Avoid DWI with the old ‘one lung’ trick?

While this little story comes to us from outside our Dutchess County area, it was too good not to bring to your attention. A couple weeks ago a Brooklyn man seems to have avoided drunk driving charges by claiming he only had one lung. Without enough lung capacity, police were unable to obtain a blood alcohol content reading on their breathalyzer. Police tried to administer the test repeatedly during the arrest, but none produced complete or positive results.

The driver was also asked to perform field sobriety tests. He was eventually charged with DWI, delaying/obstructing traffic, unclear plates, failure to wear a seatbelt, careless driving, refusal to submit to a breath test and failure to exhibit a driver’s license. He was arrested and taken to the police station, but eventually remanded to the custody of his girlfriend.

Here’s what happened: police happened upon the 25-year-old driver in his vehicle at a parking authority lot where he reportedly stopped to pick up his brother. Upon talking to the driver, the officer became suspicious and asked the driver if he had been drinking. The man said no.

The officer reported that he observed the usual tell-tale signs and smell of alcohol including watery, droopy and bloodshot eyes. When he asked the man to submit to a breath test the man attempted to do so four times. When none of the results were conclusive, the man told the officer that he only had one lung and could not produce enough sustained breath to register a reading on the machine.

At the police station the man attempted a fifth time to produce enough air for the breath sample. He was only able to give three quick puffs and again reiterated that he only had one lung.

This driver followed New York law by submitting to the test, but the tests were inconclusive. Had he refused to take the test his license would have automatically been suspended.

Source: morristown.patch.com, “Cops: Drunk Driver Said He Had One Lung,” John Dunphy, May 11, 2012

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Glenn R. Bruno, Esq.

New York Defense Lawyer
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