When I tried to blow, skin from my lip would block the tiny little hole on the machine. They had me try a few times and accused me of being numerous things, the least of which being an idiot who couldn't simply blow. After some attempts, they said they were charging me with refusal and I offered blood or urine. They pretty much told me to take a paddle up "you know what" creek. Are blood and urine not viable substitutes that would constitute a non-refusal?
No, the officer may request a breath sample and if you dont provide it, they will deem it a refusal. If you have a prior refusal that can be charged as a misdemeanor. You have 10 days from the arrest date to challenge the administrative suspension with the dmv. If you were unable to give the sample due to a medical reason, that could be a defense. The Ferraro Law Group handles cases in this jurisdiction.
You need to retain a criminal law attorney, and if possible, one who has represented DUI clients. Every state has different requirements as to what constitutes a refusal & what other types of chemical tests are required to be offered. In California there must be a willful refusal, & that is a determination for the trier of fact to decide. In California you must make an honest attempt to comply with the test demand; otherwise, it can been be deemed an implied refusal. There are often additional penalties for a refusal in addition to the standard DUI penalties. Retain a good DUI attorney immediately - if you can not afford a private attorney request the court to provide a public defender. Move fast, the penalties can be significant.
The fact you tried to blow can be good for your case. Urine tests are typically used in cases where the cops suspect a DUI by use of drugs. Blood tests are used when someone is hospitalized and the breathalizyer is not available. Review my website to see if it answers any questions you may have.
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