Insufficient Breath Sample

Gary S Bernstein

Some people just cannot provide a sufficient deep lung air sample for the Intoximeter EC/IR.  Reason?  How about asthma and sinus issues.  How about the police won’t give the client her inhaler so that she can try to provide a sufficient sample.  How about at the MVA Hearing in Harford County the ALJ agreed that it was not the client’s fault and took no action.  Great result.  Trial is in 2 weeks and I am going to argue that by denying her the inhaler and the opportunity to give a sample, she is entitled to an inference that a test result would have been favorable to her.  Depends on the judge as to how much weight this is given.  Also have lots of other good issues even though it is an accident case.  Win or lose I will try to post the outcome on at least this issue.