Docket Number: 927508 , Decision Date: June 17, 2009 
Attachment: Click here to download the decision. 

The Department of Drivers’ Services did not satisfy its burden of proof because it failed to submit any evidence demonstrating that the state-administered breath test was properly given. Thus, the burden could not shift to the driver to demonstrate her inadequate breath sample was due to a physical impairment, although such a breath sample might constitute a refusal to take the state-administer test under appropriate circumstances.

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