The Western District Court of Appeals has issued an opinion adding clarification as to what constitutes a refusal of a breathalyzer. In this case, Rader vs. DOR, WD78880, Rader agreed to take the breath test. Pursuant to trial court testimony, Rader blocked the mouthpiece of the instrument with his upper lip when he first attempted to blow. This resulted in the machine indicating that it was an insufficient sample. He was informed of this issue, but continued to place his lip over the mouthpiece on subsequent attempts also resulting in insufficient sample readings. Then, according to testimony, he indicated he wasn’t going to blow again and sat down. The Officer then noted it as a refusal to submit to a breath test.

The Appellate Court indicates that “the issue of whether a driver has refused to submit to a chemical analysis test is a question of fact to be decided by the trial court.” The Court further states: “A driver’s failure to follow instructions about the manner in which to blow into a breath analysis machine is sufficient evidence for a finder of fact to find a volitional failure to submit to a chemical analysis test as required by law.” The Court follows previous case law holding that even though an “attempt” is made, if the driver fails to follow instructions it can be deemed a refusal.