Asthma patients?

Pray that you will not be arrested ...

Asthma patients or those with difficulty breathing who are required to be examined for an owl may find themselves in a difficult legal complication, when the police officer on the ground considers their inability to exhale as required as a deliberate failure.

Adv. Eliran Blutman

14/04/2022

Thursday, 14 April 2022, 11:55 Updated: 12:40

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Drunk driving is a life-threatening offense, and as such the Israeli police enforce it in all seriousness, giving priority over enforcing other offenses and routing significant manpower.

The problem is that in quite a few cases, when it comes to drivers with asthma or those who have difficulty exhaling due to another medical problem, enforcement is done arbitrarily, without discretion, and while depriving them of their basic rights.

In order to enforce the rental offense, the police use the "owl" device, which is designed to measure the amount of alcohol vapor that the subject exhales from the depths of his lungs into the measuring units in the device.

The device is designed to test the specimens exhaled by the test by various techniques and technologies, and after the results are processed by the device's algorithm, they are translated into visual output - on a monitor, as well as paper output.

The device is programmed so that an exhalation of 1.5 liters of air is required in five seconds, so that in any case where the exhalation is not strong enough - the test fails.

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Adv. Eliran Blutman (Photo: PR)

In the case of asthmatic drivers or those with another lung disease that makes it difficult for them to exhale sufficiently, the device indicates a failure of the test, which creates a difficult problem for those drivers.

why?

Because in many cases, the police see this as a deliberate failure.

The significance of the matter is acute since in such a case, refusing to inspect an owl is tantamount to committing an offense of drunk driving, which almost automatically entails revocation of a license for a period of 30 days, return of vehicles for a similar period and summons.

If the driver is convicted, the court will disqualify him from driving for no less than two years.

As a result, reality shows that in countless cases, asthmatic drivers who stop for a drunkenness test and have difficulty exhaling, find themselves facing a serious problem: the police officer does not make a distinction between a deliberate failure to refuse to be tested and a situation where the test failed Every year, quite a few indictments are filed in such circumstances, which leads quite a few drivers to legal action and the need to fund legal protection, for no injustice on their part.

Trailed to a body of evidence in court for no real reason (Photo: Israel Police Spokeswoman)

The injustice is exacerbated by another fact: Police procedures stipulate that a police officer may require a custom to perform a blood test in a case where the owl test was not performed due to a medical problem or even malicious failure of a subject.

Despite this, in many cases, the police do not act as directed and do not exercise discretion as to whether to take the driver for a blood test and do not inform the driver about this possibility, but act arbitrarily, without addressing the medical problem and prescribing him.

In doing so, in effect, the driver is deprived of the opportunity to prove his innocence.

Equally serious is the situation where asthmatic drivers, who are aware of the exhalation problem, offer on their own initiative to a police officer to perform a blood test instead of a breath test, however this request is not accepted.

The police claim that the driver is not given the right to choose which test will be performed on him.

Also, more than once, in order to prove their righteousness in court and provide conclusive evidence of the causal link between the medical problem and the failure of the test, they are forced to turn to specialist doctors and pay thousands of shekels for an opinion.

This, of course, is in addition to the lawyer's fee and the large amount of time invested in appearing in court and managing the case.

Along with uncompromising enforcement against drunk driving, the Israel Police must stop harassing asthma patients and drivers who suffer from other pulmonary failure.

Accordingly, in a case where a driver is arrested for a drunkenness test and he informs the police officer of a breathing problem that obscures its performance, his right to be tested for blood should be emphasized to him.

True, performing such an examination, involves considerable inconvenience to the police officer however it contrasts with the torture and the heavy legal consequences involved in filing an indictment against the driver, for no wrongdoing.

In order to regulate this, the traffic department must issue a designated procedure and it is not enough to leave the discretion to the police officer on the ground.

Following the column, we contacted the police in order to get a response to the issue, asking them to find out if there is a solution or special procedures in the case of a breath patient examination?

And whether the officers are instructed to act accordingly in such a case.

police officers act in accordance with the law and carry out enforcement activities against the offense of drunk driving and in accordance with section 64B of the Traffic Ordinance.

According to the law, a police officer can demand a custom to give a blood sample if there is a suspicion that he is involved in a car accident or that there is a suspicion of committing an offense (s. 64b (b) of the Traffic Ordinance).

In any case of refusal, the failure of the test or the inability of the suspect to perform the test the circumstances of the case are recorded.

It is important to note that even if a driver is summoned to court and as long as he raises allegations before the police prosecution, they will be thoroughly investigated.

We emphasize that drunk driving and driving under the influence of alcohol constitute life-threatening offenses, disregard for the provisions of the law and human life, and significantly increase the risk to road users and involvement in a fatal accident.

• vehicle

• Law and insurance

Tags

• Israel Police

• drunkenness

• owl

• Owl test

• asthma